Smith, Lyle D.

English

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North Dakota Law Review Volume 28 Number 3 Article 2 1952 The Court Reporter's Viewpoint Lyle D. Smith Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Smith, Lyle D. (1952) "The Court Reporter's Viewpoint," North Dakota Law Review: Vol. 28 : No. 3 , Article 2. Available at: https://commons.und.edu/ndlr/vol28/iss3/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. THE COURT REPORTER'S VIEWPOINTLYLE D. SMITH0THE PURPOSE of this paper is to impress upon attorneys the needfor a better understanding of the function of the court re-porter and to attempt to explain how the members of the Barmay cooperate in obtaining one of the desired objectives of acourt action, an accurate record. The following suggestions forattorneys are meant to promote a more understanding relation-ship between the practitioners and the court reporter.Many of the older members of the Bar remember the meticu-lous care with which papers were once drawn; the courteousnessto the Court, opposing counsel, and witnesses during the courseof the trial; the deliberateness and conscientious effort of utter-ance which characterized the lawyers of former years.The tempo of modern-day life and the pressure of economicnecessity have apparently changed all this. As this change hastaken place, more and more reliance is being placed by bothjurists and attorneys upon the ability of the court reporter, whois called upon to record the testimony and comments of the Court,counsel, and witnesses, often at extreme speeds and almost in-variably with entire disregard of the reporter's presence by Courtand counsel alike.The responsibility of making a record of a trial rests uponthe shoulders of counsel under the supervision of the Court. Butthe responsibility of decipering what transpires and later makingan intelligible record of it rests upon the reporter. Every courtreporter should regard this responsibility with great respect.A competent reporter should be able to translate the verbaljumbles of both counsel and witness into terms of ponderability,and he should be able to keep. the record straight when othersare oblivious to the very fact that a record is being made.Keeping in mind the importance of a clean record to the Court,counsel, and most important to the client himself, it would seema matter of compulsion that those concerned in using the rec-ord should exercise the utmost care in its making. The opposite-inadvertently, perhaps-is too often the case. It is the opinionof this author that the curriculum of the country's law schools*Official Court Reporter, District Court, Fourth Judicial District of theState of North Dakota.NORTH DAKOTA LAW REVIEWshould place more emphasis upon the factors which go to theproper making of the record of a Court trial.If the members of the Bar are interested in this subject tothe extent of merely considering the following suggestions, I willhave accomplished my desire to create a better understandingbetween the attorney and the court reporter.Counsel in the trial of an action should never lose sight of thefact that what they are saying is being recorded. If attorneys areconstantly conscious of this, the end result will be more accu-rate and readable transcripts, which in some instances deter-mines the victory or loss of a lawsuit.The elimination of repetition, even though opposing counselfails to object to the same, will effect a more orderly and logi-cal presentation of the evidence, which will in turn result inreduced costs of transcripts, hence the reduced cost of the over-all litigation.SPEECH IN THE COURTROOMOf prime importance to the court reporter is that he hear eachand every word that is uttered during the course. of the trial.Failure to hear distinctly each and every word may result in somematerial matter being omitted from the record, or it may go so faras to alter the entire meaning of a sentence or an entire paragraph.The reporter should not be required to guess at what is beingsaid and wonder whether his guess is correct while the testimonyis progressing at a fast rate of speed.The ordinary witness cannot be expected to possess the samedegree of intelligence and learning as Court and counsel. Diffi-culties which are encountered by reporters with witnesses dueto the nervousness of some witnesses, language peculiarities anddefects and the like can be alleviated by counsel prior to thetrial by admonishing witnesses as to the procedure used in thecourtroom. Nothing can be more disturbing to the reporter thanan unlettered, foreign-born witness. I have in mind, to illustratethe point, the client in a contested divorce action who has beenhenpecked all of his or her married life and uses the court trialas an opportune time to release his or her woes. Strong feelingbetween the opposing parties tends to increase the reporter'sdifficulty with witnesses' speech.Sometimes it is more important that the reporter hear correctlythe testimony than the Court because many times the Judge willrequest the court reporter to refer back to trials in which he hasTHE COURT REPORTER'S VIEWPOINTfailed to grasp the meaning of a certain point or failed to hearthe progression of words and relied upon the reporter to catchwhat he had missed.SIMULTANEOUS TALKINGIt often happens that impatient counsel will interrupt the re-marks of the Court, opposing counsel, or the witnessses. Thispractice is downright discourteous. In that event, the burden isplaced upon the reporter to not only record what the originalspeaker is saying but also to keep in mind the interruption so itmay be recorded. Reporters usually have a reserve speed in theirmethod of shorthand to cope with such situations, but in manycases the practice gets beyond the stage of human comprehen-sion. This makes for confusion in the transcript with dashes to in-dicate interruptions and thereby increases the cost of the litigation.FIGURESIf counsel should testify as to a figure, for instance $1.08, andsays "on6-o-eight," the reporter must be the guesser and hesi-tate momentarily to draw his conclusion as to the exact figurementioned. It is somewhat embarrassing for the reporter to stopcounsel every time such a situation arises. "June nineteen" maybe either "June 19th" or "June, 1919."The attorney no doubt is so well versed on the dates and fig-ures involved in his lawsuit that he is likely to pass over themin the manner stated above. But what must the Judge and courtreporter do who are hearing the case presented for the first time?NAMESMany proper names sound alike. For instance, Knudson andKnutson and Knudsen sound so similar that the reporter becomesconfused as to the correct spelling; and this may necessitate hisstopping the proceedings to get the correct spelling of the name.Proper names should be spelled out by counsel; but if such pro-cedure is impractical to counsel, any proper name arising in thecourse of the trial should be given to the reporter before theproceedings start so that an unnecessary interruption will beaverted.READING INTO THE RECORDIt is a known fact that a person's word-speed rises tremendouslywhen he is reading from written material. Reporters are con-tinually plagued with this speed in reading from various lettersNORTH DAKOTA LAW REVIEWand reports that concern the materiality of a lawsuit. Often thematter that is read is quite material to the proceedings; and ifthe reporter fails to record what is read and is unable to procurea copy from counsel, the record will not contain the intentionof the reading. If attorneys would deliberately slow their word-speed down when reading any matter, it would tend to relievea certain strain on the reporter and go toward a more accuraterecord. Expert medical witnesses, especially, should be admon-ished regarding reading from reports.EXHIBITSOften counsel will come into the courtroom with his exhibitspreviously marked. This tends to create confusion, especially ifthe reporter doesn't use the system that is denoted on the ex-hibits. It is more practical to leave all exhibits blank as to mark-ing and leave it to the reporter to keep track of the exhibits asthey are entered.The practice is prevalent where counsel will bring an exhibitto the reporter's desk, lay it down, and continue with the ex-amination of the witness; then, when the time arrives for theoffer of the exhibit or for questioning the witness concerning it,there is a quizzical look on the attorney's face as to why thereporter hasn't the exhibit marked. Reporters will not forsakerecording what is being said to mark an exhibit. Time mustbe given to the reporter to mark any and all exhibits. Refer-ence to "this exhibit," "this letter," or "this plaintiff's exhibit"without identifying the same is meaningless when the transcriptis finally typewritten.ON AND OFF THE RECORDWhen counsel desires certain matter to be off the record, heshould so designate to the reporter. It is very perplexing to thereporter to sit idly by while a soft-toned, whispered conversa-tion is transpiring between counsel with an aftermath of "I'llso stipulate."Likewise, it is extremely important that counsel designate tothe reporter when off-the record discussions are terminated. Thereporter should not be required to guess as to what counseldesire or.do not desire included in the record. Even a gesturewith the hand is often sufficient warning to the reporter that therecord should be resumed.If the occasion should arise where counsel desire to conferTHE'COURT REPORTER'S VIEWPOINTwith the Court before the bench, these confidential conversa-tions may fail to reach the ears of the reporter. If counsel desiressuch material to be included in the record, he should so designateto the reporter.INDICATIONSThe use of meaningless expressions as "right about here,""about as long as this room" and "about this high" are moreprevalent among witnesses than attorneys. However, these ex-pressions can be defined by counsel whenever they arise. It hasbeen the writer's experience that most attorneys are conscious ofthis error and are quick to correct it.COUNSEL APPEARINGBefore the trial of an action, a good practice would be foreach appearance to submit to the reporter the following data:1. Counsel's name and firm designation.2. The title of the action in which he is appearing.8. The party he is representing.Not too much difficulty is experienced by reporters in this re-gard; however, there are times when attorneys appear in casesand the reporter is not acquainted with them, even though theyare familiar to the Court and other counsel.In connection with the above, there are some actions whichrequire that two or more attorneys represent one client. If suchbe the case, the examination of each witness should be carriedon by one attorney. It becomes rather annoying to the reporterin concentrating on the testimony at hand to be confronted withan entirely strange voice interrogating the witness from someother location in the courtroom.DIRECT, CROSS, REDIRECT, AND RECROSSThere should be no necessity-and I have conferred with manyjurists and attorneys on this point-for any examination to gobeyond the recross stage. A favorite pastime of attorneys seemsto be, after the recross examination is concluded, to take alter-native passes at the witness. The only way this type of examina-tion can be described is in a colloquial manner, that is, exclud-ing the regular Q-and-A setup, which tends to increase the costof the litigation immeasurably.VOLUME, SPEED AND FATIGUEIt is difficult to impress upon members of the Bar the prob-lem that most, if not all, reporters are confronted with as regardsNORTH DAKOTA LAW REVIEWa sustained speed in taking the dictation of a court action andthe reaction of that sustained speed upon the mental functioningof the reporter.From experience, the word-speed in an average trial rangesfrom 150 words per minute to as high as 225 words per minute,and sometimes higher. The modern-day reporting schools re-quire a speed of at least two hundred words per minute in takingdictation before graduation and then are reluctant to graduatea prospective reporter who attains that speed. At a speed oftwo hundred words per minute, shorthand or stenography mustbe written at a rate of three words per second.In this connection, the reader is referred to the beginning ofthis paper to recall the hesitations and guesses that the reporteris required to make. It can be readily seen that at a speed oftwo hundred words per minute, should there be a mental lapseof even a second, the lost words must be compensated for byincreasing the writing speed almost twofold.As this mental exhaustion is aggravated, the reporter mustbe given some respite to regain his endurance and composure.In reality, the Court directs the trial of an action and shouldcall recesses to rest the reporter; but should the Court hesitateor inadvertently forget the recess, courtesy should be shown byeither counsel to suggest a recess.Reporting the trial of a lawsuit can be compared to runninga mile at the same speed required to run the 100-yard dash.Human endurance cannot be taxed beyond two hours as regardsreporting. Many reporters are hesitant to suggest a recess in thehope that either counsel or the Court will make the suggestion,with the result that far too many times the reporter will be re-quired to take testimony for three or four hours without rest.The degree of concentration and coordination required of thecourt reporter in listening to and recording words and phrasesaccurately and following intelligently the trial as it progressesis probably not exceeded in any other type of professional work.The pace and complexity of the court trial is not governed bythe reporter, it is governed by the attorneys under the super-vision of the Court; and any consideration in the form of theabove suggestions by attorneys to court reporters will result inmore accurate records of trials, a more understandable relation-ship between attorneys and court reporters, and a reduced costof litigation.NORTH DAKOTA LAW REVIEWMember, National Conference of Law ReviewsVOLUME 28 JULY, 1952 NUMBER 3STATE BAR ASSOCIATION OF NORTH DAKOTAEugene A. BurdickPresidentRobert A. AlphsonSecretary-TreasurerE. T. Conmy, Sr.Vice-PresidentRonald N. DaviesExecutive DirectorEDITORIAL COMMITTEERonald N. Davies, ChairmanDean 0. H. ThormodsgardHarold D. ShaftCharles L. CrumErnest N. PaulUNIVERSITY OF NORTH DAKOTA SCHOOL OF LAWCONSULTING FACULTY MEMBERS0. H. Thormodsgard, DeanTheron W. AtwoodKeith W. BlinnRoss C. TisdaleDaniel J. ChapmanAssociate EditorSTUDENT EDITORIAL BOARDRussell C. NerisonEditor-in-ChiefLaVern C. NeffAssociate EditorJohn T. AndersonJim R. CarriganHerman J. ElsenFrederick R. HodoshEverett HammarstromFrank J. KosandaFrederick E. MartinJoseph T. NoahPaul K. PancratzWilliam E. PorterJames R. PrattFrancis J. SmithDaniel TwichellVeloyce C. WinslowCharles Liebert CrumFaculty AdvisorThe views herein expressed are those of the individual writers and are notnecessarily those of the North Dakota Bar Association or the University ofNorth Dakota School of Law.

The Court Reporter\u27s Viewpoint

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The Court Reporter\u27s Viewpoint

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