Whither The Court Reporters?

A recent Wall Street Journal article by Allison Pohle raised the question: in these days and times where automated voice transcription services can create a written transcript sans humans, do we still need (or want) court reporters?

As most know, traditionally, court reporters were the guardians of the record in court proceedings and depositions. They took down everything said “on the record” and then created an official written transcript of the proceeding. That record was used for all sorts of formal and informal purposes.

Court reporters did their job either by taking shorthand what was said or by typing on a steno machine in shorthand fashion from which the transcript was prepared. I can remember some even orally repeated in a soundproof mask what was being said. A draft transcript was then prepared which the lawyers reviewed for any mistakes. If there were any, they were noted on an errata sheet.

Court reporting required concentration, diligence, patience, and ability to type at superhuman speeds. All human characteristics. But today, given the improvement in voice recognition systems, and, more importantly, given the nationwide shortage of court reporters, do we still need this human in the loop? It’s a legitimate question.

The Case for Court Reporters

Here’s the case for why we still need them. As the Wall Street Journal pointed out, human court reporters can pick up on nonverbal clues likes gestures to assist in accurately reporting what was said. And they know when to remind a witness or lawyer to speak up or repeat what was said when, for example, emotions get in the way or someone speaks softly.

But there’s another reason we might still need court reporters: decorum. As we all know, court reporters are neutrals. They have no say in the matter. They are only there to record what is said.

But it is that very neutrality that has an impact on those participating, particularly in depositions where they are the only neutral in the room. Even the most aggressive attorneys that I came in contact with were almost always respectful of the reporters. I’ve seen many a fight over when to take a break in a deposition settled by the court reporter saying they need a break.

Court reporters also provide logistical help to keep the proceedings orderly and moving. I’ve seen court reporters do things like remind participants when they were on or not on the record or keep track of exhibits.

And witnesses, no matter how many times they are told that the reporter has no say in the matter, consciously or subconsciously look up to them. They respect the reporters. The presence of a reporter encourages even if slightly more honesty. People view them as part of the court system.

Not to mention the possibility of errors in digital recording since there is no human in the loop to ask participants to slow down or repeat or read body language to help in accurately determining what was said. So, there is a case to be made that transcripts prepared by human court reporters will always be more accurate.

Sure, the lawyers are charged with reviewing the final transcript for accuracy. But that job is often boring, done while multi-tasking or shuttled off to an associate or paralegal who was not even present to do. So, it’s always better to be accurate on the front end.

The Case Against

That’s the case for them. But here’s the bad news. They are expensive. The cost of transcripts has gone through the roof likely because of the scarcity of the reporters. That means that for many participants in the legal world, transcripts aren’t affordable. That places those who already have fewer resources often than those on the other side at an even greater disadvantage. And even well-heeled insurance carriers are balking at paying for transcripts.

Beyond that, more and more of those involved in legal proceedings are using voice-automated systems to create shadow transcripts on which they can at least somewhat rely. But in many places these can’t be used for court filings so there is a giant hole, again disadvantaging some.

There is also the delay factor. It sometimes takes weeks if not months to schedule a deposition because the existing court reporters are so booked up. And it takes time to get the official transcript. All that time clogs up the system and disadvantages a set of litigants who need disputes quickly resolved.

Quite simply, our judicial system is already too bloated and too expensive. There is no reason to let court reporters add to that.

And last but not least, the voice-to-text systems are getting better and better. If there are errors, you still have the human lawyer in the loop to catch and correct them.

So, What’s to Be Done?

Like so many things with technology, the time and expense saved often trumps human accuracy and accountability. Sadly, that may be the case here. Court reporters perhaps through no fault of their own have simply priced themselves out of the market.

Perhaps the answer is to reserve the use of reporters to things like depositions as opposed to judicial proceedings. Perhaps the answer is to lower the requirements to be a full-fledged court reporter by altering their functions at least in depositions. They can become observers who then review what the automated digital recorder creates. That would discourage arguments among the lawyers over what was said since a neutral is making the first pass. In the new technology world, the human in the loop is needed less to create the rough transcript and more to be present and review it.

That’s much like how many of us have gone from being first draft preparers to editors in the age of AI. Let’s think of the human in the loop differently: focus on the needed function, not tradition.

And save the decorum court reporters provide.

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Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.