As president of the Chartered Shorthand Reporters’ Association of Ontario, and as a member of the Technical Evaluation Committee of the National Court Reporters’ Association, I am in a unique position of being privy to a lot of information that people in the legal profession aren’t hearing about on a larger scale. The one thing that has struck me more than anything this fall is the seemingly rampant replacement of certified court reporters for digital audio recording (DAR) technology across North America.

Many lawyers and judges I talk to often think that DAR technology is akin to voice recognition. It is not. DAR is a passive way of recording proceedings. It is not interactive. It does not create a written record. It is only “realtime” in the sense that it records as people are speaking, but it only does that – record. If someone mumbles, it records mumbling. If someone taps paper at their microphone (inadvertently), it records the tapping of paper. If someone steps away from the periphery of the microphone, it records nothing. It does not ask people to speak clearly, it does not ask people to repeat something when someone has coughed and has made hearing anything else impossible, it does not ask for spellings nor does it provide for the viewing of testimony in realtime on a laptop so that annotations, searches and transcript review can be performed on-the-spot.

The argument made by most governments who replace certified court reporters is that the DAR system is much cheaper to operate. DAR doesn’t require a pension or benefits. DAR doesn’t get sick. DAR doesn’t take vacation. It all sounds great, doesn’t it? But the problem is DAR doesn’t produce a written record. It is a recording one would need to listen to in order to locate certain pieces of speech, for example, whereas the written record uses search functions on a computer to locate areas of testimony in seconds. So what’s the value of time here? If a law clerk has to re-listen to six hours of testimony in order to find that needle in the haystack, instead of spending minutes using technology to search for that same needle in a certified written transcript, what is more cost effective? And who is paying for that additional cost?

I wouldn’t argue that DAR cannot create a good audio record. In many cases it can. Will there be failures? Of course. Like any piece of equipment, such as your computer, things do happen.  The DAR may not be activated, thereby causing no recording; it may have inaudible areas because of a number of reasons, such as interference of other noises, etc. A court reporter certainly knows when their equipment isn’t working!

Regardless of the method, a written transcript is still going to be required. So the question remains, who will provide the transcription and certification of same? Previous to the introduction of this system certified court reporters provided the transcription as they were the reporter present at the hearing. Will transcripts now be produced by typing pools, where the people who prepare your transcripts were never in your hearing, do not have access to the documents and all the information they contain – like spellings, acronyms, quotations – let alone the proven fact that if five people prepare your transcript, you will have five interpretations of what is being heard on that audio recording?

What is the price of error, of mishearing, of misunderstanding by untrained transcriptionists? What is the cost to the accused whose transcript is not accurate? What is the cost to a litigant whose life’s work may depend on that transcript? Too high, I would argue, to be left with DAR alone.

And let’s hope that the DAR system doesn’t accidentally record your private conversations with your clients and co-counsel!

I will always remember the independent testing done on this type of DAR system in the nineties, and the transcriptions bearing many, many mistakes including the famous “Sprinkler of Canada” in place of “Supreme Court of Canada.”  Can anyone using the legal system afford this?

If you are in the position where you have a recording of a hearing to be transcribed, do not pay the high price outlined above.  Be sure to use a certified court reporter who has the training and experience to understand how to prepare a transcript – this much you can control. By using a court reporter, such as those our firm employs, you will end up with a transcript that is consistent in its setup, spellings, structure and will be completely user-friendly when it comes time for you or your law clerk to ferret out all those things you look for in the transcript, because the transcripts will be in a format that works best with your litigation support packages.

Like many government initiatives where budgets are in crunch mode, it is the public that pays the price in additional user fees. It will now be up to the users of the system to protect their clients by ensuring that quality is maintained in this service area of the law.

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