Break the Law or Leave No Record, California Courts Face Dilemma

Shasta County Superior Court chose to tape its proceedings, in violation of state law, in 2021.

With no full-time court reporters on staff and none willing to travel to California’s Shasta County, the court had few options. Judge Daniel E. Flynn first used the practice during a murder trial that year.

It won’t be long before Los Angeles judges will need to follow Shasta County and electronically record felony and juvenile cases, Los Angeles Superior Court Executive Officer David Slayton told Bloomberg Law.

“We have put in place robust incentives to bring people in the profession to our court, as well as to retain those employees that we have,” Slayton said. “But unless something changes, it is quite likely that we will experience that point in the next 18 months.”

In Shasta, Flynn said during the murder trial that he was protecting the constitutional rights of the defendants and alleged victims when he decided to illegally create an electronic record of the proceeding.

The reason no court reporters are available in Shasta County could be that many refuse to work there out of solidarity with those who said the county hasn’t treated them fairly, Flynn said, reading emails from them aloud at the trial. “Based on these responses, it is evident that no help is coming to Shasta County,” he said.

The lack of public court reporters in California jurisdictions is a systemic problem.

Difficulties recruiting and retaining court reporters—the officials who create and protect verbatim records of proceedings—are hitting California courts hard. Recent efforts in some jurisdictions to ratchet up six-figure starting salaries and tempt new recruits with bonuses in the high five-figures aren’t easing the crunch quickly enough.

There are 4,590 licensed court reporters with California addresses, according to the California Department of Consumer Affairs, which far outpaces the roughly 2,175 judges, referees, and commissioners in trial courts where the reporters are needed across the state. A wave of state court layoffs a decade ago and more lucrative opportunities in private practice have prompted an exodus from government courtroom jobs.

The dearth of available court reporters has already caused the largest trial court in the nation, Los Angeles Superior Court, to stop providing court reporters in family law and probate matters. Court reporters are only legally required in felony and juvenile cases, but they’re needed in other cases because without a record of court proceedings, it’s essentially impossible to appeal.

Court reporters say Shasta County’s solution, electronically recording the proceeding, isn’t a substitute for their services because they’re sworn to protect their notes, ask parties to repeat inaudible phrases, and read back records in real time.

No Reporter, No Appeal

With evidence of a black eye and medical records of chest injuries and bruises, one domestic violence survivor recently approached the Family Violence Appellate Project’s Jennafer Wagner asking for help appealing a case in which she was requesting a restraining order.

Wagner couldn’t appeal the case. There had been no court reporter present during the initial hearing, so there was no way for Wagner to know why the trial court denied the restraining order.

This type of exchange happens almost daily at Wagner’s Oakland office, she said.

Private court reporters cost up to $4,000 per day, according to the Los Angeles County Superior Court. Litigants shoulder the costs if the court doesn’t provide a reporter.

Courts are required to provide reporters to indigent litigants upon request, but many litigants aren’t aware of that right. Frequently, the court can’t meet requests for free court reporters immediately because they’re short staffed, so they ask these litigants to either wait a few weeks or forego a court reporter.

“They often say, ‘I can’t wait,’” Wagner said. “I can’t get another babysitter and another bus voucher and psych myself up to face this person in court again. I have to do it today.”

No verbatim record will exist of some 300,000 proceedings held in LA Superior Court during 2023, because those cases didn’t have either a court reporter or the ability to be electronically recorded, based on estimates calculated from January and March, according to Slayton. Essentially, none of those cases can be appealed.

State Law Change Possible

Wagner is part of a coalition of social justice organizations backing S.B. 662, which would allow courts to electronically record civil cases on the same equipment they use for misdemeanors and limited civil cases if no official reporter is available. Court reporters or certified transcriptionists would be hired to create written records from the recordings.

Los Angeles County Superior Court Presiding Judge Samantha Jessner is “one hundred percent” in support of the bill, she said in an interview. “The face of that bill has really been the legal services community.”

The measure was first introduced in March and then extended as a two-year bill, meaning it doesn’t have a chance to become law until 2024 at the earliest. “The greatest impact is being felt, and will continue to be felt, by those who do not have the financial resources to retain the services of a private court reporter,” Jessner said.

“Can you imagine if you’re in a five- to seven-day trial, and you need to pay for a court reporter for six hours a day? It’s just not tenable,” she said.

It’s possible that someone could bring a suit challenging the existing law on court recordings before the bill moves through the legislature, Wagner said.

“If somebody wanted to say the law violates the separation of powers, or the law is violating due process, there could be potential for saying that the law that prevents electronic recording—because it results in no record—is depriving people of justice,” Wagner said.

Protect the Record

The bill faces opposition from court reporters associations and their unions, who say expanding electronic recordings would undermine their ability to support judges and attorneys in court and would endanger the integrity of the record they are sworn to protect.

“There have been plenty of recordings that can’t pick up women’s voices,” said Michelle Castro, a lobbyist for SEIU 721, the union representing certified shorthand reporters in Southern California. “They have trouble with voices that have heavy accents. They picked up privileged conversations between lawyers and their clients.”

The bills to transcribe electronic recordings can burden indigent litigants too, Castro said. Costs can be as high as $1.60 per minute to listen to the transcript and create a verbatim record, she said.

Leveraging voice writers is one way to bring more official court reporters on board in California, Castro said. Their method of speaking shorthand notes into a machine rather than typing was authorized in California last year, and they’re graduating from certification programs faster and at higher rates than stenographic writers.

Courts that utilize state funds for recruitment and leveraging voice writers are seeing their ranks increase, Castro said. But hiring numbers aren’t increasing quickly enough to solve the immediate problem, court administrators argue.

Jury decisions often hang on the testimony that in-person court reporters read back from the record, said Cindy Tachell, president of the Los Angeles County Court Reporters Association. And court reporters, unlike electronic recordings, are required to interrupt proceedings to repeat inaudible information.

Data security is another concern, particularly for cases involving information about children. Electronic recordings are often sent to third parties that provide professional transcriptionists and don’t have the same oversight as a licensed court reporter, said Cassie Medina, vice president of the LACCRA.

“I would not put it past an attorney to alter, manipulate, or abuse a recording to their client’s benefit at the expense of a reporter,” an unnamed Northern California certified court reporter wrote in response to a request for outside help that was read aloud in Flynn’s Shasta County courtroom. “And unfortunately, these are not the good old days of judges protecting or even defending their reporters.”

Court reporters have more accountability, Los Angeles County Official Court Reporter Christie Hudson Youngquist said. They are governed by the “checks and balances” of their courts and the state licensing board.

“Every single day I turn on my machine,” Youngquist said, “my license is on the line.”