When you hear about courthouse injustices, you think of bad decisions by judges or of bad lawyering, or even of intentional acts of chicanery. What almost never comes to mind, as I recently ran across in Victoria, is that justice versus injustice in court might come as a result of simple human error or simple human error possibly compounded by another innocent error. The origin of the error makes no difference though because anything that subverts justice, whether intentional or not, legitimately shakes society’s faith in justice.
Injustice can take many forms
Throughout the last decade, due to my association with the “street” and my work to assist many of the disenfranchised in our society, I have helped prepare paperwork for and sat in on Residential Tenancy Branch telephonic hearings to aid friends or acquaintances. As well, I have attended many more official court proceedings, even acting as a “surety” on occasions.
In doing these things, I have watched RTB Arbitrators come to decisions that defy logic, or judges come to decisions both lenient and harsh, but until I was in court as moral support for a friend on a family matter, I had never seen an error of the nature I am about to detail. Actually, I had not even conceived of such an error, let alone contemplated the possible repercussions thereof.
Court transcripts might be produced differently than you would expect
You have all seen movies or television shows depicting a court stenographer with his/her hands flying nonstop over the keys of a bizarre looking typewriter or computer input device. These devices are known as steno machines and their peculiar appearance is due to the fact that they do not consist of the QWERTY keyboard which most are accustomed to seeing. Instead, they have a keyboard that allows the stenographer to create a written record based on sounds, not on actual typed words.
There are twenty-two unmarked keys. The keyboard is split into thirds, the left one third contains initial phonetic sounds like a hard “K” as in “car” and is used by the left hand fingers. The right side is for the right hand fingers and the keys consist of final phonetic sounds like the “N” in “can”.
In the center third where the thumbs rest are the vowels. There are only four vowel keys on the court reporting machine. By using various combinations of the vowel thumb keys, all of the vowel sounds in the English language are represented: long “A”, short “A”, long “I”, short “I”, ou, oo, et cetera.
Then comes the time to interpret this stenographic record
There are two potential problems areas created by this process as a transcript created in this manner is later “interpreted”, sometimes by individuals other than the stenographer, into what is supposed to be a verbatim record of what was actually said in the courtroom. Thus, firstly the system is dependent upon the accuracy of the courtroom stenographer which can vary depending on the abilities of the stenographer or the dedication of the stenographer. Secondly is the fact that the accuracy is also reliant on the memory of the stenographer for later interpretation thereof or the “subjective” interpretation by an assigned transcriber who might be responsible for producing a transcript from the stenographic record.
The transcript generated by this stenographic record then becomes a document which all parties to the litigation are expected to accept as “fact”
In my friend’s case, his lawyer and the opposing lawyer had come to an agreement on certain issues based on their memories from the courtroom. They then jointly produced a document based on those memories which both the plaintiff and my friend were expected to sign. My friend, upon wisely reading the jointly produced document rather than blindly signing it, disagreed with some of the statements therein attributed to the judge. Accordingly, he questioned his lawyer about those statements and was sternly told that those statements were “orders of the court” which my friend could not contest. Thereupon, my friend asked his lawyer to go to the transcripts to account for their differences in memories as to what was actually said by the judge.
A review of the transcripts
My friend’s lawyer, after having apparently reviewed those transcripts, told my friend that my friend was wrong. My friend then brought the disputed document to me and asked what I remembered from court, and my memory coincided with that of my friend. I advised my friend not to sign off on the agreement despite his lawyer’s insistence that he do so. His refusal to sign off on it brought an end to his relationship with his lawyer as his lawyer insisted that the document be submitted to the court under his lawyer’s “duty” as an Officer of the Court.
My friend then engaged the services of another lawyer who went to the actual oral recordings of the court proceeding and found that those recordings differed substantially from the transcripts in regard to the disputed quotations. My friend and I were absolutely correct, that the transcripts were, indeed, wrong and coincided with our memories. Obviously, with an accurate record of what had actually been stated by the judge, the language that had been previously agreed to by the plaintiff’s lawyer and my friend’s old lawyer regarding the joint document changed substantially, thus altering the terms of the agreement between the opposing litigants.
Why should you be concerned about all of this? Allow me to answer that question with a series of questions.
Assuming the stenographer made the errors
What is the assurance, if any, that he/she “got it right” in all those other cases?
Were any of those cases for which the stenographer’s services were employed criminal cases, and if so, could there have been any injustice created by potential errors?
Even if all cases involving this particular stenographer were civil litigation, has a potential injustice been created from possible errors that might also have been made in those cases?
Assuming the transcriber made the errors, you must ask all the above questions, plus more.
- You must ask for how many cases was the transcriber responsible.
- You must also ask if the transcriber merely had a problem interpreting the transcript of this particular stenographer.
- Finally, you must ask if this is systemic to the process.
Who should pay?
Although in case of my friend and me, we discovered the errors through our diligence, commonsense tells you that many were not as persistent as he and I. How is my friend to be financially compensated for the extra monies he spent to uncover these errors and to then correct them? Should he be compensated by the courts?
Would you like to investigate the potential breadth of this type of occurrence?
If you are a licensed lawyer or if you are a journalist employed by what I consider to be a legitimate media organization, my friend has authorized me to release his name and case number to you so that you can verify the facts revealed herein, as well as investigate the possible extent of errors of this nature, provided you give your assurance that his identity will be protected by you.
I think that we all assume that printed court transcripts are correct, but considering the experience related herein perhaps we have become too complacent regarding our assumptions of such accuracy. I am not suggesting that my friend’s experience is necessarily rampant in our court processes. Nevertheless, it is impractical to assume that it was a one time occurrence.
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