Last week’s blog touched briefly on the need to provide appellate courts with an adequate record of trial court proceedings that are the subject of an appeal. Without an adequate record – in almost all cases, a verbatim written record – there is no way for any litigant to successfully appeal an unlawful trial court action. Unfortunately, through no fault of their own, many litigants today are unable to obtain a transcript of trial court proceedings. There are simply no court reporters on hand to do the work.
“The worsening court reporter shortage combined with statutory restrictions on electronic recording has created a constitutional crisis, with thousands of litigants in family law, probate and unlimited civil proceedings leaving court each day without any official verbatim transcript of what transpired in their case, effectively eliminating their ability to appeal.”
Appellate courts decide cases “on the record.” Almost always, “the record” refers to a written collection of transcribed testimony, documents admitted into evidence, and the trial judge’s fact-findings and legal rulings.
But trial court records rarely start out as written records. They’re often a hodgepodge of audio recordings, video recordings, deposition transcripts, pleadings, court rulings, and both written and tangible evidence. It’s appellate counsel’s job to consolidate these disparate trial court artifacts into a record that will support appellate relief. The consequences for failure at this task can be extreme.
In California, where trial court proceedings are recorded digitally but appeals must be supported by a written record of relevant portions of those same proceedings, the first order of business for appellate counsel is to obtain transcriptions of relevant trial court proceedings. The failure to do so creates a near-certain impediment to appellate court relief:
“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error.” Estate of Fain, 75 Cal.App.4th 973, 992 (Cal. Ct. App. 1999).
That was the problem encountered by appellant’s counsel in Albinali v. Calvert, No. B331322 (Calif. Ct. App., 2d Dist., June 28, 2024). Pretrial discovery in the case was marred by a litany of obstructionist behavior, including repeated unsuccessful attempts to secure the appellant’s deposition – resulting, eventually, in terminating sanctions.
The appellant argued on appeal that the trial court erroneously dismissed her case because she failed to pay monetary sanctions imposed for discovery violations. This might have been a good argument, but the appellate court didn’t actually consider it. That’s because nothing in the record indicated that the trial court had, in fact, dismissed the case for that reason. “In the absence of a reporter’s transcript or suitable substitute, we are left only with the court’s minute orders and judgment of dismissal,” the court remarked. “These orders do not conclusively establish that Albinali’s case was dismissed for the reasons posited by Albinali.”
More recently, in Moran-Hidalgo v. Texas, No. 14-23-00322 (Texas Ct. App., 14th Dist., Aug. 15, 2024), the Texas Court of Appeals declined to even consider an appeal because the appellant had neglected to file written transcriptions of electronically recorded trial court proceedings.
Texas Rule of Appellate Procedure 38.5(a)(1) states that if trial court proceedings are electronically recorded “[a]t or before the time a party’s brief is due, the party must file one copy of an appendix containing a transcription of all portions of the recording that the party considers relevant to the appellate issues or points.” Elsewhere, Rule 38.5(b) provides that appellate courts “need not review any part of the electronic recording.”
Consequences of the Court Reporter Shortage
The situation is similar in every state. No written record, no luck on appeal. This unassailable fact should make it easy to appreciate the gravity of the current shortage of court reporters across the country. Today thousands of cases are being decided in courtrooms that are unable to produce a verbatim transcript of legal proceedings. Even in courtrooms with audio-recording technology, the last step in the process – the production of a written transcript from the audio recording – is going undone because there are no trained court reporters available to do the work.
In California, the situation is particularly acute. Electronic audio-recording of judicial proceedings is permitted for a limited class of cases, but stenographically created written transcripts are statutorily mandated for the most important matters. Since January 2023, in the Los Angeles County Superior Court alone, more than 525,000 hearings occurred without a verbatim record. Statewide, an average of 1,571 county court hearings have been conducted without a verbatim record each day this year. This is all due to a lack of trained court reporters.
On Aug. 15 this year, Los Angeles Superior Court Presiding Judge Samantha P. Jessner sounded the alarm.
“The worsening court reporter shortage combined with statutory restrictions on electronic recording has created a constitutional crisis, with thousands of litigants in family law, probate and unlimited civil proceedings leaving court each day without any official verbatim transcript of what transpired in their case, effectively eliminating their ability to appeal,” Jessner said.
It is possible in some states (California included) for litigants to hire private court reporters to create a verbatim record, but many litigants lack the financial resources to engage in this type of legal self-help.
California courts spent $20.3 million in 2022-23 to recruit, train, and retain court reporters, with limited success. According to Jessner, the Los Angeles Superior Court lost 11 court reporters since it began offering financial incentives in 2023. Since 2018, the court has incurred a net loss of 117 court reporters. California, along with other states, is also exploring the use of voice writers and remote court reporters to address the shortage of traditional court reporters.
The right to an appeal is a fundamental protection afforded to everyone by the U.S. legal system. Until the court reporter shortage is addressed, thousands of litigants across the country will be unable to exercise their appellate remedies and, by extension, their constitutional and statutory rights.
