Winton Woods

Making the Trial Record Electronically

For the past six months I have been heading a special task force set up by ASBA President Wallwork to make inquiry into the use of digital recording in courtrooms. Digital recording is used in a number of different contexts. Digital recording, whether audio or video, can be a substitute for a traditional stenographic record and digital recordings may also serve a support and backup function when combined with a stenographic record prepared in real time or at a later date. The task force first considered the question of use of non-stenographic recording in the context of deposition practice. The task force composed of lawyers, judges, court reporters, and information technology professionals, agreed that in the context of deposition practice, the better course is to follow federal practice and permit lawyers a wide range of choices in regard to the method they use to record a deposition. Thus, the first recommendation of the task force was to amend existing Arizona Rule of Civil Procedure 30(b) so that it conforms to the federal practice.

The task force was unable to discover why Rule 30(b) of the Arizona Rules was ever written in the form that it was. Now, given the availability of high quality and inexpensive digital technology and given the fact that the federal courts have reported no problems with the existence in federal practice which essentially leaves the recording methodology up to the lawyer. If the proposal to amend Arizona Rule 30(b) to match Federal Rule 30(b) is adopted the process will be simply to include in the Notice of Deposition the proposed means of recording. The opposing attorney, if there is good reason to object to that method in the context of the particular deposition, would be required to get a protective order against the use of non-stenographic recording. As it is now under Arizona practice, if the opposing lawyer objects to the use of non-stenographic recording, the proponent of it must get a court order allowing it. A Rule 28 petition has been prepared and is on its way to the Supreme Court.

Having dealt with the pretrial use of non-stenographic recording, the task force then moved to the much more controversial and difficult problem of non-stenographic recording in trial courts. There is considerable experience around the country with the use of audio and audio/video recording of trial court proceedings. It is being used in courts, agencies and legislative bodies worldwide. In the Maricopa County Superior Court, for example, the new e-courts now utilize an audio/video recording system in which the entire day’s proceedings are taken with digital video cameras placed around the courtroom. At the end of the day a lawyer who wishes to have a copy of the day’s proceedings may have a CD Rom burned along with a software log that allows access to the various events that occurred in the courtroom. If a transcript is needed it can be prepared by various transcriptionists or perhaps even the court reporter. New e-courts have been in place for less than a year and after some initial glitches the system seems to be working reasonably well.

In Oregon, for example, a mandated 10% across the board budget cut resulted in a number of counties releasing some or all of their staff court reporters and replacing them with digital audio recording. The Oregon Supreme Court has appointed a special committee to make inquiry into the costs and efficiencies of the widespread adoption of digital recording technology there. There have been a few debacles, including a jury trial that had to be retried because the video recording system failed. There have, however, been very many successes and more and more Oregon courts have embraced the many benefits of digital recording and storage. The budget driven adoption of digital recording of proceedings in Oregon gives a strong basis for analyzing the impact of the shift to electronic records on litigants as well as court staff and judges.

In Arizona that task falls to several court committees established by Judge Campbell in Maricopa County and to the State Bar Special Task Force on Electronic Records. We have just begun our inquiry into the viability of utilizing digital recording as a substitute for traditional stenographic reporting. We have reached no conclusions in regard to the very tough question of when a digital recording can be a substitute for a stenographic transcript. We do know several things at this point. One of them is that a very large percentage of all proceedings by agencies and courts at all levels are recorded electronically using either analog or digital recording technology. Modern digital audio systems are able to capture the proceedings with a high level of accuracy and it is clear that high quality audio capture can be transcribed and reduced to a written transcript with relative ease and with great accuracy. Given the fact that digital recording technology works and works well, under what circumstances should digital recording be allowed as a substitute for a traditionally prepared stenographic record? Initially, we must ask under what circumstances should a stenographic record be prepared at public expense? It is here that the pulse quickens as does the debate--a debate that raises very large questions of public policy and economics. The Court Reporters Association is a potent political force that has undertaken what they call “an organized and coordinated effort to challenge proponents of electronic recording who seek to replace court reporters.” Without citation, they claim “the Bar is outraged” by the prospect. http://www.acraonline.org/monthlyupdates.htm On the other hand, court administrators and politicians see substantial budgetary benefits associated with reduction in the number of publicly paid court reporters, if not their elimination entirely, as has occurred many places in Oregon. Lawyers who are adversely affected by the spiraling litigation costs that shut the door of the courthouse to many middle class litigants see substantial savings in litigation costs as a very important goal. Judges see great benefit in the instant access to court records. Nonetheless, the considerable political muscle of the stenographic court reporters and their lobbyists are girding up for battle against the forces of technology. But Noah could not stand against the flood. Like it, love it or hate it, digital recording has become the dominant way of recording and distributing information in our 21^st century world. It is coming to a courtroom near you sometime soon. It will not replace stenographic court reporting in all cases but if properly implemented can result in a substantial savings to court budgets.

What must be done is to draw lines that segregate the cases where contemporaneous stenographic recording at public expense is important enough to the system of justice to require its use a priori at all costs. The Task Force has developed a method using free off the shelf software that provide a fully searchable synchronized transcript that incorporates real time court reporting in the video record captured by the eCourtroom systems. In those case where the best record possible must be provided at public expense this system is just about as good as it gets. It has been argued that in many cases, the use of contemporaneous stenographic recording should be discretionary and in most private litigation an expense carried by the private party who requests it. The Task Force on Electronic Records is now considering that issue among others. I would appreciate your comments directed to me at woods@law.arizona.edu.