Amendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 online

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copy transcript.

• The opportunity to clarify words and phrases at the time of taking a deposition by the
presence of a court reporter precludes the likelihood of inaudibles which cannot be transcribed
later.

• It is acknowledged universally that the computer is, and will be, the centerpiece of informa-
tion transmission worldwide. Thus, a computer-based technology for depositions, such as CAT,
has the ability to be integrated with other computer-based technologies, thereby expanding options
forjudges and attorneys.

• Immediate deposition transcripts are truly only possible with a court reporter using CAT
since the other two methodologies necessitate a two-step process of recording and the subsequent
production of a transcript by a transcriber.

• All parties who have studied the various methodologies for making a trial court record
concur that attorneys and judges work most efficiently by reviewing the written word either in
printed transcript form or on a computer monitor. As has been pwinted out in the discussion of the
other methodologies, the availability of a transcript reduces judges' and attorneys' preparation
time by a factor of three to four.



171

'IV. Cost-Benefit Analysis Models
Introduction

The cost-benefit analysis models are derived from interviews and on-site visits, as well as
from available secondary resource materials. From that collection of sources we have derived
midrange figures for all cost categories. The footnotes in the three models constructed indicate
where an average figure between high and low costs have been utilized.

The three cost-benefit analysis models which follow capture the costs associated with the
three possible uses of a deposition. The first model is predicated on a factual scenario where a
deposition is taken, but the case settles, and it is never utilized in a trial setting. The second
model contemplates the taking of a deposition and the use of that deposition m a trial setting when
the deposition is required to be in a transcript format. The last model presumes a deposition
which is taken and used in court and in the instance of audio and video, it contemplates the un-
usual situation where a tape is used without a written transcript.

For the sake of uniformity and order, the model contemplates one five-hour day during which
150 pages of deposition are taken by an attorney whose hourly rate is $100 per hour. The model
does not contemplate any extra charges for "waiting time" or expedited charges.

Also, we note here and in the footnotes that the capital cost of equipment purchased by
attorneys and courts (and ultimately the cost of replacement equipment) should be amortized over
the life of the equipment (5yrs) to derive a per week cost of the equipment. Data supports the
figure of 5.3 days on average per civil trial.

Lastly, it should be noted that the model does not address certain administrative costs, includ-
ing the cost of audiotapes and videotapes and the storage of tapes which, as noted elsewhere, is a
matter of very real consideration both in attorneys' offices and in the courts.



172



Cost of Deposition Not Used in Court



$3000



$2500



$2000



$1500



$1000



$500



$0




Reporter Audio



Video



173

Cost-Benefit Analysis Model - I
Deposition Not Used in Court

One Day and 150 Pages of Deposition



The costs of audio, video and a court reporter using CAT when the deposition

is not used in court.



Reporter
Audio Costs Video Costs Costs



Taking deposition and setup charges 362' LOGO- 495'

Attorney review time 900* 900* 300'



Cost of Attorney's Playback

Equipment for One Week 2.80" 10'



Totals 1,265 1,910 795



'Rates found were a high of $375 and a low of $350.

"Rates found were a high of $ 1 ,500 and a low of $500.

'Rates found were a high of $4.15 and a low of $2.44 per page. In most jun.sdictions, such as California, an

additional appearance fee is not charged. In limited area.s where a fee is charged, the average cost is $50.

â– "Evidence that attorney review lime increased by factor of 3 to 4. Nine (9) hours at $100 per hour.

'Three (3) hours at $100 per hour.

'Average cost of standard ca.ssette playback equipment is $336. Amortized over the five-year life of equipment, the

cost for one week is $2.80.

'Cost of a HI-FI video player, monitor and video cart is $1,200. Amortized over the five-year life of equipment, the

cost for one week is $10.



174



Cost of Deposition Introduced in
Court With a Transcript



$3000



S2500



$2000



$1500



$1000




$500-



Reporter Audio



Video



175



Cost-Benefit Analysis Model - II
Deposition Introduced in Court With a Transcript

One Day and 150 Pages of Deposition



The costs of audio, video and a court reporter using CAT when the deposition
is introduced in court with a transcript.

Reporter
Audio Costs Video Costs Costs

The total costs of taking and
reviewing a deposition are reflected
in Cost-Benefit Analysis Model - I 1,265 1.910 795



Cost of transcript preparation 315' 443- (P



Touls 1.580 2.353 795



'Rates found for transcribing an audiotape after the fact are a low of $2.25 and a high of $4.05. 100 paces at $3. 15.
"Rates found for transcribing a videotape after the fact were a high of $5.43 per page and a low of $3.43. 100 pages
times $4.43.
'Transcnpt cost previously accounted for in Cost-Benefit Analysis Model - I



176



Cost of Deposition Introduced in
Court Without a Transcript



$3000



$2500



$2000



$1500



$1000



$500




Reporter Audio



Video



177



Cost-Benefit Analysis Model - III
Deposition Introduced in Court Without Transcript

One Day and 150 Pages of Deposition



The costs of audio, video and a court reporter using CAT when the deposition
is introduced in court without a transcript.'



Reporter
Audio Costs Video Costs Costs



The total costs of taking and
reviewing a deposition are reflected

in Cost-Benefit Analysis - I 1,265 1.910 795



-Cost of rental equipment to play tape

in the courtroom 70 90 0*



Cost of judges' playback equipment

for one week 2.80* 10*



Totals 1,338 2,010 795



'Our study reveals that rarely, if ever, is an audiotape or videotape submitted in evidence in stale or federal courts

without a transcript.

^Most trial courts do not have audio and video equipment available for civil cases. Costs reflect average rentals

without the presence of a professional technician.

'Hard copy transcnpt - no equipment required.

^See Cost-Benefit Analysis Model - I for explanation of cost of equipment.



178
V. Analysis and Conclusions

As the cost-benefit analysis models reveal, the cost of recording a deposition by a court
reporter using computer-aided transcription is the least costly method across the board. This is
true whether the deposition is taken and the case settles or whether a transcript is subsequently
made of an audiotape or videotape or, even in the rare instance, where an audiotape or videotape
is utilized without a transcript in court.

The case which is made quantitatively is fully compatible with the theme and import of the
Civil Justice Reform Act of 1990. That legislation admonishes the Judicial Branch to fashion
methods and procedures which bring about a reduction in the cost of civil litigation. Thus, it
would seem contrary to other cost reduction movements within the Third Branch to undertake an
initiative inherent in proposed changes to FRCP 30(b)(4) which would, in fact, increase the cost
of civil litigation.

Once the quantitative issues have been fully addressed, the qualitative case for a deposition
prepared by a court reporter using computer-aided transcription is seen in overwhelming terms.
The hard copy transcript is clearly the most efficient vehicle forjudges and lawyers who are
trained to review the written word. Additionally, the automated features of depositions on com-
puter disk enable that medium to be used in the most advanced and technologically based court-
rooms of the present and of the future.



179
VI. Acknowledgments

We acknowledge our debt to those individuals and organizations who contributed to our
work. Particular mention, in thanks, is made here to Gary Cramer. Los Angeles, California;
Frank Alfana, Esquire, Birmingham, Alabama; William F. Cunningham. Jr., Anaheim, Califor-
nia; Steve Edmondson, Birmingham, Alabama; Mary Thornton House, Esquire, Deputy City
Attorney, Los Angeles, California; Tom Eden, Esquire, Birmingham. Alabama; Ben Hyatt (Noon
and Pratt), Los Angeles, California; the Cardomon Group, Inc., Doug Mondo (Video Services for
the Legal Profession), Santa Ana, California; Jerrold A. Fadem. Esquire, Los Angeles, Califor-
nia; Richard Green, Esquire, Beverly Hills, California; Beth C. Draine. Anaheim, California;
John Prout, Springfield, New Jersey; Robert Cirilo, Livingston, New Jersey; John R. Connelly,
Jr., Esquire, Red Bank, New Jersey; Kenneth Javerbaum. Esquire. Sprmgfield, New Jersey; Stan
Rizman, Newark, New Jersey; Tony Hebson, Esquire, Birmingham. Alabama; Brian E. Cartier,
Vienna, Virginia.



180

The Justice Research Institute

The Institute (JRI) is nonpartisan and is incorporated under the nonprofit corporation
law of 1988 in the Commonwealth of Pennsylvania. Its purposes include research,
management consultancy, and education for improving the administration of justice in
federal, state, and foreign justice systems.

Its principals have provided research and consultancies to numerous justice system
entities including the Federal Judicial Center, the congressionally mandated National
Commission on Judicial Discipline and Removal, and the Judicial Conference of the United
States Committee on Long-Range Planning. The Institute has also contributed to the work of
the Carnegie Commission on Science and Technology in Judicial and Regulatory Decision
Making, and the National Academy of Public Administration.

JRI conducted an analysis and made recommendations respecting cost and delay in
civil litigation in the United States District Court for the Southern District of California and
the District Court of the Virgin Islands of the United States.' The Institute also recently
assisted the senior staff officers of the Supreme Court of the United States in developing that
institution's first-ever mission statement and strategic plan for operations.

Staffed by MBAs as well as attorneys and former court executives, the primary
consulting focus of the Institute is the introduction of sound business practices into justice
system infrastructures. The applied experience and expertise of its principals in state and
federal court management combine to make the Justice Research Institute the only
organization of its kind in the United States with researchers who also have had successful
hands-on experience in court systems.

The Institute is headed by William K. Slate, II, who has over 20 years of policy,
management and research experience in both sute and federal courts. An attorney with an
M.B.A. from the Wharton School of the University of Pennsylvania, Mr. Slate served as
director of the congressionally chartered Federal Courts Study Committee, which undertook
the first comprehensive study of the federal court system and its relationship to sute courts in
the history of the nation.



'Cost and delay reductions in civil litigation were mandated by Congress in the Judicial
Improvements Act of 1990. codified at 28 U.S.C. §§ 471 - 482.



181

Executive Summary

This report considers tiie principal metiiodologies einploved today in the taidng of
depositions, namely, an official court reporter utilizing computer-aided transcription (CAT)
and, to a lesser degree, videotaping. Its focus is upon the accuracy of the process, and, as
noted in the Introduction, "accuracy" is not one dimensional.

Principal among the report's findings are the following:

• Accuracy should be the stuiidard for selecting a deposition nicthodoiogy.

Both historically and at the present, a court reporter deposition is the qualitative
standard for accuracy and clarity. A court reporter's goal is verbatim
transcription - that is the federal standard. Videotaping transcription, by contrast,
has sought and been content with a standard based on the concept of
"faithfulness," or a faithful representation of what was said at a legal event.

• The deposition process should not be relegated to a lesser standard than other
aspects of court proceedings.

It should not be lost on policymakers considering rules related to depositions that
depositions admitted into court must invariably be in transcript format; trial couns
require court reporters for "important" cases; and appellate courts, in the federal
court system, and almost without exception in state court systems, will not permit
videotapes only but require hard copy transcription.

• The congressionally mandated Civil Justice Reform Act of 1990 requires
United States district courts to reduce the cost of civil litigation.

A recent cost-benefit analysis of methods of taking depositions found that across-
the-board court reporter depositions were the least expensive to the entire system.
It would be in conflict with the Civil Justice Reform Act to promulgate a rule
which would increase the cost of civil litigation while in no demonstrable fashion
enhancing levels of accuracy.



•



The computer character of a CAT deposition is compatible today with
automated courts and law offices.

Videotape depositions are not computer compatible, and their use insures that cost
will be increased to court systems, clients, and attorneys while forestalling
system wide automation.

* The storage life of videotapes is unknown and is a matter of concern to
federal officials, including those at the Library of Congress.

Delay in the transcription of a videotape raises serious questions about storage life
of the tape, the quality of the tape and equipment at the original taping, and a
substantial increase in transcription costs.



182
Introduction

This report is about accuracy in the process of taking depositions Its focus is upon two
methodologies, namely, court reporter-prepared depositions utilizing computer-aided
transcription and videotaping. While audio depositions are possible, we have found only one
instance of their use.'

This report relies on empirical research, including the review of pertinent statutes,
cases, treatises and studies, and also upon field research in Alabama, California and New
Jersey undertaken by JRI in 1992 in conducting a cost-benefit analysis of the cost of
depositions. The referenced field research included interviews with attorneys in government
and private practice, tape transcribers, court reporters and videotape operators. The 1992
Institute study is the sole source in the literature of an examination of the cost and qualitative
considerations of the deposition process.

As indicated in this report, notions of accuracy encompass issues beyond definitions and
standards to include the integrity of the storage of deposition mediums; the time required for
participants to review a deposition; the computer compatibility of deposition formats with
courts and law offices; and even costs when juxtaposed with a prospect of policymakers
encouraging a more costly method which brings no promise of enhanced accuracy.



'Although a 1983 evaluation of audiotape in district courts. A Comparative Evaluation of
Stenographic and Audiotape Methods for United States District Court Reporting , by J.
Michael Greenwood, Julie Horney, M. Daniel Jacoubovitch, Frances B. Lowenstein, and
Russell R. Wheeler, Federal Judicial Center, July 1983, concluded that "given appropriate
management and supervision, electronic sound recording can provide an accurate record of
proceedings at reduced costs ...," that report received formidable criticism of its statistical
methodology and cost analysis from no less an authority than Coopers and Lybrand (letter
and report of September 20, 1983). That report concluded, "In terms of cost, the Federal
Judicial Center's study has serious shortcomings. Until these are corrected, any findings on
accuracy will not demonstrate the cost effective feasibility of audio recording as a
replacement for the current functioning court reporting system."

It is also particulariy noteworthy that although audiotape has been allowed in federal
district courts since 1984, according to the Administrative Office of U.S. Courts, as of
October 1991, only 53 active judges out of 540 employed a full-time operator for ER record
making. Thus, one may conclude that federal judges have not been enthusiastic in embracing
taping methods over official court reporters.



183



1 . Accuracy -

(a) Definition of Terms

The statute governing proceedings in United States district courts requires that they
"shall be recorded verbatim."' The dictionary standard of verbatim is "word-for-word."''

The statute further specifies the situations in which transcripts should be produced from
the record and states that the certified transcript "shall be deemed prima facie a correct
statement of the testimony tatcen and the proceedings had," and hence accurate.'

Thus, the statute calls for a "verbatim record" and for a transcript that is "a correct
statement" of both the testimony and of other aspects of the proceedings.

Evaluations of alternative techniques for court record making (including depositions)
have traditionally used accuracy (of the record and the transcript made from it) as a central
evaluation criterion. Accuracy "refers to the legal concept of a verbatim record, and it
presupposes that what a court reporter does is record word-for-uord what was said..."*

The importance of accuracy in court proceedings was captured by the following

quotation from Judge Levin H. Campbell, former chief judge of the First Circuit Court of

Appeals and former chairman of the Judicial Conference Subcommittee on Supporting

Personnel. His statement appears in a letter of November 30. 1981, to William J. Anderson

of the General Accounting Office:

"The maintenance of a record of proceedings in a trial court is absolutely
essential to the working of our judiciary. There can be no meaningful right of
appellate review without an accurate trial record. Our aim, therefore, must
not be just to report court proceedings in the cheapest possible way but to do
so in the way best calculated to advance the administration of justice.
Electronic sound recording may eventually prove to be such a method. But if
the present system of recording court proceedings were to be replaced by a



'28 U.S.C. § 753(b); see also two federal cases explaining "accuracy": U.S. v. Taylor .
607 F.2d 153 (1979) and U.S. v. Perkins . 498 F.2d, 1054 (1974).

'' Webster's New Collegiate Dictionary .

*28 U.S.C. § 753B; Federal Courts Improvement Act of 1982 § 401(a).

^ Videotaped Trial Records , a publication of the National Center for State Courts, p. 50
(1990).



184



markedly inferior system, the financial savings would be vastly outweighed by
devaluation of our system of justice."^

Historically, court reporters using stenographic equipment have been the standard for
accuracy. This was true even before the advent of computer-aided transcription, which, as
will be related subsequently, enhances a court reporter's level of accuracy.

A limited number of "head-to-head" encounters between stenographic and tape methods
(employing the use of a tape followed by a transcriber preparing a transcript) have occurred.
When they did, the accuracy of court reporters inevitably prevailed.

In a 1971 New York study, several days of the same court proceedings were recorded
by stenographic and audiotape methods. A subset of the transcript pages produced on the
basis of these records was compared for accuracy. The committee members (judges,
lawyers, and administrators) stated, among other things, that the steno-based transcripts were
more accurate and that the audio-based transcripts more often omitted complete statements of
participants and misidentified speakers than did the steno-based transcripts.*

In 1972, Los Angeles Superior Court undertook a comparative study at the suggestion
of the state legislature. Fifteen days of proceedings were recorded by both audiotape and
stenographic methods. Some 2,000 pages of transcripts were typed on the basis of records
produced by stenographic and audiotape methods, 418 pages of which were subjected to
detailed analysis. Discrepancies between the audio and steno-based transcripts were checked
against the sound recordings. The researchers found that the steno-based transcripts "in all
but two tests proceedings, performed with a higher degree of accuracy than the paralleled-
tested reporting/recording systems."'



'General Accounting Office, Federal Court Reporting System (1982).

'The commission was appointed by the presiding justices of the appellate divisions of
New York's first and second judicial departments. See Report of the Committee to Evaluate
Electronic Recording Techniques (1971).

'Superior Court, County of Los Angeles, Recording and Transcription of Los Angeles
Superior Court Proceedings (1972).



185



As a part of a 1981 study conducted by the Utah State Court Administrator's office,
one trial lasting several days was recorded on a tour-track audiotape recorder. The transcript
was produced from the audiotape and compared with the steno-based transcript, which was
the standard by which the accuracy of the audio-based transcript was determined. Those
conducting the study found 107 errors and omissions in the audio-based transcript and
concluded that the "high number of errors appearing in the study sample renders the record
suspect and the integrity of the system diminished. Should the appellate court be compelled
to base its decision on an incomplete and unreliable record, it would have to do so on less
than the total evidence presented at trial or upon conjecture as to uhat may have been."'"

Lastly, in a 1992 cost-benefit analysis study of the deposition process by JRI in
Alabama, California and New Jersey, all attorneys inter\ iewed agreed that a court reporter-
prepared deposition is the qualitative standard for accuracy and clarity to which all other
methods must be compared.

(b) Accuracy vs Faithfulness

A more recent assessment of video recording"abandoned notions of "accuracy" because

it "... proved to require a system of discrepancy classifications that is complex, expensive to

undertake and, ultimately, subjective."'- In lieu of accuracy comparisons, video proponents

have substituted "faithfulness.""

"The concept of a faithful representation of what was said or experienced at
the legal event is the genuine distillation of the true meaning of the verbatim
record..."'^



'"The results of this test were reported in a January 25, 1982, memorandum from
Richard V. Peay. Utah State Court Administrator, to Utah Senator Kay Cornaby of the Joint
Executive/Judicial Appropriation Subcommittee on "Studies Regarding Shorthand Reporters
in the Utah District Court."

" Videotaped Trial Recordings , a publication of the National Center for State Courts,
p. 51 (1990).

'-Ibid.

"Ibid.

'••Ibid.



186



On their face, the terms "accuracy" and "faithfulness" are not synonyms. Indeed, it is
an oxymoron to suggest that accuracy of a proceeding is reflected in the distillation of the
true meaning of the verbatim record. This is not the standard for court reporter-prepared
depositions.

A methodology, such as video, which relies on "faithfulness," as contrasted with
"accuracy," suggests a diminution of standards; and as the "faithfulness" definition
indicates, a "... distillation of the true meaning of the verbatim record" is not "accuracy" in
terms of a verbatim, word-for-word transcription.

(c) Standards to Ensure Accuracy

A number of important foundation questions related to accuracy must be addressed by
decision makers respecting performance standards employed in the use of stenographic or
videotape deposition methodologies. Court reporters employing computer-aided transcription
(CAT) in a competitive market place must exhibit proficiencies and certification standards in
order to qualify and compete for deposition business.'* By contrast, videotape operators have
no standards for the equipment to be utilized, nor the setting in which videotapes will be
recorded. Also, there are no judicial or governmental standards for proficiency of video
operators. Similarly, transcribers who will, when needed, prepare a transcript from a