Dec 20, 2023
The lack of transcripts in family court makes winning appeals harder for low-income litigants. Advocates say the lives of abused women and their children are at risk.
By Viji Sundaram/San Francisco Public Press
After arranging for her three children to be picked up from elementary school, taking time off from her nursing assistant job and battling nearly three-quarters of an hour of traffic, the 40-year-old woman entered the Santa Clara County Superior Court last October seeking a restraining order against her ex-husband.
To her surprise, the judge said no one was available to produce a transcript. The next day, the woman — who we are calling Simone because she fears for her safety — showed up again. Once more, no court reporter.
Advocates for women’s and children’s rights say providing free or low-cost access to transcripts in hearings is key to equal justice.
In February, State Sen. Susan Rubio, a Democrat from Baldwin Park, introduced the Universal Access to Court Records bill, which would allow recording in Superior Court hearings when certified court reporters are unavailable. The bill hit a snag in the Appropriations Committee and will be revisited in 2024.
“It’s such an important issue,” said Lorin Kline, director of advocacy at the Legal Aid Association of California, which co-sponsored Rubio’s bill. “Until we solve it, litigants will have their rights violated, with serious life consequences.”
While the state judiciary is statutorily required to provide reporters in felony criminal, juvenile justice and dependency cases, that does not apply for civil, family, probate, misdemeanor criminal and traffic law.
Court reporters are stenographers trained to create verbatim records of hearings primarily using stenotype machines. They lay the foundation for challenging rulings when litigants claim their civil rights are violated. Their absence can doom an appeal.
Transcripts can also be used to review judicial behavior, sometimes revealing that a judge is insufficiently familiar with domestic violence law.
“Court reporters are one of the strongest tools to keep judges true to the letter of the law,” said Eric Riviera-Jurado, a staff attorney with the Sacramento-based nonprofit WEAVE — When Everyone Acts, Violence Ends. “Not having them in court allows judges to ride roughshod over low-income litigants.”
Tussle over transcription
State Sen. Susan Rubio has pushed for several reforms of family court, including Piqui’s Law. Supporters rallied with her at the state Capitol over the summer, and the governor signed the law in October. (Yesica Prado / San Francisco Public Press)
The court reporter shortage has spiked since 2012, when more than half of the 58 trial courts in California eliminated court reporters as a budget-cutting measure.
Today, California is in the minority of states that disallow recordings in family, civil and probate courtrooms, even as it has the greatest demand for court reporter services in the nation, followed by Texas and New York, which also highly restrict recording.
Rubio said she was mindful that professional court reporters, also known as shorthand reporters, might view her proposal as a job killer. But her bill stipulates that if a transcript from an electronic recording is requested, the court would first have to offer that work to a certified shorthand reporter.
Given that 80% of family law litigants in California represent themselves in court, the text of Rubio’s bill underscores that the lack of access to recording technology is especially hard on low-income people, communities of color, Native tribes, people with disabilities, those with limited English proficiency and victims of domestic violence or sexual assault.
Changing standards, technology
If enacted, Sen. Rubio’s bill will also loosen some of the stringent professional requirements that the California Reporters Association has long fought to protect.
“Most states that mandate certification have only one exam required for licensure, but California has three,” according to a 2022 report prepared for the California Trial Court Consortium, an association of small judicial districts. “All three exams regularly yield low pass rates … Moreover, the number of applicants attempting and passing the dictation exam has fallen in recent years.”
Rubio’s bill would allow people who pass the National Court Reporters examination to work in the field without passing California’s test. It would also allow judges to modify rulings relating to child custody or visitation when circumstances change.
The state has taken another step to expand its court reporter pool. Last year, the Legislature lifted a ban on voice writing, in which reporters are trained to keep an accurate record by repeating the proceedings into a microphone and later preparing the verbatim transcripts. Federal and military courts have used them for years.
Not all court reporter schools in California have introduced a curriculum specifically for voice writing, but there are several online courses, according to the National Verbatim Reporters Association’s president Rebecca Bazzle. She said it takes only six to 12 months to become a voice writer, as opposed to three to four years to become a certified shorthand reporter. It took her organization nearly a decade to persuade California to lift the voice writing ban.
Skilled labor shortage
Court stenographers are in high demand nationwide, but too few people are pursuing that career or graduating from training programs.
Factors contributing to the nationwide shortage include reduced enrollment in training and the high rate of retirement, said the heads of California’s superior courts in a public letter last year, soon after Newsom signed the bill to allow voice writing.
California’s certified shorthand reporter shortage tops that of all other states, according to the National Court Reporters Association. Only eight training programs remain today, compared with 16 in 2011, wrote Michael Roddy, executive officer of the San Diego County Superior Court, in a January opinion piece in the San Diego Union Tribune. In 2021, 175 people took the licensing exam, and only 36 passed.
Two years ago, the Legislature budgeted $30 million annually for courts to offer financial incentives to expand their pool of court reporters. Los Angeles County’s share was $10 million in each of the 2023 and 2024 fiscal years. San Francisco’s was $706,000.
But few jurisdictions have shown much success, forcing some to take drastic measures.
In Los Angeles County, home to the largest trial court in the nation, 52,000 hearings took place without a court reporter in just the first two months of this year, including 14,052 family law hearings, said David Slayton, who became court executive officer there last December.
Brandon E. Riley, CEO of the San Francisco County Superior Court, has had to juggle reporters among courtrooms to avoid turning away low-income domestic violence survivors. (Viji Sundaram / San Francisco Public Press)
Brandon E. Riley, head official of the San Francisco County Superior Court, said his court was “pretty close to the edge of the cliff.” Despite three years of recruitment efforts, the court has only 26 reporters to fill 40 slots in its 52 courtrooms.
In an email, Slayton said that if the situation persists, his court might not be able to provide reporters even in mandated cases.
Since taking over in April, Riley said he had to juggle reporters among courtrooms to avoid turning away low-income domestic violence survivors. He said he hoped to expand the court reporter pool with a new daily fee of $1,000, and by increasing the retention offer — bonus pay to keep workers in their positions — to $30,000 over three years, up from the current $10,000. Among other creative solutions he is considering is hiring voice writers, like Santa Clara County Superior Court recently did.
Prohibitive costs
Court reporters nationally earn an average of $62,000, but command considerably more in private companies. San Francisco pays the highest court reporter salary in the state — $150,000 plus benefits. “If you get past the exam, it’s a lucrative career to work in a court,” Riley said.
Alaska has not used court reporters since achieving statehood in 1959, opting instead for audio recording. In Nevada, judges are given the option of having a stenographer or a recording, and most opt for the latter, said Mark Gibbons, who served as a trial court judge there and later in that state’s Supreme Court until his retirement in 2020.
Still, any move to introduce recording in California’s 58 counties will likely continue to face opposition from unions. David Green, president of SEIU 721, which represents court reporters in Los Angeles and the Inland Empire, said in an interview last year that if the state “tries to replace shorthand reporters with digital devices, we will push back.” He declined to comment on Sen. Rubio’s latest attempt.
In the meanwhile, legal aid lawyers continue to prepare their clients for finding no court reporter when they arrive in family court.
Simone – who is originally from Nigeria – ultimately settled with her abusive ex-spouse. The judge awarded her a three-year restraining order and allowed her to continue having sole physical and legal custody of the children, ages 12, 11 and eight at the time.
She said she was disappointed that her ex would continue to have unsupervised visitation rights. She had hoped for an outcome that would have given him only restricted contact with the kids.
“A lot of women from Africa,” Simone said, “would hesitate to publicly speak up about the domestic violence they experienced, because of the stigma.”
But had a trial happened, she said, she would not have held back about the details of the abusive behavior that ripped her family apart.
A longer version of this article was first published by the San Francisco Public Press as “California’s Court Reporter Shortage Limits Access to Justice in Domestic Violence Cases.” Read more at sfpublicpress.org.
