Using A (Certified) Court Reporter

The practice of using a court reporting service in an arbitration hearing differs from region to region and arbitrator to arbitrator. Some arbitrators require it. Sometimes the CBA requires it. Sometimes, one of the parties refuses to pay for a court reporter, even when doing so means they don’t get access to a transcript.

Before I discuss when it makes sense to use a court reporter, I want to talk about what kind of reporter to use. California recently passed a law requiring Certified Shorthand Reporters to state their appearance, including their CSR license number, on the record. It’s a minor thing, but it ensures that the parties know whether they have indeed hired a CSR or not. Transcripts created by unlicensed reporters or by AI are considered hearsay and are not admissible in court for the facts stated therein. I recommend this article: Hearsay on the Record – When Transcripts Lose Their Voice to learn more about that.

Personally, I don’t usually require a court reporter for my hearings. They are expensive and add delay to the process of reaching a decision. Without one, I can usually encourage the parties to do closing arguments and then write a decision within 30 days of the hearing. But there are occasions when I do want a court reporter, and there are occasions when the parties probably want one as well.

In several instances, collective bargaining agreements will specify a reporter be present during the investigation or at the third-level hearing so that there’s a record of the facts and arguments made during the grievance procedure. I notice that employers are more likely to request a court reporter than unions are, and cases with attorneys are more likely to request a court reporter than ones where the advocate is not a lawyer.

In my view, there should be a court reporter any time there is a chance that the hearing will last more than one day. Sometimes the parties know that it will be longer and schedule accordingly, but other times, they believe they will finish in one day, but do not. I haven’t figured out the formula for knowing when a second day will be needed, but the chances increase with every additional witness or allegation.

The parties should also have a court reporter if there is any chance that the matter could result in or be connected to other litigation. For example, in a discipline case where the grieving employee also has a lawsuit against the employer or the union. If either party intends to file a writ to have the decision set aside (more common in civil service hearings), there should be a certified shorthand reporter. This extends to other grievances as well. For example, if two people were fired for misconduct related to the same incident, having a transcript from the first hearing can be critical if parties are not available or change their story at the second hearing.

If the issue in the case is even moderately complex, it makes sense to have a court reporter so that the written briefs that the parties are likely to file have true and accurate witness statements in the statement of facts.

Finally, if you do get a transcript, make sure you read it. If there are errors in the document, you’ll want to flag those immediately so that the CSR can correct them. Just as when you communicate with the arbitrator, make sure to include the opposing party in your correspondence to the reporter so they are aware you are raising the issue. Some reporters are better than others, but CSRs are held to a higher standard and are more likely to be accurate. Still, no one is perfect, and the record may be more important than you expect when you start the case.

I’ve had several occasions where I inherited a case when an arbitrator died before issuing a decision. With a transcript, I was easily able to step in and write an award at the parties’ request. Without a transcript, they would have had to redo the entire hearing at great expense and time lost.