For most of my career I litigated in courtrooms populated by a judge, two litigants, two lawyers and a person dubbed the “court reporter” or “stenographer.” That person’s job was to record on paper the circus that hearings can become and to do it accurately so that an appellate court could effectively “review” whether the proceeding was complete and fair.
Circa 2000, Delaware County (outside Philadelphia) elected to record trials electronically using microphones and a central recording station out in Lancaster. A hearing would begin with the judge dialing in to that station to turn the recording equipment on. It would remain on, without interruption until the court phoned back to turn it off. If a transcript was needed, some anonymous person would play tape and type it all out. The trend today is to use these recordings in every proceeding and dispense with a live stenographer as a matter of expense.
It can be effective except when it isn’t. Judges focus on hearing the case and not “making the record.” People who litigate like to talk over each other, yell and talk too fast. In olden days a live court reporter would interrupt with: “Judge, I’m not getting this” or “Counsel, I need you to slow down.” Judges would respect these comments just as an orchestra’s concertmaster responds to a conductor who pushes the orchestra too hard. I recall a custody case where the microphone was on the table my client and I were seated at. My client would drum his fingers on the table, shuffle my documents and talk to me during my examination. “She’s lying.” “I never did that.” All of it was part of the recording to the extent anything was heard over his paper-shuffling and finger drumming. I lost the case and did not appeal because I knew that the “record” would be a mess and my client’s “play by play” commentary would not be well received on appeal. An electronic transcript records everything, including the belch and lower intestinal issues. Meanwhile, your timely and correct objection to evidence was lost in a sea of yelling and paper-shuffling.
Perhaps this is nostalgic, but court reporters made me a better lawyer. They had no egos. They were there to serve the judge and the court. But, like an orchestra’s concertmaster, they did more than tune the string section. They made everyone play better by insisting that we needed to pay attention to the sound and not just the recording. Judges often saw them as a second set of eyes and ears. Alas, they are being consigned to oblivion in our digital day. But modern day appellants need to pay attention to the reality that unless there is an error in today’s digital record, there will be no relief. Your timely objection to inadmissible evidence was spot on except that my client was sneezing when you made it.
A more dramatic version of this is found here:
America’s courts are losing the record — and with it, your rights
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