Arbitration Blog

American Arbitration Association – Consumer Arbitration Rules – Who Pays for the Court Reporter?

Arbitration Blog

Even for binding arbitrations, a record of the proceedings may be important for the attorneys and the arbitrator, especially when there are many witnesses and the subject matter is complex. Having computers or tablets with the transcript available to the parties in real-time is an effective tool for counsel when cross-examining a witness.

Our court reporting firm specializes in arbitrations that we host at our Discovery Conference Centre. The question has come up, “Who pays for the court reporter?” The majority of the time, the parties agree to share the per diem for the court reporter, the time that a court reporter is writing the proceedings, but what if one party wants a court reporter present to provide rough drafts and real-time, and the other party doesn’t? What happens in the scenario when the party that didn’t want a court reporter present and didn’t agree to share in the cost of the per diem, after the arbitration has started, wants to order a rough draft or partial final transcript?

In doing research, I found the following Rule from the AAA Consumer Arbitration Rules:

R-27 – Written Record of Hearing

  • If a party wants a written record of the hearing, that party must make such arrangements directly with a stenographer (court reporter) and notify the opposing parties, the AAA, and the arbitrator of these arrangements at least three business days before the hearing. The party or parties who request the written record shall pay the cost of the service.
  • No other type of recording will be allowed unless the parties agree or the arbitrator directs a different type of recording.
  • The arbitrator may resolve disputes between the parties over who will pay the costs of written record or other type of recording.
  • The parties can agree or the arbitrator may decide that the transcript (written record) is the official record of the hearing. If it is the official record of the hearing, the transcript must be given to the arbitrator and made available to all the parties so that it can be reviewed. The date, time, and place of the inspection will be decided by the arbitrator.

Court reporters want to do the right thing and provide transcripts, rough drafts, and real-time to anyone who makes the request, offering the same services to every party. Looking at FINRA Rule 12606 the court reporter is only a   note-taker and is NOT to provide transcripts to all parties unless the panel decides the transcript is the official record. CA CCP Section 2025.310 – 2025.340 tells the deposition officer he/she must offer to provide the same services to all parties at the same time.

The AAA, Consumer Arbitration Rules, makes it clear the parties who want the written record shall pay for the cost of the service, and if there is any dispute, the arbitrator will resolve the dispute.

 

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Deposition Transcripts and Exhibits – Who Needs Paper?

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Many of my attorney clients have asked me if I know what other law firms are doing to reduce paper. I know of two firms, one in Milwaukee and another in San Diego, that are completely paperless, but I am thinking my clients want suggestions for basic steps to take so they can eliminate storage fees and save office space, money, and especially the planet.

My first suggestion would be to have a standing order for a case with the court reporting firm to take delivery of deposition transcripts and exhibits in an electronic format only. Of course the original would always be printed for reading and signing and to be filed with the Court, but many times the certified copies are voluminous and not necessary until the attorney needs them for a hearing and/or trial. If the hard copy became necessary, the court reporting firm would ship out the transcript immediately.

Many court reporting firms, including Kramm Court Reporting, have electronic repositories wherein attorneys and paralegals can pull their transcripts and exhibits 24/7 in all formats.  Our Case 24/7TM repository is secure, is HIPAA compliant, and also gives law firms access to their deposition, hearing, and arbitration calendar, as well as notices, erratas, and any other relevant documentation to a case.

If you are interested in ordering electronic transcripts only, please let us know. We would set up the perfect delivery mechanism that would fit your law firm’s needs.

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CAN A COURT REPORTER SWEAR IN A WITNESS ANYWHERE IN THE USA? FEDERAL RULES

Deposition court reporters will often travel with cases throughout the USA and the world. Attorneys require technologically savvy court reporters with expertise in complex subject matters.

In my previous blog about the USPTO rules, I found language that would allow counsel to stipulate to allow any person authorized to administer oaths to swear in a witness for a deposition. Upon publishing the blog, I received inquiries from court reporters from around the USA asking if there was similar language for cases filed in federal courts.   This would be particularly helpful for the states that have adopted the Federal Rules as their governing law.

Reading through Rule 28, “Persons Before Whom Depositions May Be Taken,” I came across the following language: “(a) Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by a court in which the action is pending. A person so appointed has power to administer oaths and take testimony. The term officer as used in Rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29.”

Rule 29 reads as follows: “Unless otherwise directed by the court, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions.”

I know NCRA has done quite a bit of investigation and has published an opinion regarding administering oaths and is advocating for court reporters to have the opportunity to become authorized to administer oaths by the laws of the United States, which would be fantastic.

I am not an attorney, but I am suggesting that Rule 29 allows for parties to stipulate in writing to giving a court reporter the authority to administer oaths in cases that are subject to the Federal Rules. I would invite any feedback or interpretation of Rule 28 and 29. My goal is to find solutions for the great court reporters who travel with our profession.

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Should I Become a Court Reporter in This Modern Day?

Throughout the years, I have received emails from people all over the USA, people in their 30s, 40s, and 50s, asking, “Should I become a court reporter? Will there be a job when I get out? Is there work? Is technology going to take over the industry? Am I too old?”

I always answer these queries honestly and with thought. I ask what the person is looking for, if they are a disciplined-type person, and promise there is work and will be work, BUT ONLY IF YOU ARE GREAT!

Reading through the Harvard Business Review blogs, I came across an article, “Stop Worrying About Making the Right Decision.” The author, Ed Batista, paraphrases Scott McNealy, a co-founder of Sun Microsystems and its CEO for 22 years, who said, “It’s important to make good decisions. But I spend much less time and energy worrying about ‘making the right decision’ and much more time and energy ensuring that any decision I make turns out right.”

Believe me, I know the decision to go to court reporting school is huge. It is expensive and takes a tremendous amount of time and energy.

When making the decision, I suggest one should ask:

  1. Will I be committed to practice? Being a court reporter is liking being a professional athlete. It takes focus, practice, practice, more practice, and a strong desire to succeed.
  2. Do I have a natural talent? If you are able to play the piano well or type fast, you might have a natural ability. People with a natural ability are able to get through school quickly sometimes.
  3. Do I have a lot of things going on in my life, and am I easily distracted? If you can’t spend time with the machine and truly focus on speed and accuracy, you will never get out of court reporting school.
  4. Am I willing to spend the next two years (or more) going to school and practicing, practicing, practicing? While in school I likened the practicing to becoming one with the machine. You have to learn to write with no thought; the words flow through your hands.
  5. Will there be work in the future? What about speech recognition and tape recorders? I went to school in the late ‘70s and people were asking me what I was doing – tape recorders! I promise that tape recorders cannot provide real-time transcripts; people speak poorly, at the same time, and with accents. Speech recognition is not an issue.
  6. Will there be work? The average age of court reporters in the USA is 55. Court reporters who have been working for 30+ years are physically getting tired and don’t want to do the all-day, long depositions. I foresee a tremendous need for great court reporters in the next four, five years everywhere. The shortage is imminent.

I believe that if someone has made the decision to go to court reporting school, they should not worry about if they made the right decision, but spend time and energy to ensure that the decision turns out right – just like McNealy. There is great work waiting for anyone that gets through school. I promise.

 

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USTPO – When a Deposition Transcript has an Error, What Do You Do?

While reading the rules of the United States Patent and Trademark Office regarding depositions, I came across 37 CFR 2.125(b) and was very surprised to read that if there are typographical or spelling errors in a deposition transcript, the court reporter, aka deposition officer, is to redo the transcript with the corrections. Errata sheets are not accepted by the USTPO. If the corrections are voluminous, the witness may handwrite the correction on the transcript above the original text and initial the correction. BUT “material changes in the text are NOT permitted.”

37 CFR § 2.125(b) The party who takes testimony is responsible for having all typographical errors in the transcript and all errors of arrangement, indexing and form of the transcript corrected, on notice to each adverse party, prior to the filing of one certified transcript with the Trademark Trial and Appeal Board. The party who takes testimony is responsible for serving on each adverse party one copy of the corrected transcript or, if reasonably feasible, corrected pages to be inserted into the transcript previously served.

A party that takes testimony is responsible for having any errors in the transcript corrected, on notice to each adverse party, prior to the filing of the certified transcript with the Board.

If the witness, upon reading the transcript, discovers that typographical or transcription errors need to be corrected, or that other corrections are necessary to make the transcript an accurate record of what the witness actually said during the taking of his or her testimony, the witness should make a list of all such corrections and forward the list to the officer before whom the deposition was taken. The officer, in turn, should correct the transcript by redoing the involved pages.

Alternatively, if there are not many corrections to be made, the witness may correct the transcript by writing each correction above the original text that it corrects, and initialing the correction. Although parties sometimes attempt to correct errors in transcripts by simply inserting a list of corrections at the end of the transcript, this is not an effective method of correction. The Board does not enter corrections for litigants, and the list of corrections is likely to be overlooked and/or disregarded.

While corrections may be made in a transcript, to make the transcript an accurate record of what the witness said during the taking of his or her testimony, material changes in the text are not permitted — the transcript may not be altered to change the testimony of the witness after the fact.

If corrections are necessary, the party that took the deposition must serve on every adverse party a copy of the corrected transcript or, if reasonably feasible, corrected pages to be inserted into the transcript previously served.

If errors are discovered after the transcript has been filed with the Board, a list of corrections, signed by the witness, should be submitted to the Board (and served on every adverse party), together with a request for leave to correct the errors. Alternatively, the parties may stipulate that specified corrections may be made. If the request is granted, or if the parties so stipulate, the party that took the deposition should file a substitute, corrected transcript with the Board.

 

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USPTO – Great Information for Court Reporters and Attorneys – Swearing in a Witness

As court reporters in the patent and trademark litigation world, we are often asked to report depositions in foreign countries. One of the requests that frequently comes up is, who is going to swear in the witness? Certain countries have rules that would prohibit any swearing in on their soil, such as Japan and China.

In doing research regarding USPTO deposition rules, I found the following:

(1) The testimony of witnesses in inter partes cases may be taken by depositions upon oral examination as provided by this section or by depositions upon written questions as provided by § 2.124. If a party serves notice of the taking of a testimonial deposition upon written questions of a witness who is, or will be at the time of the deposition, present within the United States or any territory which is under the control and jurisdiction of the United States, any adverse party may, within fifteen days from the date of service of the notice, file a motion with the Trademark Trial and Appeal Board, for good cause, for an order that the deposition be taken by oral examination.

(2) A testimonial deposition taken in a foreign country shall be taken by deposition upon written questions as provided by § 2.124, unless the Board, upon motion for good cause, orders that the deposition be taken by oral examination, or the parties so stipulate.

(b) Stipulations. If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any place, upon any notice, and in any manner, and when so taken may be used like other depositions. By written agreement of the parties, the testimony of any witness or witnesses of any party, may be submitted in the form of an affidavit by such witness or witnesses. The parties may stipulate in writing what a particular witness would testify to if called, or the facts in the case of any party may be stipulated in writing

The “Stipulations” language makes it easy for attorneys to take oral testimony and have the deposition officer swear in the witness.

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Court Reporters and Codes, Rules, and Geographic Stipulations – We Have to Know It All

Court reporters don’t have the luxury of assuming different states and regions all operate in the same way or have the same rules and laws that apply. When reporting a deposition in a matter that is in a jurisdiction that is not familiar, it is important to pay attention and ask questions. There may be stipulations that are typical in certain states or geographical areas. For instance, the waiving of signature is rare in California and typical in other parts of the country or certain types of litigation, such as asbestos. If the signature is waived, it should be noted, and no signature line be provided. Out of habit or a macro, I have seen court reporters insert signature lines and penalty of perjury clauses on transcripts when they are not called for.

Some states are known to court reporters as “nonwrite-up states.” Those are the states wherein attorneys have the custom and habit of not having a deposition transcribed until they believe they will need the transcript for a hearing or trial. California is not one of the nonwrite-up states.

What California is, and which is unique, is it’s a state with a code section that gives the court reporter direction as to whom to charge for the transcript if opposing counsel orders it transcribed and the noticing attorney has asked that the court reporter to not transcribe the stenographic notes.

California Codes, Code of Civil Procedure Section 2025.510 (a) reads: Unless the parties agree otherwise, the testimony at any deposition recorded by stenographic means shall be transcribed. (b) The party noticing the deposition shall bear the cost of that transcription, unless the court, on motion and for good cause shown, orders that the cost be borne or shared by another party.

I have had the situation in which one of my clients has asked that a transcript not be produced. The opposing counsel wants to purchase a copy. In this scenario, I believe this code section triggers the noticing attorney to have the responsibility to pay for the original and one, even if she/he doesn’t want the transcript, unless the parties come to an agreement otherwise.

I understand that Washington State is a nonwrite-up state, and there is no such language in their state codes. Therefore, the Washington State court reporters have to be very careful and not assume a transcript will be written up, always ask; and if opposing counsel orders a copy, it has to be very clear who is going to pay for the transcribing of the original and one. Florida is another nonwrite-up state. I am sure there are others.

Being a great court reporter takes a lot of skill other than just writing steno fast. They have to know the laws that govern their profession. It truly is amazing how wonderful court reporters are and what they do every day. I am proud to be a court reporter.

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Court Reporters and Legal Videographers – Beware of Address Searches on the Internet

Filling out an appearance page for a deposition or court transcript takes time and concentration. Everything has to be correct. Getting an attorney’s card is the best way to ensure you have the correct information, but as everyone knows many attorneys forget to bring their cards.

Plan B would be to go to the internet. I believe a best practice is to go onto a law firm’s website to get contact information, including the email address. Sometimes with smaller law firms, because attorneys are worried about keeping their information private, the email address is not published.

Plan C would be to go onto the state bar’s website. The California State Bar has an attorney listing website with the name, address, phone number and a high percentage of the time the email address.

I would not use Google Maps as a tool to find a lawyer’s address. In the past month I have found a doctor’s office address to be completely incorrect, and when I called the doctor’s office to confirm their address, they were shocked to hear that Google Maps had it wrong. This week one of our reporters had an incorrect zip code found in Google Maps.

I believe every court reporter’s appearance page in the modern transcript should include the name of the law firm, attorney’s name, address, phone number, and email address. Every great reporter has correct appearances.

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USA Team at the World Cup – Reminds me of Great Court Reporters

Watching USA play in the 2014 World Cup in Brazil is inspiring and motivates me to be a better soccer player and court reporter. Why? The USA team with their coach Jurgen Klinsmann got out of their “group of death” because of hard work, planning, skill, and determination. Every court reporter who has graduated from court reporting school, passed a state certification test, passed the CRR, RMR, or RPR, is unbelievably skilled. The question is, what does a court reporter do with that skill?   Do they aspire to go to the World Cup of court reporting? I hope so – why not?

Maybe court reporters need a coach like Jurgen Klinsmann who can see their brilliance and would help motivate, push, and fine-tune the speed and accuracy of a court reporter. Klinsmann’s message to his players was, “Believe!” I am thinking we can use the speakers and teachers at conferences, state conventions, and the NCRA national convention or STAR convention in San Diego as our “coaches.” We need to “believe” in ourselves when it comes to showing off our realtime skills.

I am thinking every job we report is like competing in the World Cup Brazil. Court reporters have the opportunity to be amazing every day. We are constantly challenged by super fast talkers, speakers interrupting each other, witnesses that have strong accents, and dense, complex subject matter. Great court reporters are winning the World Cup!

 

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Court Reporters Need Strong Passwords

My bank recently sent me a document with “Techniques for creating strong passwords.” Reading through it my first thought was, “This would be great information for my colleagues.” Court reporters protect private, sensitive testimony, and with the use of DropBox and other FTP sites to send files, having a strong password is essential.

The suggested techniques are as follows:

  1. The longer the better. Your passwords should be eight or more characters in length.
  2. The greater the variety of characters, the harder your password will be to guess. Combine letters, numbers and symbols, including punctuation marks NOT on the upper row of the keyboard.
  3. Instead of using a word, consider converting a memorable phrase into a password. For example, “I have 2 puppies! Fido and Spot” could be expressed as Ih2p!F+S.
  4. Avoid using your login name or other identifiers. Any part of your name, birth date, or social security number (or similar information for your loved ones) could be among the first things cyber criminals will try.
  5. Avoid sequences or repeated characters.
  6. Don’t rely on look-alike substitutions of numbers or symbols. Malicious users will not be fooled by common look-alike replacements, such as “$” for “S” or “@” for “a.”

The tips make sense to me, which makes them easier to remember and implement. Having strong passwords is a part of being a great court reporter.

 

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