Very early in our careers in the legal industry we realize that not only do we all work together, but we also learn together, we grow together, we celebrate together,
and we mourn together.
Sadly, we lost an American legend and true trailblazer today.  A skilled and dedicated attorney, that in spite of facing discrimination rose above the fray to become the first woman to serve on the United States Supreme Court.
Her vote was pivotal in nearly two-thirds of the closest cases, during her tenure,
more than 350 in all.
On a personal note, she graciously always took time to speak with court staff, never perfunctory, but consistently upbeat, caring, and kind.  Think about that, even in highly charged and adversarial situations treating each and every person in the room with the same respect and dignity.
It was a tangible gift, and one I am blessed to have learned from.
“The freedom to criticize judges and other public officials is necessary to a
vibrant democracy.”
 Sandra Day O’Connor

 

Whether we like it or not, we live in a world rife with Deep Fakes, CGI, and AI.
How do we ensure the integrity of sworn testimony into the future?
The National Court Reporters Association has created a position statement on the dangers of using AI in legal proceedings.
state-of-the-art court reporters, real time, streaming, zoom, remote deposition, video conference
For anyone who asks the question:

Will court reporters be replaced by digital reporting or AI:

ChatGPT:

The potential for AI to replace court reporters is a topic of ongoing discussion and speculation. While AI technology has made significant advancements in recent years, there are several factors to consider when it comes to the role of court reporters:

1. Accuracy and Complexity: Court reporters play a crucial role in accurately transcribing court proceedings, capturing nuances, tone, and nonverbal cues. Achieving a high level of accuracy in transcribing complex legal proceedings, including multiple speakers, interruptions, and technical terminology, can still be challenging for AI systems.
2. Real-Time Reporting: Court reporters often provide real-time transcription during hearings or trials. This requires immediate and accurate reporting, which can be challenging for AI systems to achieve in real-time scenarios.
3. Legal and Ethical Considerations: The legal profession has strict standards and rules for court reporting. The use of AI systems for court reporting would require careful consideration of legal and ethical implications, ensuring transparency, accountability, and adherence to existing regulations.
4. Human Interaction and Judgment: Court reporters also handle other tasks beyond transcription, such as managing exhibits, marking important moments, and working closely with judges and attorneys. These aspects require human judgment, understanding of context, and interpersonal skills, which can be challenging for AI systems to replicate.
While AI technologies can assist court reporters by automating certain tasks, such as speech-to-text conversion or proofreading, it is unlikelythat AI will completely replace court reporters in the foreseeable future. The human element and expertise provided by court reporters are highly valued in legal proceedings, and their role extends beyond mere transcription.
For depositions in Arizona, Code requires use only of an
Arizona Certified Reporter and/or an Arizona Registered Firm.   
Please contact us with any inquiries, scheduling, and/or needs
that we can assist you with at:
[email protected], or call us at 480-481-0649
Herder & Associates, Registered Reporting Firm #R1220
Experienced, Trusted, Ethical
We look forward to making your deposition seamless
with cost-containment always in mind.
court reporting and technology

At personal risk of being the target of attack, I respectfully address court reporting leadership’s campaign of sending out a woefully outdated 16-year-old Advisory Opinion on court reporters who video record Zoom depositions. I first wrote about this issue in Court Reporting and Technology.

First, let’s recall that this is a pre-Zoom, pre-pandemic, 2006 outdated opinion, and only an opinion. This was never a rule, never a regulation, nor a law.

If you will recall, this language was addressing a completely different animal in 2006 in live depositions, and it was drafted before the ease of Zoom and modern technology even existed.

This language specifically was addressing live in-person depositions and reporters who were frantically managing videography hardware during depositions. Reporters with tripods, wires, cables, lights, and cameras were showing up to depos. It was 2006 and the tech explosion was just starting to happen. (Twitter was only just about to be launched.)

Court Reporting and Technology

Fast forward to today, it is embarrassing that professionals would employ such obviously outdated language to slow progress. Throw away your 8-track tapes, so to speak, and let’s get upgraded to today’s standards of court reporting and technology.

We should all demand an updated position from NCRA and our state associations before they issue more ill-advised dusty opinions like this.

“Follow the money.”  This anti-reporter movement is partly motivated by companies that are losing millions of dollars each week overcharging for video-recording, even though today modern technology makes it safe, efficient, and Code-compliant.

Be aware that this is another brick in the wall to advance non-reporter proceedings, with a goal to eventually have only the digital reporter (tech/videographer) present. They are doing an excellent job of trying to muddy the water and diverting our attention as they are unopposed in this business plan:  Live stenographic reporter replacement.

Both court reporters and videographers are in short supply. Like in every industry, the crossover is inevitable, efficient, and cost-effective. We should be striving to keep the reporter in the proceeding in as many ways possible, even if an added video certification is deemed best practice.

Is NCRA going to tell the legal industry that reporter-recording a Zoom deposition is unethical and unsafe? Really? This is a bright, forward-thinking, and dynamic demographic that we serve, one that has had hundreds of thousands of proceedings successfully remote recorded by court reporters already.

We all have lived through and adapted through this pandemic. The legal industry has grasped onto advances in technology these last three years. Some went kicking and screaming, but we all adapted, including managing technology for court reporting. Are you going to tell them that we reporters are going to stick to our antiquated 2006 protocol? Really? This is professional suicide for the reporting industry. Please reconsider. More attorneys are asking for Code-compliant, reporter recording of Zoom depositions.

I appreciate that court reporters are intimidated by this massive marketing propaganda, especially when our state associations unwittingly walk in lockstep with a darker agenda. Most have not taken the time to read the RCP language or do their own due diligence, to deeply engage with clients and the marketplace, or to keep updated on this specific issue. Court reporters decline to record because it is new, and yes, there is a learning curve, and many of us just don’t like change. That is completely within their right to turn down this type of job. No argument there. No one is forcing them to accept this task and we appreciate them for the skills they do retain.

Zoom video recording is yet another valuable, advanced skill set, just like real time or captioning. There are court reporters who can write real time and there are others who cannot. They all deserve an opportunity. After all, we know court reporters are in demand across the country.

Thanks to rapidly advancing technology, Zoom video recording is not rocket science. All the hyperbole and criticism that recording a Zoom proceeding pursuant to statutory protocol is too much of a distraction for a reporter is just that, hyperbole…and it is totally subjective. What may be impossible for some reporters is second nature and enjoyable to others.

All protocols and code requirements can be learned and implemented by those that have a desire to expand their skills and be the ultimate professional. It has already been done and continues across the nation in hundreds of thousands of proceedings.

We simply cannot stick our heads in the sand and try to un-ring the bell of progress. 

This is especially true because it clearly opens the door to digitals aligning with videographers with virtually no objection to push the stenographic reporter out completely.

Do not tie our hands while handing them the key to the city.

Let us at least attempt to keep the playing field level.

The tighter our made-up restrictions are, the less competitive we will be… and the easier we will be to replace.

Court reporters need to become video certified for Zoom recording. Period.

 

For those that are simply not comfortable learning this skill set, with all the associated responsibilities, to disparage those that are comfortable and capable, is ill-advised, unkind, and non-productive to our industry. It’s akin to degrading someone who chooses to write real time, caption, or any other advanced skill. It’s like telling the industry it is too challenging for you so your opinion is wrong. It just doesn’t make sense.

This 2006 citing has been outdated for over a decade. Those in leadership that diligently crafted this opinion 16 years ago never could have predicted the amazing progress technology has made, never could have foretold of a global pandemic that would force the world to learn new advances overnight that have developed in the last decade.

It is time to stop living in the past and trying to scare, intimidate and disparage our fellow reporters. That gets us nowhere. If you are not building someone up, then you are tearing them down. Let us all strive to be better than that. We need to have this discussion with mutual respect and consider all the issues and complexities, form a committee with member collaboration to craft a modern advisory opinion that relates to today, here, now in 2022.

No one loves court reporting and court reporters more than I do. No one.

For 41 years I have loved going to work each day. The wonderful professionals and lifelong relationships continue to sustain me. We are all in this beautiful chaos together.

We need to demand of our National Court Reporters Association better leadership on this topic, and not just a regurgitation of their work in 2006.

As a court reporting community, we need to demand ethical, unbiased direction that protects our industry, not just large firms.  We respectfully ask for updated guidance that considers the differences that exist in technology, adaptability of our members, and the looming encroachment of non-reporter digital and video recording. Please at least put up a fight for us before there is nothing to fight for.

Court Reporting and Technology

If the Covid-19 era has taught court reporters anything, it is that technology changes fast and we need to adapt quickly. Rather than traveling to in-person depositions, we were thrust into the world of video depositions. After all, lawsuits were still happening and courts were operating, even if in a lesser capacity. Lockdowns had us worried but we learned to change with the times with remote depositions in a pandemic world.

The challenge today is that the rules of court reporting and technology, specifically recording video depositions, are from 2006, years before a pandemic locked the world down. The world has changed, as has the technology and how we manage remote depositions. In this article, I write about the rise of technology, especially for court reporters. In later articles, I will be writing about how technology and the law haven’t caught up with each other and where that leaves us.

Angela Miller, the President of the Arizona Court Reporters Association (ACRA) said in the September 2021 issue of the ACRA Newsletter, “Our skill set cannot be replicated, and our dedication to our profession cannot be rivaled. We have proven to attorneys, judges, and court personnel that we are adaptive, we are flexible, and we can provide services on the fly with up-to-date technology and knowledge, and we can provide all of this not only in person but remotely.”

I agree wholeheartedly with her. At Herder and Associates, we’ve had to make quick adjustments, just like the rest of the world.

Court Reporting and Technology: A Brief History

In 2006, there was a rule put in place, that still stands today, which says court reporters are not allowed to record video depositions. That was fine at the time because most of our depositions were done on-site in conference rooms across the state of Arizona. People of all professions were primarily working in corporate offices, not at home, and the world had no idea what a pandemic would do to the way we work and where we work.

At that time, Twitter was being released. No one knew what to do with only 140 characters in a message. Today, the messages are up to 280 characters because of users requesting more space to write and Twitter giving us that. Apple released the new iMac with Intel Core Duo processor and introduced the MacBook Pro. Facebook was only two years old. Instagram was four years from existing in the public space and TikTok was probably not even an idea. In other words, technology has come a long way in 16 years.

In June 2013, Zoom was released for use, but it wasn’t until Spring 2020, the beginning of the pandemic lockdowns when it became widely popular. Attorneys and court reporters alike began using Zoom for video depositions as the rest of the world was meeting via the same platform. It makes sense that we started recording depositions, to the chagrin of some, because we needed to go back and listen, to make sure we were, and still are, accurately capturing what was said. Life was chaotic so we used technology to ease the stress.

Everyone from solopreneurs to corporate America was embracing life on Zoom. It makes sense that court reporters would use it too.

The problem is that the rules from 2006 said we couldn’t record depositions, even if they were via video. In today’s world, this may not make sense anymore. What’s even more embarrassing is that there are people who have an agenda to keep us in 2006 without considering that technology and the world have changed. In order for court reporters to do their jobs, we need to provide a more accurate deposition. For some, that means using technology to record depositions, but not everyone agrees this should be happening.

In later articles, I will be discussing why this antiquated way of thinking is ruining the already demand-heavy industry of court reporting.

deposition transcripts
Automated Speech Recognition (ASR) isn’t new, but now your record is in peril with its use.  Additionally, ASR companies (digital reporters) are not bound to the state and federal guidelines, skills, and code that stenographic court reporters are.  The myriad of pitfalls with digital reporting includes not only accuracy, but also reliability, unauthorized disclosure/dissemination of testimony and exhibits, HIPAA violations, and breach of confidentiality agreements, to name a few.

Please protect your record and take a moment to read this detailed on-point article recently published in the National Court Reporters Association Journal from our good friend and Immediate Past President of the Kentucky Court Reporters Association, Lisa Migliore Black, CCR, RSA with her assessment

court reporter

Have you recently shown up to a depo and realized the “court reporter” didn’t have a stenography machine?  You might have thought, “Wow, the court reporter doesn’t need one of those little machines anymore.”

The hard truth is you have just been part of a bait-and-switch scheme that may cost you your case.

Currently, there is a practice happening where unlicensed court reporting agencies, who claim they can’t find a licensed stenographic court reporter, are sending in a notary public to digitally record the deposition and have it transcribed later.

The Court Reporter Standard Certification Program (CR) provides statewide certification for persons in Arizona who are qualified to be certified.  Code Section 7-206 governs court reporter standard certification and applies to any person who records and transcribes a verbatim record in any sworn proceeding by means of written symbols or abbreviations in shorthand or machine writing in Arizona pursuant to Arizona Revised Statutes Title 32, Chapter 40.

Who is actually preparing the transcript if a Certified Shorthand Reporter didn’t show up? Protecting your court reporting record. 

These unlicensed agencies oftentimes send the digital recording to multiple transcribers who sometimes are located outside the United States.  The person showing up calling themselves a “court reporter” is not the one who transcribes the depo.  If your Arizona deposition transcript is not prepared by an Arizona Certified Shorthand Reporter, your deposition might not be admitted into evidence.

This deception is happening nationwide.  In a recent case in San Mateo County, In Re: McIntosh, Case Number SC023606A, Honorable Judge Scott upheld the Code of Civil Procedure and denied the admission of a digitally recorded deposition not prepared by a Certified Shorthand Reporter.

  “…[W]ith regard to the deposition of Mr. Dirickson, that it was taken pursuant to the Code of Civil Procedure 2025.340 for audio and video recording but was not stenographically transcribed pursuant to CCP 2025.340(m). It was simply given to a — even though Mr.  Dirickson was sworn in by a licensed notary, Cindy Cobb is simply a transcriber, not a stenographic transcriber as required by law.     

Meaning, a certified shorthand reporter.  So, the deposition of Mr. Dirickson would be inadmissible for — inadmissible on those    grounds.”  

“…[I] understand, Your Honor.  But we ordered a court reporter, and that’s who came.  I don’t know the technical difference between a transcriber and a court reporter.”

Unfortunately, this attorney, who had ordered a court reporter, was not sent a court reporter.  This is where you need to be diligent, protect your court reporting record, and be aware of what is happening in the court reporting industry by these companies who are trying to make you think you are hiring a court reporter.  Do not rely on the court reporting agency to send what you have asked for.

To make sure this doesn’t happen to you:

  1. Make sure your notice states “before an Arizona Certified Shorthand Reporter” and not “and/or a digital recorder, and/or a person authorized to administer an oath.”
  2. When scheduling, make sure to specify you are ordering a Certified Shorthand Reporter.
  3. If you are not the noticing attorney, make sure you check that the notice says “before an Arizona Certified Shorthand Reporter” and not “and/or a digital recorder, and/or a person authorized to administer an oath.”
  4. Verify that the person calling themselves a court reporter is actually an Arizona Certified Shorthand Reporter.  Always ask for their license number.

Remember, you have a right to object to the deposition officer’s qualifications.

Lastly, Arizona Certified Shorthand Reporters (commonly called “court reporters”) are licensed by the State of Arizona and have a board that was established to protect the consumer, YOU.  The court reporters boards throughout the country claim they do not have jurisdiction over these companies, who are unauthorized to provide professional court reporting services according to current Arizona law.  If you have a problem with your transcript or deposition officer who is not an Arizona Certified Shorthand Reporter, you will have no recourse.

If you have been subjected to this practice, please consider filing a complaint with the Court Reporters Board of Arizona.

Health and Gratitude This Holiday Season

Holidays are mixed blessings where families come together. Laughter and chatter fill the home, but there can also be stressful, especially for those who have a growing business or for those who want to stay fit through the goodies eating time of year. An attitude of health and gratitude this holiday season will go a long way to making it joyful for you and your loved ones.

At Herder and Associates, we focus not only on court reporting and remote depositions but on staying fit. Marty Herder wrote about staying fit through the pandemic and offered tips like going when the gym is less busy, wiping down equipment, and avoiding shared water sources like water fountains.

Health and Gratitude this Holiday Season

Staying active is an important part of a daily routine. Just because it’s the holidays, doesn’t mean you can’t maintain a fitness schedule. In addition to the tips we just mentioned, we offer the following:

  • Don’t overschedule. Whether it’s business or personal, don’t overschedule yourself. This can cause undue stress and a feeling of overwhelm.
  • Be reasonable. Think about how much time and energy you have and make decisions about your physical and mental health. Maybe you can’t make it to the gym, but you can take a long walk. Maybe you can’t make all the holidays parties, but you can send cards.
  • Keep a gratitude journal. Each day, write three things for which you are grateful. This will focus your mind on the positive, rather than the negative. More on this later in this article.
  • Turn off the news and social media. These can be overwhelming. Focus instead on friends and family or giving back to the community. The world will still be there when you get back to the news and social media.  

Holidays should not herald doomsday of losing all your year’s progress. Those dedicated seriously in their wellness journey will tell you that it is a journey, continuous but worthwhile.

All journeys require rest areas to catch your breath, refuel, and double-check that you’re on track.

Reconsider holidays as a changeup of your exercises from physical reps of weights to mental reps of gratitude.

Health & Gratitude Matter

Gratitude is putting life on pause to look around you and be thankful for the small, meaningful blessings in your life.

Several studies indicate actively practicing gratitude improves an individual’s mental space. According to the University of Utah Health, gratitude creates a positive change in the brain, and it motivates the recipients of that gratitude to pass it along. This improvement snowballs from a person’s mental state to what a person does with their day.

Practicing gratitude also leads to benefits such as:

  • Keeping positive emotions present.
  • Embracing good experiences.
  • Improving health, sleep, and immunity.
  • Building strong relationships.
  • Dealing with adversity.
  • Decreasing risk of disease.

Flex Gratitude

 As you’re working out, taking a walk, or reflecting, flex gratitude in these ways:

  • Pay attention to what is around you. Step into nature, not social media.
  • Thank those who’ve helped you through tough times.
  • Surprise a loved one or a stranger with an act of kindness.
  • Be thankful and encourage others to do so.
  • Marty volunteers with the community through Rotary Club. Find what works for you and carve time in your schedule for that.

In this pandemic world, health and gratitude are more important than ever this holiday season. Find what works for you. Identify what and who is most important and focus on them. A long walk or workout will go a long way in shifting your mindset from stress to gratitude.

Stay safe and Happy Holidays!

 

We are in opposition of the suggested rule changes. Death penalty cases, felony jury trials, and abortion without parental consent cases are just too important to risk to the inherent inefficiencies of electronic recording because life and liberty are inextricably dependent on a clear and accurate record. Please vote against any changes to the current rules.
 
This new language does NOT require that the courts make an attempt to schedule a certified reporter EVEN IF REQUESTED by a party, it is left to the discretion of the Court, which is contrary to SB1267.
 
Please submit your public comments in opposition to R-20-20013, Petition to Amend Various Rules of Procedure Related to Creating the Verbatim Record of Judicial Proceedings by NOVEMBER 1, 2021 at: https://www.azcourts.gov/Rules-Forum/aff/123
 
• The legislative process in passing SB 1267 is undermined and the proposed rules do not follow the Administrative Office of the Court’s own verbatim testimony during the legislative process of the reasoning and intent of SB 1267. The Administrative Office of the Court is attempting to create not a huge disservice to the litigants but to our judicial system. Please vote against any change to the current rules.
 
• Certified Reporters have ethical responsibilities in taking down testimony and in the production of the transcripts. These areas are instances where people’s lives and liberty are at stake. To rely on electronic recording leaves too many opportunities for error. Please vote against any changes to the current rules.
 
• The Keeping the Record Committee in 2005 did a thorough study with all stakeholders present regarding hat court hearings needed a certified court reporter to preserve testimony and what the best practices were. Nothing has changed since 2005 that would warrant changing the policy determinations previously made by the Arizona Supreme Court. People’s lives and liberty are at stake, and relying on electronic recording to create the record would be a major injustice. Please vote against any changes to the current
rules.
 
• The SKREM Task Force in 2019 was a rushed process and the resulting Final Report, where some of these suggested rule changes came from, are not in the public interest and are outdated based on newer information and standard practice. Please vote against any change to the current rules.
Remote Depositions in a Pandemic World

If you’re tired of hearing about the pandemic, you’re not alone. Like many of you, our business model adjusted to the new reality that our volume of remote depositions in a pandemic world increased, while at the same time the need for in-person depositions decreased. Okay, maybe not the need, but for the safety of everyone, attorneys increasingly turned to remote options.

While our court reporting team has been part of many remote depositions, the need to learn more and be aware of changes as a result of the pandemic was a new experience.

Other changes we noticed were in the volume of travel opportunities for court reporters as well as learning more about Zoom and its features. Like you, we had to improve our deliverables as we all became remote workers, court reporters, attorneys, paralegals, and witnesses.

  • 50% is the number estimated for the rate of ongoing remote depositions even as we move toward an in-person world again.
  • There is worry from court reporters who work in courts that their job will become unnecessary. That is to be determined, and likely on a state-by-state basis, and based on the severity of the crime, as has always been the case.
  • Court cases continue to be conducted, even through 2020, and there is still a court reporter shortage, increasing opportunities like travel and working remotely on depositions.

We say this all because how we conduct depositions has changed over the last couple of years and we wanted to share what we’ve learned.

Here are our tips for remote depositions:

  • Educate yourself on the latest technology. It is often the court reporters that arrive early to a deposition, even a remote one, to make sure everyone has access to the Zoom meeting.
  • Create a secure meeting. When scheduling on Zoom, check the settings to be sure there is a passcode required and a unique link. This will help prevent the Zoom hackers from joining the meeting.
  • Organize exhibits. Keep track of exhibits by organizing them into folders on your computer as they are presented so you can refer back to them.
  • Work with the attorneys. As you’re preparing for the remote deposition, remind the paralegals and attorneys that large exhibits should be in zip files, so they are easily shareable. Ask if anyone, including the deponent, is challenged by technology, and assist in their set up.
  • Sharing of exhibits. Be sure to have a way to share exhibits between attorneys, typically a secure file share system.

For some, the idea of remote depositions is relatively new, at least in practice. This makes it important to be detailed in your communications and to arrive ahead of time to handle remote deposition tech issues.

If you’re interested in scheduling a deposition in Phoenix or surrounding areas, call Herder and Associates at 480-481-0649 today!