Sheila Wilson, owner of Wilson Court Reporting Agency and president of the Tennessee Court Reporters Association (TCRA), has fought to gain anti-contracting legislation in court reporting not once, but twice. Now it appears she might have to go in for another round.
Wilson says the law community was excited when legislation passed twice in Tennessee regarding eliminating contracting with parties of interest because prior to the passage, transcripts were being sent to third party brokers who controlled distribution and may have given discounts to one side while up-charging to the other as well as changing formatting. There was also an inadvertent deletion to that statutory language a couple of years ago, which is why TCRA went back to the legislator and got that critical part reinstated.
The issue now is with a statute that speaks to stipulations, Wilson says. With these, attorneys are able to, and should always have the ability to, stipulate certain things, she says. It allows attorneys to not arrive at a deposition to find a court reporter with a connection to a witness or a conflict of interests and not be able to decide whether to go forward with the deposition or not. “The problem is that contracting brokers are now using that language in the stipulation in an effort to get in … the back door what they can’t get in the front door,” Wilson says. Shortly after legislation passed, these documents, entitled stipulations, started circulating. With these, what brokers are attempting to do and are in fact doing is distributing these documents out to court reporters when they engage their services and telling the reporter to obtain a signature from the attorney at the deposition, Wilson says.
This puts the reporter in a precarious situation because either they take the stipulation and get it signed or they don’t get the work. What the TCRA has discovered is that many times a reporter may simply walk into a room and say they need this signed to do the deposition, Wilson says. “Attorneys rightfully have a trust value with court reporters. We are an uninterested, unbiased participant, and they have always trusted us to do the right thing,” she says. “Attorneys often sign this [stipulation], and from a broker’s perspective, by obtaining this signature, [they] believe that waives the anti-contracting statute.”
From here, a court reporter prepares the transcripts, sends it to whomever they are instructed to, and billing occurs from that broker, along with a distribution and production process that allows contracting to go on. That entity then has the power to up-charge, change formats and offer discounts exactly as if anti-contracting language did not exist, Wilson says. Wilson added that she doesn’t think attorneys are really understanding what their signature on these documents means: they are waiving an objection to the statutory anti-contracting language.
The TCRA has gone back and looked at the statute again to find that one of the requirements in the statute is that a court reporter must disclose, in a timely fashion, any potential conflict, Wilson says. The TCRA went to the attorney general and was able to secure an opinion on timely disclosure of potential conflicts. The attorney general said if the time of deposition is the first time that thE conflict is known to that court reporter, then it is appropriate at the time of the deposition, Wilson says. Court reporters more often than not get this stipulation before the deposition and in the TCRA’s opinion, these stipulations should be given to the attorneys and the parties at that time. Attorneys should read it and make whatever informed decision they feel will be in the best interest for their client, Wilson says.
“Attorneys must understand that this means more than the reporter’s ability to cover the job. This means the intent is to circumvent anti-contracting,” she says. The TCRA is not telling attorneys to sign these documents or not, Wilson says. The decision is entirely up to attorneys, but they do need to understand what they are signing is more than what the court reporter is telling them, she says. “It is most disturbing that our legislators deemed contracting by interested parties important enough to the general public that they passed legislation not once but twice to prevent this very thing,” Wilson says.
Wilson says, “We have to stop this activity involving stipulations that were never intended to be used in this manner. It flies in the face of the spirit of what the legislation intended and, frankly, I think our legislators would be highly offended as is the TCRA that this behavior is happening.” The licensure that is required in the State of Tennessee for any court reporter to practice goes along with anti-contracting in being the best package for fair practice in court reporting, Wilson says.