Written by Timothy M. Kowal*
"Don't forget to get a court reporter."
Now that the court reporter shortage has reached an acute stage, this advice is becoming more easily said than done. The gap between the pace of retirements and entries into the field leaves California with a court reporter shortfall of around 3,000 — a gap that cannot be filled by the trickle of new entrants annually numbering a mere three dozen. By late 2022, the Los Angeles Superior Court — serving 40% of the state's population — stopped providing reporters in probate and family law matters. When I would dispense my advice, probate and family law attorneys would be nonplused: "Court reporters are already provided for us," they'd say. But they don't say it anymore.
Court transcripts guarantee important interests, not merely private rights but the public's right to open trials and the interest of the integrity of the courts. Consider just a small handful of recent cases that shaped American social and legal culture from far-flung trial courts, and how their reception might be different with less transparency: the Minnesota state court trial of George Floyd's killer, Derek Chauvin; the Georgia state court trial of Ahmaud Arbery's killers; the Wisconsin state court trial of Kyle Rittenhouse; the New York state court trial of Harvey Weinstein; the Illinois state court trial of Jussie Smollett; the California district court trial in the "Varsity Blues" scandal; and the New York state court trial of Donald Trump in the real estate loan fraud case. How might it affect public perception of landmark trials, held in courts hither and yon, without access to court transcripts? And imagine enforcing the right to confront and cross-examine witnesses, enshrined in the Sixth Amendment, without a transcript of that witness's testimony.
We just outfitted our courts with a lot of great new Zoom or other remote technology equipment. But our courts cannot simply hit the "record" button because Government Code section 69957 prohibits the courts from using any equipment to make an official or unofficial record. (But it doesn't require courts to prohibit litigants from using their own recording equipment, such as for the purpose of creating an agreed or settled statement — more on this later.)
What would a day without a court reporter look like? That was the reality for indigent litigants until 2018 when the Supreme Court intervened in Jameson v. Desta (2018) 5 Cal.5th 594. But it still is the reality for the many litigants whose means are too great to get a waiver of costs but far too little to afford court reporter costs. And even for litigants with means, the diminishing ranks of certified reporters suggest that, before long, we must all prepare for a day without a court reporter.
This article discusses why electronic recordings, though used in other jurisdictions, are not allowed in California, and why that is unlikely to change. It then discusses the origins of the court reporter shortage and the
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efforts to reverse it, most of them unsuccessfully. Having we've covered how we have no good way out of a pretty bad spot, we will then be ready to consider how things might get much worse.
Under California law, a court reporter usually is the only way to create a verbatim transcript. Advocates of electronic recordings argue that technology could replace or supplement this function. But Government Code section 69957 prohibits California courts from using electronic recordings to create a record.
Without rehashing this decades-long debate, the broad strokes are these: In 1985, the Legislature approved a project to demonstrate the cost and effectiveness of electronic recording. The project ran for about 17 years in municipal courts and six years in selected superior courts. In its report to the Legislature, the Judicial Council concluded the project was a success. But in 1992, the bill to fund and give all superior court judges discretion to use the equipment died in committee.
On the other hand, the Legislature did not explicitly bar the use of electronic recording. So the Judicial Council promulgated rules to allow superior courts to implement electronic recording. But the court reporters union sued. The result of the two Court of Appeal opinions in 1995 and 1997, both titled California Court Reporters Association v. Judicial Council (39 Cal. App.4th 15 and 59 Cal.App.4th 959, respectively), is that the Legislature intended to bar courts from using electronic recording except where explicitly allowed, and Rules of Court...
