Esquire/Gallo sued in Florida and Chicago

[Karen Klein]

Received these two attached lawsuits from colleague. Allegation is Esquire/Gallo is
charging full page rates for word indices in addition to transcript pages. Any info anyone has
on this would be appreciated.

[Mary Ann Payonk]

Hi, Karen. If you read this page on the Depoman forum, you'll see another reporter makes a few comments about the situation. Other than that, I've seen a bit of chitchat about it here and there, but have never seen formal papers until today. They look real. And wow! What a read!

M.A.

[Rachel Gard]

I'm the reporter that offered up a bit of info. Let me preface this by saying, it's been about a year since I've taken a job for Esquire Chicago. Since they merged with AGH, I haven't had any calls from them, which is okay.

I read the Chicago complaint. I don't know what this means, if anything. The complaint alleges the reporters weren't paid for the indexes. I just pulled a payroll statement from them and compared it to the number of pages my transcript ended up being. My transcript is 297 pages. I got paid for 327 pages on the original and all copies, so I was obviously paid for 30 pages of index.

I'm by no means an Esquire Chicago expert. I'm not in-house for them. I have taken jobs for them in the past, not recently.

Rachel

[Mary Ann Payonk]

Hi, Rachel. Interestingly, I've read other comments about ICs, and very good ones, not being contacted by Esquire after the merger. Wonder why that is? Do you have a speculation?

Also, as I read the complaints ... just my read, now ... it mentions that reporters weren't paid for indexes, but only as commentary. From my reading, I read the complaint to be that the client, the atty, the law firm, was charged transcript page rates for word index pages, which could really, really add up. Again, my take was it's perfectly OK to charge clients for transcript pages that were actually taken down and transcribed by a skilled professional reporter - no problem with that. What's not OK was when the client was charged transcript page rates for index pages, which were not original transcript pages but merely compiled FROM the original transcript pages. Also, I believe there's a fraud charge that is based on the fact that the reporting firm's page rates are assumed to be, again, transcript pages and not indexes made FROM the actual transcript. I think it was described as deceptive business practices, but again, that's just my recall.

M.A.

[Rachel Gard]

Hi Mary Ann,

I just assumed the reason they no longer called me is because they've had a decline in business and have enough in-house reporters to cover the work. Esquire's Philadelphia office just recently contacted me to do two days of realtime depositions in an MDL pharmaceutical case. The depositions were taking place close to my in-laws' summer place, so I accepted. However, both jobs canceled three days before they were to take place.

It can definitely add up for the client being charged full page rates for index pages. In my one example, one deposition, one job, index pages amounted to 30 extra pages.

I have forwarded a copy of the complaint to the top two agencies I do work for. They've found it difficult to break into some of the bigger, more prestigious law firms in Chicago and meet with the "We've always used Esquire and are happy with them." I'm hoping this gives them more leverage when trying to gain new/more business.

Rachel

[Mary Ann Payonk]

Hi, Rachel. I've also heard, "We've always used Esquire and we're happy with them." But what I've personally heard even more is, "We use Esquire because we have to." Speaking with some attys and support staff, paralegals, secretaries, they are very unhappy with using Esquire. I have a friend who is a paralegal who received an e-mail recently from someone in another office who said they'd just sat through a presentation by a great new firm, Esquire, and was encouraging all the paralegals in the firm to use Esquire. Eeeek!!! My friend spent all afternoon, basically, trying to counter that horrific (to her) event, because she'd had nothing but trouble, late transcripts, full of inaccuracies, including McTranscript Lite with a lot left out that should have been in.

As far as leveraging to gain new business, and plenty of it, I think this will go a long way. But if you browsed the Depoman tonight, you'll see a poll out about whether unethical firms and business practices will actually hurt the profession, meaning our individual practices. My response was that yes, the bad apples will have an effect, BUT because there are those shining examples of great firms out there who I work very closely with, I do not see a bleak future, but a bright future for high-end firms with high-quality reporters, especially realtime reporters.

Things like these lawsuits are the best PR and kind of sideways advertising for straight-up firms I could think of.

M.A.

[Karen Klein]

Mary Ann:
That is how I read the complaints also. My questions are: Are other agencies doing this? Is it just the large corporations? Did they pay the reporters for these index pages billed at transcript rates?

While this is definitely bad press for the reporting profession, I hope the plaintiffs prevail if indeed the allegations are proved up as I find the practice listed to be deceptive at best and criminally fraudulent at worst.

[Mary Ann Payonk]

Hi, Karen. I have read a few posts where some agencies, yes, do charge the client for index pages. But I believe it's not a very widespread practice.

I guess I don't see these suits as bad press for the reporting profession. I really don't. I think it may make our end clients a bit more aware or what to look for or ask for when seeking to engage a reporter or firm. I think all the bad is going to fall back on the firm, Esquire/Gallo, where it belongs.

M.A.

[Dave Stanley]

Does their suit mean that the Title page, Appearance page, index page, reporter's cert,etc., which are also part of the transcript but not "taken down" by the reporter should not be charged at the trans ipt page rate? what is a transcript is what the suit will have to determine, and if your billing says it is $X.XX per page of transcript, then all "valid" pages of the transcript should be billed at that rate.

[Karen Klein]

Dave:
I would say there's a distinction between the cover and appearance pages of a transcript, which do require preparation and labor effort by the reporter versus a computer-generated word index, where the reporter does nothing and the agency basically has one, maybe two mouse clicks in order to prepare one. Also, according to California Rules of Court, the appearances and index are required as part of the transcript, at least in court proceedings, and depositions have complied with that also, whereas Indices are certainly not part of the transcript but a litigation support tool. Don't get me wrong, I believe there should be a flat charge for the Index (FREE is NOT a good BUSINESS MODEL!) but to bill it at full transcript page rates on the original and all copies?? Indefensible.

[Mary Ann Payonk]

Hi, Dave. Good point there. The only thing I could say there is that the reporter definitely spends time creating that title page and app page. Index? Sometimes that takes time. Cert? Well, that's iffy. It's usually an include file, so I'll give you that one! But pulling them all in ... especially in Texas, where the front page and certificate pages are pages long and involve a lot of information being input ... pulling that all together doesn't take "just a minute." It's work done by the reporter. But the word index is done in an instant, a function of pushing a button on a software program, and is definitely not work done by the reporter. Also, in some states, there is a statutory notary fee that notaries can charge for simply swearing in a witness, $5 is $5, and that fee could be covered by a charge for that certificate page. Again, good points, Dave.

M.A.

[Karen Klein]

Rachel:
Thanks for your input. In California, the practice of billing transcript page rates for computer-generated word indices would definitely be an unethical and deceptive business practice. Whether the reporter was paid a percentage of this unethical billing would be irrelevant except as to potential liability for accepting payment for fraudulent billing practices. Did you recognize the page payment discrepancy at the time you were paid or just when this topic came up?

The complaints I posted I read as attempting to recoup costs from Esquire/Gallo for the unethical, deceptive and fraudulent billing practices listed in the complaint. If they are, in fact, proved up, I would be surprised if reporters in most cases were actually paid a percentage of the billed index pages, but I might be wrong. And if proved up and Esquire must reimburse the plaintiff, will Esquire seek reimbursement from the reporters if they were, indeed, paid a percentage of the word index billings? Who knows?

As a reporter, I think this practice, if indeed true, taints us all but has partly resulted because contracting and the hmo'ing of our profession have resulted in the inability to charge market rates for our services. These corporations have to make a profit somehow to satisfy their venture capitalists and/or shareholders - sometimes ethics and fair business practices get abandoned. Shame on Esquire/Gallo if indeed these allegations are true.

[Rachel Gard]

Hi Karen,

Yes, I noticed the page discrepancy when I got paid for the job. I felt that I, as the independent reporter, had no control whatsoever as to their billing practices. In fact, if you follow Mary Ann's link to the other post, I mention a very uncomfortable conversation I had with attorneys regarding their pricing. I would think, just my opinion, if Esquire loses the case and is forced to reimburse the clients, that they would not seek reimbursement from reporters. Reporters have absolutely no say in how they bill and should not be required to reimburse them. I have said for two years now that I can't believe they got away with that in Chicago and that the law firms put up with it.

As far as me accepting payment for fraudulent billing practices, at the time I received a check for my services, there was absolutely no way for me to know it was fraudulent. Did I think it was wise? No, of course not. But in Chicago, there's not, as far as I'm aware, rules for billing, etc., as there are in California and Texas, as examples. It's pretty much what the market will bear.

As far as your question about are other agencies doing this, I only know of one other Chicago agency that pays the reporter for indexes. However, it's only on certain jobs (I don't know the criteria), and it's only 15 cents a page, not the full page rate. Other than that, I don't know of any other agency that does it. Not to say there are none, I just don't know about it.

What puzzles me and keeps coming to mind is, with attorneys so concerned about court reporters' bills and keeping their clients' costs down, why do attorneys continue to use Esquire? And from what I understand, their page rates to attorneys are among the highest in the city. So not only are they paying the highest page rate, they're paying for more pages than the transcript actually is.

Rachel