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‘What do you mean I can’t get transcripts?’

Monday, October 05, 2020 @ 3:22 PM | By Susan Porter


Susan Porter %>
Susan Porter
Imagine you have just completed a 14-day trial by Zoom on behalf of your client. You did a bang-up job of presenting your case and an even better job of exposing the flaws in opposing counsel’s evidence. Nonetheless, the judge ruled against you. Never mind, that’s what appeals are for. Right?

I am an authorized court transcriptionist (ACT), one of some 600 in Ontario, responsible for preparing the written record of court proceedings. We take great pride in our work and employ a range of skills to turn out accurate verbatim transcripts from digital audio recordings and annotations. But no matter how experienced or determined we are, we cannot transcribe what we cannot hear; nor would we ever presume to guess at spellings for complex terminology, names of places and people or incomplete citations.

“When a word or phrase is impossible to discern, and all avenues to ascertain what was said have been exhausted, you may insert [indiscernible] at that point in the transcript. [Indiscernible] should be used rarely.” That’s taken directly from our Court Transcript and Procedures Manual, and having to rely on this instruction is certainly our last resort. Lately, this term is being used with frightening frequency.

So, back to your appeal: you ask me to prepare certified transcripts. 

Unfortunately, when I receive the audio, I discover that in addition to not having any useful annotations or supporting documentation to refer to, I can only hear one of the participants, who sounds as if they are in a deep cave. And regardless of my experience, my noise-cancelling headphones, my trained ear — it would take me days rather than hours, only to provide you with pages of text so riddled with “(ph)” (indicating an approximation of what the word might be), “[indiscernible]” or “[inaudible]”, that any hope of an accurate verbatim transcript is moot. It’s certainly not a transcript I would, or could, sign my name to as a “true and accurate transcript of the recording,” as prescribed by the Evidence Act.

So, regretfully, I return the audio to the courthouse, as “untranscribable.” There is no record for this trial.  

I don’t know what this means for you and your client. Perhaps a retrial is called, or all the parties agree to some form of summary of the proceedings, cobbled together from notes taken by various participants.

But this won’t be a verbatim, certified record of evidence given under oath, and the nuances of your clever in-chiefs and cross-examinations are gone forever. Should there be a retrial, witnesses will have had time to rethink their responses. Aside from the inherent injustice such delays mean, the potential expenses and other burdens on litigants and the courts is horrifying, particularly when costly expert witnesses, cash-strapped litigants and traumatized witnesses are involved.

I know of one courthouse (and perhaps there are more) where the court reporter is directly linked-in via Zoom and able to receive supporting documentation; but this seems to be rare, and Internet is not available to most court reporters. There are many proceedings now where both court reporter and clerk are physically present in court, with all other parties participating remotely; the court reporter is no longer in charge of the recording. And while there may have been some kind of protocol or practice directive regarding the importance of participants identifying themselves each time they speak and ensuring that their own microphones and environments are properly set up, it is rare that the protocols are followed throughout the proceeding. 

In addition to failings of equipment and technology, court reporters are now unable to ask for “court’s indulgence” when they cannot properly hear participants or need to have a name spelled for the record, prohibited by either the technology or because they’re under instructions not to interrupt. Whether it’s participants not speaking directly into their own microphones, or background noise — everything from barking dogs to the surprisingly loud sound of paper being ripped — all the voices, frequently unidentified and at varying sound levels, are pointed at one microphone in the court. 

And while there still exist some excellent and dedicated court reporters (and supervisors), far too many of the current court reporters are insufficiently trained, with many having been only recently hired and/or treating the position purely as a gateway to more lucrative job postings either within the Ministry of the Attorney General (MAG) or any other provincial Ministry. They don’t have any idea how to conduct a meaningful “equipment check,” don’t know how to spell, have no idea how court proceedings are run, and either don’t know or don’t care about what information is required by the ACT. 

There appears to be a deliberate “dumbing down” of the role of the court reporter.  Some current courthouse job postings are now consolidating the roles of court reporters, clerks and customer service representatives in one new position, presumably in an effort to save money. And since 2014, when ACTs were deemed “independent contractors,” it is highly unlikely that the court reporter who monitored and annotated the recording in the first place will be the person responsible for turning that material into an accurate verbatim transcript. The net result is a continuing erosion of confidence in transcripts, and a growing exodus of experienced ACTs from the profession.

ACTs have been complaining about some of the issues noted above for a long time, but the move to “distance” hearings via Zoom or telephone is shining a very strong light on a systemic lack of care and indicates a culture of indifference regarding transcripts. At the very least, the problems are so widespread as to indicate that any overarching MAG commitment to transcript integrity is not being followed through where it counts.

We’ve seen lots of notices about how the courts are rapidly adapting to the new realities, and there appears to be a sense of excitement about how distance hearings, electronic filings and other technological advances will benefit the judicial system into the future. But there is no mention anywhere of transcripts. It’s all very well to put time and money into streamlining court procedures, but when no transcripts are possible, surely it’s time to reconsider some of the priorities. I’m frankly not sure which is most appropriate: “Penny-wise, pound-foolish,” or “For want of a nail ... the kingdom was lost.” 

ACTs provide an essential service, play a fundamental role in providing access to justice, yet are unrepresented stakeholders in Ontario’s judicial system. Tired of being ignored, a group has put together a document about transcript issues, “Ontario Court Transcripts at Risk — ACT Proposal of Solutions,” and submitted it to MAG. While we wait to learn what they intend to do about the problems, we think it’s important that as many interested parties as possible understand what is — and isn’t — happening to transcripts. 

Authorized court transcriptionist (ACT) and certified associate project manager (CAPM) Susan Porter is owner/operator of Sporterpro Transcription Services. Look her up on LinkedIn or e-mail her at susan@sporterpro.ca.

Photo credit / ne2pi ISTOCKPHOTO.COM

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