For the record: Notes from a California court reporter

As most attorneys know, when everything is going smoothly in a deposition, neither the attorneys nor anyone else in the room hears from the court reporter. For obvious reasons, attorneys only know court reporters from a limited and transient perspective: When they see reporters at depositions and when they receive their transcripts. Court reporting is a mysterious, enigmatic profession that laypeople know nothing about.

Yet the time has now come for this reporter to break her silence.

While reporters' services in the legal world are performed for the most part passively, that passivity outside of the deposition or court setting -- as well as other key factors -- has cost them dearly over the years, culminating in two very distinct and critical problems that are currently and will, into the future, impact the California legal industry adversely unless these issues are addressed.

The first problem is independent court reporters' pay. Several days ago, a reporting colleague made a comment to me that sums up the reality of independent reporter pay perfectly: "I never imagined that I would be making less money after 25 years as a reporter than when I started." Another 25-year reporter lamented that she should have remained a legal secretary, a profession she held before returning to court reporting school. Still another said, "My friend who is an interpreter makes twice what I make." Many reporters are suffering financially. In silence.

Allow me to be the one that busts the myth that court reporters "make so much money." Nothing could be further from the truth.

Granted, there are those reporters who make good money when they are paid salaries in a court system and are unionized (they also work very hard and very long hours for that money). But the vast majority of court reporters in California -- at least 75 percent, if not more -- are independent contractors who report all depositions (over 95 percent of all civil litigation is settled via discovery through the taking of depositions), hearings, arbitrations, mediations, examinations under oath, and increasingly, court trials, due to the fact that salaried, court-employed reporters are being laid off in every county of California and have been over the past decade.

The status of "independent contractor" has been prominent in the news in recent months. Our ever-changing "gig" economy due to the rise and prevalence of businesses driven by the internet is shining a light on issues like worker protections, employee status, benefits and pay. Because of this changing work and labor landscape in a digital world, the California Supreme Court's April 2018 decision in Dynamex Operations West v. Superior Court held that it is the burden of the hiring entity to establish that a worker is an independent contractor who was not intended to be included within the applicable wage order's coverage; i.e., an employee.

Independent reporters receive their job assignments through court reporting agencies whose primary business is court reporting. Agencies derive their income primarily and directly from the work product of court reporters. These agencies vary widely in all sorts of ways. Some are smaller, in-state agencies, and some are corporate, out-of-state, "big box" entities that have not been held to the same standards of California business practices as in-state reporting agencies. They also tend to pay less than smaller in-state agencies. They -- as well as other firms -- contract with insurance companies to keep rates low and to remain competitive and gain new clients. These agencies have put out of business (or have greatly reduced the business of) many long-time smaller reporting agencies in California over the past 20 years; agencies I have always preferred to work for because of better pay and, frankly, because I'm treated like a human being.

You could say our industry is being "monopolized." And you would be right. All because of the internet.

There was a time when local agencies worked more in a spirit of cooperation. If Agency A couldn't cover a job with a reporter for a client in another city, for example, they would give the job away to Agency B located in that city that could cover it. Nowadays -- and because of the internet -- big-box agencies will not give away jobs they can't cover (ironic since they are often based hundreds or even thousands of miles away from the area of desired coverage). They request other agencies be their "satellite" to get a reporter, providing no benefit to the "satellite" agency.

Because of this fierce competition -- and because of independent contractor status -- independent reporters' pay on a per unit basis has actually decreased over the past 25 years. Reporters who have been reporting longer will cite an even longer period of time of no wage growth in our industry. Imagine being a Bay Area independent reporter -- like myself -- who has not seen any increase in her page rates (which is how independent reporters are paid; by the page) and oftentimes has seen decreases in page rates (depending on the agency one is working for) over 25 years. If you couple flat/reduced wages with cost-of living increases over 25 years, you might understand why I am now speaking out on behalf of my peers and myself.

You might say to yourself, "Well, as an independent reporter, you can negotiate your own rates." And to that I say, "You can try, but you will usually fail." An independent reporter has no leverage in negotiating rates. Maybe by a few cents, and that's it.

The second major challenge that the court reporting industry currently faces in our fair state is a critical shortage of stenographic court and deposition reporters. Court reporting schools are disappearing. In 2013, there were 17 recognized court reporting schools in California. By 2017, that number had dropped to 11. The pass rates on state certification tests, which have always been very low (often between 10-30 percent, attesting to the difficulty of becoming a California Certified Shorthand Reporter), are so low now that there are not enough reporters to cover jobs. Recent tests, which are given twice yearly like the bar exam, have seen less than 10 people pass per test. Add to this dynamic the ever-present reality of attrition (due to retirement, health, career changes, life changes, etc.), and you can recognize that the current court reporting situation in California is pretty grim. The shortage is so critical that there have been reports of agencies merely electronically recording or videotaping depositions with no reporter present; a clear violation of California law.

So why, after four years of education and training (and after I also received a B.A. from UC Berkeley), passing my third test attempt, and 23 years of experience is the end of my profession as we know it in sight in California?

Our profession has wholeheartedly embraced technology. All reporters use computers and computer-aided transcription (CAT) software that translates our stenographic shorthand into English (think closed-captioning). Some deposition assignments require realtime hook-ups, but the vast majority of assignments do not require this "hook-up."

What has happened is that schools have been trying to train students to be "realtime-ready" coming fresh out of school. This, in my opinion, is an unrealistic and untenable expectation. Without getting into specific details of stenographic training, trust me when I say that a reporter can be excellent without considering herself (or himself) "realtime-ready."

"Can't they just record those things?" If I had a dollar for every time I've heard that question, I'd have about $100, lol.

If you want legal due process, no. You can't just "record those things." As an officer of the court in a deposition setting, I am accountable for the record. That is not only a scribe's purview and responsibility, but a basic tenet of just legal process. Let us not forget what is at stake in the rush to automate and cut costs.

State officials in California are now considering other means of making a legal record. They are looking towards testing and qualifying voice writers, which involve a reporter speaking into a cone during a proceeding and employing voice recognition software. But this means, too, will require competency demonstrated by training, a significant personal investment in equipment and software, qualifying for a state test, and passing it.

Make no mistake. No matter what means of making a legal record is employed, the same reporting marketplace realities will persist unless the issues I have presented are addressed.

Reporters have the right to a fair wage for their skill set, training, and cost-of-living increases. On an hourly basis, we currently are paid less than a lot of janitors and other unskilled occupations in California because we do not have the same workplace protections. While we have lobbyists in Sacramento doggedly advocating for legislative changes in certain aspects of our industry, these efforts have not gone nowhere to support, advocate for, or protect the individual reporter, contrary to what they might say.

There is another issue at play that must also be acknowledged.

Insurance companies are the ultimate source of funds for most reporters' pay. They are also the ultimate source of funds for the pay of most lawyers, doctors, and many others. I will be the first person to acknowledge that insurance companies foot a large bill for many of the really huge transactions that take place in our world. But they also charge in kind for their services, and their profit margins are hefty. I also know -- from having listened to thousands of legal proceedings as a reporter -- that insurance companies are often wasteful in their spending. A number of years ago, a phrase came to my mind that perfectly describes how insurance companies operate.

"Penny-wise, pound-foolish."

Since that phrase has come to mind, I have heard it uttered more than once by attorneys who, of course, work even more closely with insurance companies.

Perhaps if insurance companies and court reporting agencies in tandem employed a little more conscious, innovative, people-centered thinking, they could run better businesses and be fairer to those service providers who support their businesses. And among those service providers are independent court reporters.

I'm proud of my chosen profession. I'm proud of the work I do and have done. If I had to do it over again, I would want to choose independent court reporting again if the pay was commensurate with our industry's professional demands and basic cost-of-living realities. I have worked diligently and honestly for every dollar I've made. But as a longtime reporter, I am now feeling disenchanted, disregarded, and disrespected. And if you were to ask other reporters who do what I do, if they were honest about it, they would say the exact same thing.