Some may feel that the court reporter shortage is a problem without a solution. But is it, really? For years, California has debated the use of electronic recording in state courts. The seemingly common sense shift toward electronic recording has faced pushback from traditional court reporters over concerns of accuracy and integrity of the record. But it’s not just public debate that stands in the way of technological progress. State law, however arbitrary or antiquated it is accused of being, prevents the use of electronic recording in certain cases . . . while allowing electronic recording in other cases. If that sounds a little confusing to you, don’t worry, you’re not the only one.
California restrictions on electronic recording
The law at the center of this confusion, California Government Code, Section 69957, states as follows:
“If an official reporter or an official reporter pro tempore is unavailable to report an action or proceeding in a court, subject to the availability of approved equipment and equipment monitors, the court may order that, in a limited civil case, or a misdemeanor or infraction case, the action or proceeding be electronically recorded, including all the testimony, the objections made, the ruling of the court, the exceptions taken, all arraignments, pleas, and sentences of defendants in criminal cases, the arguments of the attorneys to the jury, and all statements and remarks made and oral instructions given by the judge.” (emphasis added).
Although Section 69957 says that electronic recording can be used in certain circumstances, the law is far more controversial for what it doesn’t say. Yes, generally speaking, Section 69957 allows the use of electronic recording in limited civil cases as well as criminal misdemeanor and infraction cases. However, it denies electronic recording for many other areas of litigation. When you consider that criminal cases hold priority in an already limited pool for court reporter assignments, it’s easy to see how other types of proceedings can get lost in the shuffle. This results in many court participants being left with no access to a seemingly clear and common sense solution to their court reporter woes. Which begs the question—Why is electronic recording allowed in some cases, but not others?
This lack of clarity in state law feeds two competing stances on legal technology and the court reporter shortage. One side sees electronic recording as a substandard, unreliable threat to consumer interests in obtaining and protecting the verbatim record. The other side sees electronic recording as a much needed, adequate alternative to a court reporter shortage that has left those very same consumers with no recourse to their problems. So what’s the answer?
Los Angeles County Superior Court issues general order expanding electronic recording
On September 5, 2024, the Presiding Judge for the Los Angeles Superior Court (“LASC”), Samantha Jessner, issued a General Order taking a bold position on the court reporter shortage, expanding the use of electronic recording in Los Angeles County. As noted in the order, electronic recording, though limited, is certainly not new to state courts. On the contrary, the order notes that electronic recordings in limited civil cases and misdemeanors provided 500 instances for review in the LASC Appellate Division in 2023, all allegedly without incident.
However, due to Section 69957, litigants in unlimited civil, probate, and family law matters are not afforded such opportunity, even though their cases may involve fundamental constitutional rights. As Judge Jessner describes it, their options to deal with the court reporter shortage are less than encouraging. Litigants can either pay for a private court reporter out of their own pocket or elect to delay the proceeding in the hopes that a resolution will present itself. Judge Jessner’s order attempts to fill this void in access by granting courts the option to conduct electronic recordings when the following six conditions are present:
- The court proceeding impacts fundamental rights and liberties;
- One of the involved parties seeks to create a verbatim record of said proceeding;
- There is no reasonably available court-employed Certified Shorthand Reporter (“CSR”) to record said proceeding;
- The requesting party was unable to obtain a private CSR, due either to unavailability or the inability to afford a private CSR;
- A verbatim transcript is likely necessary to complete the court record, given the significance of the legal and factual issues present in the case; and
- The interest of justice makes it that the case should not be further delayed.
It’s a move that’s been met with resistance from the California Court Reporters Association who characterized it as “unlawful,” arguing that the order “will create chaos for litigants and continue to feed into a broken system inside the courts of disparity of justice between the haves and the have-nots.” These charges levied by court reporters against the judiciary reflect the continued back-and-forth between vested interests in this debate. For its part, the general order focuses its efforts on the urgency caused by the court reporter shortage and offers a legal, constitutional justification for challenging existing California law.
Urgency to expand electronic recording
In an April 2023 letter (See General Order, Exhibit 4) to the California Senate Judiciary Committee, Judge Jessner argued that, when it comes to the question of addressing the court reporter shortage, “The answer cannot be further ‘wait and see.’”
Citing a well-funded campaign to hire new court reporters, the issue, as Judge Jessner sees it, is that court participants who can’t afford to hire their own court reporter to produce a transcript must forgo such an essential piece of the litigation process for seemingly arbitrary and discriminatory reasons. In her letter, Judge Jessner explained that this is a problem that requires direct and urgent action:
“This issue is impacting your constituents now up and down California. A parent needing appellate review now of a family law judge’s decision to allow her three-year-old to move from California to New York (and thus practically eliminating ‘frequent and continuing contact’) cannot wait and see. A parent needing appellate review now of a family law judge’s decision not to permit him to have custody of his eight-year-old daughter because her mother’s living space is larger cannot wait and see. A spouse needing appellate review now of a family law judge’s decision not to modify a large spousal support order which she cannot pay as a result of an injury and lay off from work cannot wait and see.” (emphasis omitted).
On a related note, California Supreme Court Chief Justice, Patricia Guerrero, also raised the impact of the court reporter shortage earlier this year in her 2024 State of the Judiciary Address, stating that,
“In just a three-month period between July 1st and September 30th of last year, nearly 40% of family, probate, and unlimited civil hearings in California had no verbatim record. That’s 133,000 hearings in just three months.”
The contention that failure to provide a verbatim record impacts fundamental rights in family, probate, and unlimited civil cases is not a novel argument. Indeed, Senate Bill 662, a failed legislative attempt to expand electronic recording, highlighted similar concerns in 2023:
“California courts currently employ about 1,200 full-time court reporters. To provide CSRs in mandated cases, courts estimate they will need to hire approximately 650 new court reporters. Over 50 percent of California courts have reported that they do not have CSRs to routinely cover nonmandated cases, including civil, family law, and probate cases, and over 30 percent can never provide CSRs in those cases. Currently, 74.5 percent of courts are actively recruiting official court reporters to fill vacancies throughout California, with 102 court reporter vacancies for the Los Angeles County Superior Court alone.”
Ultimately, the lack of available court reporters prevents litigants from gaining access to the appellate process. It’s an argument that, as discussed by Judge Jessner in her order, is supported by case precedent.
The constitutional justification for electronic recording in California
Central to Judge Jessner’s order is the argument that case precedent recognizes access to verbatim court transcripts as being included in the “fundamental protections” of the appellate process. (See General Order at 1, quoting Coleman v. Gulf Ins. Group). Consequently, Judge Jessner shares the conclusion reached in Jameson v. Desta that the inability to secure a verbatim record “will frequently be fatal to a litigant’s ability to have his or her claims of trial court error resolved on the merits by an appellate court.”
Referencing In re Arthur N., Judge Jessner also highlights the position that access to the appellate process “must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” Circling back to Jameson, case precedent also recognizes the principle with respect to litigants in forma pauperis that “an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available . . .” (emphasis added).
A second piece to Judge Jessner’s argument is the contention that areas denied access to electronic recording under Section 69957 concern fundamental constitutional rights:
“In our family law courtrooms, proceedings involving judicial determinations of disputes concerning the status of the parties’ marriage, the parentage rights and obligations relative to minor children, and custody determinations of minor children implicate fundamental due process liberty interests under both the California and United States constitutions. So too, do certain conservatorship proceedings in our probate courtrooms and civil contempt hearings in our civil courtrooms. Judicial officers in our family law courtrooms also preside over all non-criminal restraining order applications . . . The imposition of such a restraining order may impinge upon a person’s freedoms of expression and speech, free movement, and association, as well as the right to possess firearms and ammunition, all of which also implicate liberty interests under both the California and United States constitutions.” (General Order at 11).
Therefore, the justification for expanding electronic recording in Los Angeles County, despite the existence of Section 69957, is the conclusion that current law unconstitutionally infringes upon the fundamental rights of litigants by broadly restricting access to the appellate process. Specifically, Judge Jessner argues that Section 69957 violates not only California’s state constitution, but also the Equal Protections Clause of the 14th Amendment to the US Constitution by failing the strict scrutiny standard, which requires that restrictions on fundamental rights must be narrowly tailored to meet a compelling governmental interest.
It is through this constitutional challenge that Judge Jessner claims authority to issue this order, citing the judiciary’s role as a co-equal branch of government charged with interpreting the law:
“The judicial officers of the LASC have an obligation to follow the law. Wherever possible, that means applying the statutory law as enacted. But ‘it is the obligation of the trial and appellate courts to independently measure legislative enactments against the constitution and, in appropriate cases, to declare such enactments unconstitutional.’ (People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407, 411, as modified (May 9, 1997).) Similarly, ‘[c]ourts as custodians of the judicial powers of government, are not obliged to enforce a statute which . . . arbitrarily deprives a litigant of his rights.’ (People v. Murguia (1936) 6 Cal.2d 190, 193.)” (General Order at 10).
Judge Jessner cites further case precedent to claim authority that extends specifically to matters involving the court record:
“In particular, trial courts have ‘power over the record,’ which the Court of Appeal has made clear ‘must be exercised in a manner that does not interfere with the litigant’s statutory right to appeal.” (Randall, supra, 2 Cal.App.5th at p. 934.)” (General Order at 11).
This general order claims judicial authority to act as a constitutional check on the legislative branch and steward of the appellate process in response to a persistent court reporter shortage. Judge Jessner’s argument that the public cannot afford to “wait and see” comes on the heels of increased investment in a status quo support to hire and retain court reporters.
Additional investments have yet to fix California’s court reporter shortage
Beyond legislative and constitutional considerations, the General Order further examines California’s “eight-figure investment” in recruitment and retention efforts to combat the court reporter shortage. In September 2023, the Los Angeles County Superior Court announced a list of initiatives (See General Order, Exhibit 2), which included:
- A starting salary of $120,888 for official court reporters;
- A $50,000 signing bonus for newly-hired official court reporters;
- Court reporter student loan and equipment assistance retroactively applied to all court reporters hired on or after July 1, 2023;
- Retention bonuses to full-time court reporters and finder’s fees for court employees who refer official reporters to the Court; and
- A 5% bonus per pay period for court reporters assigned to the County’s floater pool.
However, despite these efforts, the court reporter shortage persists. According to Judge Jessner, “the LASC had a net reduction of eleven CSRs and still has 125 CSR vacancies.” Furthermore, any efforts to recruit and retain court reporters must be weighed against the number of reporters leaving the profession. This paints a more pessimistic appraisal of efforts to recruit and retain court reporters, prompting Judge Jessner to note that with “the overall downward trend in the number of CSRs entering the profession, there is no reason to believe the shortage can be eliminated or sufficiently mitigated by hiring and retention efforts.”
A common sense, responsible, and forward-thinking approach to verbatim transcripts
The recent developments in California are emblematic of what is taking place across the country. State legislatures are pressed to keep pace with technology, vested interests debate the reliability and effectiveness of innovation, and consumers are caught in the middle.
This is all the more reason to choose a company that embraces the prospect of technology while also adhering to a hands-on, human approach to customer service. As previously discussed on this blog, when it comes to creating the record, Readback utilizes state-of-the-art technology, but also keeps what works to make your life easier. Combining patented speech-to-text technology with human oversight, Readback’s flagship service, Active Reporting, offers certified transcripts in one day, rough drafts in one hour, and access to near-time text during the proceeding, at flat rates. How does this happen? Readback relies on its Multi-Intelligence Service Team to provide the experience. The AI creates the record, but the proceeding is conducted by a human guardian who oversees the process, assists with exhibits, and reads back testimony when necessary. To ensure a truthful and accurate record, a team of human transcribers with access to the live feed actively edits the transcript as it’s being created.
Readback is currently unavailable for California state cases. But it’s always important to hear feedback from litigants, attorneys, and members of the legal community. Leave a comment below to let us know how you’re dealing with California’s court reporter shortage.
* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
