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A Matter Of Interest

The most interesting person in the courtroom, from a juror’s perspective, is not either attorney. Nor, Your Honor, with all due respect, is it the judge. No, from a juror’s perspective the most interesting person in any courtroom is the stenographer, that unique individual whose hands are in constant motion, rapidly kneading a mysterious, silent machine that spews skeins of narrow, oddly-folded paper which, when unraveled and deciphered by the operator, somehow contains every word spoken in court. All jurors are fascinated by the machine and the person who operates it. How do they do that voo doo that they do so well?

Any one who has ever tried a case knows it takes no longer than the morning recess on the first trial day for jurors to postpone coffee to stop to ask the reporter “How does that thing work?” They are enthralled with the explanation and walk away mystified, never quite believing what they’ve heard. It’s like a magic trick: you know it happened because you saw it happen, but you can’t really believe it happened the way the magician explained it to you.

When I first came to practice, the Chief Court Reporter in New Haven was Bob Lyman. Bob did it the old fashioned way — shorthand — with a steno pad and a handful of fountain pens. If you think stenograph machines are amazing, you should have seen Bob Lyman. He was a consummate professional. He took his responsibility seriously. He treated the courtroom and what transpired in it with great respect. Well dressed, consummately patient, and always calm, he brought to the proceedings a dignity many advocates could not. And no matter how frenetic the pace, he effortlessly transcribed every word, and without interruption. Bob was literally the last of the shorthand reporters. His skills have been mechanized and, more recently, computerized.

As a group, court reporters are by nature courteous and helpful to trial lawyers. They transcribe what occurs and read it back on request, helping make a point, box in a witness, refresh recollections or clarify mistakes. Often at a break reporters will stay behind and find in their notes the one sentence or phrase that makes a difference in the post-recess examination. And who’s better at boosting a lawyer’s ego, praising a pedestrian closing argument, defusing tensions during deliberations or offering consolation after a bad verdict.

The fruits of a reporter’s labors, however, seldom boost a lawyer’s ego. Reading one’s spoken words does not build self-confidence. Gerry Gale of Sanders, Gale and Russell is a superb reporter, exceeded in skill and accuracy only by his late partner, Gene Russell. I first met Gerry when I was an Assistant United States Attorney and he the Official Reporter for our District Court.

Gerry often transcribed words I had spoken. I was compelled to read some of those transcripts. It was excruciating and embarrassing. “Gerry”, I would say, “I don’t understand. How is it that when I stand up in open court and speak, I sound like Winston Churchill, but when I get your transcript it reads like total gibberish?” Gerry was always too kind to answer. Eventually I stopped asking. I also read fewer and fewer transcripts.

I suppose lawyers have had all kinds of experiences with reporters. There were lost notes of an entire trial in Stamford years ago. There was the story, surely apocryphal, about the reporter who spaced out during trial and whose notes, when read back, were a flight of erotic fantasy, best described as a poor imitation of The Diary of Anias Nin.

There are occasional reporters who interrupt during examination, throwing the lawyers off stride, derailing a train of thought and, unknowingly, losing an invitation to transcribe that lawyer’s next deposition. And I once saw a young male reporter attempt to ask a crusty, conservative senior judge if it was “OK to recess early on Wednesday because I have an appointment with my hair stylist”. (His Honor’s high decibel response was not transcribed, but I can still recite it verbatim upon request.)

The most interesting court reporter experience I had occurred during a criminal trial more than fifteen years ago. It involved a reporter who has since passed on. At some point during the prosecution’s case I ordered overnight transcription of a portion of a key witness’ direct on a vital issue to use on cross the next day. I got the transcript, used it effectively on cross and again later in final argument.

During deliberations a jury note requested a readback of the very same testimony of which I already had a partial transcript. This was good news. It was important testimony and it went my way. I had argued it on closing. Now the read-back was a good sign. I was anxious to watch as the jurors realized that the transcript confirmed my argument.

The judge read us the note in chambers. He called down the reporter to make sure her notes were available. No problem, she said, I have them right here. We went into the courtroom. The jury entered. The judge read the note. Is that what they wanted? Six heads nodded yes. Madam Court Reporter, please begin. I held my transcript as she pulled the zig-zag notes from the troth of her machine and began to read. She came to the part she had earlier transcribed, the crucial part. She read. I followed along from my typed transcript.

The first of my pages and what she read from her notes were identical. Verbatim. At the top of my next page, though, it all began to unravel. She started to read words and phrases that were not in my transcript. And mine was a transcript of the exact same testimony she had typed out from the exact same notes just two days before. I was dumbstruck. I gagged. I sputtered. I interrupted. The reporter kvetched. The judge admonished. Confusion reigned. Fortunately for my client disaster was averted in the ensuing chaos. Even more fortunately, this was that reporter’s last trial.

Jurors are right: reporters are the most interesting persons in the courtroom. What they don’t realize, and what we lawyers sometimes forget, is they produce “The Official Record of All Proceedings”. It’s not what we said, it’s what they say we said that counts. Who’s more important than the court reporter?