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Last Post 19 Jun 2006 05:23 PM by  lkoschney
R-05-0037 Petition to Amend Various Rules of Procedure Relating to Verbatim Recording of Judicial Proceedings.
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mryan2
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18 May 2006 01:59 PM
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
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pheins
Posts:

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19 May 2006 02:22 PM
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
CBLaw
Posts:

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19 May 2006 02:49 PM
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

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lorosco
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19 May 2006 05:26 PM
[Comment] [Lisa Vitoff]
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lorosco
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19 May 2006 05:34 PM
[Comment] [Tara Kramer]
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lorosco
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19 May 2006 05:38 PM
[Comment] [Michael A. Babicky]
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lorosco
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19 May 2006 05:41 PM
[Comment][Karen Bolton]
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lorosco
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19 May 2006 05:49 PM
[Comment] [Marylynn LeMoine]
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lorosco
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19 May 2006 05:51 PM
[Comment] [Marge Harcarik]
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lorosco
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19 May 2006 05:59 PM
[Comment] [Scott M. Coniam]
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lorosco
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19 May 2006 06:01 PM
[Comment] [Rochelle L. Dobbins]
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lorosco
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19 May 2006 06:03 PM
[Comment] [Linda Lopez]
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lisablanks
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21 May 2006 09:25 PM
[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
rbvw4k
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21 May 2006 10:23 PM
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

cbenner
Posts:

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21 May 2006 10:58 PM
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
melindasetterman
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22 May 2006 02:17 AM
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]
ggraham
Posts:

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22 May 2006 12:40 PM
Arizona Court Reporters Association
7225 W. Oakland St.
Chandler, AZ 85226
e-mail: [email protected]
Tel: 480-496-4010
Fax: 480-858-1802
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Merilyn
Posts:

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22 May 2006 01:03 PM
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]
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CKelly
Posts:

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22 May 2006 01:13 PM
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]
Attachments
GPearlmutter
Posts:

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22 May 2006 03:34 PM
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


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