Advisory Opinion 31
Reporter’s Description on the Record of Nonverbal Communications, Events or Gestures (1996) (revised April 2015)
Statement of Facts
- A reporter is hired to report a deposition with the witness and counsel physically present; opposing counsel appears by telephone. Prior to commencing, the counsel appearing by telephone directs the court reporter to describe all nonverbal interaction between the witness and attorney present, and the reporter agrees to do so. During the proceedings, a question is posed by counsel on the phone and before the answer is given, counsel present makes notes on a yellow pad and hands it to the witness. The reporter interrupts to advise counsel on the phone that the attorney has made a note on a yellow pad and handed it to the witness. On another occasion, a person enters the room and is seated. The reporter interrupts to advise counsel on the phone that an unidentified person has entered the room.
- A reporter is hired to report a deposition under the same circumstances where counsel appears with two unidentified people and directs the reporter not to reveal to opposing counsel, who is appearing by phone, that these people are present.
- A reporter is hired to report comments made during an independent medical examination of a plaintiff/patient performed at the doctor's office. Hiring party directs the reporter to write down what time the reporter and the patient leave the reception area and go in with the medical personnel when the patient is weighed and when each medical person or the examining physician enters or leaves the room. The hiring party further directs the reporter to describe observations made by the reporter, such as what tests are conducted, what the doctor does physically, and how the patient reacts.
In the three situations presented above, the reporter asks if it is permissible under the Code of Professional Ethics for a reporter (1) to include the reporter's personal observations in the record; (2) to record times during the proceeding; and/or (3) to inform or not inform counsel appearing by telephone that certain people are entering or leaving the deposition room. Provision No. 1 of the Code requires, in pertinent part, that the reporter must be fair and impartial to each participant in all aspects of reported proceedings. Provision No. 2 of the Code cautions the reporter to avoid situations that may give rise to conflicts of interest. Provision No. 3 provides that the reporter must guard against not only the fact but also the appearance of impropriety. The reporter should never agree to a request which would jeopardize his/her role as an impartial officer, but rather, should explain at the time of such request that it would be inappropriate to comply.
The role of a court reporter in reporting a proceeding is to preserve the spoken word on the record and not to function as a factual witness for one party to the proceeding. When a reporter is intentionally placed in the position of being a factual witness at the direction of counsel for one party, that reporter may be viewed as an advocate for one party over the others. The reporter thus loses the impartiality mandated by Provision No. 1. This loss also creates a conflict of interest (Provision No. 2) and generates the appearance of impropriety (Provision No. 3). Thus, it would be a violation under Provision Nos. 1, 2 and 3 of the Code for a reporter to describe the nonverbal interaction between the witness and the attorney in situation 1. It would also be a Code violation in situation 3 for the reporter to describe the reporter's observations regarding what tests are conducted, what the doctor does physically, and how the patient reacts. The reporter might recommend to the hiring party that it is the attorney’s responsibility to make the comments for the record that the reporter can capture. Alternatively, the hiring party may seek the services of a videographer to preserve a visual record of events that take place during the proceeding or to have a personal representative present that can testify at trial as to the events observed.
The Committee notes that in some jurisdictions it is local practice or custom or a requirement of state or local law for the reporter to indicate in the record who is present and who is departing during a proceeding. Therefore, in all of the situations presented above, if it is consistent with state or local rules or local custom and practice to report the persons in attendance at a proceeding, then the reporter should do so, even if it is contrary to counsel’s instructions as in situation 2. In jurisdictions where it is not consistent with state or local rules or local custom and practice to report the arrival, presence or departure of persons in attendance at a deposition, the reporter should not do so without the prior agreement of all parties present in person and by telephone and agreement as to the manner of indication, whether by verbal announcement or simply notation in the record. This applies no matter what method is used to allow persons to listen to a proceeding, including but not limited to, streaming of the proceeding over the Internet.
The Committee on Professional Ethics believes that, 1, a reporter’s description on the official record of nonverbal communications, events or gestures as described above violates Provision Nos. 1, 2 and 3 of the Code of Professional Ethics. Recording times during proceedings and reporting the presence, arrival or departure of persons at a proceeding may be done in a manner which is consistent with state or local law or local custom and practice.
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.