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.

 

Viewpoint: COPE Opinion 44 – Facing new Challenges

The Viewpoint column allows readers to express their thoughts on various topics. Statements of fact or opinion are the sole responsibility of the author and do not necessarily express the opinion of NCRA or anyone connected with NCRA.

Nonstenographic and some stenographic competitors are offering free video by having the reporter, or recorder, also shoot a video of the deposition. A general perception is it’s not that difficult to set up a camera on the table and record a deposition. Recently, in response to the competitive pressure, some NCRA members and agencies are wondering if they should make the same offer. Doing so is in direct conflict with the NCRA Committee on Professional Ethics Advisory Opinion 44.

In the face of market competition, we cannot forget that as Guardians of the Record we are to produce a neutral record of the highest quality. Unattended video recordings are similar to incomplete transcriptions of poor quality digital audio recordings; they undermine the neutrality of the record. The COPE opinion supports the standard to have both a court reporter and a legal videographer, where each is providing the professional service of an official record, neutral to all parties, without missing portions or adding aesthetic influences.

For reference here is the question that was addressed in opinion 44:

Should a court reporter act as both the verbatim reporter and the videographer for the same proceeding?

The advisory opinion includes the statement of a reporter’s “ethical duty not to enter into a business relationship that compromises the reporter’s ability to produce an accurate record.” It goes on to state, “The paramount duty of the reporter is to produce an accurate record.” In conclusion, the opinion states, “The committee on Profession Ethics has determined that a reporter may not act as both the videographer and the verbatim reporter for the same proceeding.”

As stated in Advisory Opinion 44; “Acting as the videographer for a proceeding can be a very complex endeavor as evidenced by the number of Standards set forth by NCRA’s Certified Legal Video Specialist (CLVS) Committee. For example, (CLVS) Standard 43 states that ‘The videographer shall continuously monitor the video recording with a monitor/receiver that is connected to the output of the VCR.’ The committee believes that a single person cannot continuously monitor the recording while simultaneously producing a stenographic reporting of the proceeding.”

We can now fast-forward from this opinion that was originally published in 2006. Since then, technology has changed, and the competitive marketplace is putting pressure on stenographic reporters to provide additional services at little or no extra cost. Attorneys who expect more for less are not going away. Competition from alternative methods of creating the record continues to grow in both the courts and the deposition setting. Firm owners and reporters are just trying to survive in the face of mounting competition.

Nonstenographic methods require that a media file be created as part of the transcription process. Often this is either a video record of the proceedings or an audio record. Court reporters continue to emphasize that technology can fail and a reporter provides a more accurate record. But the alternative method providers can point to reporter failures as well. No method is 100 percent perfect, but I would argue that verbatim reporters are better at capturing an accurate written record. One major advantage is that a verbatim reporter can request clarification contemporaneously, eliminating any inaudible or other problems with the official record.

What the nonstenographic recorders market is a lower cost, a media file, and a transcription of the proceedings. This appears to be a very attractive offer to attorneys who are looking to control discovery costs. They get both a transcript and a video of the witness’s deposition. This price and level of service pressure has prompted stenographic reporters to consider offering to act as both the videographer and the reporter in a deposition setting. But is the offer as attractive as it seems?

NCRA, through the CLVS program, educates legal videographers about the necessity to remain neutral, not only in their actions and the services they provide but also in the product that is supplied to the parties. This is an important distinction; the video must also be neutral. Unlike a verbatim transcript, with a video deposition, prejudice may be introduced by the picture composition, angle of the camera, or the quality of the reproduction, for even the most accurate recording.

There is a very real risk that the video cannot be used in court because it is ruled as prejudicial. In multiple cases, it has been ruled by the court that a video cannot be played for the jury after sustaining an objection that the technical quality of the video introduced prejudice. These rulings have been based either on poor quality of the picture that unfairly influences the perception of the witness, poor quality audio, or even due to unwanted background noise in the audio portion of the record. In those cases, despite having a video, attorneys were left to read testimony into the record. The attractive offer of free video loses some of its attraction if the video can’t be used in court.

You may ask yourself, “It’s a video. How can that be prejudicial?” Think about watching a grainy surveillance video of an investigative report that follows a subject who is to be perceived as a suspect, or a reality show that catches a character unaware in an embarrassing whispered comment. The perception of those video examples introduces a preconception about the subject on screen. They are standard techniques used to influence the viewer and, therefore, introduce an element of prejudice. These dramatic examples are not the neutral video record required for a legal proceeding.

Having a properly framed shot of the witness, a neutral camera angle, and constant monitoring of the audio feed are the responsibility of the legal videographer. Without a videographer at the deposition, it is difficult for the reporter to perform those tasks and make a stenographic record but easy to inadvertently introduce prejudice into the video record.

Often the free video that is offered to attorneys is recorded by low quality Web cameras that do not gather light and reproduce images as well as professional cameras. The result is a grainy image that subliminally affects the perception of the witness by the viewer. Two additional shortcomings of a video from a tabletop Web camera without a dedicated videographer are the framing of the witness and the angle of a shot.

A witness will move from side to side during a deposition; without a videographer present, they often move out of the frame. To account for this, an unattended video must have wide enough framing to compensate for the witness movement. However, a wide shot diminishes the witness’s size in the picture frame, and this affects the viewer’s perception of the witness. A wide shot also increases the likelihood of distractions being included in the picture, such as the attorney representing the witness, other people in attendance, laptops, coffee, and water.

Camera angle for a scene is a technique often used for dramatic effect by Hollywood filmmakers but has no place in the deposition setting. In depositions produced without a videographer, setting the camera on the table results in an angle that is below eye level of the subject, which is commonly known in filmmaking as a low angle. When the subject is shot from a low angle, the result is they appear “larger than life.” Alternatively, if the camera is mounted on a wall above the distractions on the table, it produces a high-angle shot, above eye level, which diminishes the screen presence of the subject and again alters the viewer’s perception of the witness.

Visual perception of the witness is one area important to a CLVS, but the testimony is in the audio track. In Hollywood films, a Foley artist has the job of adding background noise, the creaking stairs in a horror movie, a scream off camera, or the sound of a siren approaching. All this audio adds to the viewer’s impression of the scene. But in a deposition, the clear recording of testimony is important to capturing a clear record, and there is no place for added audio distractions.

Background noise, the buzz of a cell phone, or the rustling of paper are common occurrences in a deposition. Without a videographer present who is constantly monitoring the audio and trying to compensate for these recorded distractions, the record may not be clear. In the worst case, extreme audio distractions will not be brought to the attention of the parties at the time of the deposition. They then have no opportunity to rehabilitate or clarify the record if necessary.

In conclusion, and despite competitive pressure, Advisory Opinion 44 holds up to the test of time. If it is important enough to take a deposition, then it should be important enough to have it done correctly.

What is the value in an offer that provides a free video that is not a fair representation in the eyes of the court? It is the duty of representatives to each party to the action to examine the content of the video thoroughly not only for complete ness but also for fairness. As shown in prior cases, attorneys were able to exclude the video from being presented in court due to the prejudicial nature of the technical qualities of the media.

This article is an effort to arm each of us with the knowledge to educate our clients of the pitfalls of an unattended video record. Will it stop the competition from offering it? No. Will it stop some clients from taking advantage of it? Probably not. But perhaps, with this information, we can all take the high road and point out that free video may be at the expense of a neutral record, and it is worth exactly what you pay for it.