COPE: Guidelines for conduct as an officer of the court

Donna Cascio

By Donna Cascio

“A fair and independent court system is essential to the administration of justice.” That is the first sentence of the Pennsylvania Supreme Court’s Code of Conduct for Employees of the Unified Judicial System.

How can official reporters, as officers of the court, convey the values of impartiality and fairness that promote the integrity of the judicial system with “the highest standards of professional and ethical conduct”?(1)

We, as officers of the court, have the obligation to promote justice and assist in the effective operation of the justice system.

Of course, we are aware that our own Code of Professional Ethics demands that we be fair and impartial toward each participant and that we be alert to situations that give the impression of a conflict of interest or that give the appearance of partiality or impropriety.

We must be careful to convey that impartiality not only while on the record, but before and after court is in session. Could our actions, innocent as they may seem to us, be construed as favoritism by a stranger? Do your best to keep conversation before court is convened work-related — spellings of witnesses’ names, clarification of representation, updating addresses of counsel, and so forth.

When we are in our familiar surroundings, perhaps working with the same attorneys and court staff year after year, many of whom have become our friends, are we careful to avoid giving the impression of favoritism? Be cognizant of the impression you are making upon strangers, whether counsel or perhaps the parties, by your conversation and actions with familiar attorneys or court personnel.

I advise that when you are whispering or chuckling with the clerk or court officer before the judge comes in the courtroom, think about whether that conduct could appear to be commentary about attorneys or parties in the courtroom.

Please refrain from making that impression on others. Do your utmost to project professionalism in the courtroom, as your behavior is a reflection not only upon the judicial officer for whom you are working, but the entire justice system.

Put yourself in the shoes of a newcomer to your courtroom. Perhaps that newcomer is an attorney, perhaps a litigant. Be aware that your overly friendly conduct toward that newcomer’s opposing counsel or litigant can plant a seed of doubt in the newcomer’s mind. Any conduct that calls into question the impartiality and accuracy of the record is to be avoided.

In one particular jury trial in my court system, members of the court staff were conversing and joking with the court reporter in the courtroom during a recess. The defendant’s girlfriend was in the courtroom at the time and overheard a comment from someone in the group huddled about the court reporter’s desk. The comment was misconstrued by the girlfriend as a racist remark. It definitely was not. It was an innocent comment made by a jury officer, not the court reporter, and not a racist remark; but, taken out of context, that conduct had repercussions.

Not only was that defense attorney successful in requesting a mistrial based on the impression made upon the defendant and his girlfriend and their loss of faith in the integrity of the court personnel and court record, but all court personnel involved were ineligible to be assigned to any future case involving that defendant.

The reminder memo issued by the Court thereafter read, in part, “Remember that your actions as a court employee reflect not only on you, but also on the court and the judge to whom you are assigned.”

The point is that commenting, gesturing, whispering, or giggling can be interpreted by observers as conversation about them and could make them feel apprehensive at the very least, if not downright indignant or disrespected. The best course of action is to conduct yourself in a professional way, courteous to all, and not overly warm and friendly to your acquaintances when strangers are in your midst.

People now, more than ever, need to keep faith in the part of our Pledge of Allegiance that reads “…and justice for all.”

Donna Cascio, FAPR, RDR, CMRS, is a retired official from Somerset, Pa., and a member of the NCRA Committee on Professional Ethics. Questions about ethics can be sent to msavino@ncra.org.

 

(1) See Pennsylvania Rule of Judicial Administration 4006(C). All court reporting personnel are officers of the court with a duty to comply with all court regulations and orders and to maintain the highest standards of professional and ethical conduct.

WORKING TOGETHER: How’s your audio?

By Mindy Sindiong

Part of a CLVS’s training is to provide great video and audio for our clients. However, we have two clients: the attorney(s) and the court reporter. Yes, I said court reporter. Part of our job is to offer the court reporter some form of audio, whether it be a live feed from our audio mixer or a digital computer file recorded onto an SD card. The better audio we provide, the more court reporters will want and request to work with a CLVS. I’ll get more into the relationship between a CLVS videographer and a court reporter in a moment. First, I want to discuss the importance of the audio.

The CLVS program teaches a CLVS the audio chain, meaning audio should come from wired microphones to the mixer, from the mixer to the video recording devices, and, from there, into a monitoring device, otherwise known as headphones. Unfortunately, many videographers seem to forget the importance of audio in video. We are sometimes swayed by the technical specs of that new camera that just came out. We want the video aspect of it to look great on that new 4K video monitor. Can we see every line on someone’s face? And, in the process, audio sometimes falls to the wayside. This is a shame because, in reality, the audio is of utmost importance, especially in video depositions. The testimony is the deposition. Try an experiment. Turn on the TV with the sound turned down and watch for a few minutes. Turn the sound up and turn your eyes away from the TV and just listen. In most cases, you will get a better understanding of what is happening by listening rather than watching. Now, mind you, I am not disregarding the importance of the video portion of a recorded deposition. Studies have shown that much of how we communicate is through body language, but that would be a different article.

A good audio recording will also capture the nuances of the spoken word. Is the voice changing in pitch? Is the speech speeding up or slowing down? How long was that pause before the answer? Did that question seem to come out right? These telltale signs are all an important part of communication. If the video-recorded deposition has audio that has a lot of distracting noise, noise that can come from a bad connection, poor quality microphones, an audio mixer that introduces a bad hum sound, and so on, then the spoken voice starts losing its relevance to the listener. That is why the CLVS training stresses the importance of setting up, monitoring, and troubleshooting your audio chain.

Back to the relationship with the court reporter. As I said before, we also teach a CLVS to offer the court reporter some sort of way to monitor the audio, whether it be a live feed or a recording. Court reporters should also be prepared for working with a CLVS and may need to know how to make some audio adjustments on their end and be able turn up or down the input levels on their laptops. Being prepared to make these minor adjustments has huge payoffs in the quality of the audio for scoping and proofing later.

Being able to offer a high-quality live feed to the reporter can have other benefits. I can’t tell you how many times we have done depositions during which one of the participants was extremely soft spoken. Having a microphone on the witness and being able to boost that audio signal through the mixer can make all the difference in the world. The court reporter will be very thankful to be able to hear that witness loud and clear using a headset. I’ve always felt that if you take care of the court reporter, he or she will take care of you. In this business, I believe the court reporter is my most valued partner and friend.

Mindy Sindiong, CLVS, of Lawrenceberg, Ind., is a member of NCRA’s Certified Legal Video Specialist Council. She can be reached at Mindy@DeBeneEsseMedia.com.

 

COPE: Working with the “CIA” – An ethics review

By Jason Meadors

CIAI’m pretty sure you won’t find what I’m about to say in any Board policy or finding by NCRA’s Committee on Professional Ethics (COPE), in which I have the honor of serving this year. No, what follows are my own views of foundational bases of our ethics, in looking at the ethical frameworks in the Code and Advisory Opinions, and with a few decades of experience in this all-consuming career. I also have a regular ethics seminar that I present, and my views are woven into that as well, and I haven’t been seriously challenged. Yet.

“What are these views?” you might ask. Or you might not. I suspect the latter has the higher probability. But I’m going to tell you anyway. The ethical construct of our sacred court reporting profession has a foundation of three legs. Because Dave Wenhold, our preeminent lobbyist, has taught me that clever acronyms help people better identify and remember concepts, let’s call them the CIA.

Those three foundational legs of our profession are:

  • Confidentiality
  • Impartiality
  • Accuracy

There you go. Our CIA.

Confidentiality

Our Code of Professional Ethics (In a slight bit of acronym confusion with the committee, also named COPE), Number 4, addresses this directly. “Preserve the confidentiality and ensure the security of information,” and so on.

This makes eminent good sense, does it not? When we work, we hear dreadful events, shameful secrets, and financial goings-on from hosts of people. If we want the process to have integrity when it comes to the record, if we want our clients and consumers to see us as trustworthy professionals, if we want our profession to continue, we have to ensure that information that we hear doesn’t go where it’s not supposed to go.

It’s so easy to get caught up conversation among ourselves, with our clients, with members of the general public, because sometimes we hear some pretty darned interesting things. May I suggest a little self-administered test when you’re talking with someone and you get the impulse to sneak out a detail from a case, ask yourself: If this person says, “Oh, the reporter told me,” how will that reflect on you?

(There’s actually a simpler practice that doesn’t require retrospection: Just shut up.)

They bring us, outsiders, in to the proceedings, secure in their belief that we will not be the conduit of information to the rest of the world. Let’s keep it that way.

But that’s not the only reason we are called to our professional tasks. There’s the second foundational leg of:

Impartiality

Five of the ten items in the NCRA Code of Professional Ethics encompass impartiality. Indeed, Number 1 of the Code starts with, “Be fair and impartial…”

And this concept really is the linchpin in working at our professional heights, and its existence flows directly to the reliability of the record that we’re preserving.

In the litigation arena, in one certain sense, our presence might seem a bit odd. The parties are presenting their own weighted view of evidence. The attorneys are advocates for their clients. The judge is protecting the public interest. Everyone has taken a side. And still they bring us in, with our mandate of being both disinterested and uninterested, because it’s the only way that the history that they read later has been kept and delivered without bias, without favoritism, without an eye to supporting one side or the other.

“I love a job where I’m actually paid to not be interested in anyone.”

That’s how it must be. Even while immersed in their advocacy, they are paying us to be emotionally distant and removed from the proceedings that we report. All sides have to be able to rely on the integrity of the transcript without a second thought about whether the reporter might be bringing other interests into the legal game.

Sure, there are times when that “not caring” thing gets pushed and emotions run high. We all have our stories. My memorable one, and not in a good way: Within a couple weeks after a family member’s death, I was taking a deposition about a case that involved a fatality, and the grief of the deponent was open and unyielding. Because of my father’s so-recent death, my own emotions were pretty raw at the time, and I struggled to keep my expression impassive. I’m not sure how well I fared.

But the transcript that resulted from that deposition did not, could not, be weighted toward the grieving deponent, toward my client, toward the attorney who represented the sobbing witness, or anyone else in the room. That’s what all parties expect and what they deserve when they hire us, the professionally detached historian in the room.

(At this point, the alert reader may say, “Hey! You just told us not to talk about our cases!” And that is why I kept it so nonspecific as to time, place, parties, and even the type of case.)

Sometimes at introductions in the deposition room, one attorney will tell the witness, “I represent the plaintiff.” The other one will say, “I represent the defendant.” When the deponent looks at me, I introduce myself and say, “I represent the paper that comes out of this.” The integrity of the record is, indeed, the focus of our own advocacy.

But our confidentiality and impartiality aren’t the only reasons we’re being hired, which brings us to:

Accuracy

This leg is the surprisingly more tenuous one to talk about, because nowhere in the Code of Professional Ethics does it actually state that the reporter has an ethical duty to provide an accurate record.

I’m going to pause a moment to let that sink in. Let me know when you’re ready.

Okay, ready?

The reliability of the record is a principle woven into the fabric of our professional product. If the record of proceedings isn’t accurate, the participants might as well be home reading a good book and sipping their favored beverage. The need for accuracy is why we’re so darned impartial; likewise, impartiality helps to guarantee accuracy. The other factor to accuracy, of course, is the combination of skill, conscientiousness, and record-consciousness that we bring to the table.

Putting it all together

So when we’re faced with an ethical issue, we can generally fall back on our CIA to help resolve it.

  • Does the issue compromise Confidentiality?
  • Can it be perceived as a breach of Impartiality?
  • Could it degrade the record’s Accuracy?

If the answer to any of these is “yes,” the issue must be resolved in a way that keeps those principles intact.

My dear colleagues, what we do is important. Way back when, about to finish Marine reporting school and enter my life as a voice reporter in the Marines, a military judge came in to talk to us wide-eyed new practitioners about our importance. I haven’t forgotten the gist of his talk since, and that was early 1975. He told us about U.S. v. Albright, where the Court of Military Appeals stated that the record “imports verity.” In other words, if we say it happened, absent some showing of fraud (so stay impartial!), then what we say goes. How we transcribe it is how history will see it. If we don’t get it right, history will not look correctly upon what went on (so be accurate!).

And really, we are not just important. We are vital.

If the adage is correct about what is the “oldest profession,” then we can look at cave wall paintings and see what the second oldest is. It is the people who make the record of humanity itself. We bear a direct lineage from those short, stocky folks facing the rock walls, ochre at their sides, painting what happened to Thag Simmons. That tradition carries on through the scribes of ancient Egypt, the courts of the Khans, through the ages of petroglyphs, obelisks, clay tablets, papyrus, rice paper, parchment, paper from pulp, and through the spectra of electronic media that we use today.

Our all-important record preserved through our grand legacy is the singular method by which society can learn from its mistakes and build on its successes. And so, through our near-incomprehensible skills, and with the guidance of our solid ethical foundations, let’s make that record a good one.

Jason Meadors, RPR, CRR, CRC, is a freelance reporter in Fort Collins, Colo., and a member of NCRA’s Committee on Professional Ethics. He can be reached at jason@reporterworks.com.

 

COPE: Missing deadlines and the Code of Ethics

By Cassy Kerr

The timely delivery of a transcript from a reporter to a reporting firm can be a stressor in the life of a firm owner. “I want to add another pressure to my day-to-day responsibilities of owning a reporting business,” said no firm owner ever.

Also, no reporter wants to be in the uncomfortable position of missing a deadline with a firm. So fear not. There are ways, along with common sense, to avoid these issues for both firm owners and reporters in NCRA’s Code of Professional Ethics (COPE), the COPE General Guidelines, and specifically Advisory Opinion 20.

The first thing a firm owner can do, when looking for an outside reporter to cover a deposition, is personally know or know someone who personally knows the reporter. This is why networking is so important. Whether you need a reporter in an adjoining city or many states away, having a referral from a trusted resource is essential. Attending your state and national seminars, conventions, and get-togethers or volunteering for state or national committees are great opportunities to build your circle of contacts. Next, when you are speaking with the reporter, inquire whether he or she is a member of his or her state and national organizations. Those who aren’t have the ability to say, “State or national association’s guidelines and opinions don’t apply to me.”

Agencies should also advise the reporter of the deposition’s subject matter and verify that the reporter is capable of producing a quality product and delivering it within the requested timeline. If the reporter finds him- or herself in a highly technical video deposition without the required experience, the reporter will spend an excessive amount of time researching terms, which will delay the transcript delivery.

The reporter also has responsibilities when it comes to the timely delivery of a transcript, the first of which is letting the agency know whether he or she has the skills to report the deposition.

Section I.1 of the guidelines reads, “Accept only those assignments when the Member’s level of competence will result in the preparation of an accurate transcript”; and also, the conclusion in Advisory Opinion No. 20 says, “… the individual reporter … has a duty to … refrain from accepting engagements with which the reporter knows he or she is unable to comply.”
Reporter, it is okay to tell the firm: “I appreciate the opportunity to work for you, but I will be in over my head with this assignment.” In fact, the agency will appreciate your truthfulness and that leads to COPE No. 9, which says, “A member shall maintain the integrity of the reporting profession,” and there is no better way to do this than by being honest.

Further, being forthright about your skills and level of competence adheres you to Guideline No. I.5: “Meet promised delivery dates …” Finalizing a transcript can be time-consuming enough without extra time spent googling on a subject matter.

Likewise, if the reporter knows that he or she cannot deliver the job by the requested date, he or she should decline the engagement as expressed in Advisory Opinion No. 20.

Again, reporter, express your appreciation for the chance to work together, but let the firm know you are unable to meet the deadline. If you accept the job knowing you can’t and won’t meet the firm’s expectation, it puts the firm in the unpleasant position of explaining to the attorney, when contacted by him or her, that it doesn’t have the transcript for production. Avoid putting anyone, including yourself, in this sticky situation, and be upfront and truthful with the firm.

An instance of not meeting a deadline can occur when a transcript delivery date has not been given to the reporter. In this situation, a commonsense approach is for the reporter to ask the agency what the expected turnaround time is. COPE No. 3 says, “A member shall guard against not only the fact but the appearance of impropriety.” It is totally proper if not expected for the reporter to inquire of a deadline if it
is not given by the agency.

Reporter, save yourself the panic of an unforeseen request to have the transcript delivered the next day and inquire of the transcript deadline. NCRA’s Ethics Committee concludes in Advisory Opinion No. 20 that “… the individual reporter that subcontracts with an agency has a duty to meet promised delivery dates whenever possible and to refrain from accepting engagements with which the reporter knows he or she is unable to comply; so the burden lies with the reporter, not the agency, to ensure he or she meets the requested or a timely transcript delivery.

Sometimes, however, try as reporters might to meet his or her transcript deadlines, life happens. Urgent care visits occur. Children’s games go into overtime. Another transcript needs to get bumped to the front of the line to meet an unexpected expedited request. This is when common sense, Opinion No. 20, the COPE, and the COPE guidelines all mesh into one message: communication.

Section I.5 of the guidelines reads, “A member should … provide immediate notification of delays.” Will the reporter dread letting the firm know he or she cannot meet the deadline? Maybe.

Will the agency be frustrated that a deadline can’t be met? Probably.

Will the attorney be upset that the transcript isn’t available as requested? More than likely.

But this is when COPE No. 9 again comes into play. Be honest, reporter, as to the delay. Explain the situation, accept responsibility, and come to an agreement with the firm to a new delivery date. As long as your delivery delays are not a habit, the firm will understand and be happy to call you again the next time they need your help.

Cassy Kerr, RPR, CRR, CRC, is a freelancer and agency owner in Tulsa, Okla. Kerr is a member of NCRA’s Committee on Professional Ethics.

Five steps to build a million-dollar court reporting business

By Cassandra Caldarella

Some reporters go their entire lives without earning a million dollars, so it sounds crazy that some court reporters might be able to achieve this milestone in a few short years. But it is possible. Plenty of court reporters have achieved this goal, and you can too!

Pay attention to the following tips and use them to help ramp up your revenue growth:

  1. Find a growing market

five-ways_1One of the simplest ways to build a million-dollar court reporting business in such a short period of time is to find a growing trend and ride it to the top. Take me for example. As a former official for Los Angeles Superior Court, I saw the privatization of the reporters in civil courtrooms and getting laid off from the County as an opportunity. I went from a salaried position making $97,000 a year with the county to making more than $200,000/year. I took my lemons and made a whole bunch of lemonade. Certainly, part of my success comes from turning out a great product and service, but it also comes from timing. When I was laid off in July 2012, a $75+ million-dollar market for civil reporters in L.A. opened up and more than 12,000 attorneys in the Los Angeles market were scampering for coverage of their motions and trials. Along with many colleagues, I experienced a 125 percent annual revenue growth that first year and ever since. Finding a growing market of your own like this can put you on the fast track to massive revenue growth.

  1. Think monetization from the start

It seems strange to think about monetization objectively, but some court reporters operate without any obvious monetization strategies. Twitter is one example of this phenomenon, but countless other companies out there are building up their free user bases, hoping that inspiration – and, consequently, financial stability – will strike along the way.

five-ways_2Most profitable companies operate from one of two models: either they sell a lot of inexpensive products to a lot of people or they sell a few big-ticket items to a more limited buyer list. Neither model is easier or inherently better than the other. What’s more important than choosing is having a defined plan for monetization. Knowing what the plan is to make money from the start will prevent wasted time spent hoping that something profitable will come together.

For court reporters, we have some limitations: what we can charge may be limited; we can’t give away our services for free; and we can’t participate in gift giving more than a certain amount each year. To work as a pro tem in court, most of the page rates are set by the Court Reporters Board in California. One of the free user bases court reporters can set up for themselves is a vast network of referrals. So when an attorney calls requesting your services, and you are already booked, you can tell him that you have a friend who just became available. And the same goes with agencies who call you for work.  It can be a mutually beneficial situation. Or, if you prefer, you can offer to cover the job for the attorney, find a reporter that you network with, and take a cut. Do whatever works best in your situation.

  1. Be the best

five-ways_3There are plenty of mediocre court reporters out there, but the odds are good that these reporters aren’t making a quarter of a million dollars a year. If you want to hit these big potential revenues, you’ve got to bring something to the table that wows customers and generates buzz within your marketplace.

How can you tell if you’ve got a “best in breed” service? Look to your current customers. If you aren’t getting repeat business from attorneys and agencies and getting rave reviews or positive comments sent to your inbox, chances are your clients aren’t as ecstatic about your service as they need to be to hit your target sales. Asking your existing customers what you can do to make your service better and then put their recommendations into place. They’ll appreciate your efforts and will go on to refer further jobs to you in the future.

Improve your skill level. Focus on getting your realtime certification and then offering realtime on every job. Get as many certifications as possible. Be a member of your national and state associations. Join the state bar associations and trial lawyers associations.

Beyond our skill level is making an emotional connection with your clients. We reporters have very little time to communicate with attorneys while we’re working. The entrances and exits are sometimes all the time we have with them. Make it count. Make eye contact. Smile. You’ll be surprised what an impact a simple smile can have.

 

  1. Hire all-stars

Hitting the $200,000 in revenue per year is no small feat. You aren’t going to achieve this goal alone and you certainly aren’t going to get there with a team of underperformers. Yes, hiring less expensive scopists and proofreaders (or none at all) will be cheaper and easier, but you’ll pay for this convenience when your end-of-the-year sales numbers come up short.

five-ways_4Instead, you need to hire all-stars, and the fastest way to do this is to ask around for referrals. The really good ones will be busy and will turn you down at first. You need to use your referrals to let them know that you know someone they work with and can be trusted. Get them on board with incentives such as higher than usual rates. This will not only get them in the door, it will ensure that you have them on your team when that daily trial starts tomorrow. They will make you a priority. And treat them like gold by remembering their birthdays, sending holidays cards, gifts, and bonuses, and just by having open and direct communication with them. If you have the time to “interview” scopists and proofreaders by starting them out with small jobs to test the waters, and you find one that has potential, this could be your opportunity to turn them into exactly what you need and want by gentle coaching and instruction and slowly giving them more and more to do for you. The training you put into them will be rewarded with loyalty. You need to be absolutely certain that you can go after those all-day, realtime, same-day expedite jobs because you can rely on your team to be there when you need them. You need to be able to get those jobs day after day after day without missing a deadline. One missed deadline could be the end of a relationship with an agency or an attorney. When every penny counts towards reaching your million-dollar goals, you’ll find your team of subcontractors to be worth their weight in gold.

  1. five-ways_5Consume data

Finally, if you want to shoot for the revenue moon, you need to be absolutely militant about gathering data and acting on it. If you want to make $250,000 a year, then do the math. There are 2,080 working hours per year, which is $120.17/hour. There are 12 months per year, which would be $20,833 per month. And there are about 20 working days each month, which would be $1,041.66 per day, 240 days per year. As the ebb and flow of reporting goes, so go our predictable numbers, so we must constantly take measure of where we are.

I keep an Excel spreadsheet with my running monthly totals of jobs invoiced and money received ,and I put that on a side-by-side comparison of the last year’s numbers. I always know where I stand each month. If my job cancels today and I’ve only made the $300 per diem appearance fee, and I know I still have to get to my $1,041.66 goal for the day, then I text message all my agencies to let them know I’m available. I try to double- and triple-book myself, so I’ve got 3-6 motions in one day or a trial with dailies and realtime. I don’t stop until I’ve hit my goal. But then there are days where I get 5 copies and realtime and roughs, and it makes up for those days where everything falls apart. But I never stop trying to hit my daily goal. Always check your statistics to see how your day impacted your revenue. Add up your per diems and make a note of how many pages and calculate how much you earned at the end of each job. It may not be too late to pick up another one before you head home. Check your phone frequently for text messages and emails from agencies. Keep track of your key performance indicators (KPI’s) and push your metrics even higher every day. Keep a score card for yourself. Always keep your numbers in mind and know where you measure up each day.

I’m constantly picking up new agencies and making cold calls to agencies I hear other reporters talking about. I send them a resume and list of references, but I tell them what I want. I send my rate sheet, work preferences, geographical areas, and tell them about my experience. I try them out. I always invoice agencies and don’t rely on their worksheet. I know down to the penny what I earned on each job. I always negotiate rates with new and old agencies, with each job. I know what the going rates are by constantly doing market research, talking to other reporters, networking. You have a veritable gold mine of information just hanging out in the various Facebook groups, so put it to good use.

Growing your freelance court reporting business to million dollar revenues isn’t easy, but it is possible. Stick to the tips above – even if you don’t hit this particular goal, you’ll earn the strongest sales results possible for your unique business.

Cassandra Caldarella is a freelancer and agency owner from Santa Ana, Calif. She can be reached at cassarella11@hotmail.com.

California law lets parties to an arbitration use a court reporter

A blog posted on Oct. 3 by JD Supra Business Advisor provides insight into a new law passed in California that gives a party to arbitration the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The blog was written by Kramm Court Reporting.

Read more.

COPE: Conflict of interest: Remaining professional despite relationships

By Donna Cascio

Many years ago, I was interviewed by a president judge for an officialship in a small judicial district served by two jurists in rural Western Pennsylvania. The judge’s secretary was his wife. Little did I know at that first meeting that I too would enter a lifelong journey of dealing with relationships that linked my professional world with my personal world.

After I was hired by that president judge, I learned that the judge’s brother was a practicing lawyer. The court administrator was careful to make sure that that attorney did not appear in proceedings before that judge. As I was soon to learn, there was another lawyer in that judge’s family. His cousin was the district attorney (DA), but that relationship was deemed distant enough so that the DA was able to prosecute cases in front of either judge. The daughter of our other judge, termed the associate judge, was married to a practicing lawyer; that lawyer was prohibited from appearing before his father-in-law.

Does this sound confusing? Well, wait, because it continues. And I added to the mix.

As time went on, I married a lawyer who was a principal in a local law firm (the Cascio law firm), which included his father and brother, among others. Adhering to Code of Professional Ethics No. 2 (avoid situations that are conflicts of interest or appear to be) and No. 3 (avoid the appearance of impropriety), of course, affected my assignments in certain cases.

When a court reporter has a relationship with a party that compromises the reporter’s impartiality, that relationship at the very least has to be disclosed and an agreement to proceed obtained by the parties affected, and at the very most must be avoided (see Advisory Opinion No. 2, Reporter’s relationship to litigants; 1987, 2013; and No. 3, Reporting for a spouse’s law firm; 1987; 2013).

Continuing in my career, that lawyer I married ascended to the bench. By this time there was a new set of judges and a new president judge. Anticipating the inevitable situation of working together, my husband had sought an opinion from the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges. The opinion expressed that there was no violation of the Code of Judicial Conduct if I continued my work as an official reporter and that I could report proceedings that were held in his courtroom. Despite the ruling, our new president judge preferred that I would work in my husband’s courtroom only if absolutely necessary, meaning all other reporters were either absent or swamped with work.

This was in a three-judge county with only three reporters. We called it working without a net. We use a pooling system of reporters. However, my husband’s busy courtroom and my inability to rotate into it regularly created some difficulty with the flow of work in those 15 years until our president judge retired and his rule was abolished.

In 2006, when my husband became president judge, the ruling from 1990 was dusted off, and I began a regular rotation of working for every judge. I guess this means I have more experience than most in evaluating and dealing with appearance of impartiality. However, in a 50-mile radius of my home, I personally know three court reporters married to Pennsylvania State Court trial judges, so I am not alone.

The husband-and-wife relationship in the courtroom may seem curious to some. I always emphasize that the judge and the court reporter are the impartial people in the courtroom. In jurisdictions where there is sufficient staff to adhere to a rule of not working together, that is fine. In my situation living in a small town, that is impossible.

By the way, my brother-in-law is still practicing law at that same law firm, and so I disclose that relationship to every out-of-town counsel even though my husband obviously has no tie to that law firm. But by this time, that relationship is well known. At the current time, our judicial district has sought a ruling from the current Ethics Committee of the Pennsylvania Conference of State Trial Judges on some other relationships. Of our three sitting judges, the current president judge’s ex-wife practices law with the Cascio firm, my husband’s brother continues to practice law with the firm, and our newly elected judge is a former partner from the same firm.

The ruling from the Ethics Committee was that any contested matters emanating from the Cascio law firm must be heard by a specially appointed senior judge.

My point in sharing that bit of confusing data is because jurists in my court are acting with care to adhere to standards of acceptable judicial conduct, so they have sought this ruling to guide the court operations going forward.

There may exist in some states licensure or advisory boards to help guide reporters’ professional conduct. We in Pennsylvania are not so lucky. But just as our state courts have the ability to seek guidance from an Ethics Committee, so too do we reporters on a nationwide basis have the ability to seek guidance from a bona fide body so all actions we take can have sound reasoning and we can avoid the appearance of impropriety.

Court reporters have the NCRA Code of Professional Ethics as well as the set of Public Advisory Opinions, conveniently accessible on NCRA’S website. In addition, NCRA’s Committee on Professional Ethics stands ready to discuss any situation brought before them by any member (if not already addressed in a current public advisory opinion).

According to Priority #4, Advocacy, in Vision 2018, NCRA’s Strategic Plan, NCRA will continue to “establish, perpetuate, and promote standards of conduct for court reporters.” In Priority #5, Professional Development, it is clear that “NCRA will establish and refine standards of knowledge, competence, and professional practice.” Thus, we can be assured going into the future that NCRA will remain our guide for any questionable issue.

Donna Cascio, RDR, CMRS, is an official court reporter in Somerset, Pa. She is also a member of NCRA’s Committee on Professional Ethics.

 

—————————

 

 

Code of Professional Ethics

A Member Shall:

  1. Be fair and impartial toward each participant in all aspects of reported proceedings, and always offer to provide comparable services to all parties in a proceeding.
  2. Be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or a potential conflict arises, the Member shall disclose that conflict or potential conflict.
  3. Guard against not only the fact but the appearance of impropriety.
  4. Preserve the confidentiality and ensure the security of information, oral or written, entrusted to the Member by any of the parties in a proceeding.
  5. Be truthful and accurate when making public statements or when advertising the Member’s qualifications or the services provided.
  6. Refrain, as an official reporter, from freelance reporting activities that interfere with official duties and obligations.
  7. Determine fees independently, except when established by statute or court order, entering into no unlawful agreements with other reporters on the fees to any user.
  8. Refrain from giving, directly or indirectly, any gift or anything of value to attorneys or their staff, other clients or their staff, or any other persons or entities associated with any litigation, which exceeds $150 in the aggregate per recipient each year. Nothing offered in exchange for future work is permissible, regardless of its value. Pro bono services as defined by the NCRA Guidelines for Professional Practice or by applicable state and local laws, rules and regulations are permissible in any amount.
  9. Maintain the integrity of the reporting profession.
  10. Abide by the NCRA Constitution & Bylaws.

No. 2 Reporter’s relationship to litigants (Originally written 1987; Revised 2013)

Statement of Facts

Upon appearing for a deposition or any other proceeding, the reporter finds that the reporter is related to one of the attorneys.

Is it the reporter’s responsibility to advise counsel of the relationship?

Discussion

If the reporter becomes aware of any relationship that may reasonably call into question the reporter’s impartiality, it is incumbent upon the reporter to disclose that relationship as soon as known. This gives counsel the opportunity to object or waive any objections on the record to the reporter’s reporting of the proceeding. If any objection is raised, the reporter must withdraw and offer to attempt to obtain another reporter. Counsel may elect, however, to select a reporter of their own choosing.

Reasons requiring disclosure include, but are not limited to:

  1. The reporter is related by blood or marriage to an attorney of record, an attorney present at the deposition, a party or a deponent. “Related by blood or marriage” is defined as including a parent, child, grandparent, grandchild, great grandparent, great grandchild, brother, sister, aunt, uncle, niece and nephew or the spouse of any such person.
  2. Any other relationship which may reasonably cause the reporter’s impartiality to be questioned.

Obviously, it is not possible to list all relationships that may be a conflict of interest or give the appearance of a conflict. Therefore, the Committee recommends that whenever a reporter is unsure of whether to disclose a relationship, the reporter should disclose the relationship as soon as known. For further discussion on this topic, please refer to Public Advisory Opinion No. 3.

Conclusion

It is the Committee’s opinion that failure to disclose any relationship that might reasonably call into question the reporter’s impartiality is a violation of Provisions 1 and 2 of the Code of Professional Ethics. These provisions state that the member shall:

No. 1. Be fair and impartial toward each participant in all aspects of reporting proceedings, and always offer to provide comparable services to all parties in a proceeding.

No. 2. Be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or a potential conflict arises, the member shall disclose that conflict or potential conflict.

No. 3 Reporting for a spouse’s law firm (Originally written 1987; Revised 2013)

Statement of Facts

A reporter’s spouse is a member of a law firm that schedules a reporter for a deposition or other proceeding. Because the spouse will conduct the proceeding, the reporter refrains from taking the proceeding but requests another reporter to cover it, from whom a percentage commission is to be received. When other members of the spouse’s law firm schedule proceedings, the reporter reports them.

Is it a violation of the Code of Professional Ethics (1) for the reporter to schedule proceedings for the law firm of the reporter’s spouse, (2) for the reporter to send another reporter and retain a commission therefor, or (3) for the reporter to report proceedings for other members of the law firm?

Discussion

With respect to the facts cited above, the reporter may schedule proceedings for the spouse’s law firm. Second, the reporter was acting prudently by requesting another reporter to cover the proceeding, and the retention of a commission is permissible. The reporter should not personally cover the proceeding, but should request another reporter do so. The reporter may report proceedings for other members of the law firm only if the following three conditions are satisfied:

  1. Full disclosure of the relationship is made as soon as known.
  2. An agreement is reached by all counsel that there is no objection to the reporter’s taking the deposition (which should be stated on the record prior to commencement of the deposition).
  3. The reporter’s certificate conforms with the above facts.

If the reporter does not follow these steps, it would constitute a violation of Provisions 1 and 3 of the Code of Professional Ethics. These provisions require that the reporter be impartial in all aspects of reported proceedings and guard against not only the fact but also the appearance of impropriety.

Conclusion

It is the Committee’s opinion that scheduling proceedings for the law firm of a reporter’s spouse and requesting another reporter to take the proceedings being conducted by the first reporter’s spouse, and the acceptance of any part of the fee therefor by that reporter, does not violate any provision of the Code of Professional Ethics.

It is also the opinion of the Committee that for the reporter to report proceedings involving other members of the spouse’s law firm would be a violation of Provisions 1 and 3 of the Code of Professional Ethics unless:

  1. Full disclosure of the relationship is made to all parties as soon as known.
  2. An agreement is reached by all counsel that there is no objection to the reporter’s reporting the deposition, and that such stipulation is stated on the record prior to commencement of the deposition,
  3. The reporter’s certificate conforms with the above facts.

The applicable provisions of the Code of Professional Ethics state that the member shall:

No. 1. Be fair and impartial toward each participant in all aspects of reported proceedings, and always offer to provide comparable services to all parties in a proceeding.

No. 3. Guard against not only the fact but the appearance of impropriety.

———————————————–

 

How to schedule Chinese depositions

A blog posted May 4 by the JD Supra Business Advisor addresses how to schedule Chinese depositions since they are illegal in mainland China. Author Suzanne Quinson from Planet Depos in Washington, D.C., suggests instead moving deposition locations to Hong Kong where the proceedings are legal.

Read more.

NCRA Board of Directors approves ethical guidelines for CART and broadcast captioners

During the November Board Meeting, the NCRA Board of Directors officially approved the NCRA Code of Professional Ethics for CART and Broadcast Captioners. The code of ethics will be implemented next year, but members may use them as guidelines immediately.

The code of ethics provides information on the role and responsibilities of both CART and broadcast captioners for a variety of on-site and remote settings, including educational, legal, medical, and entertainment. A task force of 14 captioners, consumers, and interpreters spent the last year developing and refining the code of ethics.

“As the world of CART and Broadcast Captioning has evolved, there were unique situations coming up daily that the traditional court reporting COPE guidelines did not address and were never anticipated. By bringing together a group of captioners, consumers, and sign language interpreters, the committee was able to create the new COPE guidelines addressing the ever-evolving and specific issues surrounding communication access,” said Linda Hershey, RDR, CRR, CBC, CCP, a broadcast captioner from Chattanooga, Tenn., who co-chaired the task force.

For more information about the NCRA Code of Professional Ethics for CART and Broadcast Captioners, please contact Adam Finkel, NCRA’s Director of Government Relations, at afinkel@ncra.org.

Read the full document.

New Professionals: Tips from the pros

By Annemarie Roketenetz

It’s not uncommon for new professionals in any field to face anxieties when starting out in their chosen career. This is especially true for those entering the court reporting and captioning professions, whether it’s a new internship or a new job.

But take heed, newbies. According to the pros, the three major concerns when starting a new position typically involve first impressions, working with others, and making a lasting, positive impression. And there are numerous ways to deal each of them.

According to Kevin Hunt, a freelance reporter and owner of Jack W. Hunt & Associates in Buffalo, N.Y., a first impression can make the difference between landing a job or being shown the door, regardless of how well someone writes. “When a reporter goes to a job, they’re representing the reporting firm as a whole, and if their clothes are inappropriate or they are not well-groomed, that’s probably not the image the firm wishes to present. That goes for not just the visual impression, but the auditory and olfactory impressions as well.”

NCRF Chair Jan Ballman, RMR, CMRS, owner of Paradigm Reporting & Captioning in Minneapolis, Minn., agrees that first impressions are instant. “Whether it’s fair or unfair, we are judged based on how we appear and whether we have our act together. You should be mistaken for counsel, not the witness,” she said. “If you come screeching through the conference room door for a deposition stressed out, in a huff, in a sweat, or otherwise agitated — whether because of traffic, or your GPS sent you on a wild goose chase, or your infant spit up on your shoulder just as you were leaving, or you had to turn back for your power cords — be assured of two things: First, counsel won’t care why you’re late; and, you’ve just started the day in a deficit when it comes to making a good impression.”

Ballman also stresses that the best and easiest way to create a good first impression is to look great, not average and not just good. “Look like you made an effort and that you belong in a room filled with highly educated professionals,” she advises.

In addition to looking professional, acting professional is also important in making a first positive impression. “I feel the most important part of making a good impression is arriving early, being friendly, having a good attitude, and being organized,” says Shelly Hunter, RPR, CRR, owner of Hunter & Geist, Denver, Colo. “As we all know, depositions are often stressful environments. Having someone in the room that is neutral to all parties and that can remain friendly in the midst of chaos can be a game changer. If a deposition is not going so well for a client, the last thing they want is a court reporter with a bad attitude.”

Don’t let your good impression down once you have established it. According to the pros, be sure to take the time to know the firm you plan to work with and understand its culture both in terms of employment and services offered.

In addition, be sure the work you produce is of high quality in terms of accuracy, readability, and usability. Hunt advises having a conversation with the transcript when proofreading. “The ultimate consumer of your service will not know how beautifully you wrote when they were speaking at 300 words per minute, they won’t know how skillfully you navigated the software used to translate, edit, and print the transcript; they will only make a determination of your skill as a reporter through the final presentation of the transcript. What are the attorneys and witness trying to verbally describe? If you don’t understand something, ask. In brief, if you want to know how your clients will judge you, remember this phrase: ‘It’s the transcript, dummy!’”

To help ensure an accurate transcript, new reporters should also not be afraid to interrupt the person who is speaking if they cannot understand what is being said. “I stress to my reporters that you must interrupt and you cannot rely on your audio sync,” says Hunter. “I stress that it is the reporter’s job to interrupt and get a good record.”

Ballman agrees. “As with anything else in life, it’s all about phraseology, phraseology, phraseology. If you can’t hear, you have no choice but to interrupt. It’s all about how you interrupt,” she says. “Think about how you would like to be interrupted if you were deep in thought and delivering a very important point in front of an audience, then practice doing that so it comes naturally when you have to interrupt attorneys in mid-sentence or mid-thought.”

According to the pros, maintaining lasting good impressions also takes work, and new reporters should make it a habit to keep positive attitudes both on and off the job, be helpful to others, and learn to be unflappable in the face of all things in the world of court reporting. “It’s not just a matter of doing a great job once and then being recognized for it; it’s a matter of doing an impeccable job consistently, over and over and over again,” says Ballman. “That’s how you set yourself apart.”

Hunter also advises that new reporters make it a habit to arrive early at jobs to ensure enough time to address any issues that might arise. “You may have forgotten something in your car. You may have trouble with your equipment. You may have gone to the wrong location. Being early allows you extra time to deal with situations that happen to all of us. You have extra time to add entries to your dictionary from the notice or the caption. Arriving early also allows you time to get acquainted with counsels who might have arrived early, as well. And most importantly, as a new reporter, arriving early will give you time to calm your nerves. There is a confidence attorneys have when they know the court reporter is set up ready to go and it is still 20 or 25 minutes before the deposition is to begin,” she says.

“New situations constantly arise, and as a professional court reporter, it is necessary for each of us to be aware of the guidelines that NCRA provides to assist us in acting ethically and professionally,” Friend continues. “While these guidelines from the Committee on Professional Ethics cannot envision every possible situation, they give a framework for all reporters – whether new or seasoned – on how to act appropriately, professionally, and without favoritism to any party in a case,” Friend advises.New professionals also need to ready for any situation that might arise and remain calm. One way is to be prepared, says Doug Friend, RDR, CRR, with Beouvich, Walter & Friend, Portland, Ore.: “Working as a new reporter can be stressful! Here you are on a deposition or in court, and there is no one to hold your hand, so it’s important to be prepared.

NCRA’s Code of Professional Ethics can be found at NCRA.org/CodeofProfessionalEthics.

Annemarie Roketenetz is NCRA’s Assistant Director of Communications. She can be reached at pr@ncra.org.

 

Developed in coordination with the Corrinne Clark Professionalism Institute

The Corrinne Clark Professionalism Institute, NCRF’s newest initiative, officially launched at the 2015 NCRA Convention & Expo. It was developed to educate court reporting students and new professionals about professionalism, branding, and building a successful career. NCRF will be developing materials, such as seminars and articles, for dissemination for court reporting students and new professionals throughout their careers.

The Corrinne Clark Professionalism Institute was created to honor Clark’s lifelong passion for journalism and education, as well as her love of the court reporting profession. Corrinne Clark is the wife of Robert H. Clark, for whom the NCRF library is named.