The Power of No

Happy New Year! Just wanted to start off with a fun anecdote on rates. I have written about the importance of negotiation and sharing information before. Recently a friend of mine hit kind of a jackpot and was asked to take on a job with something like 25 attorneys. We’ve all been there. Anyway, he or she was asked to abide by a sliding scale, also known as accepting a lower rate for every copy over the Nth copy. Well my friend did some math and basically said, oh wow, if I do my rates and this job is 100 pages, I make like 2,000 more dollars on this job. Friend refused the sliding scale, and was offered the job in spite of that.

By accepting the sliding scale model, the reporter would’ve made 2,000 dollars less. There’s some merit to the sliding scale model in that it can encourage attorneys that would not have ordered to order, but I think we as reporters should be very clear with ourselves about how it impacts us. First, less money. Okay. But second: Are you guaranteed that that sliding scale is being applied to the job you’re taking? This should be a primary goal for us. If you want us to take a sliding scale, we want to see some proof this is what’s being offered to the clients. We want some assurance that the agency isn’t making tons of money by charging full price on copies and then binding us to a sliding scale. The power of no can be the difference between getting your full rate and being bound to a sliding scale. And remember, the slide is downward!

While we’re on the topic of the power of no, let’s touch up on contracting again. Contracting is the idea that these big box entities make big sweeping contracts with insurers to only use specific agencies for specific insurance work. Very much litigation is funded by insurance money. People who’re against this are basically against it for two reasons: One, if you hand a big box a lot of market share, they can dictate rates easier because they have so much work. Two, it binds people who are not a party to the contract to the contract. Basically defendants protected by their insurer are forced to use the court reporting company at their deposition. This can be an issue because defendants whose insurance do not ultimately cover the full cost of litigation may end up paying the cost of reporting services they didn’t agree to. And here’s a great point: If the big box people can’t fill those jobs, it might force them to raise rates or end any exclusive deal they have with the insurer. That said, it is imperative that stenographer agencies compete for these contracts. More competition in the market means more money off to individual reporters. Think about it. No more concentration of market share equals agencies competing to attract and keep the talent. The power of no can reset the whole damn industry to a place where reporters are winning.

If you’re a freelancer, you’re going to bump into the sliding scale model eventually, or asked to do contract work for a low rate, and you’re going to have to decide what to do. Do yourself a favor, and remember the power of no.

An Explanation of Anticontracting

(And what’s just happened.)

We have covered many topics here. Things to consider putting in a contract, the importance of a contract, the importance of friends and allies. So it may come as a shock to many when we have a title about anticontracting, which I may just abbreviate to AC in this article.

To understand AC, let’s understand a few basic things about how money flows into reporting from the deposition/freelance side of things. Typically, people have lawsuits, those lawsuits start with a complaint, and if the lawsuit doesn’t die on a motion to dismiss, then the lawsuit continues to discovery. At discovery stage, documents are exchanged, and depositions are held. At those depositions, typically an attorney is questioning a witness, and having the answers recorded/reported/taken down by a court reporter/stenographer/fabulous individual. That’s where we come in, and typically how we get paid, via lawyer.

But there is a crucial piece missing. In many lawsuits, on one or both sides, behind the scenes, is an insurer. The insurer (insurance company) is a massive funder of litigation. In many cases, the lawyers are making some or all of their money from the insurer, so they are at least arguably a little beholden to them.

What has happened in many jurisdictions and states is that the insurer makes a deal with a court reporting company to have its lawyers use only that court reporting company. On the side of the stenographer, this really messes with our whole setup, because our entire self-employment model and being able to negotiate for higher rates is dependent on not handing over large swathes of business on the top end to one company. The firm that has all the work can force the stenographer to work for less pay than they might otherwise get if that work was spread out over multiple agencies or companies. So simply put, the idea that this shouldn’t be is anticontracting.

On the flip side, and as far as I know, the legal justification for anticontracting, the idea that these long-term insurer-reporting relationships shouldn’t exist, it unfairly forces litigants to be part of a contract they are not a party to. When one hires a lawyer, one gets a retainer agreement that spells out rights. One such right can be to hire one’s own court reporting firm if a case goes to depositions. Insurers, dependent on the state and circumstances, may even have an obligation to allow the insured to choose the insurer’s attorney instead of their appointed lawyer. So why in the world would we ever have these big box impenetrable contracts that lock an insured into using a reporting service?

So what has happened in the world of AC? For as far back as I can remember, our National Court Reporters Association, NCRA, had a legal justification for and supported AC. Well, as things go, in more recent history they have fallen silent on AC. As far as one can tell, they even purged information about AC from their website. This is coming out at a time when Virginia has just become the next state to push for anticontracting, and win, which honestly gives a little more weight to fiery rhetoric which I previously believed to be invalid.

So what’s the next step? If you’re a New Yorker, or even if you’re not, it might be time to join your state association. It might be time to make the push for AC in New York. It might be time to organize your families and friends and ask your elected officials to act. Life is a series of decisions, and if your decision is to sit on the sideline and see who wins, you may just be boxing yourself into a limited future income, because if the big companies can monopolize the deposition reporting world de facto, you can be damn sure that when they’re done they’ll head right on into CART, captioning, and courtrooms. So I say the time to be involved is right now, and it’s looking like a serious case of stand together or be hanged separately.

Edit on June 29, 2018. This post was first made in March 2018. In April 2018, NCRA released a statement about contracting. I feel very conflicted because I was an NCRA member from the second I started making money reporting all the way to now, but I can’t run away from my gut feeling. And my gut feeling is the message is the same: “Oh no, no, no, it’s not that we don’t support anti-contracting, it’s just that we won’t provide public testimony about it. It’s not that we purged our website of anti-contracting stuff, it’s that on such and such date the board didn’t approve the thing of such and such date.” Quite frankly, it’s a game. It’s the liar’s this/that trap. Basically if someone accuses you of anything, you say “that’s not what happened.” “It didn’t happen that way.”

It’s a strange phenomenon for me. I often have a hard time gaining people’s trust because I try to go the extra mile for people, it brings up people’s guard. And just maybe that’s what’s happened with the NCRA, maybe they’re trying to go the extra mile and it’s thrown up my guard. But maybe not.