Hi All,

For sometime I have had  questions with regard to the new NCRA court reporter ethics as promulagated by NCRA.

 

The new ethics promulgated by NCRA say that all parties must be given the same services and charged the same price or else the court reporter would not be impartial and thus in violation of the ethics promulgated by NCRA.

 

When I worked in civil court years ago it was common for an insurance company lawyer to file an appeal when they lost a case. 

 

 The costs to the plaintiff to fight the appeal would be so much that many times the plaintiffs would settle the case for a lower amount than the jury verdict.

 

So in one case I gave a defendant a $600 transcript and didn't charge him for it. 

 

I was being generous.

 

Was my action unethical, or can a court reporter be generous?

 

Was the insurance company prejudiced by my giving away a free transcript?

 

Did my actions in any way affect the legal issues upon which cases are supposed to be decided?

 

Also under the new NCRA ethics I have been told a court reporter cannot read any portion of his notes to any counsel unless the court reporter notifies the opposing counsel and allows him to be present at the readback.

 

Now in the days of the old ethics I would read back notes to either counsel as requested, and I never informed the opposing counsel I am having a readback of my notes, would you like to be present?

 

I have been told it is unethical to read back notes to either counsel unless both counsel are present and able to hear the testmony excerpt being asked to be read back by the court reporter.

 

I have been told under the new NCRA ethics I cannot prepare a full transcript or short transcript excerpt and not notify the opposing side that a transcript has been prepared so they can have the opportunity to purchase that transcript.

 

Now in the old days the state's attorney in criminal cases would order transcript excerpts all the time and I never went to defense counsel and told them the state's attorney has a transcript, so I must provide you the opportunity to order the transcript excerpt the state's attorney has ordered.

 

Now as I understood it in criminal cases there were court hearings and judges decided on what parts of the state's attorney's files the defense counsel may see.

 

Anyway I have always been puzzled by the new NCRA ethics, and the above are some of my questions.

 

Bill

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I would say that the new NCRA ethics do not apply to the 50 state court systems and the federal court system.

Here's some examples where official court rules and lawyers are against the NCRA new ethics being applied to courtroom situations.

Oregon State Bar Board of Governors Policies. 

"12.  When a transcript is ordered, the shorthand reporter is not obligated to contact opposing attorney on the case and advise that a transcript has been ordered.  If asked, however, by the opposing attorney, the reporter shall advise whether a transcript has been ordered."

This is a news item from a court reporter conference in New Jersey. 

"The New Jersey Court Reporters Association had a panel of experts including lawyers say that they had problems with court reporters divulging transcript excerpts to opposing counsel when those excerpts were ordered for use in cross-examination and closing argument."

"When the issue of excerpts of the transcript came up, the attorneys on the panel said there's no way they would want the other attorney (s) to know what they ordered.  They feel that if they want just an excerpt to use for the next day's proceeding, no one else should know about it."

New Hampshire Superior Court Administrative Rules, Stenographers. 

 "During the course of a trial, when either party seeks to have a stenographer transcribe parts of the evidence for use during the trial, the request for such transcript shall be made first to the Presiding Justice.

"The Presiding Justice should determine the extent of the transcript and make a decision whether the stenographer should be required to transcribe it. 

"However, if during the trial of a case a stenographer is requested to prepare a brief excerpt, or excerpts, from the testimony, the stenographer may, in his/her discretion, prepare such excerpt or excerpts without formal application to the Court for permission; but the original of all excerpts shall be furnished to the Presiding Justice upon completion, and a sufficient number of copies shall be made to supply each counsel with a copy if excerpts are used in examination or during closing argument."

Any questions on official court reporter conduct to be decided by court reporter's judge.  

See Indiana Court Reporters Handbook, Chapter 1, Ethics.

"The court reporter is responsible to the judge for production of records and transcripts. 

"Upon the acceptance of an appointment as a court reporter, the court reporter should be aware that there are certain specific rules of conduct unique to this position. 

"The best source of knowledge relating to specific rules of conduct is the judge."

Overview of statutes, rules and case law governing court reporters in the State of Indiana. 

"A relationship of utmost loyalty and trust exists between a court reporter and the judge.  The judge is ethically responsible for the acts and omissions of the court reporter. 

"A court reporter is permitted access to confidential information.  A court reporter expressly undertakes the duty to preserve the confidentiality of matters that come before the judge."

Comments of New York State court reporter: 

"I've been an official for 37 years, and if one side orders I don't (never have) notify the other side that one side ordered.  And, I've not heard of other NY officials notifying the other side. 

"They both have the same rights to a copy of the transcript.  Both sides know how to obtain a copy.  ... All I can say is that where I am (NYS) I've never heard of a rule that we have to notify the other side, whether it was an ex parte proceeding or not."

From the above cited items I think it can be said the new NCRA ethics do not apply to the court systems at all.

Bill

 

Bill, this is AMAZINGLY on point with some recent discussions I've been involved in.  I was going to copy & paste answers to the questions you posed above, but let me say first that I am no longer an NCRA member.  I dropped my membership very recently.  However, from what I remember about NCRA's "rules," other than use of the NCRA logo unauthorizedly, I have never seen NCRA "go after" anyone for any of the things listed in any behaviors edicts.  Even reading through the Code of Professional Conduct as well as "rules" for transcript preparation as regards formatting, NCRA usually (not always, but usually) makes the statement in one way or the other that "local rules prevail" or, even better, "follow local practices," and that NCRA's "rules" are merely guidelines.  Bill, it's quite amazing that you've discovered these discrepancies, and I commend you for it!  It is, at the very least, food for thought ... and discussion!  M.A.

NCRA responds to complaints through the COPE process, but they don't police membership. 

With 50 states with varying rules, regulations, and law, NCRA does its best to address issues.  Quite frankly, in no-man's land, my state, with little else to guide professionals with the absence of a board to oversee the court reporting industry, the guidelines are a great resource.

I liked the suggestion of the TX reporter on the other forum who suggested that if counsel doesn't want to tip his hand with regard to which excerpts they are interested in obtaining, order the whole transcript:)

Hi Lisa,

Just some food for thought.

Say you were taking a criminal matter where the defendant was a pro se or had private counsel.  

Say the direct examination was 100 pages and at expedited transcript rate it would cost the pro se or private counsel $600 to pay for the entire direct examination.

If you required the pro se or private counsel to pay $600 so that the excerpt they needed would be hidden in the 100 pages, as a government employee would your imposing the NCRA new ethics have impaired the defense of a criminal defendant if they couldn't afford the $600?  

Also, what if several excerpts requested were needed of different witnesses?  Would the NCRA new ethic of requiring people to order blocks of testimony to hide excerpts have interfered with the Constitutionally guaranteed right to a fair trial?

I do know that NCRA has backed the writing into law their new ethics in some states, but I don't think the NCRA Rule 28 has had a court test to determine if it is a lawful ethic for court reporters who are civil servants employed by the government.

Best Regards, Bill

Bill, counsel has absolutely no right to extend any sort of confidentiality or attorney-client privilege with their communications with a court reporter or non-party.  All correspondence with an expert witness (at least in the state(s) where I work) are fair game.  If counsel discusses case strategy or other matters on a break in front of me or other third parties, we could be called to testify. 

In keeping with my obligation to provide like services to all parties, if an attorney orders a rough draft or expedited transcript, I notify opposing counsel that such is available should they desire it.  I view the excerpts in the same fashion.  My notification is generic:  "A rough draft/expedited transcript/transcript excerpt is available.  Please contact the office if you would like to order these services."

Additionally, pro bono services are available for indigent litigants.  If a litigant qualifies for such, the excerpts could be available for free or at a reduced cost. 

There are arguments on both sides of the coin on this issue.  No matter which way you sway in your professional position, you are going to piss off somebody.  If you provide the excerpts, you risk angering the requesting attorney.  If you don't disclose the availability of an excerpt and offer to provide it to the opposition, you risk angering that party.   

If you have case law or board ruling or what have you in your state to guide you, great.  NCRA provides for that situation with the caveat to its advisory opinions.  State rules, regulations, and law govern. 

What exactly are you trying to accomplish, Bill?  If it's nothing more than to complain that NCRA's advisory opinion doesn't apply in your state as one of 50, carry on...respectfully, without me:)

 

Lisa wrote:  What exactly are you trying to accomplish, Bill?  If it's nothing more than to complain that NCRA --

You should've stopped right there, Migs.  Bill's entire world revolves around complaining that NCRA xxxx.

It can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are dead.

adm

You may not agree with his methods, but Bill is a good-hearted person. I think he feels it’s somewhat of a mission to help improve NCRA, and as part of that, he points out instances in which he feels NCRA is misstepping. One way in which NCRA is misstepping is the promotion of self-interest dressed up as ethics. That's my take of his posts, anyway.

My Goodness, NCRA has taken it upon itself to make up its own ethics which are contrary to the law of the land.

Check out legal precedents that have governed this land.

The rules of impeaching witnesses:

nconsistent statement[edit]

A party may impeach a witness by introducing those of her prior statements which are inconsistent with her current testimony at trial. In a minority of jurisdictions that follow FRE 801, the prior inconsistent statement may be used not only to impeach, but also as substantive evidence.

A prior inconsistent statement is admissible to impeach a witness if

  1. the statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
  2. the witness testifies at the present trial; and
  3. the witness is subject to cross-examination about the prior statement [4]

The cross-examining attorney need not disclose or show the contents of a prior inconsistent statement to a witness prior to the moment she is questioned. If the witness' attorney asks to see the prior inconsistent statement, however, the questioning attorney must show or disclose its contents.[5]

Bill Parsons

I don't read what you've cited as on point to whether excerpts need to be offered to both counsel.  "contents of a prior inconsistent statement to a witness..."

 

 

Hi Lisa,

Thanks for sharing your thoughtful input.  

I think the prior inconsistent statements can refer to statements made in direct examination that are being cross-examined upon.

The  material I quoted was from Wikipedia.

I will see if I can get a clearer reference.

Again thank you for your thoughtful input.

Best Regards, Bill

Hi Lisa,

Here is some further info for your consideration regarding the differences of opinion regarding the NCRA equal service ethic and the NCRA recommendations in handling excerpts of testimony of a trial in progress.

I think court reporters following NCRA's new ethic of "equal service to all" can create problems for court reporters employed in the courts.

The following is a post from a court reporter forum where the lawyer was set to "go off" and was "absolutely livid" with a court reporter following NCRA's new ethic.

"Although I'm not an official court reporter, I have done court work.

"One time a young attorney came up to my seat and bent down and whispered in my ear 'we need that last Q and A written out on a piece of paper. Can you do that?' I said, 'Of course!'

"And so I wrote out two copies, handed one to him, one to the other side. He was absolutely livid! He started to 'go off' on me for giving the other side the information."

Also, the disclosure of transcript excerpts came up at a New Jersey Court Reporters Association Spring Seminar.

The lawyers on the panel of experts disagreed with the NCRA restated Advisory Opinion 22.

"When the issue of excerpts of the transcript came up, the attorneys on the panel said there's no way they would want the other attorney (s) to know what they ordered. They feel that if they want just an excerpt to use for the next day's proceeding, no one should know about it."

The Alaska Bar Association Ethics Opinion 88-4 stated as follows:

"The Committee has been asked whether it is unethical for an attorney to instruct a court reporter not to inform opposing counsel that the attorney has requested transcription of a deposition.

"Whether such request will constitute unethical conduct depends on the facts and circumstances at the time the request is made. There is no ethical requirement that an attorney disclose to opposing counsel that he/she has requested transcription of a deposition. Therefore, in the normal course of events an instruction to a court reporter not to contact opposing counsel to ask if counsel wants a copy is not unethical.

"...However, to the extent the court reporter, for business reasons, simply makes a practice of contacting opposing counsel to inquire whether counsel wishes a copy, it would not be unethical for counsel to instruct the court reporter not to do so.

"Similarly, a lawyer who orders a daily transcript during a trial may instruct the court reporter not to inform opposing counsel that the lawyer has ordered the transcript."

Here's some additional interesting material from Chapter 2, Overview of Statutes, Rules and Case Law Governing Court Reporters in the State of Indiana.

"As noted in Chapter 1, a court reporter is an officer of the court under the Indiana Code of Judicial Conduct canons.

"A court reporter is required to use common sense and powers of observation in order to spot situations where the fair and impartial administration of justice may be threatened.

"A court reporter is under a continuing obligation to raise any perceived concerns to the judge's attention."

Also, Mr. O.D. Landry is the National Verbatim Reporters Association expert on court reporter ethics. Mr. Landry is considered an expert in courtroom ethics. He wrote a column on ethics in The Verbatim Reporter Magazine and conducted seminars on court reporter ethics.

Mr. Landry told me that any official court reporter with a question on how to handle a transcript excerpt or readback situation should ask his judge for advice in how to handle the situation of courtroom conduct where a court reporter is dealing with requests for transcript excerpts of court testimony and testimony readbacks to counsel.

So you can see from reading the above materials, there is disagreement in the legal community on the new NCRA ethics.

I am trying to encourage reporters to go by the old ethics and to keep the info about an attorney ordering a court trial transcript excerpt to his or herself as has been done for the last 100 years or more prior to the new NCRA ethics.

I hope my raising the issue of the new NCRA ethics and calling attention to the disagreements about the use of those new NCRA ethics in the courtroom will encourage court reporters employed in the courts not to follow the new NCRA ethics and to thus avoid getting themselves in trouble.

Best Regards, Bill

Again, we'll have to agree to disagree on what constitutes "new."  The last revision was a decade ago to this NCRA AO.

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