SAN FRANCISCO (CN) – Legal aid lawyers were left frustrated and disappointed by the Judicial Council on Friday, saying an amendment of a rule regarding free court reporters for poor litigants doesn’t go far enough.
The lawyers said the rule allowing fee waiver recipients to request a court reporter during certain types of proceedings does not require making clear to their clients they are entitled to a court reporter free of charge.
“Most litigants without legal representation don’t know about this right to record and may not know how to request the recording of their hearings. So, what value is a right if individuals cannot exercise it?” said Rebecca Buckley Stein, an attorney with California Rural Legal Assistance.
She represents low income tenants facing eviction in rural Kern County, and said many of them will not request a recording of their cases because they don’t know their rights.
Stein’s concern was echoed by many others who noted that by the time self-represented litigants seek legal aid, their attorneys have no accurate transcript of court proceedings and cannot determine whether they can appeal their case.
“People just don’t know that they need a court reporter. They aren’t going to know to fill out another form. It is hard enough to figure out the forms they have in front of them,” said Madeline Howard, a senior attorney with the Western Center on Law & Poverty. “What will happen is that litigants will not know how to make a request. They will usually not make one and then when they make their way to a legal services office, maybe after having a bad decision of the trial against them, we won’t know whether we can appeal, because we have no record of what happened.”
Darren Orr, a staff attorney with Bay Area Legal Aid, suggested the council make fee waiver forms clearly state a free court reporter is an option.
“Every time I have explained to clients the court reporters are not automatically provided, they are shocked, just as they would be shocked to learn that a bailiff or court clerk is not automatically provided,” he said.
Last year, the Judicial Council’s civil and small claims advisory committee moved to amend state rules of court on fee waivers in light of the California Supreme Court’s ruling in Jameson v. Desta. The high court found indigent litigants have a right to free court reporters, or at least a verbatim record obtained through electronic recording.
In Jameson, a poor inmate appealed a San Diego judge’s dismissal of his malpractice lawsuit against a prison doctor. Days before trial, the San Diego Superior Court issued an order cutting free court reporters from civil trials, and Jameson argued he was entitled to one as an indigent litigant.
“Without an exception for fee waiver recipients, the policy at issue here places indigent civil litigants at a significant disadvantage with respect to the right of appeal compared to those litigants who can afford to pay for a private shorthand reporter,” Chief Justice Tani Cantil-Sakauye wrote in the court’s unanimous decision.
At Friday’s meeting, Judge Ann Jones, who heads the committee that amended the rule, said the amendment is simply intended to align current rules to comply with the Jameson decision and that the legal aid attorneys “have asked for changes that would expand beyond what Jameson requires for providing court reporter services to fee waiver recipients.”
She urged the council to move forward with the proposed revision, which will change the rule to read:
“The inclusion of court reporter’s fees in the fees waived upon granting an application for an initial fee waiver is intended to provide a fee waiver recipient with an official court reporter or other valid means to create an official verbatim record, for purposes of appeal, on a request. (See Jameson v. Desta (2018) 5 Cal.5th 594.) It is intended to include within a waiver all fees mandated under the Government Code for the cost of court reporting services provided by a court.”
Jones said, “This is the beginning and not the conclusion of our work in this area, and it is the intention of the committee to come back around and look at all of these very sound and legitimate concerns and comments expressed today. Our concern is that currently out there and circulating our rules and forms are incorrect. There was a certain desire just to get the four corners of Jameson addressed and covered.”
Cantil-Sakauye seemed to agree. “Delay would serve no one,” she said.
Judicial Council member Gretchen Nelson spoke up, asking, “This might be a little bit odd, but is there a way in implementing these that there will be some direction to courts, that they consider when they have a person requesting a fee waiver to hand them the form for requesting the court reporter? Some of the comments I thought were very compelling, that indigent people wouldn’t know to ask for a court reporter.”
Cantil-Sakauye said it would be best to respond to Jameson now and offer an amendment that will be vetted by the committee later.
“I understand there’s the interest and the drive to provide that information but right now it would not be uniform. Our choice is either delay or accept and move on,” Cantil-Sakauye said. “All of these things should be righteously considered and they will be considered in the next couple of months.”
Outside the council’s meeting chamber after the vote, the legal aid lawyers were disheartened. It will likely take the civil and small claims committee another year and a half to revise the rule again, circulate it for public comment, then present it to the Judicial Council.
“It’s still not enough and now it has to go through another whole round. How many people will be evicted?” Howard said.
Judicial Council staff attorney Anne Ronan said the committee did consider their public comments, but the plan “was to get the forms in compliance with Jameson.” She said the problem with mentioning the availability of court reporters on all fee waiver forms “will make small claims recipients think they could get a reporter, and they can’t.”
She added: “Your comments were not ignored. They were discussed.”
Ronan also said the scarcity of court reporters is another issue. “Courts are hesitant because they don’t have court reporters. We’re getting e-recordings, and that’s the solution.”
Howard said she was still frustrated after speaking with Ronan.
“I appreciate her interest in engaging with us and I’m hopeful that the next process will more fully implement the Jameson decision,” she said. “I just think it’s disappointing that we really brought very clearly to light the fact that this change is not going to provide access to justice for indigent people in California and that’s what just happened.”
Arati Vasan, a senior attorney with the Family Violence Appellate Project, summed up Friday’s dismay.
“Our belief in what Jameson represents for our own clients is so strong that anything less feels like a failure,” said Vasan. “But tomorrow is another day.”