Advisory Opinion 11

Reporting a Case and then Becoming a Witness to a Case (1991)

Background

An attorney requested an Advisory Opinion from NCRA on the following issue: ``Under what circumstances should a court reporter become a witness?''

The attorney cited a specific set of facts and circumstances regarding ``Miss X,'' a freelance court reporter working for a court reporting firm in a city of 50,000 people.

As the question is extremely broad and the Committee could never anticipate all situations wherein a court reporter might become a witness, the Committee presumed the request for an advisory opinion was with regard to the facts and circumstances as set forth regarding ``Miss X.'' This advisory opinion is being offered within the boundaries of that factual situation.

This matter was brought before the members of the Committee on Professional Responsibility (currently proposed to be renamed the Committee on Professional Ethics) at its meeting on Friday, August 9, 1991, sitting at the 1991 annual convention in New York City, New York. It was thoroughly discussed and the following opinion was presented with the unanimous consent of the members who were present.

Statement of Facts

Miss X, while preparing to report a deposition in an attorney's conference room in a case unrelated to the one cited in the following circumstances, overheard a remark by an employee of an insurance company and the attorney for the insurance company. It is not stated whether Miss X stated anything to either of these individuals at this time, or why both Miss X and these two individuals happened to be in the same conference room at the same time for two unrelated matters. Some unspecified number of months later, Miss X serves as the reporter of the deposition of one of the plaintiffs in the case in question. At that time she says nothing to the parties or counsel. The inquiring attorney does not elaborate further upon the nature of the testimony or circumstances of the deposition of said plaintiff.

At some unspecified later time, Miss X was the court reporter assigned by her freelance company to report a trial, due to the absence of the official court reporter. While reporting the opening statements, she realizes ``for the first time'' that one of the main issues in the case is whether there was any battery or an arm-raising incident to the plaintiff, as denied by the employee, who claims that she never touched the plaintiff.

The original statement overheard by Miss X, as made by said employee, is, ``A lady is suing me and Y Insurance Company, claiming injuries. All I did was lift her arm up in the air.'' This statement would be a direct contradiction to the case of the employee and insurance company as it was outlined in the opening statements of counsel.

Miss X, immediately following the opening statements, informs the Court of what she remembers of the conversation between counsel for the defendant and the defendant insurance company employee. The Court then places Miss X under oath, and as a result, Miss X becomes a witness for the plaintiff. Her testimony becomes crucial because it casts doubt upon the credibility of the employee and his employer, the insurance company. The plaintiff's attorneys argue that punitive damages should be awarded against the defendants.

An advisory opinion must be based solely upon the facts as presented. It must be remembered that it can never be the final opinion of the Committee on an actual situation, as the Committee has not had the opportunity to receive all available information.

Nothing contained in the scenario as presented by the inquiring attorney shows a violation of the Code by Miss X at the time she overheard the statement by the defendant employee. There is no indication that the remark was one that Miss X, as a part of her professional responsibility, was expected to hold confidential; nor that Miss X was told that such remarks were to be held confidential by her.

Miss X was, it must be assumed, in the conference room where she was told to go to report a deposition. The letter does not state where counsel for the insurance company and the employee were at the time the statement was made, whether in the conference room or immediately adjacent to it, but certainly they should have exercised greater restraint in the matter. It was unquestionably the responsibility of counsel to caution his client about when, where and in whose presence she should address matters regarding their case. It is also worthy of note that the deposition Miss X was about to report was in an unrelated matter, and therefore, the statement existed in a total void.

While it is a fact that Miss X some months later reported the deposition of a plaintiff in the case in question and stated nothing to either the parties or counsel about the comments made months earlier, the first question one must ask is ``Why should she?'' There is no indication that either of the parties present at the time of the original utterance were present on the day of said deposition, nor of what nature the testimony of the plaintiff was. However, assuming the same attorney was present in both instances, in a city of 50,000 people it is surely not an unusual situation for a reporter to encounter the same attorney on numerous occasions during a several month period.

Unless some specific situation, such as the presence of the employee of the insurance company, was present to help refresh Miss X's recollection that the deposition in question was related to the remarks by the employee, how is she to know that is the case? Therefore, no grounds exist to allege a violation of the Code at that point.

When Miss X is assigned to report the court case, she has no additional information to connect the overheard statement to the case, until she hears the opening statements by counsel. At that point she correctly chooses the most appropriate action: She notifies the Court immediately upon completion of the opening statements, presumably the very first opportunity, of the likelihood that she possessed some unique knowledge that could potentially relate to the matter before the Court.

To this point it is clear that there has there been no violation of the Code of Professional Ethics, as she had an absolute obligation, as a citizen, to act in such a manner as she did. To have acted otherwise would leave her subject to knowingly withholding evidence crucial to the outcome of the proceedings.

There is no allegation by the inquiring attorney that Miss X was involved in some sort of conspiracy betwixt herself and the plaintiff or counsel for the plaintiff. Had that element entered into the fact situation as presented, it might have a sizable impact on the advisory presented by the Committee. Indeed, Miss X stated nothing to either counsel, according to the fact situation, and appropriately spoke only to the Court of her knowledge.

That upon revelation of such facts to the Court she was called as a party for the plaintiff could have resulted from the Court's subsequent revelation of same to counsel. It was for the Court to determine the admissibility of this evidence, not Miss X, and if the Court found such evidence admissible, the impact of the evidence or the results of the admission are not ascribable to the professional conduct of Miss X.

Therefore, it is the opinion of the Committee that under the factual situation as presented by this attorney in his request for an Advisory Opinion, that Miss X was not in violation of the Code of Professional Ethics, specifically Sections 1, 2, 3, 4 and 9.

THIS PUBLIC ADVISORY OPINION REFLECTS THE STATUS OF THE LAW IN MOST JURISDICTIONS. MEMBERS ARE REQUIRED TO CONFORM TO THE ACCEPTED PRACTICES SET FORTH IN THIS PUBLIC ADVISORY OPINION TO THE EXTENT THAT SUCH PRACTICES ARE CONSISTENT WITH THEIR OWN APPLICABLE STATE AND LOCAL LAWS, RULES AND REGULATIONS.