When you hear about courthouse injustices, you might think of bad decisions by judges. Or perhaps, you might think of a bad lawyer or even of intentional acts of chicanery. What almost never comes to mind is what I recently ran across in Victoria. It made me realize 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. That’s because anything that subverts justice, whether intentional or not, legitimately shakes society’s faith in justice.
Just as with justice, injustice can take many forms
Throughout the last decade, I have worked with the “street” to assist many of the disenfranchised. Doing so, I have helped prepare legal paperwork. Additionally, I have sat in on Residential Tenancy Branch telephonic hearings to aid friends or acquaintances. Furthermore, I have attended many more official court proceedings and have even acted as a “surety” on occasions. Hell, I was even a witness in a murder trial. That trial was overseen by one of the most biased and ignorant judges one might imagine. But that is another story for another time.
Anyhow, in doing these various things, I have watched RTB Arbitrators come to decisions that defy logic. As well, I have seen judges come to decisions both lenient and harsh. However, 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. His/her hands seem to fly nonstop over the keys of a bizarre looking typewriter. These devices are known as steno machines. Their peculiar appearance is due to the fact that they do not consist of the common QWERTY keyboard. Instead, they have keyboards that allow stenographers to create written records based on sounds, not on actual typed words.
There are twenty-two unmarked keys. The keyboard is split into thirds. The left third contains initial phonetic sounds. These are sounds like a hard “K” as in “car” and are produced by using the left hand fingers. The right side is for the right hand fingers. These keys consist of final phonetic sounds like the “N” in “can”.
The center third is 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. These consist of 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. Any transcript created in this manner is later subject to interpretation. It is often “interpreted” by individuals other than the stenographer. Therefore, what is supposed to be a verbatim record of what was said in the courtroom is very often not.
First, the system is dependent upon the accuracy of the courtroom stenographer. This can vary depending on the abilities or dedication of the stenographer. Secondly, even if the original stenographer creates the transcript, its accuracy is reliant on his/her memory for later interpretation thereof.
Alarmingly, the transcript generated by this stenographic record becomes an “official” document. Therefore, all parties to the litigation are expected to accept it as “fact”
In my friend’s case, his lawyer and the opposing lawyer had agreed on certain issues based entirely on memory. They then jointly produced a document. Both the plaintiff and my friend were expected to sign it and be bound by this document. My friend, upon reading the jointly produced document disagreed with some of the statements therein attributed to the judge.
Accordingly, he questioned his lawyer about those statements. His lawyer told him in no uncertain terms that those statements were “orders of the court”. He was further advised that they could not be contested. Thereupon, my friend asked his lawyer to go to the transcripts. He needed 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 looked at the transcripts, told my friend that my friend was wrong. Therefore, my friend then brought the disputed document to me and asked what I remembered from court. My memory coincided with that of my friend.
Accordingly, 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. This was because his lawyer insisted that the document be submitted to the court under his “duty” as an Officer of the Court.
My friend then engaged the services of another lawyer. This lawyer went to the actual oral recordings of the court proceeding. He then found that those recordings differed substantially from the transcripts in regard to the disputed quotations. My friend and I were absolutely correct. The transcripts were, indeed, wrong and coincided with our memories.
Obviously, they had agreed based on an inaccurate record of what had actually been stated by the judge. Therefore, the language that had been previously agreed to by the plaintiff’s lawyer and my friend’s old lawyer regarding the joint document had to be changed substantially. This altered the terms of the agreement between the opposing litigants in favor of my friend.
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 are the assurances, 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? If so, could there have been any injustice created by potential errors in those cases?
Assume for a moment that all cases involving this particular stenographer were civil litigation. Then there is still the potential that injustice been created from possible errors in those other cases? It’s an alarming thought.
Assuming the transcriber made errors. Then 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?
In case of my friend and me, we discovered the errors through our diligence. However, commonsense tells you that many were not as persistent as he and I. Therefore, how is my friend to be financially compensated for the extra monies he spent? Extra hours of an attorney’s time are not free. Should he be paid by the courts? After all, why should he bear the costs of a court error?
Would you like to investigate the potential breadth of this type of occurrence?
Are you are a licensed lawyer? Are a journalist employed by what I might consider to be a legitimate media organization? If so, my friend has authorized me to release his name and case number to you. He wants you to be able to verify the facts revealed herein. He also wants you to be able to investigate the possible extent of errors of this nature. We only ask your assurance that his identity will be protected by you.
I think that we all assume that printed court transcripts are correct. However, 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.
My voice is limited; yours is limitless
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