The FTC seems very conscious of gig workers, a label that freelance court reporters almost certainly fall into. Our industry was doing gig work before it was popular.
While nothing in the statement linked above specifically mentions our industry, it does show that they have a very good understanding of how markets like ours operate. It talks about the concentration of markets. In ours, this is similar to how the private equity brigade is quietly buying everybody out so that it’s an open secret they own dozens of smaller firms and are using that power to turn around and dictate rates to court reporters. This becomes illegal if and when they start agreeing with each other to fix prices on us, at least as can be inferred from this bulletin.
The FTC is more or less coming out for the workers here. That’s the “freelancers” that might be subject to the illegal conduct described below.
Court reporting companies should take note. This reads to me like a warning shot. “Clean up your markets and treat your people well, or the government gets involved.”
We made a lot of noise at the FTC back in January. While I can’t guarantee that this action is related to the concerns raised by us and other antitrust activists, I’ve got a feeling our industry is on their radar despite its size.
This also makes the deceptive actions of companies like Veritext risky. How long before consumers are aware that the company has used its market power to limit consumer choice? Can the company guarantee that not one consumer has been denied a stenographer under the guise of shortage? And if the company can, then it calls into question shortage claims, because the statistics say 20% of the jobs should be going uncovered. If I had some advice for the private equity brigade, it would be to stop squeezing the people that perform the work. It’s not a good look for you. It’s only going to shake consumer confidence when they find out that instead of helping to grow and develop the existing processes, you sought to make money off of worker turnover — virtually guaranteeing a workforce of amateurs, exactly what every lawyer asks for at their legal proceeding! Even if there isn’t some kind of suit and direct losses, the loss in reputation will be phenomenal, and in this business, reputation is everything.
For now, this is a solid case of “let’s see what happens.”
Speech-to-Text Institute is an association that claims it wants to define, modernize, and lead the court reporting industry. About three years ago, in the Impossible Institute post, I wrote about how it appeared that the STTI had already concluded our shortage was impossible to solve. My position was simple: “There have been no updates since Ducker. How can anyone make that claim?
Several readers sent me the STTI’s newest production, a series of slides that make more claims about our industry and profession.
This is one of those times that it’s difficult to choose how to respond. Spreading their materials gives them free publicity. Being silent gives them free rein over the discussion. I think it makes the most sense to analyze the materials publicly and see what discussion springs from that.
STTI submits there is a steady and irreversible decline of stenographers. My feelings here are similar to the “impossible” argument. It’s a future prediction that’s not predicated on anything other than a forecast that’s been around the better part of a decade and a survey that could not possibly capture all the factors at play in our industry.
STTI submits digital reporting technology is “more than capable…” Arguendo, let’s say that digital IS more than capable. This is an imperfect world. Transcripts are going to be imperfect. And we’ve seen this when it’s studied. Stenographers were only about 80% accurate in the Testifying While Black (2019) study. But a pilot study from TWB revealed laypeople transcribed statements with about 40% accuracy. Half the accuracy! Not utilizing stenographers likely has a significant cost to accuracy.
STTI mentions the current or future capabilities of automatic speech recognition (ASR). There is a patent from around 2000 that shows 90% accuracy was thought to be possible. More recently, in the Racial Disparities in Automatic Speech Recognition (2020) study, ASR from major players like Amazon, Google, Microsoft, Apple, and IBM were tested. Their tech was about 80% accurate for white speakers, 65% accurate for black speakers, and as low as 25% accurate for African American Vernacular English speakers. Succinctly, the current capabilities of ASR are not very good when studied objectively. Future capabilities are another unknown, and a case of wishful thinking. Dragon remains the best ASR, and that’s the domain of another established method, voice writing.
STTI then mentions that this is an era of alternative facts in order to disparage dissenting views. But this is a clever deflection, as STTI itself is guilty of pushing alternative facts. Just look at this old STTI graphic.
If we assume these numbers are correct and that there were 27,700 stenographers in 2018 and a supply gap of 5,500, that means that as of 2018, nearly 1/5 of every single job would be going uncovered, and it would get worse every year. It’s 2022. Agency owners may be having some trouble finding coverage, but not one has expressed that 20% of their work is going uncovered.
STTI points to how difficult it would be to recruit a large number of stenography students to make up for the historically lower graduation numbers. But a little comparative analysis is in order. Stenography has 26 NCRA-approved schools, tons of schools that are not yet approved (>100), and three separate nationwide initiatives to introduce people to stenography (A to Z, Project Steno, Open Steno). Digital has BlueLedge and the few schools that can be convinced to teach stenography and digital side by side. Digital is less efficient than stenography and it’s likely that multiple transcribers will be needed in addition to each digital reporter in order to make up for the efficiency loss. When turnover of audio monitors and transcribers is factored in, we are likely talking about recruiting similar numbers of people. The difference is that stenography has more infrastructure to introduce people to it. So companies turning to digital doesn’t appear to be a legitimate shortage concern, it appears to be about making money on the “labor churn.”
STTI’s next slide continues to paint a stark picture of the situation.
The slide is misleading in that it makes tactical use of the word “some.” A large percentage of firms having “some” level of struggle isn’t surprising. Firms were having “some” level of struggle to cover things before the shortage too.
STTI claims the majority of court reporting firms use digital. But STTI only surveyed 156 firm owners. According to the Kentley Insights Court Reporting & Stenotype Services 2019 market research report, there were over 3,000 firms in the industry. A population of 3,000 would need a sample size of 341, assuming a confidence interval of 5, according to this sample size calculator. If we wanted to be more certain, with a confidence interval of 2, the sample size jumps to 1,334. And again, there is tactical use of the word “some.” “Some” digital use could be one digital reporter sent out on one job. I can’t blame STTI for trying to collect data, but the data is not reliable for making definitive, sweeping, or predictive statements.
STTI mentions the widespread use of remote reporting, but fails to mention that this has increased stenographers’ coverage abilities. Many of us are no longer sitting in traffic and are able to jump job, to job, to job.
The technology slide points to how technology suppliers want us to embrace what they’re selling. It’s self-serving. “Trying to change stuff is futile, now buy my new software.” It is laughable to me that they think ASR is a future supplement for this field when they have not even worked out good and consistent cross-compatibility among softwares. Who would believe that these companies are going to succeed where the tech giants have failed?
We actually see this play out in a later slide where the technology suppliers outright admit they’re aiming for the business of digital court reporters, court reporting firms, and courts. It’s not about selling what’s efficient or best for your business, it’s about selling.
This is about making business owners afraid that if they do not jump on the digital/tech train, they will be left behind. We can all appreciate the importance of technology. But there is, to some extent, a practice among tech suppliers to make consumers afraid so that consumers open their wallets. Nobody wants to be Kodak, so everybody piles blindly into what they are told is the future.
I operate under the belief that most people seek truth. By summing up how and why these claims are questionable, I hopefully enable others to educate. If you feel there is some merit to these arguments, feel free to share, and enable more reporters and business owners to understand what’s out there, what’s being said, and why it may not be accurate.
A close friend sent me a Bill Maher clip from a while back. Obviously, Maher has his political leanings, but after he gets done with flaunting those, he makes a decent point. He describes the over-engineering of society and gives some pretty striking examples. His preferred vape’s newest model has no mouthpiece despite being something you put in your mouth. Car handles are replaced with buttons in some cars despite no efficiency gains. He describes a situation where his rental car asked him if he’d like to open the trunk while going 60 miles an hour. The point is clear, change for the sake of change is not always worthwhile or efficient. Indeed, change for the sake of change can be very dangerous.
This is connected to the exaggerated claims of salespeople that I’ve written about extensively, especially as it relates to voice recognition. I described it several posts ago as the claim game. Anybody can say anything. Anybody can make their business seem like the new, hot thing. Take this blog post by Kaplan Leaman & Wolfe from about a year ago. It reads nicely, and it sounds innovative. It mentions a flat-rate fee, affordable per-page price structure, a design to significantly reduce legal expenses. At the point in 2020 the post was written, everybody was doing remote stuff. Pretty much everybody’s got a per-page price structure. Anybody can claim their service is affordable or reduces expenses. It’s called puffery and it’s an ordinary part of business.
Where it gets messy, and where I’ve tried to educate reporters, is some advertisements are easier to spot than others. If Burger King says they’ve got the best burger, most everyone knows that’s puffery and sales. Things get harder with technology. How do you prove or disprove whether someone has made a technological breakthrough without a comprehensive understanding of the science and concepts at work? Not all reporters understand the concept of machine learning. Even those of us that have researched quite a lot can’t possibly know everything there is to know. This leaves a gap for tech sellers to come in and try to fool consumers into buying services that may not suit their needs using the hype train.
This also leaves reporters playing a catch-up game of learning about these systems so they can help their clients navigate claims and discern fact from fiction. For example, the truism that technology is improving every day. We look around ourselves and marvel at this magical modern world. But I’ve taken the pretty hard stance that certain technologies, namely voice recognition and associated technologies, are not improving every day. Give it speech it’s used to and it’ll do fine. Give it speech that’s just a little off from what it’s trained for and it’ll turn “would you raise your right hand” into “it’s rage right hand.”
But surely reinventing the wheel and all these claims of being BETTER aren’t BAD for business, right? If puffery is normal then a little bit of stretching the truth won’t hurt anybody! But we already see that’s not the case. Take Maher’s example. One little glitch on the highway and you could have dead motorists. Take the fact that 25 percent of court reporting companies may be unprofitable; court reporting has been around a long time, it’s likely the losers are the ones trying to switch it up too much too fast. Take vTestify’s massive switch from boasting about providing inexpensive court reporting services to providing an online platform for the legal industry. Take Verbit’s claims in its series A funding of 99 percent accuracy and its subsequent announcement that it will use human transcribers after all, and the very real possibility that it is, despite all its funding, not profitable.
Exaggerated claims serve only as a cliff from which these companies have a chance to walk off of or step back from. The competition is going to wise up. The consumers are going to wise up. I can only hope that a lot of these tech companies realize this, wise up, and start putting their resources behind actually improving our technology. It’s a lot easier to compete in a field with maybe seven players like Stenograph or Advantage than it is to beat out thousands upon thousands of independent contractors and hundreds of reporting firms, many with their own clients and connections. It’s frighteningly easy to see there’s a more lucrative path than over-engineering what stenographic court reporters have made simple, and I can only hope that business owners realize this before walking investors’ money off that cliff.
Very often on stenographer social media, we get questions about whether something should be reflected as said, sic’d, or “corrected.” There has been plenty of discussion over the years on whether to correct lawyers’ or witnesses’ speaking in transcription. There are a lot of ways to take this conversation, and in the spirit of keeping this fun, I’ll hit the highlights.
Necessary in this discussion is: “What is my transcript?” The bulk of freelance work goes to deposition reporting. When a case is filed and initial motions to dismiss are decided, if the case is not dismissed, it moves to discovery. Discovery is where the parties exchange information that they have so that when it is time for trial, there are few or no “surprise” pieces of evidence. At the conclusion of discovery, the parties can ask the court to decide the case as a matter of law if there are no factual questions in dispute. If the case cannot be resolved as a matter of law, it goes on to trial. An integral part of the discovery phase is deposition testimony. Parties have an opportunity to question the other side’s witnesses under oath. Witness testimony is evidence, and the evidence unveiled during the discovery phase is ultimately what helps parties settle cases, courts decide whether a matter can be decided as a matter of law, impeach witnesses at trial, and appellate courts review the decisions of the trial court. In America, the testimony of one witness can convict beyond a reasonable doubt. Your transcript is the verbatim record of what occurred during the testimony, and again, that testimony is powerful evidence.
Unsurprisingly, there are many different takes on what “verbatim” means. We can all read the dictionary definition: “in exactly the same words that were used originally.” But court reporting and transcription are service industries, and there have been many times where court reporters are pressured by a client or company to change that verbatim record in some small way. In my view, that pressure gave life to a lot of court reporter conventions that are daunting for students, new reporters, and even veteran reporters to master. For example, as a young reporter, I was told to take out false starts, never ever report “um,” and to even physically remove strikes and withdrawns from deposition transcripts. Now, wherever you are, the laws in your jurisdiction supersede my advice or opinion, but I am going to share the way I look at each in the hopes that this can be shared with others who struggle with these. For sure, anything I write can and will be debated, but debate can only improve our field.
Removing False Starts
This was drilled into me by agencies as a young reporter. “Always remove false starts.” It’s still being pushed on young reporters today, to the point where some may not even be taking them down. Frankly, I see this as bad advice. The essential factors for a reporter to consider in the way something is transcribed are context and readability. Does my transcription of the verbatim notes change the context of this testimony? Does my transcription degrade the readability of this testimony? In my view, removing most false starts will not actually change context, and they will improve readability. As an example:
“Q. Are you — did you go to the store?”
It would be difficult to argue that removing the words “are you” and simply changing the question to “Did you go to the store?” hurts the context. Nothing has changed. And so to the extent removing false starts is looked at favorably in our field, I get it. But what about when it would change context?
“Q. Are you — I mean, did you go — did you go to the — sorry. Did you, if you remember, go to the store?”
“A. I’m sorry. I don’t understand your question.”
What happens in a world where a young reporter, told that they must remove false starts, removes all that and changes it to “Did you, if you remember, go to the store?” The context is unequivocally changed. Verbatim, it’s very clear that the question was not clear. There was a lot of extra “stuff” in there. If such a question is cleaned up, it makes the witness look like they’re not paying attention or unintelligent. Removing false starts can hurt the context and stop legal professionals from doing their job. Imagine that the deposition is taken by a young associate and the trial lawyer is a seasoned vet who did not sit on the deposition. Reading a “cleaned up” version, the trial lawyer might believe the witness is a bumbling mess. When that witness gets on the stand and is given clear questions, it’s going to be a surprise for that trial lawyer. So even where law may allow the removal of false starts, it’s a decision the court reporting practitioner should make using their own sound judgment, and not on the whims of an agency or client. You may also want to see NCRA Advisory Opinion 4 to the extent it touches on this topic.
Never Ever Report Um
Again, I see the reporting of “um” as a matter of context and readability. Let’s say that you’re taking a motion argument, and it looks something like:
“MS. ATTORNEY: Um, um, um, um, um, um, um, um, um — your Honor, based on the hearing that we just had, there is no set of facts under which the people may prevail. I therefore ask you to dismiss this case in the interest of justice.”
Does it really change anything if you don’t report the ums in that specific instance? Nope. And this isn’t a hypothetical. I recall a situation just like this, where the attorney had, without question, made the point they were trying to make, and then became very flustered asking the court to make a decision. But what if the situation was a trial situation?
“Q. Did you see Mr. Vanhorten shoot Mr. Gorfasi?”
“A. Um, well — um, yes.”
If you transcribe that sentence as “well, yes” the context is destroyed. The witness seems crystal clear on what they saw. Those ums have a kiloton of context that transform what is being said. I’m not here to say anyone who omits an um is a bad reporter, but think twice before subscribing blindly to the “truism” that we do not report ums.
Physically Remove Strike That or Withdrawn
Often, strike that is seen as a false start. Just imagine the typical scenario:
“Q. Were you — strike that. Were you ever an employee of ABC Corporation?”
Again, the rule of context comes into play. In the above scenario, I can’t say I see a big problem with the omission of the false start strike that. But as a mentor to many over the years, I’ve come across the following scenario:
“Q. Were you ever an employee of ABC Corporation?”
“A. Well, I wasn’t an employee at the time.”
“MR. GUY: Move to strike.”
What have mentees come back and said? “Chris, my agency says remove strikes. Do I remove that whole thing?” Working reporters have had to counsel many a new reporter. “No. We cannot remove portions. That motion to strike is the attorney preserving their motion on the record, which will be later reviewed by a court.”
Ultimately, with these three categories, leaving things in as they are said is often the way to go. A court can always seal, strike, or disregard something that shouldn’t be in the transcript. On the other hand, a reporter that does not put something in the transcript can be questioned about why it was removed, or even have their neutrality called into question.
Now that we’ve explored some of the common things that impact context, let’s explore some more “what ifs.” Since I was a newbie, the discussion has come up, “Someone said a word incorrectly. Should I sic this?” This comes from a very literal way of thinking sometimes cleverly but pejoratively termed in our field as “the literati.” The pressure is turned up to make something “perfectly verbatim” when there is a video, which brings up the question “are we not being verbatim when the video camera’s not on?” There are two major schools of thought, literal verbatim and readability, and within those schools of thought, you have many different situations and many different gradients. I could not possibly address each one, but let’s hit some common examples.
“Let me ax you a question.” It’s obvious to anyone that the speaker means to say ask. Many speakers do not enunciate clearly. It does not change the context to transcribe “ask,” and it greatly improves the readability, so for such moments where the context is not endangered and the word is obvious, there’s no harm in having the correct word rather than some kind of phonetic spelling. I would say the same for names. Let’s say someone’s name is Dr. Giglio. One person says “Jig-lee-oh” and the other says “Gig-lee-oh.” Again, if it’s clear that this is the same person, and the context is not endangered, transcribing the correct name is the way to go. If it’s not clear, then it’s time to speak up and get some clarification on the spelling! This is not to say you can never write a name phonetically, but try to make these spellings consistent throughout the transcript to the extent people are saying the same word, even if they say it a little differently.
“It’s supposably true.” In addition to not changing context by being too verbatim, we have to be mindful that sometimes people use words that sound like other words. If someone says a “wrong” word or a word we are not accustomed to hearing, we must resist the urge to correct, because that actually can alter context. We must also take the time to research things we are not a hundred percent sure on. In my book, supposably was not a word. The WordPress spellchecker says it’s not a word. I came to learn, a decade into my career, that supposably means “as may be conceived or imagined.” Supposedly is more of a synonym for allegedly. Was this true 10 years ago? I have no idea. As court reporters, we face the harsh reality of language drift. Words fall in and out of use. People do not speak as we were taught. So while you might correct something like axing a question, you have to think twice before you correct something that’s “supposably wrong.” If you have three minutes, check out my favorite video illustrating language drift. You can go back about 700 years before English starts sounding like gibberish and giraffes were camelopards. Through a mix of self-initiated research and our continuing education culture, we keep ourselves ahead of the average transcriber.
Whether there is video or not, you want a clear and logical reason why you have transcribed something the way you transcribed it. In my view, the strongest reason for a transcription choice is “transcribing it any other way would change the context or was not verbatim.” Reporter convention and training take a backseat to that.
Court reporters are masters of English dialects even when we have no training. There is a study out there that pretty much shows we are twice as accurate as laypeople when transcribing the AAVE dialect. The thing that makes us, as humans, so much better than computers at transcribing speech that has a dialect or an accent is our ability to understand context. For example, in the Northern Cities Vowel Shift dialect, someone might say something that sounds like “she went down the black.” Dependent upon the context, we know that that sentence can be “she went down the block.” In brief, our ability to look at the totality of a statement is important. What a reporter may hear is “down the black.” But what must be transcribed, in the interest of both context and readability, is “down the block,” unless there’s some context that tells us “black” is actually correct.
This is also where our ability to speak up for the record comes into play, because if a reporter is unsure, they can seek clarification. For purposes of our work, dialects and accents are very much like garden-path sentences where a sentence goes in a different direction from what you were anticipating; we can discern what’s said from the context. Though accents are a different animal from dialects, the same rules apply. Early in my career, I had a gentleman say something that sounded like “I got up and leave her.” Through context I knew the statement was “I gotta pull a lever.” He was explaining how to open bus doors! Another man talked about the “zeh bruh lies or stripes” on the road, which could only be “zebra lines or stripes.” We’re not here to pick apart how something was said, we’re here to take down what was said.
“Vice-a versa” versus “vice versa.” “Neezy preezy” versus “nisi prius.” “Nun pro tunc” versus “nunc pro tunc.” “In forma papyrus” versus “in forma pauperis.” Because of Latin’s considerable history and various modern regional pronunciation schemes, this is another thing that gets confusing fast. My advice? Treat it like mispronunciations. Treat it like dialects. Treat it like all these other examples and look at the context. If someone says, objectively, the wrong phrase, then don’t change it for them, but if you know exactly what they said, don’t transcribe it phonetically for the sake of “verbatim.” Take a look.
“MR. GUY: Quid pro quo is the Latin phrase for ‘from possibility to actuality.'”
So we head over to Google, and we can see clearly that “a posse ad esse” is the Latin phrase for that. Quid pro quo means “something for something.” No correction is necessary here. We knew what was meant, but the wrong thing was said. Verbatim is our friend. But what if it’s just a butchered pronunciation?
“MR. GUY: vee-low-shee-yee-yus quam asparagi coke-a-tor is the Latin phrase for ‘faster that asparagus can be cooked.'”
MR. GUY: velocius quam asparagi coquantur is the Latin phrase for ‘faster than asparagus can be cooked.'”
If you’re following along, you can probably tell that I think the second one is the obvious choice. No matter how butchered that pronunciation might be, if it’s clear, transcribing the wrong word or a series of phonetic jabs is what a computer would do. You’re better than that, use it to your advantage. And do not be too hard on yourself for making a mistake. I have had colleagues that were told the incorrect spelling of Latin phrases by people far more educated than many of us are. Whatever the issue, learn from various mistakes and situations, try not to become so rigid with regard to language that it endangers context, and continue to grow.
But I Was Taught This Way
Whenever stuff like this comes up, inevitably you’ll get responses like “but I was taught this way,” or “I’ve been doing it my way for 30 years.” Nobody can really fight with that. We have to respect one another and those various perspectives, backgrounds, and experiences. But I’ve come to look at it from a liability and reputation perspective for the freelance court reporter. If someone questioned you on a transcript, how would you respond? “My agency told me to” is a very unsafe response, because the agency can just say they didn’t, and if you’re an independent contractor, they’re not supposed to have direction and control over you. So take a look at the practice, and imagine being questioned on it. “That’s what you said” is a much stronger response than “everybody does it this way.”
We have to deal with the fact that, while we may live in a world of “truisms,” like “clients expect us to clean up the record,” these things are not universal, and in fact, as a young reporter, I had a lawyer tell me “you can’t change [false starts], it’s part of the record!” Imagine being about 20, and repeatedly told that “everyone cleans it up,” “this is normal,” “this is expected,” “you’re a bad reporter if you don’t fix it,” and then being slammed with “you can’t take that out.” It’s not surprising to me that there are reporters of all ages and experience levels that struggle with this. I’m really hoping this helps the strugglers: I was you. You’re not going to have an immediate answer for every situation, but having an objective or neutral method for how you make these decisions is imperative. If problems arise, and they occasionally do, you’re going to be defending your work. Remember, this is all about having an accurate record for review by the parties, trial courts, and appellate courts. Our expertise is what stops errors like “lawyer dog” from making it into the record and ruining people’s lives. If your work hasn’t changed the context of a statement and the transcript is readable, you’re off to a great start.
Some will remember that in 2019 I put together a list of associations that offer mentoring. I now took the time to create a list of New York court reporting agencies and their office locations. Generally I erred on the side of inclusivity and pulled names and numbers mindlessly off Google. Please feel free to let me know about more firms that have New York coverage. I envision this as a resource for students and working reporters. Back when I was in school, we tended to gravitate towards a very limited selection of agencies, and it was probably to the detriment of some of us. Here’s the list. It’s available to share or download. You cannot edit my master copy, but you can edit any copy you create.
I put aside my personal feelings and included anything that came up as advertising court reporting services. Some entries on there are not stenographic-reporter friendly. Hope springs eternal that they’ll change their tune and embrace the unmatchable efficiency of stenographic reporting. Great example, stenographic reporting could probably bring up Cutting Edge Deposition’s rating from 1 star to 5. Our stenographic reporters across the state are going to be competing directly with the businesses that don’t use steno, and this is really a golden chance for those businesses to turn things around. Regardless of how that goes, let this stand as a reminder to students how valuable your skills really are. There would not be over 200 offices for over 150 businesses across the state if there was not money there. The vast majority of these are stenographic reporting agencies or utilize primarily stenographic reporters. Hone your skills and get ready for a bright future not only in the courts, but in freelance and the private sector.
Also a tip for students, if someone says they can’t afford XYZ but they have 9 different offices, they might be pulling your leg.
Interesting trivia, Southern District Reporters is actually a corporation for the officials of the United States District Court, Southern District of New York. Last I checked, you need Eclipse to work there. I’ve heard great things.
We’ve had fairly extensive discussion in the past about page rates and pricing. We have basic math tables showing a rough guesstimate of the amount of work that goes into making your “goal salary.” We have had posts on supply and demand when demand was high. We’ve talked about attempting to price in risk. We’ve also had heavy discussions on the economic principle of inflation, and that, succinctly, rates must go up periodically to keep any job or field healthy. All of these things kind of coalesce into my opinions on our field’s prognosis. With the coronavirus outbreak, the field has seen a sharp drop in demand. Depositions just aren’t going through for so many of our colleagues across the nation. There are many of us scared to death about keeping business afloat, and so it seems a good time to talk about the flip side of supply & demand.
Right now many states are in lockdown status. People aren’t supposed to be going out, and even those who are, essential employees, are at serious risk. The demand for depositions isn’t there. This may have the impact of causing prices to dip. Gas prices are going down in some areas. Restaurants are offering specials. Some essential employees, generally underpaid for the valuable work that they do, are receiving raises to ensure they turn up to work. In their case, their essential labor is in high demand. We are not immune to the supply and demand principle. Many of us will feel the pressure to offer discounts, offer specials, basically offer to do the same work for fewer dollars. People need to eat. People need to feed their families. There’s really no shame in partaking in whatever tactic we need to partake in to get our clients to buy into taking deps over Live Litigation, Zoom, or whatever our preferred platform. Even before the outbreak, it was not uncommon to hear of “first dep free,” or “X off of Y deps,” type of deals. It’s a business starter and foot in the door for entrepreneurs and companies hungry for work.
The important thing is to try to be forward thinking. Check local courts. For example, here in New York, Lawrence Marks encouraged parties to postpone proceedings for not more than 90 days from 3/20/20. What does that tell our New Yorkers? If we’re going to do a special or contract, it probably shouldn’t lock us in for more than 90 days because demand can be reasonably anticipated to rise around that time. We have to remain on top of the market and keep an eye on civil court news to try to feel out when demand will spike back up again. At that point, when the calls are coming in again, it’s appropriate for our rates to go back to what they were pre-outbreak. Many of us are introverts or individuals with no special business training. It is very easy to convince a group like that that they are low value, replaceable, and so on. That’s not true. And in fact, many of us need help with confidence, communication, and leadership to help us in our business pursuits. That’s why we have vendors out there like TALLsmall, Katen Consulting, and Outfluence. There’s never a good time to stop relaying just how valuable we actually are.
It is true that this is an emotionally stressful time. Just like with stock trading, we will feel pressure to make decisions that may not benefit us in the long run. It’s okay to be emotional. This is a scary and unprecedented moment in history. But when it comes to our livelihoods, it’s worth distancing ourselves from those emotions, sitting down with the latest press release from the local court, and trying to determine about when we can expect things to bounce back in a state so that we can make arrangements with creditors, clients, utility companies; keep the bills paid, and our credit intact. People are hurting. This is a time for spreading solutions and ideas without shame and without shaming. From big picture economic articles like this one, to smaller nuanced technical solutions, everybody has something to bring to this table of survivors and steno stars.
I created a masterpiece about a week ago. On the left, a very horrifying creature that took about three minutes to create and was instantly copyrighted upon creation. If you took my creation and slapped it on a mug and started selling it, I could probably successfully sue you. On the right, a file snapshot of years worth of transcript work, which could be freely copied by anyone any time, at least ostensibly, as any court that decides this issue seems to decide that transcripts are not expressive work protected under copyright. Sam Glover also wrote about this years ago, but seems to have purged it from his blog. Some courts, like the one in Urban Pacific Equities et al v The Superior Court of Los Angeles County (59 Cal. App. 4th 688, 69 Cal. Rptr. 2d 635), have taken the step of ruling that the transcript does not have to be turned over under a business record subpoena because it is a product of business and not a business record, but this does not necessarily prevent it from being copied if counsel obtains it another way.
Here in New York, we do have guaranteed payment of an original via our General Business Law 399-cc (Transcripts and stenographic services). In that way, I feel the state and legislature has already partially acknowledged the hard work that we do. But it’s no secret that court reporter businesses, for whatever reason, have chosen to make originals cheap, and make their businesses more or less dependent on these copy sales. It’s often reported in social media circles that attorneys at a deposition will openly and in front of the stenographic reporter offer to copy and give the transcript to counsel that would otherwise have to order the transcript from the reporter. Why not? As best anyone can tell, it’s legal! There’s also a darker side to this. If you do not have a clear agreement with your agency stating otherwise, they can probably also legally copy your work and not tell you about it. Again, why not? It’s legal!
The question arises, what do we do about this? Many ideas have been floated over the years. Some say we should change our model to reflect the lost copy sales and consider charging in a different way, like hourly, per diem, or a higher original. Personally, I believe it would not be unfair to create a body of law protecting stenographers’ rights to their work. Transcribers would probably be equally in favor, and it would certainly slow the rate of copying if it were explicitly not legal.
Many ideas have been floated in this regard, including putting it under theft of services. I don’t think anyone supports throwing attorneys in jail over this. That’s unreasonable to me. But I do think it’s fair to create a civil penalty for the copying of transcribed work. Virtually everything else is protected via patents, copyright, or intellectual property laws, and it seems weirdly unfair to have a class of people whose work is wholly unprotected.
I would propose language to the effect of “No person or business entity shall copy, reproduce, publish, or dispose of to another a copy of the transcript of any matter transcribed or stenographically reported. A person or business entity that violates this must pay a copy sale to the stenographer or transcriber that created the original transcript. Such copy sale price shall not exceed the mean average of the stenographer or transcriber’s copy sales for the twelve months preceding the copying, reproduction, publishing, or disposal.”
Now, if we were to propose such law, there’s a strong possibility we would have to make some concessions. Let’s be fair, many of these matters are matters of public domain and importance. I would propose a few important carve outs, such as, “nothing in this law shall be construed to abridge the right of any person to critique, cite, discuss, parody, or utilize a transcript’s content in any expressive matter.” This punches a bit of a hole in the law, but look at fair use in copyright law, and you’ll get what I’m trying to do. Also, “nothing in this law shall prohibit any person from preparing or having prepared by another their own transcript of the same proceeding or matter.”
There are some bigger issues we’d have to deal with. Would this law exclusively cover private transcribers / stenographers and not public employees? That’s a fantastic question. As a stenographer, I’m sure everyone knows where I stand, but as someone who reads a good amount of law, I understand that government work simply works out that way sometimes. I think if we’re serious about a New York City, New York State, or even someday federal law on this, it’s entirely doable. I think the important thing is prohibiting copying while allowing “fair use” type cases that don’t prohibit freedom of speech and expression. Notably, we could always go the way of this proposed Florida rule, which states plainly, “subdivision (g) requires a party to obtain a copy of the deposition from the court reporter unless the court orders otherwise…”
As always, discuss away or email me! It’s always fascinating to see what others have researched. Hopefully, if ever it becomes a serious discussion by our lawmakers, they’ll also get a chance to consult with authorities in our field like NYSCRA, NCRA, or even ASSCR.
If you haven’t had the time to use my site’s search box for all the shortage solutions available, I recommend giving it a try. Over the last year we’ve covered some phenomenal ideas. Many stenographers across social media have internalized these ideas, talked about them, made them better than I ever could’ve dreamed.
Well, this one’s for all the non-stenographers and a look into why our shortage mathematically requires us and not other methods of capturing the spoken word. May it help some of you educate non-reporters and maybe even reporting companies on who we are, what we really do, and why we are irreplaceable. Really quickly, machine shorthand reporting gets a bad RAP because it’s “old.” The stenotype style we use today originally was invented in 1906 by Ward Stone Ireland. With over a century of usage, it’s easy for other methods to say that the technology is outdated and point to something like digital recording, originally invented in 1970 by James Russell, as a newer, “better” technology.
Objectively, when you look at both methods, they have seen vast improvements. Back in “the day,” stenographers had to painstakingly transcribe paper tape notes or even dictate their notes back to a typist using Dictaphone-type technology, who would transcribe for them while they continued to take other proceedings stenographically. Modern stenography uses advanced word processing techniques to take the input from a stenographic writer and output text. The more skillful someone is at operating a stenography machine or stenotype, the cleaner the output text is. Some reporters, reaching a 99.9% untranslate or accuracy level, can practically hit print at the end of a job and have a ready transcript.
Even those of us without such a level of skill are more efficient than the record and transcribe methodology. The average person types about 50 words per minute (WPM). The average transcriber reaches about 80 WPM. The average stenographer? 225 WPM. So while it may seem paradoxical that this century-old technology is the fastest and most efficient method available to the consumer today, it’s true.
So when we talk about shortage, numbers, and the “impossible” gap stenographers must fill to meet rising demand and replace retiring reporters, let’s talk some real numbers. There are somewhere between 11,000 and 30,000 working reporters in this country depending on whose numbers you want to use. Let’s say a healthy 15,000. If we’re inputting words 2 to 4 times faster, on average, you need 2 to 4 people to replace every stenographer. If you need another person to operate the recording equipment, that means 5 people per stenographer today. It gets tougher. Hard-working transcribers have reported it takes up to six hours for them to transcribe a one-hour depo. I’m a pretty average stenographer. I know from timing my own work that a one-hour depo is about 40 pages, and I can transcribe 40 pages in 1 to 2 hours. On a great day where my input is good, I could even do it in 30 to 45 minutes dependent on page density and subject matter. But let’s stick to average, one hour transcription for one hour of testimony for one stenographer. Now compare that to the record and transcribe method, up to six hours for one hour of testimony. That could be six to seven people to do the work of one stenographer, or it could take six to seven times as long.
What do all these numbers mean? It means whoever’s numbers you want to use, if you want to say the gap is 10,000 people by 2030, or 1,000 people, or 5 people, it means you’re talking about filling a stenographic reporter gap. Companies who are pushing digital as a solution are saying there’s no way to get stenographers, but somehow they can find, organize, train, and utilize teams 4 to 6 times larger than their current stenographic reporting assets. We complain about the lack of stenography schools. How many digital reporting or transcribing schools exist? How long have those existed? AAERT lists four. NCRA lists almost four steno schools in New York alone. Tell us again how that is the future? Seems to me that if you’re scared about filling a gap of 1,000, a gap of 4,000 is pretty terrifying. If we’re talking replacement of 15,000 stenographers, we’re looking at 50,000 people plus the gap. Even with the abominable success rates of the past, pre A to Z, pre NCRA 2.0, 10 to 20 percent, it follows that if you’re introducing tens of thousands of hardworking people to the field of reporting, and you introduce them to stenography, you can overcome any shortage you would otherwise have. Smart transcribers and digital reporters have a head start on this. They’ve switched to steno because it’s better for them, their wallet, and the consumer.
Let’s just touch on AI as it relates to taking down the spoken word. Computer programming is not magic. Despite the claims of some that technology is advancing every day, an objective look at technology shows it hasn’t advanced much at all. How much better has your bank’s voice recognition gotten in the last ten years? It was hit or miss then, and it’s hit or miss now. Look at it in big picture terms instead of the daily claims of “tech news” sources. Improvements have been made, to be sure. Open source programming projects allow virtually anyone with a little time and technical knowhow to integrate voice recognition into their product or website. Promises of a $25 billion market draw new investors every day.
But the fact remains that a lot of the buzz surrounding automatic speech recognition is just that, buzz, smoke, promises of a better tomorrow that no one can guarantee. It’s a new spin on old news. To understand this, it is important to understand what computers really are. Computers are math-solving machines. Anything you can break down into numbers can be represented by a classical computer. Video games? Math. Word processing? Math. Internet search? Math. We are spoiled. We live in a world where you click buttons and have windows. Far gone are the days when programmers had to use punch cards to operate computers. But consider that everything your computer is doing is broken down into two signals, 1 and 0, on and off. How smart do you think someone has to be to figure out an equation to account for every accent, English dialect, or circumstance? Try differentiating four different speakers using math! I’ve said it before. There’s a very real possibility that it can be solved and that perfect voice recognition can be programmed. Could be tomorrow. Could be 100 years away. Might not even happen. We don’t know. But any claim that AI is the future must be met with serious and sustained skepticism, as AI-related companies can burn through half a billion dollars in a year and still have no major profitable product. There’s a reason the public trusts stenographers and not Siri, and that’s why smart investors stick with stenographer platforms.
Companies and organizations should really re-examine their own views on this. Stenography needs all hands on deck, and they’ll have a much easier time building on our education culture and matured technology than trying to switch over the industry to something untried, untested, and less consumer friendly than the personal and proper touch of a qualified stenographic reporter. The years of training and experience we have collectively, as well as the infrastructure of our large associations and institutions, are second to none. Ultimately, it will be up to the buyers in our market to examine that and decide: Do they want to ride the wave, improve the field as it stands today? Do they want to pay the great cost of reinventing the wheel in the hopes that things will someday be better? I suspect the smartest leaders have already crunched some of these numbers and weighed these factors. They know there’s a very real truth that replacing stenography is unlikely to work. It certainly doesn’t make sense mathematically, and that is why they hedge their investments and keep all avenues open.
Maybe this will serve as a wake-up call to companies on the fence. Do not go the way of US Legal, who apparently acquired Stenotrain just to scrub its Internet presence a couple of years later. These numbers are real. The challenges faced in finding coverage are real. These challenges are far from insurmountable. But it will be about four times harder to use non-stenographic transcribers than it would be to address the stenographer shortage. Follow the recent example of companies like Lexitas. Reach out to stenographers and ask them about schools that need your support to keep supplying you with quality reporters. Your investors will thank you. Your customers will have the best service for the lowest cost. You will not be subject to the inconsistency of professional flip-floppers. Your business won’t be broken by people who have no plan for when a transcript is needed for appellate review. Your companies will thrive. You will have a better outcome than you would losing money and clients up against a superior modality like stenography. Shortage solutions? Without a doubt, the resourceful entrepreneur picks steno.
One of the highlights of the January 2020 PYRP popup in Brooklyn was talking about the local shortage. One solution mentioned on the freelance side was how stenographers and stenographic reporters can advocate for attorneys to set depositions at different times. It was explained that it can be very difficult to accommodate every deposition at 10 a.m., and how a small change in attorneys’ ordering habits might make it simpler to cover work.
This is a small thing to talk about, but would be no small feat to accomplish. It would be a serious cooperative effort for the buyers and sellers of stenographic services to come together and do something to alleviate the coverage issues faced by all companies.
This also brings to light a truism we don’t talk about often. The winners of this market will be the logisticians. Companies and entrepreneurs that master matching reporters with work are necessary. If a reporter can only work in the afternoons, or close to home, or has some other need, an agency that can satisfy those needs is going to get coverage over an agency that just doesn’t care. This is a time for companies that truly support the stenographic reporter to really shine.
Reporters nationwide are advocating for stenography. I see no reason why scheduling habits can’t be a small part of our efforts at consumer education. If it’s the difference between covered and uncovered work, it’s worth mentioning, and it’s worth getting a stenographer into every proceeding possible. There is a digital reporting proponent named Steven Townsend. He has described an idea he calls the long tail, stating that digital recording can cover matters where transcript demand is not high. So when we talk about matters of coverage and jobs that are “not good enough” for a stenographer, remember that long tail. Remember that’s a core strategy of the companies gunning to replace you. Take enough of the “easy” work, become what lawyers regard as “the reporter” and then muscle in on the so-called valuable work under the idea that stenographers are obsolete. They even tell digital reporters we’re obsolete so that they don’t realize we’re a growing and vibrant career choice. There has already been talk in Veritext-owned companies in New York about digital reporters taking over EUOs, which are insurance jobs that many reporters are hesitant to take or refuse to take. Don’t let that happen. Those jobs fuel new stenographers and stenographers with a lower skill ceiling.
Nobody becomes a USPS or UPS-type master of logistics overnight. There is a lot that goes into getting a stenographer on every job. So let’s make it a part of the discussion and grow it together. Existing companies can adapt these ideas, or stenographers can form new companies that do it better. Either way, stenography and the consumer win.
This past weekend 78 pop-up events across the country launched for stenographers, almost all of which were at the same time on January 18, 2020. For Sabbath observers and those who couldn’t make the January 18 pop up, Devora Hackner organized and hosted one on the night of January 19 in Brooklyn. It was a fantastic night and a good indicator of what just a little solidarity can achieve. Protect Your Record Project, started in California by Kimberly D’Urso and Kelly Bryce Shainline, has swelled to a national movement where stenographers are saying loud and clear to the consumer that we are the fastest and most efficient method of capturing the spoken word.
The Brooklyn event was a real showing of stenographic society in NY. Every attendee’s presence was important and brought something special to the table. Nancy Silberger, immediate past president of NYSCRA and host of New York’s Saturday PYRP event was there. Howie Gresh and Reid Goldsmith, both longtime working reporters and educators were there. Ellen Sandles, a reporter who has done extensive research into the Federation of Shorthand Reporters was present. Representatives and owners of Little, Lex, and Diamond were also present. NYSCRA’s President, Joshua Edwards, also made an appearance some time after the event’s start. There were over thirty decades of collective reporting experience in the room and nearly two dozen attendees.
Everyone came together to talk about how to advocate for stenography. Ms. Silberger mentioned her ability to host some meetings. Ms. Sandles talked about having potential press contacts. Jane Sackheim of Diamond mentioned that space could be offered by Diamond to teach A to Z courses, something NCRA and Project Steno advocates should definitely ask about. Mr. Gresh reminded everyone about NYSCRA’s involvement in offering free test prep classes. Rivka Teich, a masterful reporter working at the Eastern District Brooklyn Courthouse talked about doing a career night and introducing more people to what we do and different jobs in the field. Mr. Edwards reminded everyone about NYSCRA’s mentoring program and urged people to sign up as mentors or to be mentored. He also brought up that attendees were still being accepted for the NYSCRA Court Reporting & Captioning Week Real-Time events.
Many, many ideas were covered. From high school outreach and following NYS legislation to PYRP’s available resources and files, all the way to potential legislative ideas, like copy protection for reporters’ work. The importance of starting discussions on stenography was noted. We talked about the potential of changing covers, parentheticals, and cert pages to say stenographer instead of court reporter. The importance of communicating with the videographer and injecting oneself into the record when necessary to make a better record was talked about.
There is one theme recurrent in all of this. The power of the individual is undeniable. That’s everyone who was present. That’s you. Reporters are getting together and great things are happening. Maybe there’s a skill you have, or some kind of connection you’ve made that can help educate a consumer or empower another reporter. You don’t have to wait for a giant winged creature to invite you, you just have to be brave enough to jump on the wagon.