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How to Handle Discovery During the Court Reporter Shortage

Tuesday, April 30, 2019

If you are a litigator or a judge, you know by now that the court reporter shortage is very, very real. In Texas, a fair estimation is that there are approximately only 400 to 500 reporters on any given day available to report every depositionoccurring in the state.  At this point, demand FAR EXCEEDS supply, so go back to your accounting books and remember what that does to the market.

This is a national problem, but one that has profound implications here in Texas.  Each year, the five remaining bricks and mortar court reporting schools in Texas produce only a handful of students who pass the state’s Certified Shorthand Reporter’s exam and become court reporters. Meanwhile, many more court reporters than that are reaching retirement age.  The average age of court reporters is in the mid-50s.

Forget how this happened, and let’s focus on the future.  The court reporting community is mounting a substantial effort to attract new students to the profession, but this won’t have an impact on the number of actual reporters in the field for several years to come.  Some court reporting firm owners are committed to harness technology in ways that make more efficient use of their team of court reporters. Plus, firm owners are leveraging technology to ensure that they have an answer to meet the high standards of quality and service that are required by their attorney clients.

What can you do so that the shortage doesn’t negatively impact your practice?  Here are some ideas that you can share with your staff and colleagues:

  1. Call the court reporting firm or schedule your deposition online immediately upon agreement between counsel on a date/time of a deposition. Do not let Notices sit in your computer or on your desk.  Court reporting firms attempt to schedule court reporters immediately upon receipt of an assignment to ensure their clients have the resources they ordered at the time of the deposition.
  2. When drafting your deposition Notices, draft them as being taken “stenographically/nonstenographically” in case at the last minute no reporter is available but the deposition MUSTgo forward. Of course, court reporting firms are dedicated to stenographic depositions; however, if there is no other choice, then a nonstenographic deposition has been Noticed pursuant to the Rules, and you can have your reporter of choice transcribe and certify from the alternative medium.  Obviously, there is the possibility of a less than stellar record when a reporter transcribes from a video or audio recording, so only use nonstenographic depositions when every other avenue has been exhausted.
  3. If a last-minute deposition arises or if your scheduled reporter has to cancel and there is no Texas Certified Shorthand Reporter available to take her place, be open to the following:

Be open to having a reporter appear remotely, either telephonically or via video conferencing.

Be open to having a voice/mask reporter.  They hold the same certification as a machine writer in Texas. 

Be open to agree with opposing counsel (per TRCP) that a nationally certified reporter or a noncertified reporter can take the deposition.

Be prepared that you (the lawyer) or a mobile notary service may have to swear the witness if the reporter is appearing remotely or if a nonstenographic deposition is required.

  1. When possible, Certified Shorthand Reporters will be taking more than one job a day. Be prepared to give an approximate ending time of your deposition to enable the reporter to take multiple depositions.
  2. Be prepared for higher court reporting costs.Generally, court reporters are independent contractors and work for the highest bidder.  Economics 101 taught us that when demand exceeds supply, prices increase. Court reporting is no different.  All reporters are demanding higher page and hourly rates; and experienced reporters are at a premium.  Every court reporting firm in Texas is working with the same pool of court reporters, and this sometimes results in bidding wars.  Make the necessary budgetary plans for 2019, and prepare your clients for the increased fees.
  3. Be prepared for cancellation fees. Court reporters are paid by the page and sometimes by the hour.  If they take zero pages in a day, they make zero money.  If your job cancels and the reporter cannot find another job to take, that reporter makes no money for that day, and that resource is lost.  The court reporter will charge a late cancellation fee.  If you are not the cause of the cancellation, be sure opposing counsel knows that they will be responsible for the late cancellation fee.
  4. Where there is a shortage of ALL reporters, there is even a greater shortage of realtime reporters. The pool of realtime reporters is much smaller than the reporting community as a whole.  If you have ordered realtime and the reporter gets to the job and no one wants realtime, the reporter may charge as if the job were realtime OR she may charge a realtime cancellation fee (even if the deposition continues without realtime). That realtime reporter possesses a VERY marketable skill, and that resource has been wasted if it’s not utilized as ordered.
  5. Court reporters used to hate to be told to hold their notes; however, these days, if you are not certain if you need the deposition transcribed, ask the reporter to hold her notes. That enables the reporter to concentrate on other depositions where a trial date is set OR to take another job the next day instead of concentrating on getting your deposition produced.  This will also save you money in the long run.
  6. Standard turn-around time used to be seven to ten business days. Since freelance reporters are in such high demand, they need to be sitting at the end of a conference room table instead of working on their backlog during the day, thus leaving only nights and weekends to produce transcripts. Turn-around times have increased substantially.  There are some exceptional reporters whose turn-around time is over 30 days.  When you schedule your depositions, please let your reporting firm know of your turn-around time expectations.  That way, the firm can assign the resource that can meet your needs.  If you do not give your firm that expectation at the time of scheduling, the court reporting firm and you are at the mercy of the court reporter’s backlog.  Your deposition will be put next in her production line, wherever that may be.

What can you do to help?  There are ways that the legal community can help with the current shortage. They should talk to members of their Bar Association about the dilemma. They should also encourage and guide interested students in the right direction. Kim Tindall of Kim Tindall & Associates can help provide such guidance and can be reached at 210-641-3150. With the help and cooperation of the legal community, the reporter shortage should eventually come to an end.

 

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