Guarding the Deposition Record When a Stenographer is Nowhere in Sight

This article is Part 1 of a four-part series.

It has been widely reported that the number of active stenographic court reporters is declining rapidly. Court reporting schools are closing, graduation numbers are dropping and interest in the career is very low. This is all true.

Court reporting firms across the country have begun to schedule digital reporters, the most common alternative when a certified stenographer is not available. Digital reporters use digital audio recording devices to record court proceedings and depositions. Professional digital reporters take electronic notes that are synchronized to the recording, which allows for easy read-backs during the deposition. The synchronized notes also aid in the production of an accurate and timely transcript.

Court reporters have long been the official “keeper of the record.” They are trusted and professional. These individuals are often certified, and all have a formal court reporting education. The idea that this trained professional will not be in the deposition to manage the record is a bit disconcerting to many in the legal profession. It’s understandable. One might wonder if this newfangled method can be trusted?

A little history may help put your mind at ease.

The Federal Judicial Center, the research and education agency of the judicial branch of the U.S. government, conducted an in-depth study on the use of audio recording (tapes) to capture the official record of court proceedings in U.S. district courts. The report, A Comparative Evaluation of Stenographic and Audiotape Methods for United Stated District Court Reporting, was published in July 1983; yes, nearly 40 years ago. The study concluded that:

Given appropriate management and supervision, electronic sound recording can provide an accurate record of United States district court proceedings at reduced costs, without delay or interruption and provide the basis for accurate and timely transcript delivery.

Since 1983, of course, recording technology has advanced dramatically. A large professional community of digital reporters and transcribers has grown to service the rapidly increasing demand in the market. And, as of 2018, the majority of courtrooms and hearing rooms throughout North America operate digital recording systems daily.

So, as the study reported that it would, given appropriate management and supervision, audio recording of legal proceedings works very well.

Recently, the Federal Rules of Civil Procedure were amended to allow for the unrestricted use of electronic recording to capture the official record in a deposition. And, by recently, I mean in 1993!

That’s right: Audio recording has been permitted under the FRCP for more than 25 years. While some states, including California, require notice and stipulation to use non-stenographic methods of recording in depositions, many states have no special requirements, and audio recording has been used successfully for decades.

The American Association of Electronic Reporters and Transcribers (AAERT) was founded in 1994 by a small group of audio reporting and transcription professionals. The founders recognized the need to support electronic court reporting by establishing best practices and certification programs. Today, AAERT offers certification for digital court reporters and transcribers nationwide. A certified electronic reporter, or CER, must demonstrate professional knowledge and skills in the use of modern digital recording technologies, court reporting rules and procedures, legal vocabulary and best practices for annotations and exhibit management. CERs must be a notary public in the state where they practice, ensuring that they can swear in witnesses.

A certified electronic transcriber, or CET, has been tested on proper transcription formatting, general court procedures and practices, legal and medical vocabulary and the operation of modern transcription software.

AAERT certification is recognized and frequently required by state judiciaries and government agencies. Compliance with AAERT standards for ethics, confidentiality and continuing education is required to maintain certification. By selecting AAERT-certified reporters and transcribers, you can be assured that you are working with true professionals.

Certified professionals are expected to abide by AAERT best practices. The AAERT Best Practices Guide provides a comprehensive and review of digital reporting and transcription in the court and deposition environments. The guide establishes the basis for certification preparation and serves as a framework for digital reporters and transcribers and their clients to understand the most efficient and reliable methods for capturing, producing and protecting the record of legal proceedings.

The current market turmoil is certainly not the first time that a traditional service has been disrupted by a new method, and it won’t be the last. The robustness and reliability of digital recording technology are self-evident. You record audio and video every day on your phone, your television and your computer. The legitimate concern with the transition to digital reporting of depositions has related to the person behind the recorder. The good news is that we already have a well-developed professional community with certifications and best practices ready to support you.

Make no mistake: If you have not had a problem scheduling a stenographic court reporter yet, you will. And when that happens, there is a good chance that your court reporting firm will send a digital reporter to cover your deposition. Should you be concerned when that happens? Not if you are scheduling through a reputable firm that hires professional, trained and certified digital reporters and transcribers. You trusted your court reporting firm before and you can trust it now.

But wait: I need a transcript. How do I get that? How long will it take? And how much will it cost?

Rest easy, we will cover that in the next article.

Link to Part 2 – Published 9/10/2019

Steve Townsend is CEO of TheRecordXchange, a web‐based platform for court reporting professionals. He has extensive experience in courtroom and hearing room reporting and transcription. He was CEO of FTR from 1997 to 2007 and CEO of AVTranz from 2008 to 2015. Townsend is a co‐founder of the American Association of Electronic Reporters and Transcribers.