CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription).
Here is a summary:
My most frequent advice as an appellate attorney: “Don’t forget to get a court reporter.” This wisdom of this advice—the most oft-dispensed in the appellate attorney’s arsenal—is self-evident. No court reporter, no record. No record—no appeal.
I begin with a “how it started, how it’s going” account of the court-reporter scarcity problem:
Back in the ‘90s, the Judicial Council enacted rules to allow the Superior Courts to electronically record proceedings. But the California Court Reporter’s Association, in two lawsuits in the First Appellate District, killed those rules and enjoined the courts from funding electronic-recording technology. Since then, as far as creating an appellate record goes, court reporters are effectively the only game in town.
Even though trial-court funding for court reporters has increased significantly, the stock of court reporters has decreased. Over the past five years at the LASC court, the court-reporter workforce dropped almost 25%. Court-reporter retirements continue to outpace their replacements.
The upshot is that, as of November 2022, the Los Angeles Superior Court no longer provides reporters in probate and family law matters. Probate and family law attorneys used to scoff at me when I repeated my advice to get a court reporter. “They’re already provided for us,” they’d shoot back. But, they don’t say it anymore.
Then I review what an oral record is indispensable to preserve appellate rights.
Finally, I try to demystify the settled-statement and agreed-statement procedures, and give some ways those procedures may be used to good effect.
The entire presentation may be summed up as: Get a court reporter….but if you can’t, here’s what to try instead.
"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."
— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334
"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."
— Roscoe Pound, An Introduction to the Philosophy of Law
"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."
— Rubin v. Green (1993) 4 Cal.4th 1187
"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."
— Will Durant
Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.
"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."
— Plato (427-347 B.C.)
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
— James Madison, Federalist 62
"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."
— Hon. Sir Owen Dixon, Chief Justice of Australia
"A judge is a law student who grades his own papers."
— H.L. Mencken
"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."
— Sir Thomas More in Robert Bolt's A Man for All Seasons