Re: Keeping the Record Final Report [Hon Gary E Donahoe]

Comment on Petition [JoJene Mills]

[Comments] [Borowiec & Borowiec, P.C. by Joel P. Borowiec]

[Comments] Response to Rule 28 Petition to Allow Electronic Recording Versus Court Reporters [Leslie A. Baird]

[Comments] [Matthew J. Smith]

[Comments] [Judge Dan Slayton]

I am in agreement that there are certain proceedings where a court reporter is not necessary. I also understand that the use of electronic recording for certain legal proceedings is permissive; court reporters can still be requested. I think that it is short-sighted, though, in making such a sweeping change on how we keep the record, to pursue this rule change without more data on how the proposed rule change is functioning in a controlled setting. In my opinion, more time is needed to ascertain how these changes will affect the most important parties to this change: the lititgants themselves.

I have used electronic recording (FTR Gold) in hundreds of cases both criminal and civil. While it functioned correctly for most of the proceedings, it also failed. The issues of failure which I believe are significant for consideration of this rule change are: 1) the inability of the clerk to determine that the recording was failing or had failed during trial, and 2) the failure or inability of judges to ensure litigants or their attorneys were at or near the microphone in order to pick up certain testimony.

These failures would be catastophic for certain civil proceedings such as complex civil litigation, wrongful death cases, and medical malpractice cases which under the proposed rule authorize waiver of a court reporter. No appeal could be taken where the record was defective due to the failure to record or where the recording functioned properly but due to either the failure of the parties speaking to be at the microphone, or the failure of a microphone to capture the sound adequately, the record was inaudible or incomprensible.

Assume that a plaintiff to a wrongful death case had barely sufficient funds to take a case to trial and the electronic recording was insufficient or had failed completely. Assume further that either the plaintiff or defendant had a legitimate appeal issue. However, due to the failure of the record or the fact that certain portions of the record were inaudible or incomprehensible, no appeal could be taken. What would the cost be to the parties to have to re-try the case? Could the plaintiff even consider the cost of re-trial? Ultimately, what would be the cost to the integrity of our judicial system and the confidence of the citizens in a system that depended upon a nine-volt battery as opposed to taking the time to see whether these changes will truly enhance our legal proceedings?

I propose that a five-year study of certain selected courts be conducted to establish a baseline of data for the efficacy of such a change. I fail to see why this rule change must be hurried into existence absent a careful study examining its effect upon the lives of those who would be significantly impacted by its presence.

Respectfully,

Judge Dan Slayton
Division Five
Coconino County Superior Court

[Comment] [David Savage]

I am not a lawyer but I have noticed in several proceedings where my step father has blatently lied or his attorney has twisted the truth to fit the agenda. I would sure like to be able to use their words and lack of candor to crucify them All I want is justice for my ailing mother as I am her only representative and she got nothing in support or property because the others side is allowed to lie.
Mr. David Savage
Master of Arts Russian
Tucson Arizona

[Comments] [W. Bert Lundy]

[Comment] [Jim L. Johnston, Esq.]

[Comments] [Jeffrey J. Hernandez]

[Comments] [Jodie Guhr]

[Comments] [Peter B. Keller, Esq.] [Filed April 27, 2006]

[Comments] [Stephen H. Lesher, Esq.] [Filed May 9, 2006]

Angela F. Miller, RPR, CR (AZ50127)
Miller Certified Reporting, LLC
PO Box 513
Litchfield Park, AZ 85340
623-975-7472 – Phone
623-975-7462 – fax
[email protected]

[Comments] [Patricia A. Connolly]

Dear Honorable Justices:

I would appreciate your time and consideration on the decision of Court Reporters' presence in all Civil, Juvenile and Criminal Evidentiary Proceedings.

Yes, we as Court Reporters have a personal and financial interest in this decision; however, I have always believed we provide a valuable service to the Court.

Every day, I strive to write and when requested, produce an accurate record and take tremendous pride in my job. I would hope our presence and the human element has been recognized as being valuable.

Electronic recordings transcribed by a pool of people who were not present at the hearing and could possibly be inexperienced in transcribing court proceedings cannot be compared to Court Reporters.

Also, considering the incident rate of forgetting to turn on the equipment, place a disk, CD or tape in the equipment and equipment failure, electronic recordings should not be compared to Court Reporters.

Have you ever experienced an event of forgetfulness when the Court Reporter inconspicuously reminded you? An electronic recording is incapable of recognizing judicial economy. Please consider this when making your decision.

Thank you for your time and attention.

Sincerely,

Patricia A. Connolly
Certified Reporter - Certificate Number 50675
17319 E. Via Del Oro
Fountain Hills, AZ 85268
[email protected]
(480) 235-3534

Thaddeus G. Baker, Jr.
12 East Dale Ave.
PO Box C
Flagstaff, AZ 86002
Phone: (928)774-5208
Fax: (928)774-0548
E-Mail: [email protected]


I would like to add my voice in opposition to the elimination of the verbatim record. I practice in bankruptcy court and in administrative appellate proceeding where audio recordings are used. To use an audio recording in a proceeding one has to retain a transcriptionist. The quality of the end product is often insufficient as many words are missing or there are areas of the tape that are inaudiable due to backround noise. Court reporters are more accurate because they are present when the testimoney is given and it is more efficient to just order the transcript. Adding another layer to obtain a written transcript of lesser qualifty is counterproductive. In addition. one can read a transcript must faster than one can listen to a transcript. The practice of law is difficult enough, without making it more difficult to preserve an accurate record of the testimoney or argument. Thaddeus G. Baker Jr. Attorney at Law

Terri L. Vos, RPR
Certified Reporter 50115
4919 E. Scarlett St.
Tucson, AZ 85711
[email protected]
(520) 319-1678

Dear Honorable Justices,

It has been proven time and again and in several states throughout the country where court reporters have been replaced with ER that the judicial process suffers. After going through the expense of installing ER and modifying courtrooms to accommodate and enhance the effectiveness of the equipment many courts have subsequently abandoned the use of this equipment or only use it when absolutely necessary. Why would Arizona expect that our implementation of such equipment would be more successful?
Court reporters are professionals working in the actual setting of the proceedings, not a transcriber who is far removed from the setting. Court reporters understand the importance of the proceedings, that their end product will affect people's lives and that that person deserves the best possible transcript they can receive. Transcribers are only capable of transcribing what is understandable on the recording. They cannot ask for clarification. In this regard obviously the transcript is going to suffer. Also, the transcribers are generally entry-level, unskilled typists who have no experience with technical subjects and terminology.
Please consider these issues when deciding the issue of allowing ER in any civil, criminal, juvenile, domestic, and compency matters.
I submit my comments in support of maintaining the professional court reporter as the sole means of keeping the record in Arizona.

Sincerely,

Terri L. Vos, RPR
Certified Reporter 50115
4919 E. Scarlett St.
Tucson, AZ 85711
[email protected]
(520) 319-1678

[Comment] [Maricopa County Board of Supervisors, Don Stapley, Chairman]

Theresa Aguilar
800 W. Main Street
Safford, Arizona 85546
(928)428-3310
(928)428-1032 (fax)
[email protected]

Michael J. Ryan, AZ Bar #017467
Broening Oberg Woods & Wilson PC
1122 E Jefferson St.
PO Box 20527
Phoenix, AZ 85036
(602) 271-7700 Main Line
(602) 744-2266 Direct Line
(602) 258-7785 Fax
[email protected]

Comment attached in .pdf and .doc

Penny Heins
AZ CR No. 50219
2584 Canyon View Dr.
Sierra Vista, AZ 85650
(520)227-4813

May 18, 2006

To Whom This May Concern:

It it not the time, in my opinion, to embrace the electronic record. Someday, I'm sure, technology will improve enough to provide a reliable verbatim record. It is not there yet. And it has been demonstrated throughout the United States that electronic recording is not a viable verbatim record-keeping method.

Although electronic recording replaces the need for court reporter salaries and employment benefits, it still requires a high level of staffing which means additional ongoing expenditures. And the mandated transcript production of courts of record still must be produced. What makes anyone think there will be cost-savings in transcript production of an electronically produced record versus a court reporter produced record? I just don't see cost savings in this proposed rule change.

I understand that the costs associated with running our nation's courts is constantly growing, constantly strained, and that everyone would like to save taxpayer money wherever possible. But this is not the place or the time to implement this proposed rule change. It doesn't seem to me that it's been thought through sufficiently to now be suggesting this drastic change in higher-level courts of record. I believe it will prove to be a disaster should the rule change be adopted. The negative effects of poor record quality will be far-reaching in our Arizona judicial system. In addition, rural area courts will find it more and more difficult to obtain a court reporter when one is required because the court reporters won't be able to stay in rural locations that don't employ them regularly.

It would seem appropriate to me to study this proposed rule change further by investigating more fully what has happened in other states who have relied on electronic recording in their criminal and civil courts of record, and also investigate what the actual costs have been associated with such a change of recordkeeping. And if the data is not available elsewhere, then implement a program in our courts to document it. I just don't see the savings being there, even if the record was adequate. Court reporters are still the best method of keeping the record in our judicial systems.

Respectfully submitted,

Penny Heins

Christy Berry, Legal Assistant
Tidmore & Lerma, LLP
301 E. Bethany Home Rd., Suite B140
Phoenix, AZ 85012
Ph: 602-264-1973
F: 602-230-7377


May 17, 2006


Clerk of the Arizona Supreme Court
1501 West Washington, Suite 402
Phoenix, Arizona 85007


Re: Pending Rule Change Petition R-05-0037

Dear Sir/Madam:

I respectfully request that the Supreme Court require the presence of a certified court reporter in all civil, juvenile, and criminal evidentiary proceedings in Superior Court.

It has been proven throughout the country that the best record of court proceedings is the professional court reporter. With electronic recording comes the issue of unknowns problems that can be of a monumental nature when dealing with court proceedings of all matters:

Is the recorder functioning properly?
Is an attorney/client privileged conversation being recorded when it is supposed to be “off the record” because someone forgot to shut off the microphone or stop the recording during a recess?
Will the passage of time degrade the integrity of the recording

No one working in the legal profession can dispute the fact that it sometimes becomes necessary during a proceeding to request that someone repeat an answer or question due to outside noise interfering such as a person coughing or construction work being done. If someone is not there that recognizes the fact that it needs to be clarified for the record, you lose the integrity of the record plus vital information. Further, witnesses will sometimes only nod their head or shake their head in response to questioning, which an electronic recording cannot pick up. If you do not have a court reporter whose sole purpose in that proceeding is the clarity and integrity of the record, the record loses all meaning. People have habits of mumbling their words, accents that are not always immediately understandable, in heated debates people will begin to talk over each other, these are all reasons that a professional court reporter is a key component to all judicial proceedings.

I have personally attempted to transcribe recordings of witness interviews, medcial examinations, and the like, and I can attest that due to the quality of the recording, I have often had to use the word “inaudible” on a consistent basis throughout the transcripts because you simply cannot determine what is being said. You would never see the word “inaudible” in a transcript produced by a court reporter that was present at the proceeding

A court reporter’s responsibility is to maintain and provide the best record possible. They provide an unbiased, third-party component to keeping the record. Based on all the statements provided above, I propose that the court reporter is an integral and reliable component in the justice system. With the proposed changing of the rules, the ones who will be hurt the most are the litigants who will suffer at the hands of inadequate records on appeal.

Thank you for your time.

Sincerely yours,




Christy Berry,
Legal Assistant

[Comment] [Lisa Vitoff]

[Comment] [Tara Kramer]

[Comment] [Michael A. Babicky]

[Comment][Karen Bolton]

[Comment] [Marylynn LeMoine]

[Comment] [Marge Harcarik]

[Comment] [Scott M. Coniam]

[Comment] [Rochelle L. Dobbins]

[Comment] [Linda Lopez]

[Comment] [Lisa Blanks]

I think a court reporter can best describe the duties of a court reporter.

We are trained from two to five years to capture the record and produce a transcript. Our training also includes legal procedures, medical and legal terminology, as well as an extensive internship.

I agree that electronic recording can also capture the proceedings. In courtrooms where there is no need or use for a transcript, electronic recording would suit the purpose of archiving a record.
[Comment] [Lisa Blanks]



The most important thing in court proceedings is an accurate record. By far, the best way to produce an accurate transcript is with the use of a realtime reporter.

In a "perfect" setting, ER would be fine. But anyone who has ever been in court knows it is rarely, if ever, a perfect setting. For someone who is not involved in preparing a transcript, the "appearance" of ER suits the purpose.

However, what reporters are trained to do is to handle and control the proceedings to ensure an accurate record. How do reporters "control" the proceedings?

-- people talking two at a time, three at a time.

-- talking really fast in the heat of the moment, where no one can
understand.

-- a very quiet speaker who needs to be prompted to speak louder.

-- cell phones

-- doors opening and shutting

-- an untimely sneeze or cough

-- parties rattling papers into the microphone

These are all common occurrences and will muffle the testimony, making it difficult to decipher on tape.

Transcript production:

A reporter is able to hand the parties a rough draft transcript at the end of the day. This is a SUBSTANTIAL savings over daily copy. An outside transcription service cannot produce the rough draft or provide realtime to attorneys.

If courtrooms do go to ER, they would need a monitor to do the reporter's job plus an outside typing service.

I believe all parties need to keep the priority here and that is preserving the record. Imagine the game of baseball relying on instant replay instead of umpires. There are angles only the human eye can see.

I've been reporting for 23 years, and the way I see it, we are the umpires of the courtroom. There have been many an exasperating witness who I'd like to tell, "YOU'RE OUTTA HERE!" But as professional, I politely remind them, "Please speak up, one at a time," etc., etc.

Before a rule is passed to replace reporters, I would propose a trial period where transcripts could be compared side by side -- reporter v. transcription service. I am confident a certified reporter will be seen as necessary to produce the most accurate transcript.

Technology has taken over a variety of jobs. However, there are certain jobs that are too important to rely completely on technology. When you are discussing the record that will determine someone's future, it is extremely important. You can't just go with a subpar transcript, and that is what transcription from ER will produce.

Sincerely,

Lisa Blanks, CSR, CRR, RPR

Robert B. Van Wyck
Ocotillo Hermoso Circle
Phoenix, Az 85016


Clerk of the Arizona Supreme Court
1501 West Washington, Suite 402
Phoenix, Arizona 85007


Re: Pending Rule Change Petition R-05-0037


I submit this comment as a Judge Pro Tempore. A reliable record is critical to providing litigants a fair and trustworthy hearing. I believe that only a certified court reporter making a verbatim record ensures the accuracy and reliability in a cost effective manner, that litigants, lawyers and judges can rely upon in all courtroom proceedings.
Judges and lawyers take for granted a reliable record. Court reporters have done a competent job for so long that we do not appreciate what would happen without a record that everyone knows to be accurate. There is no substitute for a verbatim record.
As a practical matter, who will provide instantaneous readbacks after an objection to a question? Who will provide a transcript over the lunch hour or over night during a trial? Who will interrupt the proceedings when the testimony is unintelligble due to mumbling, accents, talking too fast, background noise, etc?
Technology alone cannot adaquately address these problems. To provide even a reasonably accurate record, it would take a trained person dedicated to listening to the proceeding and another to transcribe the recordings. The expense is simply transferred and not lessened.
This does not even take into consideration the costs associated with having a record that is incomplete or inaccurate, to say nothing of the indirect costs to litigants when there is no record and a problem arises.
The available options are not reliable and are not cost effective. A litigant deserves a court reporter at every judicial proceeding.

Respectfully submitted,
Robert B. Van Wyck

Cindy Benner, R.P.R., R.M.R.
(Court Reporter for the Honorable Margaret Downie)
Registered Professional Reporter


Dear Honorable Justices:

I would like to take this opportunity to express my opinion with respect to the Rule 28 petition and the proposed changes thereto. It is with great pride after 26 years of being a court reporter that I stand up to "defend" my profession.

I take exception with many of the points that others such as the Board of Supervisors take when challenging the current method of record keeping in Maricopa County. I believe the current technology being implemented is extremely helpful and beneficial in many circumstances, such as matters where transcripts are not likely to be ordered or in matters that are not of a complex nature that are likely to appeal, but I do believe that in complex civil matters and all felony trials, the court reporter will always be the most accurate method of record keeping available. We, as court reporters, have the ability to "control" the courtroom to ensure that the record is being taken down accurately. We can stop three attorneys when they're arguing simultaneously, or we can stop a fast-speaking witness or a witness with a difficult accent. Electronic recording cannot possibly get an important answer a witness gives in a trial while somebody is rustling papers in the microphone.

As court reporters, we are certified by the State of Arizona and have to pass both written and machine tests to stay licensed. We have to keep up on continuing education points. Court reporting degrees generally take 2-4 years to obtain. Then we have the expense of buying $10,000 of equipment so that we can do our jobs with the most up-to-date technology. There is NO BETTER state of the art technology than a realtime court reporter. Where else can you get voice to print transcripts instantaneously? The idea of transciptionists transcribing tapes off of a video or CD is OLD TECHNOLOGY, not new. In that case, you have somebody transcribing hours of testimony on a compter character by character, as opposed to the high-tech steno machines that can provide instant rough draft transcripts with as much as a 99 percent accuracy rate.

The transcribers that would transcribe these tapes are unskilled and have no specific law training, medical training, or other training necessary to prepare transcripts accurately. It's not a huge leap to conclude that a person with no education or training who's listening to audiotapes cannot possibly make as accurate a transcript as a trained professional court reporter, nor can they offer services like daily transcripts, expedited transcripts, rough draft transcripts, or excerpts of the testimony of certain witnesses.

I was recently (March of 2006) in a trial with Judge McMurdie where it was a two-week trial, and I was brought in on the third day because when the attorneys listened to the digital tapes, they were garbled and not audible, and so their witnesses couldn't prepare for their testimony, nor could the attorneys have an accurate transcript of what occurred. We as court reporters have to step in, and gladly do, so that the transcripts can be accurate for the attorneys.

I was also in a trial just this week, May 18th, on a 4-week civil trial where, due to construction, there was a problem with water damage in the courtroom, and we had to move to another courtroom without digital recording available. If the attorneys had not requested a court reporter in that matter, they would not have been able to proceed in the other courtroom. If they intend to replace the court reporters, in situations such as this, that trial would have had to have been postponed a few days until the original courtroom could get up and running.

Maricopa County is not the first county to attempt to replace the role of the court reporter with technology. There have been several counties that have tried this in the past, and it has proven to be counterproductive. For example, New Jersey replaced their court reporters with this new technology. Due to the failure rate of the electronic recordings, New Jersey then found themselves in the position of rehiring back the court reporters as a means to keep an accurate record, at an increased pay rate, I might add, for the court reporters.

The presumption that electronic recording is superior because then the judges could work through the day without required OSHA breaks for the court reporters is also without merit. It is simply common courtesy to give the jurors, the clerk, the bailiff, the lawyers, and the witness a break after an hour and a half. We are all only human, after all.

As far as the claims repeatedly made that the County has saved a million dollars, I would like to see some backup data for that. What did it cost to put in the electronic courtrooms? What does it cost to staff them? What does it cost in maintenance? What happens when the power shuts down in certain E-courtrooms? The first thing they do is rush to the phone and say "We need a court reporter!"

I believe there is insufficient proof that there is a cost savings realized by using digital recording in all types of cases. There has been no cost study ever presented to support such claims. There has also not been a study of the failure rate of the digital recording. All it will take to shed light on the potential problems with electronic recording is a couple of important cases where the electronic tapes did not function and a mistrial has to be declared or where a lawyer sues the County for his attorney's fees after a 4-week trial because when they get the transcript from the E-courtroom to prepare their appeal, they learn that somebody forgot to turn the tape on in the courtroom for three days of the trial, or it simply malfunctioned. This just recently happened in a murder trial in Washington state where two days of testimony were not recorded and a mistrial was declared.

I also find it surprising that the Board of Supervisors thinks that court reporters should have not been a part of the Keeping the Record Committee. Who better to have input into the means of record keeping than the keepers of the court records throughout the world for the last century? I don't know what the Board of Supervisors knows about keeping the record. This is simply a budget issue to them, not a quality and integrity of the court record issue. They claim it will be easy to just put electronic tapes in "simple grand jury proceedings." There is no such thing as a simple grand jury proceeding. I take grand jury proceedings every week, and, believe me, if you talk to any attorney that presents grand jury cases, they cannot fathom how that would work without a court reporter present. Who is going to monitor the electronic taping while the grand jury deliberates? The attorneys and court reporters step out of the grand jury room 25-30 times a day. I can envision defense attorneys ordering the tapes for their trial preparation and being able to listen in on the entire grand jury deliberations. What an edge they would have preparing a defense for their case, knowing what the grand jurors' thoughts were!

I have had the pleasure of being able to provide realtime to several judges for trials, and not one of them didn't appreciate it or find it beneficial. Unfortunately, unless these comments can be written anonymously on this topic, many judges will probably not voice their opinions for fear of backlash. It's frankly too political of an environment for them to voice their honest opinions on the matter.

Another point I would like to bring up is that the page rate for court reporters in Maricopa County has not been increased in 17 years! We make the same amount a page for a criminal trancript today as we did 17 years ago! I do not foresee any transcription company that will lock into a page rate with the County for the next 17 years. Their rates will be increasing drastically as soon as their contracts expire, and the County will have no choice at that point but to pay them.

Please keep in mind that matters of budgets and dollars need to be considered carefully when you are dealing with such an important matter as the record being made in court proceedings. Court reporters are clearly the most accurate means of keeping the record. I urge you to please think long and hard before you implement changes that would turn back the clock and return to a time when videotapes and CDs are transcribed by unqualified people.

I want to thank you for considering my comments in this matter, and I know that in all your wisdom, you will sift through the facts on this matter and make a fair and just decision.


Sincerely,
Cindy Benner, R.P.R., R.M.R.
(Court Reporter for the Honorable Margaret Downie)
Registered Professional Reporter

Melinda Setterman
certified reporter # 50129
6205 S. Hazelton Lane
Tempe, AZ 85283
480 730-0705
[email protected]




Honorable Justices:

This petition is just another step toward undermining our justice system. It is a known fact that a highly-skilled, certified, live court reporter makes the best record. Having an unbiased party in the courtroom is an important step and another level that ensures that our justice system is fair and just. Today's court reporters embrace the latest technology, which allows for such thhings as instant voice-to-print transcripts and realtime, which are not available through ER.

The powers that be at the courthouse and board of supervisors turn a blind eye when there are failures in the ER systems. I hear on a constant basis how the equipment completely failed, was not turned on, or the equipment was showing it was recording but in reality it was not working. At the new Superior Court Northeast Facility the equipment does not properly work. Even with the paid monitors sitting there proceedings go on with no record made. This happens on a regular basis.

I do believe that a blended system of ER and court reporter is necessary in today's world, but the wording in this petition opens the door far too wide, which will ultimately result in the loss of the right of citizens in our community to have the best record available, whether it is in juvenile court for a trial or severance, in civil court for medical malpractice or complex litigation cases, and most importantly in all proceedings in criminal court where the Government is taking away ones freedom.

"If it is important, we need to have a court reporter." I hear that phrase often. Well, it is important to those who appear at the courthouse steps seeking true justice. I ask that you, our Honorable Justices, protect our justice system.

Sincerely,

Melinda Setterman
certified reporter # 50129
6205 S. Hazelton Lane
Tempe, AZ 85283
480 730-0705
[email protected]

Arizona Court Reporters Association
7225 W. Oakland St.
Chandler, AZ 85226
e-mail: [email protected]
Tel: 480-496-4010
Fax: 480-858-1802

Merilyn Marquardt-Sanchez, RMR, CRR
National Court Reporters Association
8224 Old Courthouse Road
Vienna, VA 22182
703-556-6272
Fax: 703-556-6291
[email protected]

Juanita Mann, President
Arizona Association of Superior Court Clerks
P. O. Box 668
Holbrook, Arizona 86025
928-524-4188 (Phone)
928-524-4261
[email protected]

Gary Pearlmutter, Esq.
Coconino County Legal Defender
110 E. Cherry St.
Flagstaff, AZ 86001-4696
928-779-6816
Fax: 928-226-6047
[email protected]


I agree with Judge Slayton's concerns. Whether electronic recordings are reliable are a serious concern. There are no procedures to safeguard such a system. That is, there are no procedures to make sure that the system is working or actually recording a particular voice, whether a witness, attorney, judge, juror, etc..

I also have some concerns about the requirement of notice for using a certified court reporter. Existing statutes appear to require the use of one upon request. Under the proposed rules, if an attorney fails to request one, but it interferes with a criminal defendant's right to due process, the hearing most likely will have to be conducted all over again. The right to have the recording must trump the negligence of the attorney. This situation is no different from a defense attorney who negligently fails to give notice of a witness. In such a situation, generally, the defendant is not held responsible. The court must permit the witness to testify, after putting a hearing or trial on hold, while the State interviews him. The right to present a defense trumps (i.e. right to due process) trumps the negligence of the attorney. Consequently, if the defendant's attorney fails to request a court reporter and must use the electronic recording system and it fails, the defendant is prejudice. The best result would be to require a court reporter for all evidentiary hearings on all motions for felony cases too, not just at trial. Many of the issues on appeal come from these hearings, as opposed to the trial.

Thank you,

Gary Pearlmutter, Esq.
Coconino County Legal Defender

Traci L. Wheeler, CSR, RPR, CR
Arizona Certified Reporter CR No. 50313
Pinal County Superior Court
Florence, AZ


May 22, 2006

RE: Petition to Amend Various Rules of Procedure Relating to Verbatim Recording of Judicial Proceedings


Dear Honorable Justices:

Thank you for the opportunity to address you regarding the proposed amendments to Rule 28. As an Official Certified Court Reporter for the State of Arizona, I recognize that there are certain courts where a reporter may not be necessary. The proposed amendment, however, concerns me that a Certified Reporter would not be required in all civil proceedings (including medical malpractice, wrongful death, and complex litigation) and juvenile proceedings (including evidentiary hearings, adjudication hearings, and parental rights termination proceedings), and it concerns me that the integrity of the record is not the priority for those in Court Administration.

When I first arrived in Arizona, I was immediately offered a position with Judge Linda K. Scott in the Maricopa County Juvenile Court. I would not hesitate to say that there was ever a severance of parental rights proceeding that was not appealed. Also, the majority of criminal juvenile proceedings were appealed, including those where a change of plea was involved. When FTR was first introduced in Maricopa County, I was asked by Court Administration about where official transcripts were ordered; they, however, chose to ignore that information.

Maricopa County, in their effort to institute FTR for all juvenile proceedings, assured counsel that a reporter would be afforded upon any request made. This was soon changed to 72 hours prior to a hearing, at which point the request would follow the case, to 72 hours prior to each individual hearing, no matter if it was a continued adjudication or severance hearing. I have been a court reporter in an adjudication hearing where a reporter was timely requested and prior to court commencing the juvenile accepting a plea. On the record, the judge (not Judge Scott) questioned the need to have a reporter since it was “only a change of plea” and then had a discussion about who made the request and why and was it necessary to have a reporter. He then proceeded to inform the courtroom that his was an electronic courtroom and that the official record was the FTR. This was all done on the record in front of the juvenile, his parents, and witnesses who were subpoenaed to testify. To think that juvenile matters are not afforded the same courtesy as an adult felony matter is a slap in the face to the young people of this State.

There were many times a similar situation to the above illustration occurred. I do believe that the judges and counsel were pressured by onerous burdens placed upon them by the decision makers in Court Administration who had never placed their foot in a courtroom, had no first-hand knowledge of how a court’s calendar runs, and considers the fiscal bottomline as their first hand priority of how justice should run. It is extremely frustrating and difficult to enter a courtroom after FTR has been instituted because the reporter then becomes almost a referee. Everybody talks over each other at a faster pace than ever before, far exceeding any 225, 250, and oftentimes 300 word per minute pace, parties don’t announce, and visual answers such as shaking of the head are accepted. A clean and accurate record is an afterthought at that point.

Before I left Maricopa County, I was assigned to a very busy, high profile criminal court as a reporter for one of the present associate presiding judges. He had recently rotated off of a family court assignment with a KTR courtroom, and I was told numerous times that his preference is and always has been a live court reporter. I was able to provide him a rough draft after an afternoon of motions and oral argument, whereas before he would have had to listen to an entire CD to pinpoint the exact areas he was interested in. For each trial, I supplied the court and counsel with the last few pages of testimony prior to ending the previous evening recess in order to orientate everybody with where we left off.

I have supplied many overnight and rush transcripts. In the almost 10 years I have been reporting, my notebook computer has accompanied me on every holiday and vacation except for one. The day after I gave birth to my daughter, I was working on my transcript load at the hospital. I take pride in what I do for the court, for counsel and for litigants; I am the one who ensures a true and accurate verbatim copy of the proceedings. I am the one who reminds the parties that an accurate record needs to be made. I have the ability to speak out if, due to the nature of a noisy courtroom or uncomfortable and distressed witness, I can’t hear a question or answer. I have the ability to discern whether a discussion is a private one between counsel and clients. A tape recorder or CD cannot do that, and I daresay that a “monitor” of the proceedings (in Maricopa County, a clerk or bailiff who already has numerous other duties that need tending) cannot effectively and accurately keep a complete log.

One of the materials considered by the KTR was prepared by the Justice Management Institute in a discussion about digital audio systems in the court which quotes Martin Gruen, “Courts that require complete thorough transcripts for attorney use and higher court review will do better with stenographic court reporters…”(1) and that “Beyond the mechanics of making a record, a court reporter, with their experience and knowledge of court system operations, offer a set of skills that will never be found in a machine-based alternative.” (2) In the Minority Position Statement submitted by Maricopa County Presiding Judge Barbara Mundell and endorsed by Marcus Reinkensmeyer and Brian Karth, Superior Court Administration, and Michael Jeanes, Clerk of Court, there is mention of “anecdotal problems” identified in certain cases involving transcription and that “there is no difference in quality between digital recording transcripts and court reporter transcripts.” I have seen several digital recording transcripts of juvenile and domestic cases, and they have many “inaudible” or “undiscernable” statements in them. I have never had that in my record, never seen that in another reporter’s record, and I would say that even one “inaudible” or “undiscernable” is one too many, especially for those who are putting their faith in the court and justice system who have a vested interest in the outcome, the litigants themselves.

It takes a special individual to work in the justice system -- to be a judge, lawyer, or even a court reporter – and those of us who are here, who take pride in our work and have the understanding that the results of our efforts affect others, have the utmost respect for our justice system. It is one that should be blind, not affected by sympathy or prejudice. A video tape or audio tape records the emotions. A written record strips away those emotions. They are words on a page that one can consider without sympathy or prejudice. Scribes and the modern day court reporter have been an integral part of society for hundreds and thousands of years. Court reporters have their own high ethical standards that they are held accountable to and should be accountable to by judges, lawyers and litigants. Court reporters are an integral part of justice and are used by Congress each and every day. A court reporter has been present to record every presidential speech and debate for hundreds of years. The United States government uses the court reporter to this day in important domestic and foreign affairs. Why, after hundreds of years, does the United States government continue to use a court reporter? Because a court reporter is the “gold standard,” which has been proven time and time again. Every citizen in Arizona deserves the same: the complete and accurate verbatim record of their proceedings, and the rights of those citizens should be protected at all cost above and beyond the fiscal bottomline. The complete and accurate record is the very core of the foundation of our judicial system and it should be held with the utmost respect that it deserves.

Thank you for this opportunity.

Respectfully submitted,



Traci L. Wheeler, CSR, RPR, CR
Arizona Certified Reporter CR No. 50313
Pinal County Superior Court
Florence, AZ



(1) Judicial Management Institute, How to Conduct an Assessment of your Court’s Record-making Operations: A Systemic Approach, Volume II: The Resource Manual, page 29 (June 2002)
(2) Ibid, page 28

May 22, 2006



Marvin J. Atwood
Certified Reporter #50080
3030 N. Central Ave., Suite 404
Phoenix, AZ 85012


Clerk of the Arizona Supreme Court
1501 West Washington, Suite 402
Phoenix, AZ 85007



RE: Pending Rule Change Petition R-05-0037

To Whom It May Concern:

I respectfully request that the Supreme Court require the presence of a certified court reporter in all civil, juvenile, and criminal evidentiary proceedings in Superior Court. The sanctity of the record is paramount in the execution of justice, and only through the continued use of certified court reporters can the Supreme Court be assured of a competent record both for discovery and appellate decisions. The proposed use of electronic recording to replace the time-honored profession of verbatim stenographic reporters can only lead to additional delays as litigants move through the justice system and the provision of a record which will be totally unreliable as to its accuracy with no assurance of the training, quality and experience of unlicensed transcribers preparing transcripts which impact both personal freedom and which can result in significant financial losses to the litigants.

Sincerely,



Marvin J. Atwood
Certified Reporter # 50080

Patricia Moore
Arizona Certified Reporter (50093)
[email protected]


May 4, 2006

Clerk of the Arizona Supreme Court
1501 W. Washington, Suite 402
Phoenix, AZ 85007

Re: Proposed Changes re: Electronic Recording or Court Reporter

To Whom It May Concern:

As an officer of the court, I wish to voice my concern over the proposed changes allowing electronic recording in all civil and juvenile proceedings, as well as other court proceedings in general, in lieu of a certified court reporter.

The use of electronic recording devices was first introduced as a magic bullet to save the court system thousands of dollars by systematically replacing the traditional keeper of the record, the living breathing court reporter. Somewhere along the line, when it was realized the savings were not so great, the new tune of court administrators pushing electronics became one of "look at all the bells and whistles of this system or that". It was evident to many from the beginning of the whole KTR process that the end had already been decided, it was just a matter of selling it to those on the fence.

Courts in Illinois, California, Texas, New Jersey, to name just a few, also went electronic, buying into all the bells and whistles, only to go back to court reporters. Unfortunately, as court administrators continually threaten the jobs of court reporters it is no surprise that soon our numbers will dwindle because who wants to work in a profession that is continually having to defend itself when apparently nobody else has to. Reporters have kept the record for many years and done so in a professional, vigilant manner. Now we understand the record is something that can be typed up by a typist having to spend no more than a minute on an unfamiliar word or an inaudible portion of the electronic record. I suppose if the record now means so little there is hardly reason for a professional highly-trained human being to guard it.

But if the record means more than that, then common sense alone dictates that a person well trained to ensure that the best possible record is made in any proceeding should prevail over a machine. I fear a lot of folks are being sold a bill of goods that will not deliver in the long run. And then it will be too late to undo the damage.

I recently reported a complex civil medical malpractice trial where the attorneys required daily copy. I can do that. Can an electronic recording device provide that overnight copy? Who is going to be doing the transcribing and ensuring it gets into the right hands by morning? What will the chain of command of the record be? I cringe when I think of how many untrained people may be involved in the final product. But apparently court administrators pushing their agendas no longer consider the quality of the record and who will be guarding it.

Don't juveniles deserve to have the best record also? Saying that juvenile court is not a high transcript court may be true, but if it is your son or daughter's liberty at stake you would not want to hear that the machine was not turned on, or that no one was manning the machine to see that it was actually recording, or a transcriptionist not familiar with court lingo totally messed up a court hearing transcript.

Court reporters did not break the system. Court reporters have done their jobs diligently and professionally for years. The system for keeping the record was not broke, but those with an agenda looked to solve the financial woes of the court system on the backs of court reporters. If the proposed changes go through and the Arizona court system becomes an electronic recording Mecca for the hawkers of those devices, I sure hope the state gets what it paid for.



Sincerely,



Patricia Moore
Arizona Certified Reporter (50093)

Melissa Gonsalves
1802 East La Jolla Drive
Tempe, AZ 85282
(480) 491-2790 (Home)
(602) 230-8448 (Office
(480) 980-6896 (Cell)

May 22, 2006



Clerk of the Arizona Supreme Court
1501 West Washington, Suite 402
Phoenix, AZ 85007

Jennifer Greene
Administrative Office of the Courts
1501 West Washington, Suite 410
Phoenix, AZ 85007

RE: PENDING RULE CHANGE PETITION R-05-0037

To Whom It May Concern:

Thank you for the opportunity to register my concern regarding the above-referenced petition.

By way of background, I have been a practicing court reporter here in this State since 1986. I have worked as a Superior Court official for 11 years and a television captionist/free-lance court reporter for 9 years. In my career, I have had the opportunity to transcribe proeedings made by electronic recording. I am a member of the National Court Reporters Association and the Arizona Court Reporters Association, having volunteered at many posts for the ACRA, up to and including president of the State association when the Supreme Court graciously agreed to oversee our CR program. I consider "court reporting" to be my calling, and I feel I would be remiss to not impart my observations and concerns about the removal of court reporters from the courts of record in favor of E.R.

As a taxpayer, I understand well the economic conditions that have placed the Court in a position to have to consider alternative means for making the court record. I understand that all government/political bodies have a fidiciary duty towards all citizens. I do believe that the Court should place E.R. in courts of limited jurisdiction and in courts where the proceedings could be reheard and reconsidered without much difficulty if the record became jeopardized, which has happened with E.R.

As one who has been asked to transcribe records made by E.R., I can speak to some of the difficulties I have had, the first being the inordinate amount of time that it takes to complete the task. In my experience, the time factor is tripled because I must first take the proceedings down in shorthand, then check the transcript against the recording, and then proof the transcript against the recording. I often cannot hear some of the recording, which requires replaying over and over again portions of the CD or DVD. I have to back up to areas where I could clearly understand in order to apply an educated guess from experience and context as to what was said in the muffled areas. This is the time concuming part of the process. As an observation, for some reason, sometimes the parties forget good record making practices of speaking up, speaking clearly and waiting one's turn to address the judge or make their point. A court reporter doing his or her job properly would never let this happen.

As to the "cost savings" that E.R. offers, I'm sure that the initial outlay of funds for the recording equipment does save money over a salaried reporter with full benefits. And if you never have to make a transcript from those recorded proceedings, you are dollars ahead. I submit that's where the cost savings end. People have to earn a living, and transcription of recorded proceedings is extremely labor intensive for the reasons I described in the prior paragrapgh above. You will pay nearly the same cost, if not the same cost, to transcribe the proceedings as you now pay for a court reporter to transcribe proceedings made in the usual shorthand fashion.

There are ways for the Court to save money on the transcription process by sending its transcript work to, say, India, but I submit that the lack of understanding of our legal process, our "legalese", and even our cultural idioms will affect the quality of the transcription, if you can overcome the risk of sending sensitive information overseas in this day and age. The Court could also hire high school or college students and probably pay them less per page than your average court reporter, but the turnover will be high because this will not be somebody's "calling," but somebody's interim job on their way to their own profession, or worse, somebody's "dead-end job". You cannot do better than to have a court reporter who loves their profession, cares deeply for the record, and applies their skill to the best of their ability in every situation. I can only hope that the Court recognizes the value that that outlook adds to the judicial process.

In closing, I would urge the Court to carefully consider what the wholesale loss of court reporters in our State would do to our legal system, or even the limited displacement of reporters that is currently under consideration. I think the Court would find that the appeals process would bog down in the sense that transcription letter by letter of an entire proceeding at 60 or 70 wpm would cause inordinate delay of the appeals process. While cost savings are an important component of the consideration of the Court, I hopt it will not be the overriding or only consideration.

I would urge the Court to keep its present allocation of E.R. courts in the appropraiate areas and reserve your human reporting resources where they are most needed, your high volume transcript courtrooms.

Thank you very much for considering my comments in your important decision.

Very truly yours,



Melissa Gonsalves, RMR, CRR, CCP
CR 50070

Vivian McClard
ACRA
6262 E. 20th St., T/A 85711
520-869-3257
520-740-8136 (fax)
[email protected]

I would second the comments by Steve Lesher, Esq., posted in this forum. They are very much on point.

I've been asked to transcribe tapes/files previously from some of the courts in AZ and in other states. If you seriously are going to use this method of making the trial record, you will really need to decide what is an adequate record. The recording method comes nowhere close to a Certified Court Reporter in accuracy or timeliness of availability.

The publicity received by the vendors of recording equipment, audio and audio/video, has fostered a decline in the number of students coming into the court reporting field and has lead to a decline in the number of schools that teach the program. They are a self-fulfilling prophecy, I'm sorry to say. We lost a school in Phoenix just recently as an example.

You have the ball in your court, it's your game and you make the rules; but be careful that you don't let all the air out of the ball and then nobody can play.

G. Allen Sonntag, CCR #50194, Certified Realtime Reporter, Registered Diplomate Reporter, Fellow-APR.

John Bouley
Certified Reporter
2225 East Ajo Way
Tucson, AZ 85716
(520)740-4539
[email protected]

Richard Treon
2700 North Central Avenue
#1400
Phoenix, AZ 85004
Tel.: 602-285-4401
Fax: 602-285-4483
[email protected]
State Bar #002064

Matt N. Clifford
Attorney at Law
202 West 5th Street
Safford, Arizona 85546
(928) 348-4644
ASBN: 016147

Dear Justices:

I rely upon court reporters to ensure the accuracy of court proceedings. This accuracy is acknowledged in the proposed rule's requirement of court reporters in what are deemed to be the most important proceedings. I believe that it would be a mistake for a court to not provide court reporters at "lesser" proceedings.

Court reporters play a very important part in court proceedings, and I am against the proposed rule change.

Sincerely,



Matt N. Clifford
Attorney at Law

I am not sure why it is, but it seems that most of the users in this forum are of the opinion that there are only two options for court reporting: Live Court Reporters and FTR Gold. We have been using CourtSmart Digital Recording for three years in our court, and we are exceptionally happy with it. They did a great install, their service is excellent, and we have had no problem providing records for anyone who wants one. If you would like to come to our court and see the system in operation, please feel free to contact us for tour.

David L. Phares
Presiding Judge
Gilbert Municipal Court
55 East Civil Center Drive
Gilbert, Arizona 985296
(480)635-7851
[email protected]

Bryon Middlebrook, P.C.
308 North Agassiz Street
Flagstaff, AZ 86001-4605
928-774-1433
Fax 928-774-1265

Miguel A. Benitez
Certified Reporter 50713
Maricopa County Superior Court
East Court Building
101 W Jefferson St
Phoenix, AZ 85003-2243

Judy A. Gibbons
Maricopa County Superior Court
East Court Building
101 W Jefferson St
Phoenix, AZ 85003-2243

Maricopa County Superior Court Court Reporters
101 W Jefferson St
Phoenix, AZ 85003-2205

Kara Crosby
2335 E. Ajo Way
Tucson, AZ 85713

Aaron Schlesinger
Cochise County Superior Court, Division III
P.O. Drawer CG
Bisbee, Arizona 85603
520-432-8542

William R. Preston, Jr.
Preston & Flick, L.L.P.
P.O. Box E
225 N. Leroux
Flagstaff, AZ 86002
928-774-7386

Joseph H. Watson
109 E. Speedway Blvd.
Tucson, AZ 85705
520-884-0484

Louise E. Farinech
10128 East Arizmo Street
Tucson, AZ 85748

Frederick M. Aspey
Aspey, Watkins & Diesel
123 N. San Francisco St., Ste. 300
Flagstaff, AZ 86001
928-774-1478
[email protected]

Philip (Jay) McCarthy, Jr.
McCarthy Weston, Attorneys at Law
120 N. Beaver St., Ste. 120
Flagstaff, AZ 86001
Tel: 928-779-4252
Fax: 928-779-0243

Mark E. Lassiter, Esq.
1423 S. Higley Rd., Ste. 114
Mesa, AZ 85206-3449
Tel: 480-218-4445
Fax: 480-218-4450

Jennifer A. Greene,Committee Staff
Committee on Keeping the Record
Administrative Office of the Courts
1501 W. Washington, Suite 410
Phoenix, AZ 85007-3222
(602)542-9555
[email protected]