Recordings or Reporters? by Jim Pieret

I have been trying cases in Queens County on a regular basis for almost 45 years. In that time I have seen many changes, some good, some not-so-good. This article is about a proposed change that is worse than “not-so-good.” It endangers our ability to properly represent our clients at all stages of litigation.

There is presently a budget-driven movement to replace Official Court Reporters with electronic recording devices. While we all share concerns about the rising cost of government and rising taxes, this is not the way to accomplish savings.

When parties appear in a court of record, it is usually their one opportunity to be heard on matters that can affect their freedom (even if OCA starts with civil proceedings, they will eventually implement electronic recording in criminal matters), their livelihood, their ability to provide future medical care for injuries sustained in an accident, their rights to property, and a host of other issues that impact their daily lives. An accurate record of those proceedings is vital in the event of a re-trial or an appeal.
Electronic recording cannot sort out who is speaking when there is more than one person talking at a time.

Electronic recording cannot ask the Judge, counsel or a witness to repeat something that is unclear, to spell a difficult word (especially important with expert witnesses), or clarify testimony from a witness with poor diction or heavily accented English.
Electronic recording is subject to failure which can result in vital parts of a record being lost forever or in long delays in proceedings while repairs are made.

The transcription of electronic recording is subject to the interpretation of the transcriptionist. In the event of an appeal, that results in counsel being forced to listen to the recording and make changes to the “official” transcript to reflect what was actually said. If the attorneys cannot agree on what was actually said, then the Trial Court or the Appellate Court will have to sort out what was said.

Even with a “playback” function, electronic recording cannot read back portions of testimony, especially where more than one person is speaking at a time. Playback is subject to the individual juror’s interpretation of what the recording says.
Official Court Reporters can do all of the above and more.

Accurate read backs are a vital part of any trial or jury deliberation. Juries ask for read backs when they have differing recollections of what a witness may have said. Electronic recording playbacks may, or may not be clear, and may or may not resolve the issue.

Most litigators have had occasion when the Official Court Reporter essentially stopped the proceedings by indicating that he or she was unable to get a clear record because multiple people were speaking at once. A recording device cannot alert the Court, counsel and the parties that an accurate record is not being taken. That results in an inaccurate or incomplete record without the opportunity to correct it in real time.

Many litigators have had occasion where the Official Court Reporter has told them or told a witness that they are not speaking clearly, or that they are speaking too rapidly for an accurate record. A recording device cannot do that, resulting in an incomplete or inaccurate record without the opportunity to remedy the situation at the time that it is occurring.

As attorneys, it is our particular responsibility to insure that the Courts of the State of New York continue to function as dispensers of justice for all who appear before them. We cannot abdicate that responsibility to The Chief Judge, to the Chief Administrative Judge, or to OCA for budgetary reasons. As members of the Queens County Bar Association, we must let our elected officials know that we are vehemently opposed to the implementation of electronic recording devices in the place of Official Court Reporters.