The “Chaotic Good” of Court Reporting

I’m suspending most internet ops broadcasting the court reporter shortage fraud. It was a good year. My publications reached tens of thousands. Yet I can’t help but feel my energy is better spent elsewhere. I’m hopeful that, in time, the community comes to understand why I chose this method of telling the story and this iteration of the Stenonymous character. But I have to face certain realities. We’re in a period in history where companies can call fraud free speech and claim that the government should be barred from pursuing lies that have gone on for a long time. There are probably millions of scandals like ours or worse than ours, and not enough journalists in this country to cover even a healthy fraction of them.

As the multimillion dollar corporations let the one-year statute of limitations on defamation pass, I hope people start to question a bit. I was willing to put in print allegations of consumer fraud & name names in my own name without the privilege of anonymity. I retract nothing. This stuff will be searchable online pretty much forever. There’s certainly a cost to me. But what are consumers to think about a firm that can’t even do the bare minimum brand defense of dropping a comment to say “these allegations are false?”

I’ll still work on the community publicizing and publishing. I’ve got ideas. You’ve got ideas. Let’s put them in print!

First up, NYC “Freelancers,” if you’re interested in unionization, leave a contact email here. What I’ll do is I’ll collect these “pledges,” and at the point where we have a hundred or so we could pool money on real legal advice for implementing a deposition reporter union. My proposal would be to secure a contract that works out some kind of points system for refusing work and pay structure to stay by the page as we’ve always known it. Basic idea is that most of you wouldn’t be able to talk about this out of fear of blacklisting, so we use me as a go-between until the group is large enough to do what has to be done. Could take years, but let’s face it, I might be around another 30 years, so I’ve got time.

If you’re totally lost, let’s just say there are good arguments to be made that many of us meet the definition of common law employees, either commission-based or per diem. That means a whole heap of us are misclassified employees. That means that whatever you’re making now, there’s a good chance you could work out a better deal via collective bargaining. Similar to the concept of bulk buying power. Very pro-capitalism. All about charging what the market will bear. Bonus points if we get contractual provisions for the use of digital reporting, like a stenographer-to-digital ratio, which would guarantee, with the force of law behind it, that companies cannot just replace stenographers willy nilly.

And before somebody jumps in with “my skills earn me the top of the top, I don’t need no union, nope,” it’s cool, really. I get it. Some of you make hundreds of thousands of dollars a year. I would think I’m a nut too. But then you meet reporters who are like “my agency doesn’t want to give me more than $3.25 in 2022 during a time of unprecedented shortage,” when everyone and their mom knows some reporters were getting $3.25 in 1990, and you start to realize that maybe something is not quite right here.

I was never quite able to verify the truth, but I was told by another reporter that one of the killers of the Federation of Shorthand was Diamond Reporting. “You don’t need a union, we’ll pay you your rates.” How poetic if that’s true. That was the company that said no copy sales for New York “freelancers” prior to the Veritext takeover. That was the company that was paying many of you $3.25, a 1990 rate, in 2010. So I sure don’t know if they helped kill the union, but I know for a fact that they capitalized big time on its death. Great anecdote for how companies will actively push for things that hurt your wallet. And something you should keep in mind the next time someone is insisting that you don’t need a union, often using their age and presumed “wiseness” to give weight to halfhearted reasons for why something that’s not really been tried won’t work. “Ah yes, here was a thing so ineffective that companies campaigned against it, sued it, and did everything in their power to bring it down.” In reality, the knowledge that we are underpaid came from historical documents left behind by that union. How twisted is that? It defends us even in death. Sounds like a fantasy novel.

Imagine holding in your hand a tool that, on average, raises your pay, and that you have evidence that it raised pay for people that came before you. You look at the tool, snarl up your face, and go “I don’t like this tool because I feel like the work I do with my bare hands is more fulfilling!” You throw away the tool. The people that would’ve had to pay you more cheer and tell you what a good, hard worker you are, and everyone is happy. Especially you, the hard worker. This is pretty much what I envision every time someone gives me an anti-union excuse, and I have heard pretty much all of them:

“The top reporters get the top pay and jobs!” Not true. There was a certain point in my career where I was the second-most qualified of about a half dozen friends and making the least money — and we’re talking up to 25% less. One agency wouldn’t work with me because I wasn’t in the field long enough at the time. But they worked with someone I knew who just so happened to have less time in the field than I did. I later went on to place 14th in the state’s court reporter civil service exam. Most of us want to believe in meritocracy. I saw for myself things are anything but.

“The harder you work, the more your reward.” Nope. I busted my ass as a 20-something running around New York City. Yeah, I work hard. Pretty much everybody in this city works hard. But you know what? I work a whole lot less hard and make a whole lot more money than I ever did. And I know for a fact there are people out there busting their ass harder than I ever will that make less money than I do. So hard work doesn’t have a damn thing to do with it either. I can self-justify and say my hard work then is what laid the foundation for my success now, but it’s just not true. I gained no professional advantage from being underpaid. Saying otherwise would be delusional self-aggrandizement. I reject telling 20-somethings that hard work is the deciding factor in success. It is one of many.

“Unions are corrupt.” Oh, conceded, some are. Bad leadership can make union membership unbearable. Unthinkable. But in the end you have to decide whether it is better to reform the institution that is supposed to be protecting you, and that you can sue if it fails in its duty of equal representation, or do away with it completely. Think about it this way. The threat is that eventually the person paying you will come swinging the (1d20) axe of “I just need to lower your pay or adversely affect your working conditions.” Could be any reason. Maybe they just want to move their cousin into your seat. Would you prefer no shield or a busted shield that you have some time to fix up and make work for you if that threat comes your way?

“Unions only protect bad employees!” Bad management protects bad employees. Unions typically set up a disciplinary procedure. Managers typically don’t want to follow that disciplinary procedure. The result is non-performers get to endlessly offload their responsibilities on performers while the union takes the blame for “protecting bad employees.” And at the end of the day, this is a great deal for management, because if you get frustrated and dissolve your union because it only protects bad employees, management now has no impediment to firing any of you for any reason whenever they want. Any of you ever had the work from your agency mysteriously dry up after you did something minor to displease them? We could make that never happen again.

“Unions are only for people that benefit from the lowest common denominator.” I’ve taken classes in and done a lot of reading on unionization. You don’t have to structure a union where everyone gets paid the same. You can create tiers, or points, or basically anything you can dream up, put into words, and get people to agree to. Funny that the people that think they’re so far above everyone else can’t imagine improving the models of the past.

“Unions don’t do anything!” Unions are a legal vehicle that, through legal and/or social pressure, encapsulate the terms and conditions of employment in a contract and defend the interests of its members. If there’s something more that you want it to do, you put it into words, you run it by union leadership, and if you don’t like the response you get from leadership, you band together with more union members to push the change or even vote union leadership out. Put it this way, if you do not care enough about your idea to do that stuff, can you really blame leadership for not doing it? It’s like when people get upset with me for not covering every topic. I’m one guy and the community won’t fund me enough to hire help. My effectiveness is limited by the support I get. So too are your union leaders. (Corporate leaders too, but money buys a lot of support, as it turns out.)

In a rare, perhaps unforgivable moment, I’m going to betray my union a bit and put in print that there’s a faction that has an issue it wants addressed. There’s been plenty of haranguing and handwringing over it, but there hasn’t been a single serious attempt by the faction to address the issue. I’ve had hours of my time wasted listening to people talk about an issue that they don’t care enough about to formally address in any substantial manner and gotten a front row seat to the “unions don’t do anything” people complaining about matters they’ll lift not a finger to solve. But, who knows, maybe one of them reads the blog and will ask me how I’d handle it if I wanted them to win. Point is that initiative drives outcomes. If you have no initiative, your outcome is decided by people that do.

“Union dues are a drain on your wallet!” I guess? But it’s been shown that on average unionized workers make more than their non-union counterparts, even factoring in union dues. Specifically in our field, we can study non-union deposition reporters with unionized officials, and we can see that, even going 20 years without a substantial change, the page rates are still higher than private sector rates on average. Meanwhile attorneys say their bills have never been higher. Where is all that extra money going if not to you? The agencies. What do you think would’ve been more of a drain on your wallet, union dues, or literally and demonstrably all of the price increases from 1990 to now going directly to the corporate owner’s pocket? We have this funny habit of considering union dues “our money,” and price increases the “employer’s money,” but y’know, if your “employer” is raising prices and never giving you a raise, you’re effectively paying dues to your employer for the privilege of working for them. You just don’t get to see those dues come out of your paycheck, so it feels much better and you don’t have the urge to complain or do anything about it.

“If it was possible someone would’ve done it already to collect all those union dues!” Someone I genuinely love — in fact, one of the people that saved my career — loves this line. And it cuts me deep every time because I’ll never really know if they’ve fooled themselves into accepting this fallacy as truth or if they know damn well it’s a fallacy and choose to publish anti-union rhetoric again and again anyway. I’m too chicken to ask and I don’t even know if the answer I’d get would be the truth. Sad day for me.

Why is it a fallacy? Union structures, in my lived experience, are less about expanding the power and profitability of the union and more about safeguarding and managing what they have already. It would genuinely surprise me if, at any point in the last 50 years, any of the New York City unions seriously considered a campaign to bring the deposition reporters into the fold. It would surprise me if they even conceived that such a thing might be possible. To make the connection or assertion you’d have to read the highlights of various labor laws and apply them to the way the job is done in modern times. And even then, you’ll probably still get a patchwork of realities where some people would qualify and some would not.

There’s also the potential political cost of current union members taking offense and deciding to vote out a leader that spends too much time on such a campaign, even if it would ultimately strengthen the union. Add the fact that you would likely have to modify union constitutions to support and allow it. So it’s not a matter of “if there was money in it, they would do it.” It’s a matter of looking at all the obstacles and saying “yeah, this isn’t my fight, and my union doesn’t pay me more money to fight it, so good luck with that.” But if it happened in reverse, where a large group of “freelancers” established a union, or deposition reporters unionized several agencies and then asked to be folded in under —- whoever, let’s say the legal support workers union — I think the results would be quite different. That’s just assuming they’d want the protection of a larger, more-established entity.

“Skilled jobs don’t need a union.” The iron workers, carpenters, and all manner of construction people seem pretty skilled to me. And I just told you there’s a legal services staff association, LSSA 2320, and they represent paralegals, social workers, and others. ASSCR, Local 1070, and several CSEA branches represent court reporters. The whole skilled/unskilled thing feels like a rumor that got started to keep workers divided. And it works really well. We squabble with each other about why Joe burger flipper shouldn’t make $xx.xx per hour while the people paying us get away with murder against everyone right up to and including some of the most educated people out there.

All this is to say that the road ahead is difficult. But if we do not even try, then we’re just going to continue this game where the corporations reduce stenographer positions in favor of digital, get them to fight each other for the work, causing even more of a rates freeze (or effective drop). Then this’ll force more people out of the market, particularly the smart ones that don’t want to work for peanuts. And ultimately the pool of stenographers from which the courts recruit will fall to a place of no return, leaving the private sector to pick up the pieces via recording and transcribing. Game, set, match. That’s competition, baby, and it’s on a level that most of us in the “accuracy and ethics” crowd don’t think about. It’s time to flip the script and win the competition.

So let’s take a crack at it. Leave your contact info. Best case scenario, we do something historic and create a model that leaders in every state can follow, as well as upping your paycheck and giving you more worker rights than you currently enjoy. Worst case scenario, it doesn’t work out and everyone has a big laugh at my expense.

If you’re tired of being underpaid during a time of “unprecedented” shortage, it’s time to take a stand!

Addendum:

Even doctors are unionizing due to the corporate consolidation of America. I’m willing to put down at least $1,000 to help all of you with the legal fees.

There’s also the “unfortunate” truth that if we make an active effort to do this, agencies might raise rates just to avoid having to deal with a union for the rest of their existence.

1/11/24 update:

Court Reporters, the Department of Labor’s New Interpretation of the Fair Labor Standards Act Classification Clause Probably Means You’re An Employee.

FTC to Crack Down on Companies Taking Advantage of Gig Workers

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.”

Stenonymous Receives Demand for Correction & Apology from Naegeli

Last night at about 10:00 p.m., I received an e-mail from Richard Hunt of Barran Liebman LLP about Naegeli. It was a fairly standard legal threat, not that I know what those look like, since I’ve never received one before. If you’re short on time, skip their nonsense and read my reply.

The demand letter is available for download here:

Richard Hunt Letter to Stenonymous Download

Now, I understand that this kind of thing may have a chilling effect on the free speech I have worked so hard to promote in our industry. I must ask all of you not to be afraid, but to turn to your state and federal legislators and law enforcement. Take this opportunity to share with them what is happening. I will lead by example in defense of our collective futures. I will be brave as I am asking all of you to be.

The PDF download and plain text is below.

Letter to Richard Hunt from Christopher Day Download

Dear Mr. Hunt:

I’ll assume you’re an honest lawyer roped into this circus by your corporate client. Welcome. Make sure you’re sitting for this one.

This is my show. Defamation is a false statement of fact published to a third party that causes damage. Naegeli’s reputation is so awful that I find it hard to believe there’s anything that could be said that would damage its reputation further. Some of the statements I make are factual, and truth is an affirmative defense to defamation. Beyond that, some of the statements I make are an opinion based on my expertise as a stenographic court reporter for the last 11 and a half years and creator of what is indisputably the largest blog in my industry. You do not have a cause of action and therefore it would be legally wrong for you to file a complaint against me.

You should peruse my blog. I’ve been reporting corporate corruption against much larger corporations than Naegeli. Veritext and US Legal Support appear to be involved in a plot to rig the court reporting and stenotype services industry against consumers/lawyers. What was done to the healthcare industry as portrayed in the series Dopesick about Purdue Pharma is more or less being done to my industry. The difference here is that what is occurring in my industry is what would have happened if one doctor rallied the others to fight the misleading advertising and dishonest behavior. Conceded that the series is a dramatization of the actual events, of course. I have a moral obligation to stop the lies and dishonesty rampant in my field because of the damage this plot will likely do to my profession, its students, minority speakers, and testimony transcript accuracy. Once the public takes note and begins alerting the DOJ, FBI, and FTC as I have, there is virtually no chance the plot will continue. Naegeli’s gouging was such a minor and unrelated part of that, that in my wildest dreams, I couldn’t have imagined this kind of foolish overreaction and strategic blunder. Thank you.

My field is beset by silence and fear. I aim to break this. To achieve this I have become a goal-oriented person. You see, now that Naegeli has threatened to sue through an actual law firm, it’s put itself in a much worse position than anyone could have conceived. Now Naegeli has two choices. It can fail to sue me, and show an entire field of nearly 30,000 court reporters that it is a scared barking dog, which will embolden them. The competition from all of them will become so fierce that it will run the company into the ground. Alternatively, Naegeli could sue. I am quite sure that I can find a valid counterclaim. We can lock each other in for a lawsuit and give this field the show it never knew it needed. It will be the single-largest destruction of capital the industry has ever seen and your client’s reputation will drop even more as court reporters across the nation realize that money could’ve gone into advertising to fix the stenographer shortage. Imagine the backlash. “Yes, I could’ve spent $400 an hour advertising this profession but instead I, Naegeli & Co., have decided the money is better spent stifling Christopher Day’s free speech.”

I know the latter seems like an attractive choice, but it will only expand my audience exponentially and possibly allow me to run daily ads decrying Naegeli’s hatred of free speech and the stenographic free press. I took a personality test recently, and it claimed I was a mediator. Perhaps unsurprisingly, I have come up with a third option. I can use my media personality to completely rehabilitate Naegeli’s reputation. We can sign a contract that Naegeli will use only stenographers and/or voice writers, and will shift their billing model to be the more open and honest “split of invoice” method. I’ll take $100,000 for up to two dozen press releases or media actions in 2022. Together, we will find a way to repair Naegeli’s image in the eyes of the public and court reporters across the nation. We can donate 5% of the contract to NCRF and 5% of the contract to Open Steno to show the field our resolve and unity.

I have about $1,200 to my name and am about $20,000 in debt. You see, the corporations in my field looted it so much by the time I got here that as a young man, I simply didn’t have a fair shot. I let you know that in order to explain that in the event you sue and somehow manage to bribe a judge and/or jury to see things your way, you will have succeeded in little more than obtaining a piece of paper called a judgment that says “you win, congrats.” Meanwhile, the work I am doing will ensure that not a single stenography grad ever has to suffer like that again. If you believe there is any universe where I will back down, there is an ancient stenographic proverb designed just for you.

TKPWHRUBG.

What Rate Should Freelance Reporters Charge?

This is an interesting question for stenographers across the country. What rate should be charged? What is fair? What is a good amount of money?

I have often simply left the answer at: It should be more. I have a body of work on this site that talks about negotiation, inflation, and makes several cases for higher rates for New York freelance. It bears repeating that in New York, the current private regular rate mandated to be charged by officials is about $4.30 per page. If you’re a freelancer paying your own taxes, advertising, business costs, benefits, or workers compensation insurance, then you should consider trying to make more than that by any means necessary, including realtime, rough, daily delivery, and copy sales. The skills you bring to the table are as important as your ability to negotiate and seek out work.

Without more fanfare, let’s turn to what I did tonight. I designed a very small calculator program that takes the user’s input of how much annual salary they want to make, and divides that by all the different rates someone might charge per page to figure out how many pages you need to make that annual salary. It then takes the pages and divides those pages by 20, assuming that’s how many pages a person transcribes an hour. Then it divides those hours by 7 to tell you how many 7-hour workdays you need to make that money. To tailor this to yourself specifically, you can either edit the calculator, do the calculations manually, or simply half, double, or triple your transcription speed.

I understand that most people do not really do anything with computer code, so I ran the program for several different salary ranges.

These are the calculations if you want to make:

The moral of the story is obvious: The lower your rate is, the more pages you need to make money. The higher your rate is, the fewer pages you need to make money. But to see this in action, let’s just take one point of data: $5.00 per page.

At $5.00 per page, you need about 35 days worth of transcribing to make $25,000 a year.

That’s about 70 days to make $50,000 a year.

That’s 140 7-hour days of transcription to make $100,000 a year.

Anecdotally, if we spend an hour transcribing for every hour we are on the machine, that’s 280 7-hour days of work. There are only 260 weekdays a year. That means to make that $100,000 a year you’re giving up 10 weekends a year at $5.00 a page. Increase the rate to 5.50 and you’re giving up no weekends. 50 cents makes that much of a difference.

Bottom line? Your rate is going to dictate not only your income, but your quality of life. Strive to be a good reporter, know your market, team up with a mentor, and make sure you’re getting paid enough to reach your goals.

A Word On Raises

The bottom line of this story is going to be, “you need to ask for a raise.” What was quite common in my New York freelance years was many of us accepted, year after year, what agencies handed out. It is time for us to step out of our court reporting skins and be business people.

There’s something called inflation. The really low level summary of inflation is that as more money is produced the value of existing money decreases, meaning item values go up. That’s why you could live off less money back in the 50s or 60s, and why everything is so expensive now.

The buying power of the money in the bank goes down every year, and every year, the services you provide need to be charged at a higher rate so that you have the same buying power.

Try it for yourself. Get an inflation calculator, type in your very first page rate or salary, the year you started, and the year it is now. A reporter told me that in 1989 they made $2.50. That’s worth $5.11 now. If they aren’t making $5.11, their buying power is shot.

I did it myself. I sat down and said what’s a good starting rate for 2018? I was given $3.25 in 2011. Inflation calculator says that’s worth $3.66 now. I had a few friends who started at $4. That’s worth $4.50 now. But who wants to work for the same exact money every year? No. We want a raise. So what would a raise of 3% a year look like? Year 1, you start at $4.00. By year 6, you should be making $4.60. Look at those numbers again. Just to have the same exact buying power 2011 to now, you need $4.50 a page. To give yourself a $0.10 raise after six years, you need $4.60. Your cost of living is going to go up, and unless you make more money every year, your quality of life is going to go down.

That’s really it. This is my case and my explanation for why we have to start talking about our rates. We have to start informing each other about simple business principles. We need to keep an eye on that inflation rate. We need to really take a close look at what we make on all our services and ask ourselves why our money for our associations, charities, and causes are so tight. We need to admit one thing: You need to ask for a raise.