Attorney Responsibility for the Court Reporting Fees
NCRA advocates that attorneys are liable for court reporting fees unless they expressly disclaim liability in advance. This policy conforms with the modified agency rule adopted in the majority of states with respect to court reporting fees that takes into account custom and usage and modern litigation practices in which attorneys, rather than their clients, handle and maintain control over all aspects of litigation, including hiring the court reporter and other expert services.
Communication Access Realtime Translation (CART)
Providing Quality CART Services
NCRA has since its inception advocated the highest standards possible with regard to professionalism, continuing education, and certifications to ensure that clients and consumers receive the services they need from skilled and knowledgeable practitioners. NCRA will continue to advocate this position well into the future in order to ensure the integrity of the profession and protect those individuals who depend on the services that only a qualified CART captioner can offer. Therefore, the goal of all CART captioners is to provide the highest quality CART possible, taking into account NCRA’s Guidelines for Professional Practice, which state: “Accept assignments using discretion with regard to skill, setting, and the consumers involved, and accurately represent the provider's qualifications for CART.”
NCRA strongly believes that only qualified CART captioners should offer communication access services to ensure that consumers receive the level of service required by the Americans with Disabilities Act. If a qualified CART captioner is not available locally, then remote CART should be considered, again with the primary goal of ensuring that a qualified provider is identified who can meet the communication access needs of the consumer or group. Students should not provide CART services, as poor service has a negative effect on the profession and, more importantly, on the consumer.
High-speed students should only provide CART captioning services under the tutelage of a trainer or through an established internship program. Students should not offer their services until they’ve graduated from or successfully completed a court reporting program and have had specialized training in providing CART services.
NCRA recognizes that in certain situations an internship may not be possible or a qualified CART captioner may not be available to provide the necessary services. In such instances, neither students nor schools are to be compensated for CART services.
Misidentification of CART Services
NCRA believes that all individuals in need of communication access services should have the right to select what method will best meet their needs. Communication Access Realtime Translation or realtime captioning as performed by a realtime reporter offers the only current method for providing verbatim, immediate voice-to-text translation for those people requiring communication access. Some operators of non-verbatim note-taking methodologies have begun to describe their services as CART. This mischaracterization confuses the services offered and endangers the consumer’s ability to receive the service, not only requested but required, for full and effective communication access. Moreover, this flagrant misidentification of the services that an individual can legitimately provide is a clear violation of the trust of those individuals in need of communication access assistance. Therefore, NCRA believes that only those individuals who can provide a verbatim, immediate voice-to-text translation can legitimately describe themselves as CART providers or realtime captioners.
Ensuring the Confidentiality and Security of Outsourced Transcription
NCRA supports effective and reasonable law, regulation, and standards that protect the accuracy, privacy, and security of legal and medical transcription work.
The practice of outsourcing the transcription of court and medical information is growing, driven by the desire for increased productivity and economy. As ‘Guardians of the Record,’ NCRA members and the court reporting profession as a whole have traditionally and historically placed the highest value on the accuracy, impartiality, security, and confidentiality of the records they are creating. While recognizing the need for efficiency and the client’s legitimate desire to manage costs, ensuring the confidentiality and security of the information contained in the records that court reporters and health professionals create remains a fundamental and inviolable obligation. Whenever, during the process of creating the record, the work in progress leaves the custody and control of the court reporter him- or herself, the accountability for the security and confidentiality of its contents and compliance with all applicable laws in the jurisdiction pass with it to the scopist, proofreader, transcriptionist, production facility, or whomever. In particular, once content has gone outside the borders of the United States and is being prepared by individuals overseas, concerns are raised as to whether the same level of security that Americans are afforded domestically will be provided abroad to protect that confidential information.
NCRA notes that various jurisdictions already have laws or regulations in place to regulate, restrict, or even prohibit the outsourcing of judicial transcriptions. NCRA supports full compliance with and effective enforcement of such statutes and the creation of additional law, regulation, or standards that effectively and reasonably ensure the security of confidential judicial records.
Third-Party Contracting
Disclosure Obligations
- A court reporter shall always disclose to all parties present at a deposition the existence of any direct or indirect contracting relationship with any attorney or party to the case, so that the other parties may exercise their rights under Rules 28(c), 29, and 32(d)(2) of the Federal Rules of Civil Procedure, and comparable state and local laws, to object to the taking of the deposition because of the possible disqualification of the court reporter. This disclosure shall include the identity of all principals and agents involved in the contracting group as well as a description of all services being performed by such court reporter, his or her employer, or any principal or agent of the contracting group. It is the court reporter's obligation to make reasonable inquiries and ascertain this information before accepting any assignment.
- A court reporter shall always offer to provide comparable services to all parties in a case. However, nothing in this policy is intended to allow court reporters to directly or indirectly exchange information with competitors about the prices they charge, or to discourage in any other way competition in the services offered or prices charged by court reporters.
- A court reporter shall not, in act or appearance, indicate that the court reporter is participating as part of an advocacy support team for any one of the parties.
- A court reporter shall always comply with federal, state, and local laws and rules that govern the conduct of court reporters such as those that deal with certification, confidentiality, and custody of transcripts, and contracting.
Policy in Support of Enactment of Anti-contracting Laws or Regulations
Whereas, NCRA has long been concerned with the practice under which court reporters enter into contracts for court reporting services. The basis of this concern arises from ethical rules and laws that require reporters to maintain impartiality and independence in their capacity as officers of the court.
Whereas, in 1995, after review by the United States Department of Justice, NCRA issued a Contracting Disclosure Policy. This Contracting Disclosure Policy requires a court reporter to disclose to all parties present at a deposition the existence of any direct or indirect contracting relationship with any attorney or party to the case. The Contracting Disclosure Policy also requires a court reporter to offer comparable services to all parties in a case and prohibits a court reporter from acting or appearing to act in any proceeding on behalf of any one of the parties.
Whereas, NCRA also has issued several Advisory Opinions which address aspects of certain contracting arrangements under NCRA's Code of Professional Ethics.
Whereas, NCRA's members and affiliated organizations increasingly have expressed their concern about contracting and have contacted NCRA to request information and assistance on methods and means by which they can access legislatures and governmental rule-making bodies in order to lobby for legislation, regulations, and/or rules to limit or prohibit contracting arrangements.
Whereas, a number of states have enacted or are considering laws or court rules that limit or prohibit contracting arrangements, or require full disclosure to all parties of the existence of such contracting arrangements.
Whereas, NCRA believes that such laws and court rules are the best way to address the ethical and legal problems raised by contracting arrangements.
Now, therefore, it is MOVED, seconded, and carried that NCRA lobby at the state and federal level and work with its affiliated organizations and coalitions at the state level to seek the enactment of laws and court rules that will limit or prohibit contracting arrangements in order to maintain the impartiality and independence of court reporters in their capacity as officers of the court.
NCRA will refrain from providing public testimony.
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*/ By way of example, a financial or other interest that could give rise to a conflict of interest might include an equity or other ownership interest, a paid consulting agreement or other business arrangement with a vendor associated with the court reporting, CART, or captioning industry. Among other things, this would cover the receipt of consulting or appearance fees, travel expenses, sales commissions, royalty payments for the sale or licensing of hardware or software technology, etc. Normally, participation in user groups and beta testing (where the equipment is returned) would not be included or require disclosure. However, conflicts of interest are not limited to formal financial partnerships or arrangements. Any management position or leadership role with decision-making authority (whether voluntary or for compensation) with any board, business network, consulting contract, or other business relationship in the court reporting profession or related professional specialties (e.g.: CART, captioning) could potentially give rise to a conflict and should be disclosed.
Affirming the Role of and Need for the Official Reporter
Budget crises in many of the nation’s courts have increased the pressure to reduce the number of qualified reporters or replace them with alternative record-making methodologies. Put simply, in times of economic challenge, concerns over funding often take precedence over concerns regarding the quality and accuracy of the record.
NCRA believes that adopting such a limited perspective risks not only the production of an accurate, complete, and secure record of the proceeding, but also the efficient functioning of the judicial process and access to the courts for American citizens. Therefore, decisions regarding the best method for making the record must be based on the court’s larger goals and customer needs.
Court reporters are experts at gathering information and preserving it in formats that are quickly accessible and readily usable. They have played a critical role in bringing state-of-the-art technology into the courtroom. Clearly, realtime computer technology when applied by a highly trained and skilled individual enhances the value of the record. These "Guardians of the Record" offer the only method for immediate voice-to-text translation via realtime technology, thereby providing counsel and the judge with instant access to the transcript during the proceedings and ensuring a faster and more efficient judicial process. The same technology provides greater access to the justice system for the more than 28 million U.S. citizens who are deaf or hard of hearing. Having the transcript immediately available in digital form puts key information where it is needed, when it is needed. As a result, the role of the official court reporter has changed from making a record for appellate review to managing a multipurpose system that provides online data for lawyers and other legal professionals.
NCRA advocates that realtime court reporters offer the best, most accurate, most efficient means (human or technological), and best proven and most widely available method for reliably and instantly capturing and integrating the spoken word into a comprehensive and accurate information base. This capability is critical to the swift, fair, and accurate operation of justice. Therefore, the nation’s courts should take every opportunity to make use of the skills and services that only a realtime court reporter can offer to the judicial system.
Transcript Repositories
The National Court Reporters Association (NCRA) is well aware of the growing number of online transcript repositories. These internet sites market themselves as a way for attorneys, and in fact the general public, to obtain and read transcripts from proceedings other than those with which the attorney is involved. Many of these online repositories offer attorneys access to the transcripts for free or at a reduced rate in exchange for attorneys submitting to the repository copies of transcripts the attorneys have purchased in the course of their practice.
These repositories are distinct from websites operated by state and federal courts through which parties in interest or the public can access copies of court documents. The court-operated websites only contain public documents, in that they have been filed with a court, and therefore the parties have no expectation of privacy. Furthermore, in most instances the courts have redacted private and confidential information from these documents.
NCRA is concerned about these private online repositories for several reasons. First, NCRA members are prohibited from selling copies of transcripts that are not public record (e.g., deposition transcripts that have not been filed with a court) to persons unrelated to the proceeding without first obtaining permission from the parties and the deponent. Reporters are entrusted by the parties to keep information secure and cannot violate that ethical duty without explicit permission to do so. The parties and witnesses have the expectation that the information will be kept secure by the reporter. Ignoring such a safeguard places private information at risk, potentially allowing anyone to make use of the data for inappropriate and/or illegal uses via these repositories.
Additionally, when a transcript contains private information, such as social security numbers and names of minor children, many courts have implemented a procedure whereby the parties instruct the reporter before the transcript is filed in court to redact that private information. If an attorney submits a transcript to a transcript repository that hasn’t gone through that redacting procedure, there is risk of great harm to the involved parties with the release of that personal and confidential information.
Court reporters have long been vexed by the issue of attorneys sharing transcript copies with fellow attorneys on the same case, as reporters rely on transcript copy sales as part of their income. Moreover, as federal and most state laws identify, reporters have the right to be fairly compensated for production and distribution of the transcript.
However, the issue of compensation pales in comparison to the dangers associated with the unauthorized and unregulated posting of transcripts containing private and confidential information to the internet via online repositories.
For these reasons, NCRA believes that such distribution via online repositories should be prohibited unless the following guarantees are offered:
- Private and confidential information as identified by current federal guidelines has been redacted from the transcript.
- Only those transcripts that have been made part of the public record, either through filing with a court or through the permission of the parties and the deponents, are posted online.
- The posting party has confirmed that such a practice does not violate local rules and regulations governing the terms and restrictions on the distribution of transcripts.
Electronic Filing of Court Documents and Transcripts
Electronic access to court records is an issue that court reporters have managed for years. As "Guardians of the Record," judicial reporters have the task of maintaining the accuracy and ensuring the security of the official court transcript. Moreover, adhering to the instructions of the court, official reporters manage much of the information distributed to the public. The parties involved often painstakingly scrutinize these documents, and copies are also demanded by legions of journalists and often hotly pursued by members of the public, the legal community, and even collectors.
The National Court Reporters Association (NCRA) applauds current efforts on the federal and state level to allow for electronic access to court records and looks forward to the role court reporters can play in facilitating the process. The value court reporters bring to the court system is to provide litigants and participants with accurate, detailed information about the trial in a way that is quick, convenient, and cost-effective. The reporter's computer-based transcripts are a natural fit for today's web-based court document management systems.
Nevertheless, there are many issues that must be addressed when considering the adoption or implementation of electronic filing as a way to enhance the efficiency of the judicial system and provide public access to court documents.
NCRA believes that ensuring the public’s right to access court records must be balanced against the right to privacy of the parties and public safety. Before an e-filing system is implemented, there must be a process in place to ensure that key information, such as that identified in the United States Judicial Conference’s policy on redaction, is excluded from the publicly accessible document. Moreover, it should be the responsibility of the parties and/or attorneys to identify the information to be redacted, and the responsibility of the court reporter to redact that information from a transcript.
Ensuring the security of the information once filed electronically is also of paramount concern. First, only a certified transcript should be incorporated into an e-filing system. Second, with continuing advances in technology and the ability of outsiders to gain illegal access to protected computer systems, the entity facilitating e-filing access must provide a method to ensure that a certified transcript cannot be altered once it is accessed electronically and that any attempt to alter an electronic document can be easily identified.
In addition, the court’s compensation system must take into account the fact that individuals who wish to obtain a copy of the transcript will no longer be required to go through the reporter but are now able to obtain the copy electronically. Most official reporter compensation systems are based on the expectation that the reporter's compensation package includes transcript original and copy sales, as those transcripts are produced with reporter-owned equipment and supplies, often outside of standard work hours. Therefore, NCRA believes that a reporter must either be paid for copies of transcripts accessed through the e-filing system or otherwise compensated for copy sale income lost as a result of electronic filing of transcripts.
Certified Legal Video Specialist
NCRA strongly recommends the use of a Certified Legal Video Specialist (CLVS) to ensure the integrity of both the videotaped legal proceedings and the utilization of the electronically recorded media. A CLVS has been trained on the professional standards, ethics, and responsibilities of creating and maintaining the record.
Anonymous Communications
The National Court Reporters Association (NCRA) has set forth a code of conduct and response policy in the management of internet and social media "trolls" - individuals who make false statements, forge complaints, or threaten individual members, leaders, or staff using internet platforms or by posting website comments or engaging on social media.
NCRA will not engage with internet trolls who use a false name. As anonymous trolling has at its core the goal of generating a response from its target, lack of a response statistically is the best tactic for deflating the activities. Likewise, engaging with anonymous trolls may result in more significant damage to NCRA's members, volunteers, and staff as well as its ability to serve its members.