Court Reporting Board of Arizona Proposes to Cut Ethics From Code

[Lisa Migliore Black]

http://blog.courtreportersaz.com/2013/09/16/court-reporting-board-o...

[Lisa Migliore Black]

Attorneys are required to use specific court reporting services.  Given their choice, they would continue to use the court reporters and reporting firms they rely on and trust for good service, quality, and a competitive price.  Attorneys in these contractual relationships more often than not don't even know the price because the contracting court reporting agency is sending the unitemized invoices directly to an insurance adjuster out of state.  To boot, it's not an apples-to-apples comparison on price.  These contracts may seem to offer a slight discount on appearance fees and page rates for the originals, but with added volume added to "discounts" coupled with hidden and exorbitant charges for other items, the "savings" are nothing more than an empty promise.  I have done more than a handful of cost comparisons, and not once has a national company with extra layers of overhead come close to competing on a side-by-side cost comparison.  It's common sense, really.  

Coupled with that promise of perhaps a 10% discount for the taking attorney, factor in the 200-300% markup on the copy sales, the captive audience that has absolutely no say in which reporting agency is scheduled, and the overall costs skyrocket even more.  Essentially, opposing counsel then has to pay a ransom, so to speak, to have access to the depositions in a case.

To suggest that two court reporters would have to be utilized because the court reporter hired to make the official transcript can't be trusted speaks absolutely to the heart of the issue:  That one side of the litigation can't rely on the neutrality, impartiality, and fairness of someone is who supposed to be an officer of the court.  As far as having to pay the price of an O+1 for the second court reporter, see above.  Quite frankly, I've seen evidence that that's what the attorneys often end up paying for copies with some of the largest contracting firms.

Perhaps it's all right with some that they work in a profession that has as good a reputation for trust with the general public as, say, a used cars salesman.  I think our profession should be above reproach, and I think our judicial process and the people it serves deserves better.

[Quyen]

Why should the firms have to be regulated as to what they are permitted to charge for their products/services? The market will self-regulate as to that. Insurance companies aren't stupid, and they're in business to turn a profit too. They hold the purse strings always. If they feel they are being ripped off or some vendor is engaging in unethical practices in which they are involved, the insurance companies would have no problem nipping it in the bud and taking their business elsewhere.

You should know better, LMB. It costs no less to produce a copy as it does an original. In fact, I say it take more time/resources to produce a copy. A "copy" is not technically a copy. ALL of the transcripts get printed the same way, using the same number or pages; are bound the same way, using all the same binding supplies; get shipped the same way; require all the same amount of resources and time. In some case, it actually takes MORE time to produce a copy than an original when there are complicated expert files that need to be copied and attached to transcripts. The originals just get hole-punched and attached to the original transcript for most regular transcripts. Strictly technically speaking, there's no reason why the copies should not be almost the same price as the original, minus the minimal cost of the copy that goes with the original.

[Lisa O'Sullivan]

Backpedaling is what you're doing to Bill.

Yet more deflecting and spinning is what you're doing to me.

I am squarely focused on the pertinent issues here, Lisa. If you don't like the heat, get out of the fire.

[Sharon Smith]

"Essentially, opposing counsel then has to pay a ransom, so to speak, to have access to the depositions in a case."

THIS is who I am talking about - not the attorney using the contracting C/R.  Opposing counsel does not have to use this reporter.  Using 2 reporters is ridiculous, per se, but opposing counsel is not held for ransom -  they are not obligated to use the C/R contracting firm, they can hire their own.  Then pricing becomes the issue of opposing counsel being charged original fees vs. copy fees. Then  that becomes the reporter's choice, what to charge.  It could have nothing to do with impartiality or quality or accuracy of reporter.  I would never condemn a C/R just globally without having personally viewed their work.

As far as mark-ups and add-ons, I see that with all different firms.  Some charge for E-Transcripts, condensed verions, word indexes, maintenance fees, repository fees - some don't.  There is no standard across the board for charging add-ons. 

Bottom line is pricing - otherwise, there would be no reason to contract.

 

[Sharon Smith]

Quyen - you have hit the nail on the head, my friend!  I have always wondered about the wide discrepancy in org. vs. copy cost.  Sometimes you get opposing counsel that questions even MORE than the taking attorney, but they only get charged copy cost - not fair - but that's between the lawyers, not me.  If opposing attorney wants to ensure his expense, hire his own reporter - they can't blame the contracting C/R because they didn't ask upfront what their charges are. I have told all my clients to always ask a reporter they've never been associated with what their fees are upfront because there is such a widespread scale of pricing.

[Lisa Migliore Black]

Quyen, I think a better argument for your position would be that you are providing the same service to each party and thus an equal price should be charged to both parties.  That's a logical position in the ongoing debate on how our profession charges for its services.  But I have to disagree that copies are more labor-intensive than originals, especially in an age where there's much more demand for electronic delivery of transcripts.  I can't duplicate something that doesn't exist, and the original has to be produced first.  

[Quyen]

"I can't duplicate something that doesn't exist, and the original has to be produced first."

Baloney. What a ridiculous spin. You know full well what I mean. Which came first: the chicken or the egg? That's your argument?  Really? The only difference is that CR firms do not produce/sell a copy without an original having been paid for. So do you print the original transcript and put that original copy back in the printer to make a copy of it to produce the copy? Or do you send two, three, whatever number of copies to the printer all at once and just call one the original and the others copies? Whatever, Lisa.

If your products/services are so superior, so ethical, so much better in whatever way, all the clients would be flocking to you/your firm from all over the country, and you'd be the only game in town (which is really what you're aiming for), and you wouldn't be wasting so much of your breath on your increasingly unbelievable, illogical claims of unethical business practices out of what is really, really, truly, absolutely only out of your own self-interests. Stop your feigned "altruism" in the name of the profession/industry. It's embarrassing.

"But I have to disagree that copies are more labor-intensive than originals, especially in an age where there's much more demand for electronic delivery of transcripts."

And I didn't say that that is always the case. But if both sides are getting electronic copies, it further proves my point:  The services are exactly the same; therefore, the cost of the "copy" should be exactly the same as the original.  Or do your exhibits scan themselves? Huh.

[Lisa Migliore Black]

"If your products/services are so superior, so ethical, so much better in whatever way, all the clients would be flocking to you/your firm from all over the country, and you'd be the only game in town (which is really what you're aiming for), and you wouldn't be wasting so much of your breath on your increasingly unbelievable, illogical claims of unethical business practices out of what is really, really, truly, absolutely only out of your own self-interests. Stop your feigned "altruism" in the name of the profession/industry. It's embarrassing."

What I'm after is fair competition, not no competition.  Certified professionals shouldn't be disadvantaged in the marketplace while the non-certified or unlicensed thrive by sidestepping the law and engaging in other unethical practices.  

We are not selling widgets to a single purchaser in a truly free market as court reporters; we serve all sides with one official record.  Volume discounts and the costs of expensive gifts to lure business often come at a high cost of the least powerful and most unsuspecting litigants.  That's what I find embarrassing about our profession, not that I keep fairness in mind in the way that I do business.  If it were truly not my motive, I wouldn't support legislative change.  Furthermore, it doesn't take a genius to replicate deceitful or misleading business practices; I just prefer to hope for a better reality than one where court reporters would have to check their ethics at the door in order to compete.  

[Lisa O'Sullivan]

I think you don't recognize the way you belie your own words.

If what you're after really IS fair competition, you wouldn't be regularly trying to divert business from national agencies toward local agencies. After all, it's just as fair for nationals to succeed as it is for locals. Hello?

Again, I suggest it's time to give it a rest. Stop trying to force your personal agenda and unconstitutional views onto everyone else.

[Sharon Smith]

I'm having a little difficulty interpreting LM's posts and her position, as well.  First it was all about it being "unethical" - now it's "fair competition", which I believe is really the basis of the complaint rather than an "ethical" issue. (competition = $$$) 

I personally am against contracting, but I will be honest about it. I am against contracting because it restricts pricing in a very competitive market - and, if you do not meet that price, you lose business.  But that is not an "ethical" issue; it's merely a business decision. Pricing is different all over the country.  If someone wants to work @ lower prices than mine, that's their prerogative, but it doesn't make them unethical.

Maybe NCRA should have used this as their argument instead of just jumping up at the 11th hour, after 20+ years of contracting being utilized in this industry, and now changing its previous position on the contracting issue and now screaming its usual, catch-all, favorite phrase it loves to use when it has no other legal reasoning, "ethics violation", "ethics violation", w/o any proof whatsoever of any partiality regarding the work product, whether it be inaccuracies in transcripts, timeliness in production, etc.   So, it's never been about "ethics";  it's all about competition in the marketplace.  What is the difference in a State establishing and directing what an Official can charge for Court transcripts and "contracting"?  Just because they are the "gov" !! It is blatant contracting because it is "restricting" the competitive pricing.  NCRA says that's okay, they're the gov, they can do it, but we private citizens can't because it's......oh, yeah, "unethical". 

Personally, I am sick of being TOLD how to run my business by all these so-called "Associations" who make the claim they are representing my best interest (who make Millions of $$$ off our backs) and the State agencies who say they are protecting the public from us.  Hogwash. They don't tell retail and service businesses what to charge or what they can do, under the guise "to protect the public"!  When they start paying my overhead and my utility bill, they can tell me what to do - but until then,  I make my own "business" decisions.

Which brings me to this comment that I don't understand and wish you would explain, please. As far as gift-giving,I don't care what the 'opinion' of the NCRA is,  if I make $50K on a job with a law firm, you betcha I'm going to show my appreciation for their business, regardless of the ridiculous $50 or $100 limit - it's just simply courtesy in showing your appreciation for the business.  Below: Who are the least powerful - and - unsuspecting litigants?  Aren't the litigants getting a lower cost via contracting pricing, rather than a higher cost?

"Volume discounts and the costs of expensive gifts to lure business often come at a high cost of the least powerful and most unsuspecting litigants"

 One question to LB:  A law firm shopping for a reporter calls you and says they are looking for a dependable reporter to use solely (so their staff only has to make 1 phone call to schedule a reporter) and says they would direct all their deposition work to you and would guarantee your annual income from their work would be at least $200,000, if you would lower your price a bit for the volume work, you'd turn it down? (Honest answer)

[Lisa Migliore Black]

Lots of questions, Sharon; so I apologize in advance for the length of the post.  

 I'm having a little difficulty interpreting LM's posts and her position, as well.  First it was all about it being "unethical" - now it's "fair competition", which I believe is really the basis of the complaint rather than an "ethical" issue. (competition = $$$) 

Complicated issue with more than one moving part:  Legislation provides for a level playing field in that everyone follows the same rule book.  Laws should apply to small, large, local, out-of-state, individuals, corporations, etc.  When they do not, it creates an environment of unfair competition.  In many cases, practitioners are licensed (required to adhere to rules and regulation) or certified (required to adhere to a code of ethics).  Non-practitioners, unlicensed and uncertified, if not held to the same standard, garner business away from skilled reporters that are required to adhere to the rules and can direct business to those that are (in general terms) less skilled.

Ethics come into play because of the appearance of impropriety and fair treatment, equal services, etc. More reading HERE

If someone wants to work @ lower prices than mine, that's their prerogative, but it doesn't make them unethical.

Agreed.  Free market competition benefits consumers on matters of price, service, quality, etc.  

However, cost-shifting is often an evil byproduct of "special" deals.

Maybe NCRA should have used this as their argument instead of just jumping up at the 11th hour, after 20+ years of contracting being utilized in this industry, and now changing its previous position on the contracting issue

NCRA has had a position on disclosure regarding contracting since 1995.

More reading:  http://www.ncra.org/Government/content.cfm?ItemNumber=9373

What is the difference in a State establishing and directing what an Official can charge for Court transcripts and "contracting"?  

Not exactly the answer to your question related to officials, but here's a cut-and-paste regarding freelance contracting with government agencies:

Q: How is contracting to provide court reporting services for government entities different from contracting with private entities? Should government agencies who are parties to litigation be allowed to contract for court reporting services for litigation purposes?

A: Government agencies are required to comply with Federal statutes and regulations for all procurements, including court reporting services. The federal statute governing government procurements is the Competitions in Contracting Act (CICA) 41 U.S.C. Sect. 251 et. seq. The Federal Acquisitions Regulations are the implementing regulations for CICA. These regulations prescribe policies and procedures to promote full and open competition in the acquisition process, generally through sealed bids or competitive proposals. Because government agencies must comply with these procedures for the procurement of court reporting services, most states that have passed legislation or court rules prohibiting contracting have specifically excluded government agencies from their provisions.

This exemption for government agencies has raised the question as to why private entities should be prohibited from contracting with court reporting firms while government agencies are free to solicit bids. The most important distinguishing factor is that government agencies are ultimately beholden to the general public while private corporations are not. Governments are not responsible to stockholders demanding the highest possible return each quarter. Governments are ultimately responsible to you and me. This means that, where the perception of impartiality is concerned, there is far less of a risk that a losing litigant against the government will view the process as biased even if the same government is paying the reporter. This can be proven: Judges too get paid by the government. Has there been any cry about the bias in that arrangement? Compare that silence with the loud concerns voiced about free lance contracting, and one can easily perceive the difference.

More to the point: if a corporate defendant loses a big case, it could result in a reduction of pay or bonuses, or a reduction in the value of stock options. Likewise, a win in a big lawsuit could enrich the personal bank account of corporate officers by millions. In short, corporate officers stand to gain or lose lots of their own money in litigation. Government officials have no similar, personal stake in the outcome of litigation.

As a practical matter, because it is the taxpayer's money, not their own money, at stake, and because government officials don't face the "bottom line" pressures of stockholder- responsible corporate executives, government contracting poses little if no risk of real or apparent conflicts of interest in most circumstances.

At least one state has taken the position that where government agencies are parties to litigation, they should also be prohibited from directly contracting for court reporting services related to the litigation. In a 1997 advisory opinion, New Mexico's Court Reporter Board sets up a functional capacity test for governmental and quasi-governmental entities. The opinion states that under Rule 22-605(K) NMRA 1996, "a court reporter may contract with a governmental entity, the City of Albuquerque, for example, to report its hearings when the City is acting in an adjudicative, legislative, or administrative capacity. However, when the City of Albuquerque is a litigant and wishes to contract with a court reporter to do all its depositions in Tort Claims Act cases, for example, then that will be considered contracting and will be considered prohibited by Rule 22-605(K)."

Personally, I am sick of being TOLD how to run my business by all these so-called "Associations" who make the claim they are representing my best interest (who make Millions of $$$ off our backs) and the State agencies who say they are protecting the public from us.  Hogwash. They don't tell retail and service businesses what to charge or what they can do, under the guise "to protect the public"!  

From one of the documents above:  "There is nothing wrong with entrepreneurial free enterprise, but NCRA believes the role of the court reporter in the judicial system is not a commodity. It is a sacred duty that protects people's life and liberties and cannot be sold to one side or another."

regardless of the ridiculous $50 or $100 limit

Amount is now $150.

Below: Who are the least powerful - and - unsuspecting litigants? 

Couple examples:  an injured worker who sues their employer, someone who suffered a personal injury--really, the common man.  Likelihood is they will have few experiences in their lifetime with the legal process, and therefore they are unsuspecting of some of the practices within our profession.  The common man is the least powerful because they don't have the large insurance/corporate interest lobby representing their interests in enactment of law, election of politicians, judges, etc.  Example:  tort reform.  (The movie Hot Coffee was recommended as a must see on another site.  Good watch, available on Netflix.)

Aren't the litigants getting a lower cost via contracting pricing, rather than a higher cost?

Only high-volume litigants are typically offered [so-called] lower prices.  Typically, only the taking attorney receives a discount.  Oftentimes the opposition isn't even aware that special pricing exists because of lack of disclosure.

 One question to LB:  A law firm shopping for a reporter calls you and says they are looking for a dependable reporter to use solely (so their staff only has to make 1 phone call to schedule a reporter) and says they would direct all their deposition work to you and would guarantee your annual income from their work would be at least $200,000, if you would lower your price a bit for the volume work, you'd turn it down? (Honest answer)

My state law allows for bidding on a case-by-case basis.  Discounts can be offered within those guidelines and would be offered to all parties of the litigation, not just one side.

My honest answer is that I offer a competitive rate to all-comers.  I can explore many ways to save actual costs in litigation with a client after exploring their needs.  It may be as simple as converting them to electronic delivery as opposed to paper delivery, offering them rough drafts as opposed to overnight transcripts, educating them on mobile videoconferencing alternatives, utilizing my network to avoid travel/mileage, use of my repository for paper-intensive documents...  Again, a hard question to answer without a specific scenario in mind.

[Sharon Smith]

Quickly because Game Day is on! :) I'm sorry, but some of your sentences just do not make sense. I see you've spent a lot of time this AM going back and forth on NCRA site & just quoting their "opinions" - again, they are ONLY "opinions", not Law. I thought you'd tell me something I don't know & haven't seen.

Feds having their own $$$ cutbacks as we speak -  not filling CR spots & not appointing new Judges right now (my old Judge is a Fed Judge now)

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"can direct business to those that are (in general terms) less skilled."

How do you know they are "less skilled"? Are you personally acquainted with all of them?  I would never make that statement about a CR unless I knew their individual background.

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I totally disagree with your opinion about the Gov. being responsible. That's what's wrong in Congress now! The Gov. is responsible to 220 Million people - not just a few stockholders!! Congress is asking the debt ceiling be increased as we speak.  You not keeping up with what's going on in Washington?

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 "I can explore many ways to save actual costs in litigation with a client after exploring their needs."

Isn't this what national agencies are doing?

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"Discounts can be offered within those guidelines"

Isn't this what national agencies are doing?

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"utilizing my network"

Isn't this what national agencies are doing?  Doesn't this make you a "referral agency", as well?

Outta here - got up @ 5:00 AM to get some work done before football starts today - everyone enjoy your day!