Remote Swearing of Witnesses (NY)

March 9, 2020.

I wrote the original article about three years ago. In its current state it is confusing and hard to follow. I have rewritten the article. Below is the new article followed by a link to the old one. The old article is preserved for the sake of completeness only. Note that I am not a lawyer, and this is not legal advice, merely a discussion of law.

NEW ARTICLE:

The New York State Department of State oversees the Division of Licensing, which licenses and oversees our notary public licenses, which allows us to swear witnesses. The DOS also publishes a notary law packet which is an amalgam and presentation of the various bodies of law that govern notaries public in New York State. In the 2017 and 2019 versions, the packet cites the 1915 case Matter of Napolis, which states in pertinent part that oaths may not be given over the phone. About 90 years later, New York’s CPLR was amended with CPLR 3113(d), which states in pertinent part that “unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition…” As far as I can tell as a layperson, this makes it effectively legal for parties to stipulate that the officer administering the oath does not have to be physically present. In a 2017 correspondence with the DOS, I brought up this issue, and the DOS stated, in pertinent part, “with respect to civil depositions, a notary may under the specific provisions of Article 31 of the CPLR and in compliance
therewith, swear in a remote witnesses…” [sic]. In a June 2019 correspondence with the DOS, I asked them to amend the notary law packet to include CPLR 3113(d). They stated they would take my comment under consideration.

Some seasoned reporters are uncomfortable with the remote swearing of witnesses with the law and DOS materials as they are, and they ask the attorneys to deem that the witness be sworn instead of swearing them in. As a reporter and citizen, it’s my opinion that if you are going to ask them to deem the witness sworn, you should change the verbiage in your swear-in paragraph or cert to reflect that. If you have them stipulate to the remote swearing under CPLR 3113(d), you should ensure they state that on the record or that it is in your stipulation page. Note that all of this only governs depositions taken under the CPLR. In federal cases, Rule 30(b)(5) and rules like it may hold authority. Like its CPLR counterpart, FRCP Rule 30(b)(5) has language “unless the parties stipulate otherwise…” That said, I have never specifically asked the DOS about remote swearing under the FRCP.

I have done this research so that if one of us is ever in trouble, we have a fighting chance. There are a lot of newbies out there who do not know there’s supposed to be a stipulation, and if we can help just one not get into trouble, that’s important to me.

Addendum:

In 2020, Executive Order 202.7 was issued. You can read about it here.

In 2020, Dineen Squillante cowrote an article about the importance of oaths. The article, in part, revealed that there could be liability if a judge rules that a deposition is or was an unsworn deposition. Read it on the Vermont Bar’s Summer 2020 issue, page 32.

ORIGINAL (OLD) ARTICLE LINK.

Supreme Court Test Tip

The written knowledge test is a significant leg of the Supreme Court Test in New York. A significant portion of that test seems to be spellings. For example they’ll throw a word out there like connotation and give 2 ridiculous spellings, one that is right, and one that looks right. My advice is: We are court reporters. Mimic typing the word and you have a better chance at realizing which spelling is correct over eyeballing it.

On a positive note, it’s my understanding that there is also a NYSCRA WKT course video available free for NYSCRA members through Dominick Tursi and a $5 class to be held by Joshua Edwards (JoshuaBEdwards1980@gmail.com). If you’re feeling shaky on grammar, punctuation, or things that might come up on the WKT, it’s a great time to be proactive and get yourself some guidance.

I have also had the good fortune of reading that Monette Benoit’s “Purple Books” at CRRbooks.com are an excellent resource for WKT prep.

Good luck to everyone on the test. And should anyone know of more test prep options, feel free to leave a comment below.

A Note About This Blog

So I wear and/or may wear a bunch of hats in life. Most of us do. This is just a quick disclaimer that anything I write here is from me as an individual, and not a statement from any professional association I am part of, labor organization I associate with, or employer I work with or worked with. It’s not endorsed by anyone or anything unless they come out and explicitly endorse it.

I am still seeking people to write articles for the blog. Their views and my views may not always conform and they too should not be considered endorsed unless it’s explicitly stated somewhere.

That’s all for now. I’m sure I will have something nice to write about soon.

Reporter Sharing

I just got an intriguing idea. I realize that some of our work is very public and accessible. New reporters can do (practice to) what we’ve done and maybe be better prepared to handle their own work in the future. To this end, if anybody has something they reported that has a public video of it, perhaps you can link it in the comments and I can add it to this post.

I’ll start. I was at the CCRB meeting years ago. I always use it as an example that we never know what we’ll be taking down.

CaseCAT: Characters per line using characters per inch.

Often in our field companies ask reporters to make a set amount of characters per line. CaseCAT, at least my version of it, doesn’t have that. You must use characters per inch. So you go to format, layout, page setup. Characters per inch. Now what you do depends on how many characters per line you want. For this example let’s say 52. Go to your paragraph setup and take note of your left margin and right margin. Let’s say it’s 1 and 7. Subtract left margin (the smaller number) from right margin (the bigger number). That’s the inches on the page. In this example, 6 inches on the page. Now take the characters you want per line, in this example 52, and divide that by 6. In this example, 8.66 or 8.67 characters per inch should give you 52 characters per line.

Recap: Subtract left margin from right margin to get inches on the page. Divide desired characters per line by inches on the page.

Passing the Supreme Court Test 2017

One of the greatest obstacles to test takers is reading the instructions. Year after year people are denied entry to tests because they failed to read and follow instructions. This stuff is serious, and one of the best ways that you can show you are a good employee is to be able to read and follow rules.

So, without further delay I present to you the Exam Orientation Guide. If you don’t read this, you’re at risk of failing on a technicality. Nobody wants that. Read the guide.

Value of Associations

Often faced with a question of why associations are important, I struggled to find a coherent answer. Today I can honestly say there are so many reasons. First and foremost, the association is the front line of defense for the job security of all reporters. Often, we want to believe ourselves to be untouchable or so desirable that we’ll always be employed. That said, too often you have administrators that, in the name of fiscal responsibility, seek to cut reporters from the budget. They do not understand the potential consequences of cutting a profession that has protected the record for the last 50 years from the public sector. They don’t anticipate the records that’ll go missing or the issues that may occur.

But then I realize, many reporters cannot see what would occur!

Freelancers: If 100 or 200 officials were cut and added to your pool, the supply of reporters would increase and demand would be about the same. Your value would logically decrease. It is in your own self-interest to make moves to safeguard officialships. More people in officialships means fewer reporters in freelance. Lower supply, same demand, higher value.

Officials: If the move is ever made to cut officials, it’s going to impact family budgets a lot more than the hundred something a year it costs to support a NYSCRA membership.

And, indeed, the association has tried before to get important laws passed, and come quite close, so it makes sense that with a little more support, it would win. See how close we got with the Workers Comp Bill or Mechanical Recording Bill. They’ve also defended our (all reporters’) ability to be paid by passing General Business Law 399-cc.

Now that we’ve had a little talk on defensive strategy (risk management), let’s talk about how a strong association can go on the offensive. A strong association can and does fight for the CART providers and freelancers. If you, like me, can imagine an association strong enough to campaign for the mandate of the use of stenographic reporters in deposition proceedings, then you should log right into NYSCRA.org and sign up, because that’s really the end game in my eyes. Opening up doors so that this job continues to provide for us and our families for the next 50 years, and so that we’re never left wondering what to do if the job becomes less profitable. Association board members make no money off your membership fees. But that money is required to push for laws that’ll keep the profession strong and vibrant in New York. Join NYSCRA and get a voice in what’s fought for, as well as be a part of what’s won.

Judiciary Foil Requests

(September 2018 update: The judiciary has made obtaining information easier and apparently now has an email address, foil@nycourts.gov)

Recently I obtained a list of passing participants from the lower court test. A friend and someone I’m very fond of asked how I did that. Below I copy and paste my e-mail to that friend, so that others might benefit and be able to gain access to information they want.

COPIED:

Under New York Laws, most government agencies must provide documents to the public upon request, and redact them as necessary. Goes by different names. Public Officers Law. Judiciary Law. FOIL law. (Freedom of Information)

So our first stop on this journey is here:

https://www.nycourts.gov/foil/

The laws governing OCA and Court Records are different. OCA is the administrative agency over the Court, and OCA controls the hiring and lists, so we want an administrative record. We click

https://www.nycourts.gov/foil/AdministrativeRecords.shtml

Then we write a nice little letter like Hello my name is Christopher Day I am requesting the following records under the Public Officer / Judiciary / FOIL law:

-The list of passing participants from exam 55-183. Such list was made and/or released in September 2017 (example.)

Please inform me of the charges due for printing under the law and payment will be made immediately.

Christopher Day, address, number, e-mail.

It’s really helpful to have as much information about the document(s) you want as possible, because if they cannot locate them, they will not send them.

Now if you want a court record, say a notice of appearance that the clerk won’t let you copy, you do a Court request, which is found here

https://www.nycourts.gov/foil/CourtRecords.shtml

Same basic principle. Hello my name is so and so I am requesting the notice of appearance on docket 2017KN066777, yadda yadda.

In about a month you receive your documents, or a request from the FOIL officer to pay.

If you don’t receive anything after a month, send another request.

If a request is denied, appeal the denial.

NY Constitutional Convention

Every 20 years the people of New York vote on whether or not they will hold a constitutional convention. This event is less important for freelance reporters than official reporters, but I am going to talk a little about it in that it can impact New York State reporters.

Very quickly, the constitutional convention would enable the selection of delegates who would then propose changes to the constitution. The proponents of the convention, including the Bar Association, state that it is old and needs improvement.

The opposition, those who would vote no, including the Judge’s Association and NYCLU, worry that a constitution could be used to take things away from New Yorkers, such as our New York Human Rights Law, declaring that no New Yorker should be discriminated against for race, religion, gender, or sexual orientation, and the collective bargaining power of people in the state.

Succinctly, I side with the no camp. And I urge each stenographer to side with the no camp. I have not heard promises of a better tomorrow. No one has come out to pledge that they would rework the constitution in a way that is more favorable to New Yorkers than it is today. So sadly, despite being a huge fan of change, I think that the best route to change any failings of the current constitution is for the legislature to amend it piece by piece.

That’s my two cents. Rarely will there be politics posts here, but this could impact the pensions and bargaining power of officials, or freelancers if someday they should unionize, and we must keep those options open.

Keep It Simple, Silly

Popular rule of communication and business is KISS. Keep it simple, silly. I violate this one all the time, but I am often reminded that it is something I should adhere to. Unless your business model is to bury your consumers in legalese and hidden fees, KISS works. We’ll give a quick example into how this plays out in the working world. If I go to my boss and say “I got the transcript done”, 9 times out of 10 I’ll get something along the lines of an “okay.” If I tell my boss my printer jammed, and then the page printed backwards, and then my ink cartridge flew across the room as if it was possessed, but I got the transcript done”, I sound like a blithering idiot. That said, all can see how doing the same exact thing, but communicating it differently, can make you sound like a totally different person. Life is about perceptions and in many employment settings, especially freelance, the employer’s perception of you dictates what they’ll pay. Make the best impression and KISS!

More personal stories. As an intern a judge asked how my training was going. All I had to say was “good, I am learning a lot.” I launched into a discussion about all the things I was learning, and he proceeded to become more and more confused as I talked about strokes and briefs. The reporter with me luckily broke in, stopped the carnage, and quietly told me words I’ll never forget: “Sometimes less is more.”

Case in point, I could’ve stopped at one example!