As a practical matter, if we get nothing for the case, we eat the costs we advanced.
If we get a favorable verdict or settlement, the client’s net is less.
Court reporters and clients are getting less
Lawyers are paying more
The quality of transcripts is not as good
Something’s very wrong.
—Brewster Rawls, Esq.
Rawls Law Group, Virginia
Contracting Defined
Since the early 1990s, large court reporting (CR) agencies with nationwide offices have offered quid pro quo “contracts” to attorneys’ clients (mostly insurance companies):
“Give us all your business nationally and inform your attorneys to choose us as their preferred provider of court reporting services, and we will discount your rates (e.g., per-page deposition transcript fees).”
Law firms bound by these contracts are required to schedule their depositions with these designated agencies and are not allowed to hire someone else.
Violation of Existing Laws
Court reporters and agencies must adhere to ethical rules of conduct under multiple state and federal rules, including a duty of impartiality (i.e., no favoritism or financial interest in a case).
Contracting agencies are violating the Professional Conduct of Court Reporting Corporations, California Business & Professions Code 8046 [1]:
“A shorthand reporting corporation shall not do or fail to do any act the doing of which, or the failure to do which, would constitute unprofessional conduct under any statute, rule or regulation now or hereafter in effect which pertains to shorthand reporters or shorthand reporting. In conducting its practice, it shall observe and be bound by such statutes, rules, and regulations to the same extent as a person holding a license under this chapter.”
Laws banning or limiting contracts exist in 28 states [2], with varying consequences; e.g., unfair and deceptive practices violations of consumer protection statute Massachusetts General Laws Chapter 93A incur treble damages and attorneys’ fees. [3]
Attorneys Pay More
Opposing counsel are dissatisfied with the quality of services by contracting agencies, including unfair business practices and exorbitant bills for unrequested products, apparently to make up lost revenue for discounted rates to “contracted” clients:
- Ancillary fees (i.e., litigation support package; archival fee)
- Charged for indices and blank “Notes” pages at same page rate as transcript
- Higher per-page fees with overly wide margins and fewer characters per line
As a result, contracting law firms must inform all parties of contractual arrangements in their Notices of Deposition. [1]
Clients Get Less
Primarily defense firm clients benefit from these contracts. Paying less allows defense lawyers to take more depositions and delay settlement. Plaintiffs receive a net lower settlement because of higher out-of-pocket costs.
Court Reporters Get Less
Many court reporters refuse to work for contracting agencies because of their unethical practices, including overbilling attorneys. As a result of these contracts, court reporters’ per-page rates have dropped nationally.
Resist and Insist
When you are notified of an upcoming deposition, ask the noticing attorney: Do you or your client have a preferred provider contract with this court reporting agency?
If yes, insist they use a non-contracting agency or court reporter. If you believe you were overbilled, resist and insist on a fair market rate.
To learn more, attend the Court Reporting Ethics workshop at BASF’s Paralegal Section’s 2nd Annual Paralegal Conference on August 15, 2020.
About the Author:
A former court reporter, Ana Fatima Costa is office administrator of Stephen M. Raffle, M.D. & Associates and Treasurer of the Paralegal Section.
Resources
[1] BPC 8046: https://codes.findlaw.com/ca/business-and-professions-code/bpc-sect-8046.html#sthash.U25KABTO.dpuf