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The Atlanta Journal reports that a Cobb County, Georgia, grand jury has serious concerns about the fact that court reporters in that county earn a salary and also charge the county and private attorneys highway robbery fees to produce transcripts. The article evokes all sorts of thoughts for me about the frustrations that accompany getting the trial transcript. From an appellate lawyer’s perspective, the transcript is one of the trickier parts of the entire appellate process. Some of the issues identified in the article are part of the problem of representing clients on appeal. The problem is that court reporters are pretty powerful people. In fact, am going to be careful about cranking my car for a few weeks after I post this blog.

There are some pretty serious issues with the whole transcript process in Georgia. Court reporters include a mixture of free lancers, official court reporters, and employees of corporations. While they are all governed by the Georgia Board of Court Reporting, procedures for getting transcripts and getting them expeditiously vary with each reporter’s personality and with the personality of the Court. The fees for transcripts can be so high as to discourage appeals entirely (It’s important to compare what you are being charged for a transcript to the approved schedule for court reporters). 

The other issue, and it’s a big one, is the matter of who owns the transcript. The client wants his own copy most of the time to “help,” and the lawyer gets one with an account accompanying warning not to copy it. Most appellate lawyers would prefer for the client not to have a copy because a bunch of time can be involved in trying to explain errant views of the law or an inappropriate emphasis on the facts (i.e. Sally was lying. Why don’t you make a bigger deal about that instead of this odd venue argument, Mr. Key? Whose side are you on anyway? I paid $3,000 for this transcript. Why can’t I have it?)

 If I could be king for a day, court reporters would work out of a pool. They would not be one particular judge’s court reporter. They would just plug in where needed. They would be paid a salary instead of a salary plus a per page fee for preparing transcripts. And, if they had a backlog of five trials, they would not be allowed back into the courtroom until the backlog is brought current.

This grand jury is really onto something. But they’ve just scratched the surface. The real issue is not whether the transcript is the county’s property versus whether it is the client’s property. The real issue is that many court reporters view the transcript as their property even after you bought it. It is not unusual to see warnings in transcript threatening all sorts of consequences about taking the transcript apart or copying it. It’s worth than the warning on mattress tags. One would think that taking the transcript out of its binding is tantamount to opening the ark of the covenant.

Hopefully the grand jury’s action will evoke discussion and possibly much needed reform.

  • The prevailing view among court reporters appears to be that the hard work they put into transcripts gives them the right to restrict copying of those transcripts under a “work product” theory.
    However, work product privilege is a confidentiality doctrine having no application to transcripts, especially transcripts of public proceedings.
    Moreover, the argument that “sweat of brow” may be a basis for copyright has been rejected by the United States Supreme Court; that Court has held that “Copyright rewards originality, not effort[.]” Feist Publications v. Rural Telephone Service Company, 499 U.S. 340, 364, 111 S. Ct. 1282, 1297, 113 L. Ed. 2d 358, 381 (1999). Furthermore, Congress has prohibited the states from granting rights equivalent to copyright in written material. 17 U.S.C. § 301. Take a look at Chase v. PUC, 2008 U.S. Dist. Lexis 25702, 2008 WL 906491. I was the Chase in the case, and there is more information about it on my web site:
    http://www.genericlawyer.com/puc.html
    I believe transcription done by salaried reporters should be compensated by some combination of page bonuses and overtime pay, all reportable on a W-2.