CONSUMER PROTECTION – THE HARM OF THIRD-PARTY CONTRACTING

In Arizona, the law states: “Certified reporting is integrally related to the prompt, effective,

and impartial operation of the judicial system.” Most, if not all, states echo this sentiment about the importance of the court reporter to the judicial system. In the freelance world, the court reporter is generally regarded as the only neutral, unImagebiased person at the proceeding. The credibility of the record is established on this understood neutrality. Not just actual neutrality but the perception of neutrality is equally important to consumers of court reporting services when taking a broad look at the court reporting profession.

Given the public’s belief in and dependence on the court reporter’s integrity and impartiality, it is all the more egregious when the consumers of court reporting services are unwittingly subjected to these exclusive contractual arrangements between a party-in-interest and the court reporter or reporting firm. Often these litigants are unaware of the contract’s existence, the terms
involved, the benefits that one party may be receiving, and how their interests will be affected as a result. The litigant who is not a party to the contract is nonetheless bound by an agreement entered into by their opponent in the..

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NETWORKING VERSUS CONTRACTING

Similarly, there is some confusion between the terms “contracting” and “networking” when taken in the context of court reporting. Networking and contracting by their
nature imply an agreement between two parties, but there is a clear and substantial difference between the two. svcs_facilities_rt

As previously defined, “contracting” in the court reporting vernacular is simply an agreement between a court reporter or reporting firm and a party to an action, an
insurance company, a law firm, or a third-party administrator to provide financial or other advantages to one party to a proceeding.

“Networking” in the court reporting profession is generally thought of as an agreement that a freelance court reporter or court reporting firm will provide services to
another court reporting firm’s client. The court reporting firm providing the service essentially becomes the referring court reporting firm’s subcontractor. Terms are
generally negotiated beforehand, including pricing; a referral fee or networking discount being offered, if any; transcript format; production and delivery; and the
required completion of certain paperwork.

Succinctly, networking is an arrangement between two service providers; third-party contracting is an agreement between a service provider and a party-in-
interest. While a contracting agreement may exist between the referring reporting firm and a third party, rarely, if ever, will the subcontracting reporting firm or
the reporter providing the services be informed or aware of that contract or the terms of that arrangement.

Obviously, there can be abuses in the networking arrangement, but these networking arrangements occur between court reporting firms, and the firms
themselves are not a party to the litigation. Blanket third-party contracts entered into by court reporting firms provide specific financial advantages to one party in
a case, which can call into question the actual impartiality of the court reporter.

CONTRACTING: WHAT IT IS AND WHAT IT IS NOT

It must first be noted that certain topics have been raised over the years that are completely unrelated to third-party contracting. For example, a court reporter engaging in improper relations with an attorney or potentially changing the record to favor the third-party contractor are topics often discussed as diversions to the core issues of third-party contracting. Certainly these examples carry serious ethical implications, but they truly have nothing to do with the central ethical dilemma involved with third-party contracting. Given the stakes, consumers of services provided by court reporters and the public deserve better than these fallacious arguments. They deserve the guarantee of fair and impartial treatment at the hands of the court reporting profession.Image

Third-party contracting is defined by the NCRA’s TFOC as any entity that provides or arranges for court reporting services entering into an oral or written contractual agreement for more than one case with any party to an action, insurance company, third-party administrator, or other individual or entity with a financial interest in the proceeding. Ideal legislation prohibiting third- party contracting will also restrict offering any economic or other advantage to any party, including special credit terms and preferential pricing. Further, legislation should contain provisions that bar any entity that provides court reporting services from restricting the noticing attorney’s right to select a court reporter of his or her choosing. Once a party-in-interest – whether a lawyer, insurance company, or a corporation – is allowed to manipulate the business transaction to their exclusive benefit and/or exerts control over the work produced by the court reporter, the reporter and/or the reporting firm’s impartiality can be called into question.

Court Reporting NNRC Debate and Third Party Contracts

Nearly 20 years ago, court reporters and court reporting firms engaging in third-party contracts with parties-in-interest to lawsuits became an issue of national significance in the court reporting community. The debate on exclusive third-party contracting has continued within the profession, but now a much wider audience is also interested in finding a resolution to what some perceive to be an unethical business practice. The judiciary, attorneyImages, legislators, and public consumers of reporting services all have stood by unaware as the problem festers, and an increasing number of contracts have been entered into that may call into question the time-honored neutrality of the court reporter. 

In 2010 and 2011, during NCRA’s yearlong profession-wide study known as “Writing Our Future,” the NCRA Board of Directors acknowledged that the membership had grown increasingly concerned about third-party contracting and that the association should reexamine this complicated and absolutely critical issue affecting freelance court reporters. Taking a completely fresh look at an issue where general activity on NCRA’s behalf had declined considerably since the early 2000s, NCRA responded to the membership’s request to direct more resources and attention to this issue, to see what could be learned and improved upon at both the national and state levels.

In the spring of 2011, the NCRA Board commissioned the Task Force on Contracting (TFOC), and charged it with specific tasks. As a first step in addressing those tasks, the TFOC compiled and compared the language of the various states that have passed legislation prohibiting or restricting third-party contracting, with the goal being to draft the best possible model legislation for affiliate association leaders and court reporters nationwide. Recognizing that this language would not be an ideal fit for every state, the Model Legislation instead was designed as a guide, to be used in whole or in part, according to each state’s circumstances and needs. As guaranteed by the United States Constitution, citizens have the right to lobby their state or national legislature to pass laws as needed. While NCRA must operate within the parameters identified by the Department of Justice, the Association stands ready and able to assist all state affiliates in pursuit of this constitutionally-guaranteed right. The Model Legislation can be used by those states with existing legislation that may seek to strengthen or improve that legislation, or as a starting point for those states with no legislation in place that are interested in lobbying their state legislatures to pass rules restricting third-party contracting.

The Largest Network of National Court Reporting Firms

To meet the needs of attorneys with out-of-state or international litigation cases who sought highly qualified court reporting firms, five of the leading firms in the court reporting industry formed the National Network of Reporting Companies (NNRC) in 1983.

Now more than 55 of the most customer-oriented, technologically advanced court reporting firms in the United States, Canada, and Europe belong to this network of prestigious independent court reporting partners. Members must be recommended and go through an in-depth vetting process to assure:

State-of-the-art technology in court reporting
Accuracy, timeliness and professionalism
Global video depositions and conferencing services
Proven experience in meeting litigation support needs
Reputation for ethical, responsive customer service.

SeaDep is proud to be a GOLD member of the NNRC.

DEPOSITION REPORTERS

ImageDeposition reporters record out-of-court oral testimony of witnesses examined under oath for later use in court or for discovery purposes.  Historically the modern deposition originated with the adoption of the Federal Rules of Civil Procedure in 1938.  As the “officer authorized to administer oaths either by federal law or by the law in the place of examination” under Rule 28, the deposition reporter administers the same oath or affirmation that the deponent would take in court before a judge and jury.  Depositions are a part of the discovery process in civil cases in which litigants probe for information in preparation for settlement or trial.  They are rare in criminal cases, where the purpose is usually to preserve testimony of witnesses unable to appear in person at a hearing or trial.

Before administering the oath the reporter should collect copies of as much documentary material about the case as is available.  A copy of the deposition subpoena or of a case filing should supply a caption for the transcript cover page.  Attorney business cards are most useful for accurate information on transcript appearances pages.  During the deposition the reporter should mark and retain a copy of each exhibit for complete and accurate listings on transcript contents pages.

Image After administering the oath the reporter makes a verbatim (word for word) digital or stenographic record of all deposition questions, answers, and colloquies. Some attorneys seem to expect supernatural abilities from reporters, that somehow everything will come out perfectly in the transcript no matter what, but every reporter knows that some witnesses and even some attorneys often fail to speak clearly, an unfortunate fact of life that makes the reporter’s job unnecessarily difficult, but anybody dissatisfied with the transcript blames the reporter, not the speaker.

For this reason it may be wise to suggest to the attorneys that they advise witnesses to speak loudly and slowly in answering questions.  Some attorneys could use the same advice for asking questions, but attorneys can be vain, might take offense, and if sufficiently astute should get the idea if they so advise witnesses.

A leading firm like Seattle Deposition Reporters LLC, Washington State’s only gold member of the elite National Network of Reporting Companies, might print a small, colorful handout with this message:

We are delighted to be able to help you with this deposition, and we’ll do a good job for you.  We understand that accuracy in transcribed testimony is most important to you.  To make the transcript as accurate as humanly possible, we suggest that witnesses be advised to speak up loudly, slowly, and clearly in answering questions.

Such is the general idea though Seattle Deposition Reporters LLC might improve on the wording. Written by Colleen Strand, Seattle Deposition Reporter’s owner.