Court Reporters Speak Up For The Record On Future Trials

The New York State Unified Court System commissioned the Future Trials Working Group to look at many possibilities for use of technology in the courtroom. In April 2021, the Future Trials Working Group released a report with recommendations for the court system. On page 13 of that report, there was a section regarding the possibility of automatic transcription, and specifically automatic trial transcription.

The report had a strange view on the possibility of automatic transcription. In one area, it noted “the most foreseeable endgame in the evolution of trial transcription likely is full automation.” In another part just down the page, it stated there were “…obstacles to the use of such technology on a fully automated or even predominantly automated basis for the foreseeable future”, going on to note “…automated transcription — at least at its current stage — could threaten access to justice if widely employed.” The most foreseeable endgame is automatic, but in the foreseeable future, the technology is unreliable. This is, in my view, a strange view to take. The report goes on to recommend that the court system study outside vendor offerings for automated/remote transcription or translation.

Court reporters and the people that represent them did not sit in silence. A response was prepared by the New York State Court Reporters Association and the Association of Surrogate’s and Supreme Court Reporters. Several unions supported the response, and the full letter and list of supporting unions can be read below. My personal favorite quote? “…use of automated speech technology for trial transcripts, by all available information, would not threaten access to justice, it would implode it.” We have, as a profession, put our foot down and said “we are here to guard the record, we have been guarding the record for over a century, and we will do all we can to educate the system on why other technologies are inadequate.” State and national association membership has never been more important. Union membership has never been more important. When you contribute to these organizations, you give them strength to advocate for you.

In full disclosure, I did contribute to the letter. But without the work of ASSCR President Eric Allen and NYSCRA President Joshua Edwards, this would not have been possible. Again, it all points to the importance of association and union membership. Members empower leaders. Leaders fight for an advocate on the behalf of members. It’s a symbiotic relationship that, if you are not currently a part of, you certainly want to be.

Addendum:

A response was received by the court system and is featured below.

Thank you Eric Allen and Joshua Edwards.

Workers Rights

Here on Stenonymous we have explored many different things related to freelancing and stenographic employment. As a quick recap for those that have trouble navigating the site, we’ve discussed turnaround times and how they have gone from 30 days to 5 with no extra money involved. We’ve discussed the Beginner’s Trap and freelance loyalty, which is all about how you must be loyal to yourself to earn a better income. We’ve brought out the need to build skills that make you marketable. We have admitted the power of a contract and thought about what should go into a rate sheet. We’ve gotten into billing, anticontracting, form SS8, and what it means to be an independent contractor. We have explained why we can’t discuss rates, and then we have discussed rates. We even put out other people’s rates.

Now it’s time for something a little different. I would like people to seriously consider a dilemma the field finds itself in. As independent contractors, we are consistently in a bind of being afraid to discuss rates thanks to antitrust concerns. This fear is probably at times a little overblown, but it causes us to be silent and to act very content even when things are not going well. Indeed, our biggest organizations, our NCRAs and NYSCRAs are trapped in the position of being unable to serve as forums for rate discussions due to liability concerns. All this is happening while some of our biggest purchasers are making a push from stenographic reporting to digital recording. I think it is time to ask ourselves what we actually get out of the independent contractor label. It’s out there that employers can save up to 30 percent by labeling employees as independent contractors. It’s out there that about 20 percent of employees are misclassified. Succinctly, the gig economy is bad for workers. Employers are doing their best to eliminate the cost of workers compensation and unemployment. These are serious benefits, worth thousands of dollars, that independent contractors do not get. Independent contractors have little to no federal protection from otherwise illegal discrimination and need to go to small claims instead of Department of Labor if we go unpaid. Employees are also entitled to FMLA leave, and in New York, family leave laws. Employees have the right to unionize and the employer is forced to enter good-faith negotiation with the employee union. Under today’s law in New York, the only way to take any of these benefits, if you are a commission employee misclassified as an independent contractor, is to dispute the issue on a case-by-case basis. How many people have the guts to do that?

We’re not even getting the benefits of being independent contractors, which would be the write-offs, the ability to hire other workers, and the ability to set our own hours. Think about it. How many of us in the freelance sector print our own transcripts or have consistent business write-offs? Yes, it is nice to write-off the occasional mailing fee, but the agencies have largely taken up any function that gets a write-off except for your starting equipment fee. Ironically, I have more write-offs as an employee with the state, thanks to my 1099 income, than I ever did as a freelancer. The ability to hire other workers? Go ahead and try sending someone who isn’t you to a deposition. See how many times you can do that before they stop sending you work. When I call my plumber, I don’t get to choose who he or she sends. Setting your own hours? Don’t know about everyone else, but I know that I got deposition forms that said please arrive early and gave me a start time. My hours were more or less set by the work, which really isn’t that much different from your boss telling you I need you at 10 tomorrow. We live in America, and people are entitled to refuse work any day they feel like, it’s not something we need the mantle of independent contractor for.

From New York to California independent contractors are beginning to challenge their status or realize the raw deal. California came out with a simplified three-part test for independent contractors. Maybe we should have a serious discussion about whether the title is worth keeping for most of us. Maybe we should talk about new laws and enforcement for independent contractors in New York.

It’s absolutely ludicrous to me that we box ourselves into a position where “freelancers” who are meted work, have deadlines dictated to them, are told when to arrive, what to bring, and disciplined via withholding work when deadlines are slipped, defend this model. The numbers don’t lie. Turnaround times are six times faster. Rates haven’t risen with inflation. Independent contractors save employers 30 percent. What could you do with a 30 percent raise? Hell, what could you do with a 10 percent raise? I mean, I have to go back to the article where I calculated out 1000 different rates. If you’re the breadwinner, unless you’re making at least $5.50 a page average, you’re working nights and weekends to make ends meet. The pricing structure doesn’t even need to change. The only thing that would have to change is agencies would have to pay minimum wage if your page rate didn’t give you at least minimum wage. Guess what? That’ll basically never happen. Imagine a world where you go take a deposition for an hour and only make 20 pages. Now imagine you transcribe for one hour. Your page rate is $3.25. $65 for two hours. Not a great rate but realistically what my generation was lowballed with. Way above minimum wage. We’re specialized workers, we deserve it.

Ultimately, I am of the opinion that in this market and under these circumstances the losers are the independent contractors. There are no substantial gains to being independent contractors, and anyone with private clients could just continue their private clients as a separate business entity. My opinion is malleable and I’m open to debate, but beyond the shallow arguments of we have always been independent contractors and we buy our own equipment, I’ve heard precious little that impresses me. You know who else buys their own equipment? Teachers.

Maybe it’s time for a swap. Maybe it’s time for our trade organizations to shift to labor unions. At the very least, it’s time to talk about these issues in public and consider what can be better.

EDIT. On February 11, 2019, I discovered this JCR article which appears to have a different viewpoint than my own but also talks about the issue. I feel it is important, when possible, to give as much information as possible, so please feel free to review that and join the discussion.

To E Court Reporters and Transcribers

I’m writing to you today because chances are high we aren’t that different. Maybe we both like law, or depositions, or working with lawyers. Maybe we both heard this was a great career with lots of potential. Maybe we will both face the same hurdles and challenges. Maybe you’ll cruise around my little blog here and find articles that pertain to you.

For the longest time, the deposition was the space of the stenographic reporter. Depending on where you’re at, we were making a lot of money and still have great careers today. Now what’s happened is the companies that previously used stenographers are trying to move towards transcription. They’re using you all to record and transcribe what we take down and transcribe. And I’m here today to make two points for your benefit:

  1. Try stenography. It’s easy to learn, it’s hard to do fast, and our community is in the process of building free resources for you to try it out.
  2. There’s a constant and unending thing at play called the market.

Stick with me, because I’m going to offer solutions. We all know that there are buyers and sellers of goods and services, and they are always, through one way or another, negotiating. If Law Office A doesn’t like Reporting Company B’s style or service, they can always use Reporting Company C. That’s the market at work. But there’s an unspoken side of the market, the labor force. Stenographers, voice writers, electronic reporters, transcribers, are all players in the market, and our actions can dictate our future.

Succinctly, when I was a deposition stenographer I was making only about $3.50 to $4.00 a page, and 25 cents to 50 cents a copy. That’s on a regular 14-day turnaround. There were also services where we’d rush the transcript for more than 6 bucks a page. To put that in perspective, let’s say that a fast-talking lawyer can do at least 60 pages an hour. 240 an hour. But for every hour at a deposition it would take me about an hour of transcription, 120 an hour. Sounds high, right? But I was an independent contractor and had to factor in the days where I made $0.00.

So now let’s take you, the valuable, amazing person they’re now pitching $20 an hour at, or $40 an hour at. Let’s say that you’re also doing the transcription work, and let’s assume it takes you much longer so you’re getting more hours transcribing. $40 at the 1 hour deposition, then four hours of transcription. $200. It takes you 5 to 10 hours of work to make pretty much the same $200 I was getting in two hours. Don’t forget, you’re doing pretty much the same work, it’s just taking you longer and making your life harder.

So what are the solutions? I’ve got 3:

  1. Try stenography. It’s going to make your life easier. You’re going to command higher rates and pump out work fast. Has someone told you it’s dead? Consider whether they have a financial interest in telling you that.
  2. Negotiate for more. Just like I’ve told stenographers for the last 4 years we are what we ask for. The work you’re doing is hard, and it is valuable. They can afford to pay you more and they know it, and I know it, and now you know it too. They’re not passing the savings of using you off to the lawyer, they’re pocketing it. And as capitalism teaches us, the money is always better off in our wallet.
  3. Unionize. I’m not even kidding. As freelancers we deposition reporters would’ve had an uphill struggle to unionize. Unions are a dirty word now but let’s look at what they’re entitled to by law: Good-faith negotiations. Ultimately the union gets a peek at company finances and the company and union negotiate on what would be a fairer market rate for the services being provided. Where direct pay isn’t available, a union could negotiate for job security, better workplace rules, and medical or other benefits. There are even already legal workers unions in NYC.

If you found this helpful, spread the knowledge. Empower your colleagues. Fight because this is a fight worth winning. If you found this strange, consider that the rules in life are too. The longer you play by the rules dictated to you by others, the more you are set to lose. Take control. Be polite, be professional, be the best, but go forward with the understanding that you are a market force, and your actions dictate the future.