Written by General Counsel Wayne Cohen, and originally published in the Journal of Court Reporting [October 2010]:
If mistakes are made in the record, a case’s outcome may be forever changed. Who knows this better than court reporters? The question is not whether a mistake will be made but rather what can you do to protect yourself before a mistake happens.
Not everyone understands what an arduous job court reporting can be. I recently gave a presentation at a conference for CEOs. Before I spoke, the facilitator introduced me. He started with my bio —commenting on where I attended college and law school, my litigation background, and my professorial duties. Then he went on to say, “Wayne also serves as general counsel for a national court reporting company … you know, those people who type stuff up. The ones who try to take down what you say and use those funky machines to get it all down.”
What could I do but give a hearty laugh. “Type stuff up?” “Try to take down what you say?” Uh, yeah. There’s quite a bit more to the court reporting profession than that! What he should have said was “… you know, those people who have honed their skills so that they can take down 95 percent of what you say without making a mistake.”
Obviously, court reporters play a critical role in litigation. Making a verbatim transcript from the spoken word creates an historical record of the case, and it is that historical record that becomes the basis for justice. Take a moment to elevate yourself to 30,000 feet and think about the work that you actually do. Documenting statements of witnesses as well as judicial proceedings is heavy stuff. If mistakes are made in the record, a case’s outcome —and the life of a corporate or individual litigant — may be forever changed. Let’s face it. Everyone makes mistakes. Yes, everyone. In the words of the late UCLA basketball coach John Wooden, “If you’re not making mistakes, then you’re not doing anything. I’m positive that a doer makes mistakes.”
Who is better to know this than court reporters? After all, it is those mistakes in the world that oftentimes become the basis for litigation. Drivers on the road make mistakes. Physicians make mistakes. Product manufacturers make mistakes. So do court reporters. The question is not whether a mistake will be made, but rather what steps should be taken to protect yourself before a mistake happens.
Before moving on, let’s take a moment and examine what really constitutes a “mistake” for a court reporter. Court reporters are human and are not expected to transcribe at 100 percent accuracy. In fact, no court reporter can transcribe at 100 percent accuracy for a sustained period of time. Even though requirements vary depending on the type of certification, it’s safe to say that a 95 percent accuracy rating will suffice. That means that a high- functioning court reporter will transcribe 95 out of every 100 words correctly. It also means that the same high-functioning court reporter will miss 5 words out of every 100.
Put another way, assuming that most witnesses will talk at 100 to 175 words per minute, even an excellent court reporter can still have several mistakes each minute. Do these errors rise to the level of negligence? It’s hard to say. In the courtroom context, judicial immunity may extend to the court reporter. For example, in Halsey v. Dallas County, a court reporter was sued for creating an inaccurate and unreliable transcript. Ultimately, the court held that the court reporter was entitled to summary judgment as a matter of law based on the doctrine of judicial immunity. Obviously, laws differ from state to state, and what applies in the judicial context for a criminal case probably does not apply in the civil context. The question then arises as to what exactly would be acceptable errors and what would be negligence for a court reporter transcribing a deposition.
Some mistakes in transcripts probably would not provide grounds for a claim. Well, it’s not to say that the mistakes don’t matter; rather, it’s just to say they don’t matter enough. If a witness to an accident testifies that she “saw the plaintiff drinking a Coke right before the accident,” but the court reporter takes down that she “saw the plaintiff drinking a Coca-Cola right before the accident,” odds are that this won’t matter. No one is going to raise any Cain over the fact that the witness said Coke but the court reporter transcribed Coca-Cola. The mistake is not relevant to any issue. On the other hand, if the court reporter took down that the witness said she “saw the plaintiff look down while drinking a Coke right before the accident,” then the mistake could be substantial and have a major impact on the case. Clearly, some mistakes matter more than others.
In order for a plaintiff to successfully litigate a claim against a court reporter, the plaintiff would have to establish two things: first, that the court reporter departed from the standard of care; and second, that the departure from the standard of care caused some sort of damage. Departing from the standard of care means that the court reporter’s mistakes went above and beyond what is acceptable. Virtually every industry has certain “standards” by which conduct is governed. Whether we’re talking about a pilot or a pediatrician, there are standards of care in place. Court reporting is no different.
NCRA promulgates standards for accuracy. For example, in order to currently become a RPR, NCRA requires that you be able to maintain 95 percent accuracy. Some states have their own certification requirements that may or may not mirror those of the NCRA. For argument’s sake, let’s say that a court determines that the standard for a court reporter is 95 percent. Then if you maintained that accuracy, the plaintiff’s claim would fail.
But the requirements don’t stop there. Even if a plaintiff were to prove that a court reporter departed from the standard of care, then some damage must be shown. Did the plaintiff lose the case because of the testimony? Or did the plaintiff lose the case because of some other reason? Obviously either a court or jury would decide that issue, but the fact remains that the plaintiff must show some damages that were proximately caused by the problems with the transcript.
It is also worth mentioning that Rule 30 of the Federal Rules of Civil Procedure, which has been adopted in some form by every state, permits a lawyer to make changes to a transcript. There is an opportunity for the witness to read the transcript before it’s finalized. If a lawyer knows that an error occurred in a transcript, then the lawyer can correct the mistake. Similarly, a lawyer has the option of having the deposition videotaped. Videotaping is one method of ensuring that any errors in a transcript have some form of backup and can be corrected.
The point here is straightforward: In the event a court reporter was sued for taking down testimony improperly, there’s not a court in the country that would set the standard at 100 percent accuracy. That should provide some relief. Nevertheless, it is still important to take steps to protect yourself. To that end, here are five specific tips that may help you from being listed as a defendant in a case caption.
1) Be careful. I know that sounds trivial, but it’s true. In many cases, you will easily understand the critical questions that are being asked. Go the extra mile to make sure that you really focus on the key aspects of the case. Every profession in the world has duties that require more focus than others. A neurosurgeon will tell you that brain surgery requires focus all of the time, but there are times during the surgery that require a heightened sense of awareness. A professional baseball player will tell you that during the game he must be “on” all the time, but that when he stands in the batter’s box, he really must concentrate. When you’re on the record, you’ve got to be focused all the time. But when key issues arise in the case, dig down and increase your attention. Your end product will be better.
2) Get insurance. You can purchase an “E&O” policy, which covers your “errors and omissions.” This type of business liability policy can be purchased to cover insurance agents, real estate agents, brokers, architects, third party administrators, and court reporters. The policy covers a loss incurred because of some negligent act, error, or omission. If you do make a mistake that results in litigation, you want to have the peace of mind to make sure you’re not personally on the hook. Having a policy costs a few bucks, but it’s certainly money well spent. You will sleep better at night, knowing that you have protection in the event you make a mistake and that mistake results in litigation.
3) In addition to keeping your notes, also maintain your backup audio files. If a dispute arises, an audio file can protect you against a claim that you took information down improperly. What better evidence is there than an actual recording of the witnesses’ testimony? Maintaining your audio files past the duration of the statute of limitations makes the most sense. Compressing files and storing them offsite can now be done for a reasonable price. Because most court reporters are independent contractors, agencies may not want to store these for you; that said, you should back up your files where feasible. A backup also will ensure that you can produce a transcript if your notes become corrupted. Not being able to produce a transcript is a surefire way to become a defendant in a case.
(Ed. Note: NCRA recognizes that individual reporters determine the necessity of making or keeping an audio backup of proceedings on an individual basis; however, NCRA does provide guidance in COPE’s advisory opinions for how to handle some of the issues that come up with making audio available to parties. For more information on NCRA’s position, please review the Code of Professional Ethics and Advisory Opinions, which are available on the NCRA website.)
4) Be very careful when using the services of a scopist. Scopists can serve a very useful purpose. They can help you increase your output and improve your accuracy. But they can also destroy a transcript. A well-intentioned but inexperienced scopist might make changes to your transcript to help “clean” it up when in fact the scopist has made substantive changes to the content. Scopists are not required to hold any certifications. When they work for you, it’s your reputation —and oftentimes license —that is on the line. The bottom line is that using a scopist is fine, so long as you have the final read. Never, ever send a transcript out without having put your eyes on the final copy.
5) All professionals — including court reporters — should stay on top of their game. Take the time to stay current in the industry, including attending continuing education classes. As technology changes, it will continue to become easier to maintain high accuracy levels, which in turn lowers the chances of having any problems.
Being a court reporter is not an easy job. It requires intelligence, hard work, and, most importantly, dogged attention to detail. Because court reporters capture the record, property, money, and freedom often depend on the quality of what was transcribed.
But court reporters, like other professionals, sometimes make mistakes. Odds are that if you’ve read this article, you probably have never found your name on the other side of the “v” in a case caption. That said, you should take steps now to make sure that you’re protected down the road.