18 August 2005

I am getting so tired of this *^%*(&

All of my petitions for appeal, to date, have been court appointed. The court reporting firms know that whether they turn over the transcripts to circuit court clerk's office on the day I order them or on the last day they could be turned in they will get paid. Guess when they are delivered to the clerk's office . . . every . . . single . . . time. Even when they are ordered to arrive early they usually arrive on the last day; they are due 60 days from the final order and court reporters can count to 60. I cannot prove that I am moved to the back of the list in order to favor "paying clients" but I have my suspicions. This has caused me a great deal of pain recently.

First, there was the case wherein the court reporter screwed up and counted her 60 days from the sentencing hearing rather than the date the Order was signed. And thank goodness she did because three days of transcripts weren't delivered when they were handed in. I got a two week extension for the filing of transcripts. The remaining transcripts were still filed late (after the extension). The Court of Appeals refused to allow the late transcripts to be used in the petition or argument. This was a huge problem because the late transcripts were the pre-trial motions - including the constitutional argument which is the primary basis for the appeal. I had to default so that I could wait until after 01 July when the law would change and allow me to file a motion for a delayed appeal for my client (prior to that the only option was for the client to waste his one habeas to get back in front of the court). In the mean time, the Court of Appeals filed a Bar complaint against me. The Bar was gracious enough to dismiss it after I provided copies of the motion for delayed appeal, notice of appeal, and petition. However, the Bar investigator reminded me that it is my responsibility to insure that the transcripts are timely filed.

Then comes the second case wherein the transcript is due on a Sunday. On Friday I go to the clerk's office and check. It isn't there. I call the court reporting firm and the person on the other side freaks out. She calls me back about 15 minutes later and tells me that the court reporter forgot my transcript. FORGOT MY TRANSCRIPT. However, she will have it done Monday and because that's the first working day after the due date they will deliver it then (and it will still be valid). Luckily, the transcript was fairly short and it was hand-delivered on Monday.

Third, there's the transcript of a jury trial which I'm appealing due Monday of this week. I've been bugging the clerks at the circuit court clerk's office for about a week prior to the due date (because in this county they order the transcripts rather than me). I check on Monday and the transcript hasn't come in. I start to sit down and write another motion to continue the due date for the transcript and drive it up to Richmond to hand deliver it to the Court of Appeals so that it arrives in time. Then, a little piqued, I decide to first call the court reporter firm. Whoever answered the phone was an expert at dealing with unhappy people because before I could get going she got the case name and told me the transcript was being hand delivered right now. Sure enough, the clerk called my office about 30 minutes later and told me they had the transcripts.

I was in the courthouse Wednesday to do a couple things and pick up the transcripts. While I'm there I stop by to talk to Tom (who was the prosecutor in the case) about the case. He's already had a look at the transcripts and tells me that parts of the trial aren't in them. I take the transcripts back to my office and found this:

"NOTE: The jury panel is called, they are sworn on their voir dire, the jury is selected and sworn to try the issue." - None of the jury selection is transcribed.

"NOTE: Opening statements are made by counsel; and the taking of evidence is begun as follows:" - The opening statements aren't transcribed.

"NOTE: The hearing is continued in the presence of the jury, the defendant being present; the Court now reads the written instructions to the jury. Following the Court's reading of the instructions, the case is argued by counsel, whereupon the jury retires to consider its verdict and returns." - None of the instructions or closing arguments are transcribed.

YOU HAVE GOT TO BE KIDDING ME!

Luckily, the errors I'm going to argue were not in those sections of the trial. But how the heck does the court reporter know that? So now I don't only have to pray that the transcript arrives on that last day so that I don't default in order to do a delayed appeal (and get a helpfully filed Bar complaint from the Court of Appeals). I also have to read every last sentence in the thing before close of business on that day to make sure that the court reporter put everything in.

But, you say, didn't you say above that you could file for an extension of the date on which the transcripts have to be turned in? Sure, I can do that. Of course, the ability to do that is pretty worthless if the transcript arrives at 2:30 while I'm at my office on the last day it's due. Even assuming I'm called by the clerk the moment the transcripts arrive and leave my office that very second I'd get to the court about 3:00. 15 minutes later I've gotten into the courthouse and the clerk has signed over the transcripts to me. Let's assume the transcript is only a few hundred pages. I can probably do a quick read of that by 3:45. And, let's assume I have my portable computer and portable printer with me (yes, I am a geek). If I move quickly, I can set up the system, type and print the motion in about 20 minutes. Abandoning my computer et al. at the courthouse I run out to my car and screech from the courthouse parking lot at about 4:10. Let's assume that I hit warp speed and there are absolutely no officers between me and Richmond (not to mention no traffic jams). I get to the city about 4:45. The city is magically clear of traffic so I get to the courthouse in ten minutes; 4:55. Of course, there's no parking in the city so I abandon my car in the middle of the street in front of the Court of Appeals. I run through the metal detector, past the Capitol Police officer, dash up the stairs and barrel through the clerk's office door at 4:59, bellowing for a clerk to stamp the motion in so that it is timely filed. The Capitol Police officer then tackles me and hauls me off to jail, but I got the motion to court on time. Assuming, of course, that the Virginia Court of Appeals' clerk's office doesn't close at 4:30 like a lot of other government offices do.

For some reason I've never tried that method of filing motions.

There remains yet another option. I could, via certified mail, file a motion for extension whenever the transcript hasn't arrived 3 days before the 60th day (gotta do it a couple days early to make sure it gets to the clerk's office before it's due). Of course, that would mean I'd be filing motions to extend in each and every one of my appeals and I can't think of a better way to endear myself to the appellate court judges (and, perhaps more importantly, the clerks). I just cannot see that turning out well. Although, to be honest, that might be what I'm forced to do.

I just love being on the hook for something which is at least partially out of my control.

10 comments:

Mike said...

Ken, this really is unacceptable. What is the name of this company? I will blog about it, using their name. Other bloggers will shame them. Seriously, their practice is not just uncool: it stresses you out, thereby making it more likely you'll make silly mistakes.

Name that firm.

Ken Lammers said...

There are several firms which do court reporting locally. Even if I could point to a particular firm, I believe the appropriate forum to name names would be in a discussion with the Clerk of Court or the Chief Judge, not here.

It may happen eventually, but at this point it looks more like my most realistic option is to start becoming one heck of a pest about a week or two out until the transcript is delivered.

Michael D. Pratt said...

Ouch.

Stories like those make me glad to be in a jurisdiction which has video records. Just take a tape to the Clerk's office and you're set.

Mister DA said...

I'm never going to complain about a transcript again. Without spending a lot of time learning VA's rules, I'd have to say, based on your experience, that they appear to border on the ridiculous. By and large, up here the court reporters who are actually, well, "court" reporters are employees of the court and don't have any other customers to worry about.

Ken Lammers said...

Well, I'm more responsible for the first example than the others. Transcripts always arrived on the last day but they always arrived. Missing two deadlines was not something I had any expectation of happening. To be honest I'm not even sure I could have gotten a second extension (probably could have).

Anonymous said...

I'm sorry you've had a bad experience with court reporters, Ken.

This thread has been linked in the Court Reporters Forum at NCRA (National Court Reporters Association) and I think information shared there is useful to the discussion, so I'm paraphrasing and including it here. (The writer is an official in Ohio.)

---------------------------

I don't know anything about how it works where this attorney is or what his issues are, but I can you that we always are told to file the transcript on its due date because to do so early starts the clock running on when the attorney's brief is due. If it's due to be filed on what is a Sunday date, we file it the Monday after and it's not late. If it's due on a Saturday, it's filed the Friday before. I've had an attorney -- a really nice gentleman -- take issue with the fact that I filed a transcript on the Friday before the Labor Day weekend when its actual due date was Sunday and the Monday was obviously a holiday and the Court of Appeals was closed.

Also, we don't typically transcribe voir dire. I believe it has to be specifically requested, and if it's an indigent defendant, it may even have to be requested through a special motion to the court as the state pays for the transcript in the first place. Openings and closings are not necessarily included as a matter of course either. The voir dire, the openings, and the closings have to be specifically requested. We transcribe the testimony because it is "the evidence."


-----------------------------------

Court reporters are not bad people put here to make your life miserable. Really, we aren't. We really do want to assist counsel and the court, and any parties that appear, through the court process, not be a hinderance, and I believe the majority of us try mightily to do just that.

Ken Lammers said...

Let me answer those points in order:

In Virginia the filing of the transcript has nothing to do with when the petition is due. I would be thrilled if transcripts turned up a week after I ordered them and very happy if they showed up a week early. It's just troubling that they show up on the last day (usually in the last hours) every single time.

The reason it was shocking that the voir dire et al. were not included is that it is the only time I have ever seen it omitted. The prosecutor who pointed it out to me the day I picked up the transcripts had never seen that either. Hired attorneys may only order portions of the transcript but court appointed get the entire thing.

I don't view court reporters as the enemy. In fact, if I had to guess where the problem originated, I'd probably say it was an issue with their firms. Court reporters sit in every criminal court I've seen in Virginia. I'll see a court reporter sitting three days in a courtroom in one courthouse and then see her again on another day of the week in the next county over.

It strikes me that if a court reporter is in court at least 4 days a week (9 a.m. to 4 p.m.) and a large number of transcripts are ordered he's going to have a hard time filling those orders.

BTW: Once I compared notes with other lawyers, it seemed like the problems we were having were all coming from one firm. However, the problems seem to have subsided since I wrote this post (except for transcripts always coming in on the last day). I don't know why things got better; I'm just happy they did.

Anonymous said...

Some firms are better than others, just like some service companies are better than others. It's a fact of life.

An official court reporter in Chicago said...

Ken,

Sorry to hear about your experiences. I'm an official court reporter in the criminal courts in Chicago (Cook County, IL). Cook County is the largest unified court system in the country and I work at the busiest felony courthouse. And we're incredibly understaffed. We're given 49 days to get appeal transcripts completed. I haven't met that deadline in a couple years. I'm working on appeals that were due in April 2005. We have about 40 reporters in our office and 95% of us are many months behind on appeals. And the State Appellate Defenders here order every single date on a case. Some cases have over 150 dates and we have to do jury selections/voir dires, opening statements--everything, every part of a case.

Obviously we need more court reporters because the Illinois Supreme Court, our former bosses, gutted and trashed the court reporting profession in Illinois. We're not getting new court reporters because nobody wants to work at our courthouse. We barely can cover our courts AND do transcripts.

Now, I don't know how busy they are in Virgina, but we're drowning in orders--both appeal and cases that are pending. Our courthouse has done probably 500 jury trials in a year. Our courthouse is 100% felony cases. 99% of the cases are for the city of Chicago, so we're busy. Our judges work long days. I've worked from 9:00 a.m. until 7:00 p.m. I've waited until 1:00 a.m. on a deliberating jury and I started 9:30 a.m. the previous day. No overtime, nothing. Straight salary. The last thing I'm going to do when I get home at is a transcript. And then back to work the next morning.

I don't like having an eight-month or more backlog over my head. Do the Virginia courts employ their own reporters or do freelance agencies bid on them? I'd think they'd have a contract where court work would come first and have to meet their deadlines.

I read a post by another person about using videos and just turning over a videotape to the appeals court. Oh, that'll work real well. So instead of reading a transcript on paper, you can turn in a videotape. Say a trial took four weeks. It was videotaped. You'd expect the appellate court to view this entire videotape that took four weeks, right? In its entirety, correct? How long will that take? You can't fast forward the tape. You might miss something. You'd have to watch this thing at the same pace the trial took. And you'd have to be in front of a VCR the entire time.

A hardcopy transcript on paper I'd think go much quicker. People can read faster than watching a videotape. And you can read a transcript anywhere; no need to have a VCR.

I understand your frustrations; I hope you see my points and where I'm coming from. It's not like I don't want to do my transcripts. I have an obligation to get them done and I will--eventually. But right now there's too much work, not enough court reporters and only so many hours in a day.

Anonymous said...

Question: Ken, did you ask the court reporter for the transcript which you needed for the appeal, on a RUSH basis, or by a certain date ahead of time? I have not worked on appeals, but I have written numerous motions. It helps to make sure I have everything I need way ahead of time so I don't have to rush at the last minute.

Was this your first appeal? In some jurisdictions, you have to specifically request the portions with the jury selection, opening statements, and jury instructions.