But they’ve made it even easier to tell they are lying and committing a fraud against the legal profession. Let’s see what Cooper has to say.
As you can see, Cooper claims you would need 82,000 students to enroll in court reporting training programs nationwide in 2019 and each year following in order to overcome the deficit.
What does US Legal say?
Wow. 82,000 enrollments needed and only 2,500 enrollments occurred. Sounds like a death knell for stenography. Right?
Liars. How do we know? In 2014, BLS told us there were 21,000 court reporters. From my own independent analysis of the numbers and NCRA statistics, there are actually closer to 27,000 or 28,000 court reporters. It does not matter whose statistics you use, the conclusion they’re lying remains the same. There was no shortage crisis in 2014. We have roughly the same number of court reporters today as we did back then. The 2013 DuckerReport told us that 70% of court reporters would retire over the next 20 years (2013-2033). 70% of that 28,000 is about 20,000 reporters. Succinctly, the retirement cliff we are trying so hard to fight is about 20,000 people if you trust NCRA and about 15,000 people if you trust the Bureau of Labor Statistics.
About 10% of people that start steno graduate. So if we had 82,000 enrollments a year, that’s 8,200 new stenographers per year. But look at what US Legal wrote again. “We needed 82,000 new students to enroll in court reporting training programs nationwide each year to overcome the impact.” If we, in fact, have 82,000 new students each year from 2019 to 2033 (15 years), we would have 1.23 million enrollments or 123,000 graduates. Our field would be quadruple the size it is today, and if you go by the Bureau of Labor Statistics, nearly six times larger than it was in 2014.
To combat our retirement cliff of 20,000 people between 2019 and 2033, we need a total of 200,000 enrollments. That’s about 13,400 enrollments or 1,340 graduates a year, a number six times smaller than the one proffered by US Legal and Veritext/Cooper. If you’re six feet tall, that’s like me claiming you’re 36 feet tall. If we required 8,200 stenographers per year, about half of all depositions would be going uncovered right now (8,200 x 3 years 2019-2021, a gap and demand for 25,000 stenographers by 2021.)
If you accept Owler’s revenue numbers, Veritext controls about $490 million in revenue and US Legal controls about $100 million. That’s a combined total of $590 million. If you accept the Kentley Insights 2019 Stenotype Services market research report, that’s about 20% of our field, and they are using their power to destroy it.
Some have said: They’re lying. So what?
Well, the market preference is stenography.
We know from nonprofits like Protect Your Record Project that attorneys are being told they must accept digital because no stenographer is available even after attorneys order stenographers. So we know there’s some serious false advertising going on.
Previously, I was unsure if there was collusion between major players in the field. Considering that both are using similar language it seems unlikely that both have come independently to the same incorrect conclusion. It’s not like the two firms are enemies. They’ve lobbied together before.
It seems much more likely that following fraudster Jim Cudahy’s lead via the Speech-To-Text Institute, the two companies are involved in a plot to hurt the market and rob consumers of their choice. Quite frankly, Cudahy uses his ex-NCRA credentials to lend credibility to this fraud. After all, STTI has been instrumental in creating the propaganda ruining our field. STTI was, without a doubt, created for the sole purpose of promulgating propaganda and facilitating the ongoing fraud, against its stated mission of representing all modalities in speech-to-text transcription. STTI’s lies are also easy to see through.
A gap of 11,000 predicted by 2023 according to a recent study. What study was that? None. The year 2023 doesn’t appear in the Ducker Report. At best, these numbers are extrapolated from an outdated report that could not account for the positive recruitment impact of NCRA A to Z, Project Steno, and Open Steno — initiatives that Jim Cudahy should have known about in 2019.
Unless you believe 2 + 2 = 24, the stenographer shortage is being exaggerated and exacerbated by Veritext and US Legal Support. And now you have a brief video to help explain it directly to attorneys.
Lawyers, court administrators, and support staff, there is a real struggle taking place in the United States court reporting industry today. For the last eight years, we have known that there would be a stenographic court reporter shortage. We knew because our national association commissioned the 2013-2014 Court Reporting Industry Outlook by Ducker Worldwide, colloquially known as our Ducker Report. In response to that, many initiatives to recruit stenographers were born including National Court Reporters Association A to Z program, Project Steno, and Open Steno. As of today, there are far more schools for stenographic reporting in the United States than there are for transcribers. If we base our count on NCRA-approved schools against AAERT approved schools, the ratio is about 5:1. Stenographic court reporters are by far better equipped to handle the shortage. But there is a lie being sold about us, our shortage is being exaggerated and exacerbated by companies that stand to profit from it.
In our industry there are stenographic court reporters, voice writers, and digital court reporters. Stenography’s all about taking down verbatim notes on a stenotype. Voice writing is all about speaking into an automatic speech recognition (ASR) system tuned to the reporter’s voice. Digital reporting sees the reporter record the audio, which is then distributed to transcribers. About two years ago a nonprofit called STTI popped onto the field and started spreading the lie that the stenographer shortage would be nearly impossible to solve, citing the Ducker Report and “industry experts” that believed they could predict what the field would look like 20 years from now. They claimed they wanted to be an authority in all speech-to-text modalities but it’s fairly obvious to anyone paying attention that it’s an attack on consumer choice. Ducker could not have been clearer that market preference was stenography:
The conclusions STTI drew were so wrong it appears intentional. Jim Cudahy was the Executive Director of NCRA when the Ducker Report was made, and yet so many years later ended up in the STTI camp using his NCRA experience to help lend credibility to the false idea that our shortage was impossible to solve. An opportunist, he saw a chance to lead the charge into an “emerging” market and he took it, business 101. Large corporations in my field started to push the same lie, likely due to financial pressure. Veritext started trying to train lawyers to allow for digital reporting in their deposition notices, Planet Depos started to build the digital side of its business. Verbit flip flopped between telling investors there was 99% accuracy and that technology would not replace the human. The race was on to legitimize digital reporting in your minds as consumers. This is being done despite some evidence that it would put already-marginalized groups of speakers at risk and the fact that it is less efficient. Utilizing digital reporting would take the production of the transcript offshore, out of range of your subpoena power, and make it much easier for tampering to occur.
If any other field has a shortage, sellers jack up prices. In ours, despite the fact that we are behind inflation in some markets, some of our biggest sellers were now pushing for our replacement. They were telling consumers no stenographer was available, but they weren’t using any of our numerous Facebook groups, LinkedIn, or our national database of stenographers to recruit us. This lie did not go completely unchallenged. Nonprofits like Protect Your Record organized to get the word out, but they were up against corporations that, according to Owler, control a combined revenue amount of over half a billion dollars. Our field, comprised of 88% women, was being bamboozled and blitzed by the message that companies were only going digital out of need. “Of course stenographers are the gold standard, there just are not enough of them.” It was a game of messaging and perception that we were losing.
I had identified a pattern of “shifting narratives” and I used my love of reading and writing to document what I could so that the truth would not be lost. It was through this documentation that the New York State Court Reporters Association, Association of Surrogate’s and Supreme Court Reporters, and many other unions were able to give the New York State Unified Court System a warning on the dangers of automating trial transcription. This work was having a real impact and giving us the power to communicate our importance to the legal field in more concrete terms. Some of my work even got republished by NCRA in industry media and social media. I became a part of changing the false messaging and misconceptions killing my profession.
While court reporters on social media were debating whether companies were utilizing digital court reporters, I was documenting as much as I could and trying to urge my colleagues to push back. My attention was raised to US Legal Support building its digital business and how, in the Holly Moose v US Legal Case, despite 70% of its business coming from court reporters, it claimed it was not organized as a shorthand reporting firm and therefore should be immune to regulations meant to protect consumers in California. Moose lost the case from a failure to prove the injury element, but we now had valuable information, the company was willing to do and say anything to benefit itself. Sounds like a bold claim, but let’s be real, they don’t advertise themselves as “not a shorthand reporting firm.”
While outwardly professing that it wanted stenographers, it was doing everything in its power to sabotage us. Stenotrain was acquired by US Legal and apparently mismanaged into oblivion. US Legal was aggressively recruiting digital court reporters on LinkedIn as recently as May 2021, but no such effort was made to get stenographers. In July 2021, a JD Supra article was put up by the company that claimed the stenographer shortage would be nearly impossible to solve and set up an equation to give it the appearance of credibility. Their numbers were extrapolated from an eight year old report and likely outdated, but even assuming those numbers to be true, the equation, if reiterated in perpetuity, would lead to negative stenographers, which is logically impossible if you’re getting 200 new stenographers a year. The equation assumed the retirements would always be constant and did not acknowledge any of the recruitment efforts at the top of this page. I realized there was a major inaccuracy, and I started to spread the word that we could not rely on these large corporations to be honest with us or our clients.
A real breakthrough came when I got a US Legal rep to admit they had not been using NCRA PRO Link / Sourcebook, our national directory of stenographers, to recruit us. How could they dare make a claim that stenographers were not available when they were not utilizing a database consisting of roughly one third of the field? Worse than that, prior to publishing my September 9 article, court reporters reported not being contacted by larger firms. The best we had was a vague promise from Rick Levy that US Legal would look into whether it was “viable” to use the directory to recruit stenographers. After I publicly cried foul, they started to use the directory to recruit stenographers that same day! When it became clear I was going public with these allegations, they went from “looking into it” to attempting to cover up the fraud they had perpetrated on the legal community.
There was a part of the puzzle I had and held close to the chest. I had been given emails from the NCRA Firmowners listserv from May 2021 where representatives from US Legal got into a “debate” with a group of court reporters. In my assessment the discussion was rife with obfuscations, distractions, and gaslighting. But their Chief Strategy Officer at the time, Peter Giammanco, gave us a window into what’s going on.
In a wall of text designed to cast doubt in everyone reading, he writes “Does it really matter if done legally and ethically and both methods end with the same final accurate transcript?” This is an example of the straw man argument. Given that court reporters are twice as good as your average person at taking down dialects like African American Vernacular English (AAVE) even though we have no formal training in it, there is no reason to believe that anyone else will have the same final accurate transcript. These companies won’t tell you that people like Allison Hall are successfully cutting the training time of some stenographers in half or that our recruitment efforts have exploded in the last eight years, they’ll just keep repeating their narrative, and as I just showed you, they do not care if it is legal or ethical. They do not care what is true. The positions they hold are not based on merit or honest debate, they are based on a mission or agenda. This comports with anecdotes I’ve received. Here in New York an acquaintance expressed her desire to leave our field, and US Legal offered her work as a digital court reporter. Meanwhile, these companies are not telling digital reporters that stenographic reporting is an option. Concurrently, companies are telling everyone that stenography is the gold standard and there just aren’t enough of us. Given that it would take as many as eight transcribers to replace a single stenographer, one has to wonder why there was no attempt to encourage digital court reporters to join the gold standard of stenography. It’s a lie so blatant and disgusting that I regularly try reaching out to digital court reporters to let them know what’s coming.
Most of the email images are available for download here. I’d just like to point out from those emails that when dealing with the women of my profession, including the very president of our association, C. Phipps, both men were happy to go on and on bashing NCRA’s organizational approach and falsely accuse L. Freiler of libel. It’s quite telling that when I reached out, there was dead silence.
I publish the emails because this is a matter of public importance. This mission that has been admitted to, to replace stenographers with recorders, will threaten access to justice. It is also almost certainly consumer fraud. What else do you call a concerted effort to make it seem as though stenographers are not available when there has been such an abject failure to attempt to recruit any of them in addition to the incredible mistreatment of the workforce? They rely on our consumers being too busy to pay attention to the situation. Asked for comment by me via email on August 12th, Peter didn’t respond, and US Legal asked me to take them off their mailing list. They’re confident you’re not reading my work or that you will throw your hands up and say “not my problem.” They are counting on you being complicit in the suffering and struggle of our young reporters.
How did we get here? Our field is one of mostly independent contractors. Many of us meet the definition of common law employees, but there’s basically no government enforcement there and so any misclassification claims are handled on a case-by-case basis if they’re raised by the court reporter. The only one I ever read about was settled. As independent contractors, we can be considered competitors with these large firms, and therefore the institutions meant to advocate for us have their hands tied. Our court reporter associations cannot call any one company a liar, lest they be accused of group boycott. They do not allow discussion of rates, lest they be accused of anticompetitive behavior. Thrust into a field where large corporations may assert any false claim without being checked, federally-protected discussions of pay are categorically banned, and almost none of us have the legal knowledge to navigate the nuances of employment law, the stenographic reporter has a whole lot stacked against her. We are a field that largely has none of the employee protections written into law. And we have seen as a society just what corporate culture does to women who have those protections. The stenographic reporter? She prevails despite that.
I may not be a woman, but for a decade I have watched my colleagues recount mistreatment and abuse. I will not stand for it longer. If society is seeking a gender pay gap, it need not look further than this situation we find ourselves in. When our field was male dominated, it rose to such prominence and importance that it has a nonprofit in almost every state dedicated to it. As the field transitioned to majority women, rates were frozen. Adjusted for inflation, the average American worker’s pay rose about 58 cents over the last decade. Adjusted for inflation, the stenographic reporter’s pay fellover the last 30 years, in some cases, by nearly 50%. Corporations have court reporters and captioners working much harder today for far less value than 30 or 40 years ago, have made no genuine effort to fix the shortage situation, and then they have the nerve to tell courts and attorneys we aren’t available. It’s like lighting somebody’s house on fire while they’re sleeping, throwing a few droplets of water on it, and telling the firemen you did your best and there’s nobody in the house to rescue.
We need your help. We need you to take a brief but intense interest in our little field of about 30,000 so that we can continue to serve you and the public. Talk to each other about the court reporting service you’re using, talk to your court reporter, start comparing prices. There is a kind of gambling or cost shifting built into our pricing structure that makes it confusing, but ultimately consumers have the power here. You are some of the most educated people on the planet. Whether by legislation or choice, you can make a profound difference in our future. Pass this up to your bosses. Ask them to read it. Ask them whether these are the kinds of businesses we want to entrust the creation of the legal record to. If you’ve been told a stenographic reporter is not available, consider asking some more questions, because there’s a big chance you’re being lied to. Considering investing in stenographic schools or companies. Consider using PRO Link to find a reporter yourself. And of course consider introducing the recruitment resources at the top of this post to someone in your life. We need stenographic court reporters, and all indications are that we will for a long, long time. For my part in it, I will answer any questions I can at ChristopherDay227@gmail.com.
As in the Columbus Bar Lawyers Quarterly, Spring 2020, Caveat Emptor!
To My Usual Readers:
Court reporters, I stand on the backs of all of you at this point. Without your hard work I wouldn’t have been in a position to publish this story. But if we don’t get it in front of people, this is for nothing. I have made about $400 in donations these past two weeks and I will sacrifice every dime of it to boost this post. If you can afford a donation, please send $20. If you cannot, please consider sending this to lawyers and/or tagging a local bar association on the Facebook and Twitter campaign. They cannot be expected to be experts in our industry. We must guide them. Every state is important, but California, Texas, Illinois, and New York are where the majority of our business is, and where the shortage lies can hurt us most. This is not new. This is something we felt in 2019 and now have much more concrete evidence of.
It’s now clear our institutions are not equipped to handle liars, and it is therefore vital for us to seek out allies among the legal community who will see this for what it is, an attack on their choice as consumers; an attack on their clients’ access to justice; and an attack on a field of women and introverts where it was assumed nobody would have the guts to say anything because nobody has bothered to say anything for at least three decades.
I understand why freelancers are hesitant to speak up against companies. They sign your paychecks. The often unsung threat of them withholding work from you leaves you feeling powerless. But if we want a field that has integrity, then we must act now and sound the alarm so that these levels of dishonesty are never seen again. Court reporting firms need to be at least as terrified of dishonesty as we are of speaking against it. I resigned from my board position and asked you to trust me. Trust that action will spare future generations of reporters from sitting silent as their quality of life is eroded year after year. We have to break the silence on the silent problem facing our nation’s courtrooms and spend just a little energy on writing our own collective story.
Spreading through social media is a clip from John Belcher. He talks about how he got his dream job as a prosecutor, which allowed him to be in court almost every day and work with court reporters and other court staff. He talks about all the things that court reporters hope attorneys talk about. Some key takeaways?
Don’t do something you wouldn’t do in front of the judge. They read the transcripts.
Don’t step on the witness. Count to four before starting the next question or answer.
Speak a little slower. He suggests 70% speed.
Don’t disrespect opposing counsel, the witness, the court reporter, or other attendees.
Be careful about side discussions that take away or distract from the proceeding.
Adding fillers at the beginning of questions like “okay” or “perfect” may create bad habits for trial questioning.
Preparation is key. Expecting the court reporter to put up your exhibits for you may burn valuable time.
Don’t take it from me, check out his video on LinkedIn today! You can also see his YouTube here.
This month I had a chance to sit down with Marc Russo of MGR Reporting. Marc’s a working reporter and business owner. We got to hit a lot of topics in this video, including Marc’s history in the field, how reporter skill relates to reporter treatment, and how scheduling ahead can help reporting firms fill their clients’ needs.
Using Marc’s words, it’s about treating reporters like people instead of numbers.
As a stenographic court reporter, I have been amazed by the strides in technology. Around 2016, I, like many of you, saw the first claims that speech recognition was as good as human ears. Automation seemed inevitable, and a few of my most beloved colleagues believed there was not a future for our amazing students. In 2019, the Testifying While Black study was published in the Language Journal, and while the study and its pilot studies showed that court reporters were twice as good at understanding the AAVE dialect as your average person, even though we have no training whatsoever in that dialect, the news media focused on the fact that we certify at 95 percent and yet only had 80 percent accuracy in the study. Some of the people involved with that study, namely Taylor Jones and Christopher Hall, introduced Culture Point, just one provider that could help make that 80 percent so much higher. In 2020, a study from Stanford showed that automatic speech recognition had a word error rate of 19 percent for “white” speakers, 35 percent for “black” speakers, and “worse” for speakers with a high dialect density. How much worse?
75 percent word error rate in a study done three or four years after the first claim that automatic speech recognition had 94 percent accuracy. But in all my research and all that has been written on this topic, I have not seen the following point addressed:
What Is An Error?
NCRA, many years ago, set out guidelines for what constituted an error. Word error guidelines take up about a page. Grammatical error guidelines take up about a page. What this means is that when you sit down for a steno test, you’re not being graded on your word error rate (WER), you’re being graded on your total errors. We have decades of failed certification tests where a period or comma meant a reporter wasn’t ready for the working world yet. Even where speech recognition is amazing on that WER, I’ve almost never seen appreciable grammar, punctuation, Q&A, or anything that we do to make the transcript readable. It’s so bad that advocates for the deaf, like Meryl Evans, refer to automatic speech recognition as “autocraptions.”
Unless the bench, bar, and captioning consumers want word soup to be the standard, the difference in how we describe errors needs to be injected into the discussion. Unless we want to go from a world where one reporter, perhaps paired with a scopist, completes the transcript and is accountable for it, to a world where up to eight transcribers are needed to transcribe a daily, we need to continue to push this as a consumer protection issue. Even where regulations are lacking, this is a serious and systemic issue that could shred access to justice. We have to hit every medium possible and let people know the record — in fact, every record in this country — could be in danger. The data coming out is clear. Anyone selling recording and/or automatic transcription says 90-something percent accuracy. Any time it’s actually studied? Maybe 80 percent accuracy, maybe 25; maybe they hire a real expert transcriber, or maybe they outsource all their transcription to Kenya or Manila. Perception matters; court administrators are making industry-changing decisions based on the lies or ignorance of private sector vendors.
The point is recording equipment sellers are taking a field which has been refined by stenographic court reporters to be a fairly painless process where there are clear guidelines for what happens when something goes wrong, adding lots of extra parts to it, and calling it new. We’ve been comparing our 95 percent total accuracy to their “94 percent” word error rate. In 2016, perhaps there were questions that needed answering. This is April 2021, there’s no contest, and proponents of digital recording and automatic transcription have a moral obligation to look at the facts as they are today and not what they’d like them to be.
During our Court Reporting & Captioning Week 2021 there were a couple of press releases and some press releases dressed up as journalism all about digital recording, automatic speech recognition, and its accuracy and viability. There’s actually a lesson to be learned from businesses that continually promise without any regard for reality, so that’s what I’ll focus on today. I’ll start with this statement. We have a big, vibrant field of students and professionals where everyone that is actually involved in it, from the smallest one-woman reporting armies to the corporate giants, says technology will not replace the stenographic court reporter. Then we have the tech players who continuously talk about how their tech is 99 percent accurate, but can’t be bothered to sell it to us, and whose brilliant plan is to record and transcribe the testimony, something stenographers figured out how to do decades ago.
You know the formula. First we’ll compare this to an exaggerated event outside the industry, and then we’ll tie it right into our world. So let’s breeze briefly over Fyre Festival. To put it in very simple terms, Fyre Festival was an event where the CEO overpromised, underdelivered, and played “hide the ball” until the bitter end. Customers were lied to. Investors were lied to. Staff and construction members were lied to. It was a corporate fiasco propped up by disinformation, investor money, and cash flow games that ended with the CEO in prison and a whole lot of people owed a whole lot of money that they will, in all likelihood, never get paid. It was the story of a relative newcomer to the industry of music festivals saying they’d do it bigger and better. Sound familiar?
As for relative newcomers in the legal transcription or court reporting business, take your pick. Even ones that have been incorporated for a couple of decades really aren’t that impressive when you start holding up the magnifying glass. Take, for example, VIQ Solutions and its many subsidiaries:
VIQ apparently trades OTC so it gives us a rare glimpse of financial information that we don’t get with a lot of private companies. Right off the bat, we can see some interesting stuff. $8 million in revenue with a negative net income and a positive cash flow. Positive cash flow means the money they have on hand is going up. Negative income means the company is losing money. How does a company lose money but continue to have cash on hand grow? Creditors and investors. When you see money coming in while the company is taking losses, it generally means that the company is borrowing the money or getting more cash from investors/shareholders. A company can continue on this way for as long as money keeps coming in. Companies can also use tricks similar to price dumping, and charge one client or project an excessive amount in order to fund losses on other projects. The amazing thing is that most companies won’t light up the same way Fyre did, they’ll just declare bankruptcy and move on. There’s not going to be a big “gotcha” parade or reckoning where anyone admits that stenographic court reporting is by far the superior business model.
This is juxtaposed against a situation where, for the individual stenographic reporter, you’re kind of stuck making whatever you make. If things go badly, bankruptcy is an option, but there’s never really an option to borrow money or receive investor money for decades while you figure it out. Seeing all these ostensible giants enter the field can be a bit intimidating or confusing. But any time you see these staggering tech reveals wrapped up in a paid-for press release, I urge you to remember Fyre, remember VIQ, and remember that no matter what that revenue or cash flow looks like, you may not have access to the information that would tell you how the company is really doing.
This also leads to a very bright future for steno entrepreneurs. As we learn the game, we can pass it along to each other. When Stenovate landed its first big investor, I talked about that. Court reporting and its attached services, in the way we know them and love them, are an extremely stable, winning investment. Think about it. Many of us, when we begin down this road, spend up to $2,000 on a student machine and up to $9,000 on a professional machine and software. That $11,000 sinkhole, coupled with student loan debt, grows into stable, positive income. So what’s stopping any stenographic court reporting firm from getting out there and educating investors on our field? The time and drive to do it. Maybe for some people, they just haven’t had that idea yet. But that’s where we’re headed. I have little doubt that if we compete, we will win. But we have to get people in that mindset. So if you know somebody with that entrepreneurial spirit, maybe pass them this post and get them thinking about whether they’d like to seek investors to grow their firm and reach. Business 101 is that a dollar today is more valuable than a dollar tomorrow. That means our field can be extremely attractive to value investors and be a safe haven from the gambling money being supplied to “tech’s” habitual promisors.
Know a great reporting or captioning firm that needs a spotlight? Feel free to write me or comment about them below. I’ll start us off. Steno Captions, LLC launched off recently without doing the investor dance. That’s the kind of promise this field has. I wish them a lot of luck and success in managing clients and training writers.
There are a lot of professionals in this field who will laugh at the notion that freelancers can be entitled to employee benefits. “Of course we’re not eligible for Workers Compensation! We’re independent contractors!” The idea does seem as preposterous and fanciful as a soul-devouring stenotype.
To give a brief overview, in New York, to avoid clogging the court system with employee accident cases, Workers Compensation coverage allows employees injured on the job to apply for benefits to cover their medical expenses and/or wages. To many, this would be where the discussion ends. If you’re not an employee, you can’t get benefits. But when we look into exactly what constitutes an employee, and the way this actually works, we find that the answer is more likely “it depends.” Administrative and judicial judges will look at several factors to determine whether someone is an “employee” or an “independent contractor” under the law, and how the “hiring entity” and the “hired entity” classify the relationship is not a major factor listed on their website.
The right to control. Does the hiring entity or employer control the manner in which the work is done? In stenographic freelance circles, and particularly in New York, this can be a mixed bag. They might ask you to use a specific layout, arrive at a specific time, or even bring snacks to a depo. There are varying degrees of control, and if your agency is exercising a lot of control over you, you just might be an employee.
2. Character of work. If the primary work performed by the hiring entity is performed by the hired entity, that means the hired entity is an employee. Again, this is something you can probably argue both ways in stenographic circles. You can easily make the claim that court reporting agencies are in the business of providing court reporting services and therefore we should be employees. You can also make the argument that court reporting corporations are not in the business of court reporting, but rather acquiring court reporting professionals for lawyers. Just to note, US Legal tried that in an Unfair Competition case in California during the Holly Moose case. It argued that it was not a shorthand reporting corporation. Justice Elia rejected that, stating “such circular reasoning reasoning to evade…” [this state’s laws] “…is, at a minimum, unpersuasive.” Who can say what a judge in New York might say when applying the facts of a case to New York law?
3. Method of payment. The important bit here is that whether you receive a 1099 or W2 does not matter in determining an employee/employer relationship. Whether you receive regular payments or whether you are paid for a task as a whole is a deciding factor. Again, it can easily be argued either way dependent on the facts of a freelancer’s “employment,” are they taking jobs regularly and getting regular payments? Are they hired for a one-off assignment?
4. Furnishing equipment. The vast majority of us maintain our own equipment, and if a workers comp claim were ever made against an agency, I imagine the first thing they would do is bring out that fact. But there are other things to consider. Does the agency supply you with business cards or other materials that you’re supposed to hand out? Some do, some don’t, and that makes this a factor worth considering.
5. Right to hire/fire. This relates to the right to hire and fire who’s doing the work. For example, when an agency contracts you, a true independent contractor would have full authority to contract that out to someone else. In my time freelancing, I saw worksheets that forbade such behavior. Ultimately, the right to hire and fire is dominated by the agencies, and this makes a good case, on this factor, for reporters as employees.
6. Postmates Decision. Court reporters were doing the gig economy before it was popular. Now many states are grappling with how to treat these cases where someone may be called an independent contractor but meets all the definitions of a common law employee. In New York, we had the Postmates decision. That looked at several of these factors including the character of the work, right to control, and the method of payment. Another thing looked at was who controlled the customer and whether the independent contractor was able to go out and build his own customer base. This is something that court reporters are split on. Many of us have our own clients and many of us work exclusively through agencies. The Postmates decision gives us a look at how administrative judges and appellate courts might look at these kinds of issues in New York. If you don’t have any control or interaction with the client beyond the work you’re doing, a court could look at that and say “employee.”
Taking in all the factors above, as intelligent people not trained in law, we can see how we might argue it both ways. We can see that it’s very clear that the law doesn’t care much how the employer and employee classify the relationship. We can see what’s happened in this state and other states, and we can come to an interesting conclusion. Can freelancers claim Workers Comp benefits? It depends. Can the claimant show that they meet the definitions of a common law employee? I can’t answer that for you. But I can say that if you’re someone who’s injured on the job and meets these eligibility factors, it may just be worth consulting an attorney to give you real advice on your specific situation and the facts of your specific case. Independent contractors, on the other hand, generally may, but are not required to, purchase Workers Compensation insurance. This can be done to guard against medical bills or fulfill the terms of a contract.
Finally, as someone who briefly owned a corporation, I can tell agency owners to make sure you have a rider or option on your Workers Compensation insurance that covers you if an independent contractor claims they’re an employee. You don’t want to end up in a situation where you have a misclassified employee without coverage. It can constitute a crime to fail to follow our Workers Comp law. You can try searching other reporting firms and see what insurer they use. You can also engage with NYSIF to see if they offer a better rate than your current provider. Whatever you do, just be aware that this is a possibility, and the more your freelancers fit into those eligibility factors, the more this could end up a problem for you. I don’t want a problem for you. Chances are good an injured reporter doesn’t want a problem for you. But if somebody’s hurt, can’t work, and the medical bills are piling up, chances are good they’re going to take whatever avenue they’ve got to take to survive. The least we can do is keep this open for discussion.
Everyone is moving faster than ever into new solutions to problems. Adaptation of technology has spiked like never before. There are many hyped technologies out there that promise the world and don’t deliver. Then there are real companies with a tangible product. After taking the time out to review Expedite’s public-facing materials and after having a brief exchange with Expedite’s CEO, Eve Barrett, I am convinced that Expedite is among the companies out there that has a real product. In this case, it’s also a unique product.
We can think of Expedite as the Uber for legal service professionals. It’s helping link providers, namely court reporters and interpreters, with customers, namely courts, lawyers, agencies. I learned that the product is set up to be flexible. People can register as both a customer and a provider. This means that traditional reporting agencies can make use of Expedite to get coverage or get work. This means that independent court reporters can use it the exact same way.
A post I came across on Expedite’s blog, the Docket, sums business up well. Be willing to stick your neck out a little bit. In my view, there is great importance attached to being a skeptic, but we cannot allow our skepticism to hamper our willingness to try new things. I had touched briefly on Expedite’s model in my shortage solutions series. There was some honest skepticism there. But in normal times, we were experiencing a shortage of reporters partially as a result of the disjointed state of the market. There is no central marketplace to just log in and find a reporter. It’s not like the stock market where you can get immediate data on every business out there. There are a lot of tools out there for finding reporters or finding work. Why not add Expedite to your arsenal?
In my exchange with Ms. Barrett, she pointed me right to the Provider FAQ, blog, and vlog. I saw there’s a provider referral program. If a provider refers a provider and both get verified, there’s a bonus. I asked about whether the same was available for providers that refer customers to the program. It was confirmed that anyone can refer anyone, and the bonus shows up in the next job taken with Expedite. This is a smart way to get people using a nationwide app, and I think a robust referral program is a smart move.
The website and app are both available for customers. The app is available on Apple Store and Google Play. The overall message is one of courage and commitment to us. We’ve all been to the recent educational webinars. Presenters have talked about letting go of fear, adapting, making changes to enhance our businesses. I think Expedite is a major enhancement to many reporting businesses. I asked pretty bluntly if there’s anything she’d tell reporters in the industry, or even people outside the industry. I’ll end with part of the response I got, as it says all it needs to say about the power of the individual. “My goal with Expedite was to help save the profession by alleviating the critical shortage. I also wanted to create a new business model for court reporters whereby they could work more efficiently, keep a higher percentage, receive payment faster, and market their services on a free platform. I’m just one reporter trying to solve the problems that have plagued our industry for decades.”
Courtesy of the links I’ve got up at Get A Real Job, here’s what we’ve got posted around the Internet at the start of the new year. Freelancers can check the bottom for some ideas. Just before we roll into that, remember that NYSCRA has a free mentoring program, and people can use NCRA’s Sourcebook for unconventional moves like finding a mentor. If you’re a student or a new reporter feeling kind of lost, you don’t have to go it alone, reach out. Even people five years on the job have said “wow, sometimes I feel like I need a mentor!”
But you’re not here for that. You’re here for the jobs, dammit. Perhaps unsurprisingly, this month we have the Bronx grand jury job still posted. That’s a Reporter / Stenographer title as a City of New York employee. Side note, the Queens DA site is down so I have no idea if they’re hiring. I guess I’ll have to snail mail them. More side notes, the DCAS Reporter Stenographer application scheduled in November has been postponed, and there does not seem to be a date for it on this DCAS schedule, up to April 2020.
There’s no civil service exam out for NYSUCS Court Reporters because they just had the last test in Summer 2019. They generally hold the test every 1 to 4 years though, so keep an eye out. Even though the civil service exam is probably a little way off, Court Reporter provisional applications are being accepted continuously statewide according to the website.
In the least predictable move ever made, we move on to federal jobs. There are three Southern District postings in New York, including part time and full time work. Whether that means they need three people or one really good one, go for it! There are also a number of federal positions all around the country. Maryland, Oklahoma, Texas, West Virginia, Massachusetts, Arkansas, Utah, Tennessee, North Carolina, Washington, Washington, D.C., and Florida. Remember what happens when they can’t get good stenographers in those positions. They settle for less. Spread these jobs around, don’t be shy.
From the freelance angle it is troubling to me that for years I rarely saw agencies advertise looking for steno reporters and yet I see many postings continue to pop up for digital reporters now. It is not inappropriate for stenographers to take this for what it is, a sign that securing private clients may be a way forward to secure future work, especially if our trade and methodology is not going to be front and center of these old businesses. Take the leap, file with NYS, get yourself on the vendor list of NYC VENDEX or NYS procurement, get on the insurance companies’ procurement lists. Navigating the business world is not an easy thing, but it is entirely possible for anyone that sits down and starts familiarizing themselves with how people buy and sell services and where to find people that buy what we do. Pricing is another monster to tackle. Depending on the contract, people might bid super low original prices just to get copies locked in. Some contracts don’t really have many copies so a high original is necessary. There’s no manual I know of, it’s all straight experience and getting yourself situated as a player in this game, not a pawn.
Previously on Not Your Friend, we had our very good friends Veritext and US Legal. Today we make an entry for Planet Depos. There’s really not much to say about them specifically. They’ve been using digitals a while, and it seemed superfluous to write about. There are entire Facebook groups dedicated on social media to watching out for this kind of stuff. Where it might take one person a year and a day to find the information and get it out to a large audience, in these groups news travels fast. So if you’re not connected to something like a Protect Your Record group or a DR Watchdogs group, get connected today, or friend someone who is connected. There have been discussions of agencies that are doing this sort of thing, and discussions of how to advocate for our field and stenography.
What can we say? Veritext is still busy seeking digitals in New York City, which is about as close to stenographic fortress as you’ll ever get. PD is doing it in their markets. There are a whole bunch of companies that we were relying on to stay steno, or that were relying on us to do the good work we do every day. That’s changing. What happened? We can blame ourselves, as we often do, and say it’s something to do with our skills or habits. We can blame them, throw our hands up and say this is the end. Or we can take control of the situation. We can embrace that victory is cumulative. We can understand that there won’t be one single defining moment where someone wins or loses. What happens in a year or ten is settled on what we do every day up to that point.
I know my plan. The first step is to really get the news out that this is what’s happening. Next up, information dispersal. As we start revealing how the market works and what’s being charged, the information will be out there for everyone, and consequently, more people will compete directly. Keep in mind recruitment ideas so that the shortage doesn’t beat us via attrition.
I’ll be publishing rate sheets, client lists, whatever I find and wherever it’s leaked. Many others have taken up advocating for us on a larger stage at attorney, paralegal, and “big law” events. These are not new ideas, but the strategies at play are clear winners. Look how Veritext crumpled at the first sign of stenographers rejecting their new direction and subsequently tried dumping some money on steno to make things better. Imagine a world where there’s any sustained effort to expose shoddy business practices and compete. They just might start their own school program!
We can’t guarantee victory. The catch there is they can’t guarantee it either. And if these companies have stiff competition, there’s a good chance they’ll fall in line and use stenography in every market where it’s viable to use stenography. There’s also a good chance that if those companies don’t fall in line, they’ll go under. With websites like Owler saying Veritext has an annual revenue of 300 million, or Planet Depos an annual revenue of 4 million, and with the cold hard truth that large companies with annual revenue in the billions, like Sears, can cascade into ruin, the truth is out there. Competitors are a market force. Labor is a market force. No matter which you view us as, we have real power. Use that power, and a big box can find itself in the recycling bin.
I am made aware of Planet Institute, a mentorship program ostensibly owned and operated by Planet Depos LLC and registered by Planet Depos under the WHOIS lookup. Notably, its registration predates this article by nearly a thousand days. As always, I encourage agencies taking the jump into advocating for court reporting, specifically stenography. Every dollar spent on steno is valuable and important. In my view, every company can easily turn the ship around, get off the digital craze, and grow some value for shareholders by making stenography training and mentorship their focus. That said, I mention this out of commitment to intellectual honesty more than actual belief that PD will come out as a pro-steno player. As always, happy to be proven wrong and watch them come out as a consistent pro-steno advocate.