June 21, 2023 – Aided by technology, Wisconsin’s court system is moving toward a hybrid approach to address a longstanding shortage in court reporters.
That approach is laid out in a recently released report issued by a committee appointed by Director of State Courts, the Hon. Randy Koschnick. Koschnick appointed the 30-member committee, which included judges, district court administrators, and court reporters, in the summer of 2022.
The committee’s charge was to recommend changes to promote the efficient use of the court system’s resources while ensuring that the courts in the state’s nine judicial districts continue to make records of court proceedings.
Digital court reporters type transcripts on a traditional keyboard while listening to a recording made on a digital audio recorder (DAR).
Jeff M. Brown, Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Stenographic court reporters, on the other hand, make detailed notes of court proceedings in real time, using a 22-keyed machine called a stenotype. Those notes serve as a rough draft from which a stenographic court reporter can make a complete transcript later, if needed.
Stenographic court reporters type in syllables, rather than letters, by pressing multiple keys – like playing a chord on a piano – on each keystroke. For instance, to type the word “overruled,” a stenographer will press three different combinations of multiple keys to type the syllables “ov,” “er,” and “ruled,” instead of typing each letter in the word.
The reduction in the number of keystrokes necessary to type a word, along with software that’s included in modern stenotypes, enables stenographic court reporters to, in effect, capture in-court dialogue in real time.
But learning how to use a stenotype and obtaining the legally required certifications required to be a stenographic court reporter can take two to four years of school. That commitment has become a barrier to re-filling the ranks of retiring stenographic court reporters.
“Stenography isn’t popular because it takes a lot of intensive training and education,” Koschnick said.
According to Koschnick, the advent of digital technology has made stenography “a dying art,” like, say, film photography or vacuum tube repair.
“Stenography schools are closing down all over the country,” Koschnick said. “We used to have two in Wisconsin, we now have one.”
By contrast, becoming a digital court reporter requires only the completion of a one-year, 100% online course at Fox Valley Technical College, which has locations in Appleton and Oshkosh.
“Starting pay is about $50,000 a year, with full state benefits,” Koschnick said. “Reporters can make up to $80,000 a year once they have several years in and get their certifications.”
Wear and Tear
The two-to-four years of education isn’t the only thing making stenographic court reporting less attractive. Over time, all those keystrokes add up.
Koschnick said that some stenographic court reporters suffer from carpal tunnel syndrome and other hand and wrist injuries later in their careers.
Another burden borne by stenographic court reporters is equal parts aural and mental: transcribing a court proceeding requires them to listen like hawks and muster superb concentration for hours at a time:
“If they miss the word ‘not,’ that can throw a case in completely the opposite direction – ‘You will go to prison for ten years,’ ‘You will not go to prison for ten years,’” Koschnick said.
Ideally, Koschnick said, stenographic court reporters would also learn how to use the DARs. Learning how to use the DAR frees a stenographic court reporter from having to create a stenographic record for every court proceeding he or she is assigned to.
“We’re encouraging the stenographers to learn the DAR because we know that certain hearings have a much lower likelihood of needing a transcript than others,” Koschnick said.
For instance, he said, many felony cases (and some civil jury trials) will require a transcript because they’re often appealed.
“But if you’re in evictions or small-money disputes, without lawyers, you’re probably not going to need a transcript, so we’re encouraging stenos to use the DAR for those types of proceedings because it’s a lot easier on their hands and their wrists.”
Because the DAR creates an audio record of the proceeding, a stenographic court reporter trained on the DAR can always go back later, listen to the audio, and create a transcript should, say, a small-claims or eviction case be appealed.
“But, if you’re doing a felony jury trial, then use your steno machine,” Koschnick said. “So, it’s kind of the best of both worlds for them.”
Using a DAR also allows a court reporter to work in a different location than the court proceeding he or she is recording, as long as he or she is reporting from a court facility.
“If you want to live on Lake Superior and work in Milwaukee, we can do that,” Koschnick said. “There’s so much flexibility.”
Requiring the digital court reporters to report from a court facility is necessary, Koschnick said, so that they can use the court system’s CCAP network.
“CCAP is a professionally maintained, IT network,” Koschnick said. “We have hardline connections to our state offices. Also, the DAR machines are delicate equipment and they’re sophisticated and expensive.”
In the early days of the pandemic, some digital court reporters reported from home, via Zoom. But there were problems with glitchy and underpowered wi-fi networks and with Zoom.
“We can’t use Zoom for the audio recording of the court proceeding– it’s solely for the judge to stay in touch with the court reporter during remote proceedings,” Koschnick said. “Zoom is not reliable enough for taking and recording the proceeding, whereas the DAR has eight-track recording.”
Another flaw in the old system addressed by the advent of digital court reporting is a court reporter’s absence due to illness or other unexpected cause.
“In the old days, if a court reporter was sick and there was another reporter two counties away, we had to have that person get in their car and drive across county lines,” Koschnick said.
“Now, a statewide pool reporter can zoom into La Crosse at 8:30, Eau Claire at 10:30, Green Bay at 1:15, and Milwaukee at 3:30. We have all this flexibility to move people around, in a matter of a minutes.”
Increased reliability is not the only benefit provided by the audio technology at the heart of DAR. The software’s incredible sensitivity allows DAR to pick up utterances that a court reporter, sitting a dozen feet from the witness stand, can’t necessarily hear.
“We had a case last week where the DAR picked up something that nobody else in the courtroom likely heard,” Koschnick said. “A witness on the stand was uttering vulgarities about a lawyer, under his breath. On the recording, you can hear him whispering derogatory comments about the lawyer.”
Koschnick said the DAR software also allows a court reporter to dis-entangle crosstalk, something that’s common in the hurly burly of courtroom exchanges.
“You can hear what each person is saying without the other person’s voice interfering when you isolate the individual audio tracks on the DAR,” Koschnick said.
Digital a Less Idiosyncratic Medium
A simpler but more important advantage of a digital recording of a court proceeding is that any court reporter can later make a transcript by listening to it.
That’s not the case with the notes that stenographic court reporters make on a stenotype.
Each stenographic court reporter relies upon a court reporter’s dictionary – a set of syllabic codes he or she begins assembling while in school. Each dictionary is unique, Koschnick said.
“I’ve been told that if a stenographer retires or passes away, we have great difficulty in finding another stenographer who can read the original stenographer’s dictionary,” Koschnick said.
That can be a problem if an appeal – the event that typically triggers the need to create a transcript – is filed after a stenographer has retired or died.
Another drawback to relying solely on stenographic court reporters is the fact that under a Wisconsin Supreme Court rule, a stenographer need only keep his or her notes for ten years.
By way of example, Koschnick, who served as a judge in Jefferson County for 18 years, cited a person charged with a fifth offense operation while intoxicated.
“It’s a lifetime count-back,” Koschnick said. “So, if a person is charged with a fifth offense, and two of their prior offenses are more than ten years ago, there may not be a transcript, and you need the transcript to prove the prior convictions.”
“You’ve got to prove that they had a lawyer, that they waived their right to a jury trial,” Koschnick said. “You’ve got to have a transcript to prove that the proceedings were conducted properly.”
“If you don’ have that, the judge may be required to omit those priors and reduce the charge,” Koschnick said. “You might go from a fifth offense with a required three-year prison term to a second offense with 30 to 90 days in jail.”
DAR recordings, by contrast, will be preserved for 50 years, Koschnick said.
“Anybody who is properly trained to type a transcript can listen to those and make a transcript,” Koschnick said.
In 2020, Koschnick created the Statewide Court Reporting Program. It’s a pool of digital court reporters, on offer to judge across the state (under state statute, court reporters are appointed by circuit court judges).
The program has a manager, who schedules and monitors the court reporters’ work and provides training and mentoring.
The main recommendations contained in the committee report are: 1) that audio recordings be made for every court proceeding in the state, to allow for longer retention periods for recordings of court proceedings; and 2) the adoption of alternative models of supervision of court reporters – by district court administrators, as well as by judges.
Koschnick said he hopes to have DAR machines installed in all the state’s courtrooms by the end of the year.
“We’re trying to be flexible,” Koschnick said. “I want to be fair to judges, I want to be fair to the court reporters, and I want to be fair to the taxpayers and litigants.”