California Supreme Court Requires Electronic Recording When Court Reporters Are Unavailable

Key Takeaways

The California Supreme Court ruled that trial courts must provide indigent litigants, upon request, with meaningful access to an official verbatim record of proceedings.
When an official court reporter or official reporter pro tempore is unavailable, courts must use an electronic recording to create the record.
The Court found that the inability to obtain a verbatim record can significantly affect a litigant's ability to pursue an appeal.
The ruling is rooted in the in forma pauperis doctrine, which seeks to ensure meaningful access to justice for litigants who cannot afford certain litigation-related costs.
The opinion addresses court proceedings and appellate access, not deposition procedures or discovery rules.

The California Supreme Court ruled Monday that trial courts must provide indigent litigants with meaningful access to an official verbatim record of proceedings, including through electronic recording when an official court reporter is unavailable.

In a unanimous decision in Family Violence Appellate Project v. Superior Court, the Court addressed a growing challenge facing California courts: the shortage of certified court reporters and the impact that shortage can have on litigants' ability to obtain appellate review.

Chief Justice Patricia Guerrero, writing for the Court, noted that the absence of a verbatim record can significantly affect a party's ability to challenge a trial court's decision on appeal.

"The absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court."

The Court explained that California trial courts have increasingly struggled to provide court reporters for many civil proceedings. Although litigants with sufficient financial resources may hire a private court reporter, the Court found that many individuals cannot afford that option.

The opinion builds on the Court's 2018 decision in Jameson v. Desta, which held that trial courts must ensure indigent litigants have access to a verbatim record of proceedings. According to the Court, that guarantee has often proved difficult to fulfill in practice because many courts do not have enough reporters available to meet demand.

The record before the Court included evidence that some litigants faced repeated continuances when court reporters were unavailable, while others chose to proceed without a verbatim record. The Court cited reports indicating that more than one million hearings and trials occurred in unlimited civil, family, and probate matters without any means to create an official transcript.

Several superior courts attempted to address the issue by authorizing electronic recording in limited circumstances. However, California Government Code section 69957 generally restricts the use of electronic recording to create the official record in most civil proceedings.

The Court concluded that an exception to the statute is necessary when electronic recording is required to provide meaningful access to justice for litigants who cannot afford a private court reporter.

"If a court is unable to use a court reporter, the in forma pauperis doctrine requires the court to imply an exception to section 69957 in that proceeding and use electronic recording instead."

The decision is rooted in the long-standing in forma pauperis doctrine, which allows courts to take steps to ensure meaningful access to the judicial system for litigants who lack the financial resources to bear certain litigation-related costs.

Notably, the Court emphasized that the relevant population is not limited to individuals who meet a strict definition of indigency. Instead, the opinion explains that courts should consider whether a litigant can reasonably afford the cost of hiring a private court reporter.

"The litigants at issue include all litigants who cannot afford to hire a private court reporter to provide an official verbatim record of their proceeding."

While the decision authorizes the use of electronic recording in specific circumstances, the Court did not characterize electronic recording as equivalent to traditional court reporting. Addressing concerns raised by organizations representing court reporters, the Court stated that it was not required to resolve whether electronic recording or certified shorthand reporting is the superior method of creating a record.

Instead, the Court focused on ensuring that a record exists when the alternative would be no official verbatim record at all.

"It is sufficient to note that a verbatim record created by electronic recording is better than no record at all."

The Court ultimately held that trial courts have a duty to provide indigent litigants, upon request, with meaningful access to an official verbatim record of proceedings and that courts "have no discretion" to deny that access when the legal requirements identified in the opinion are met.

The ruling directs respondent superior courts to provide an official verbatim record in all cases involving qualifying litigants, including through electronic recording when an official reporter or official reporter pro tempore is unavailable.

For legal professionals, the decision is narrowly focused on access to the court record and appellate review. The opinion addresses court proceedings and the availability of an official verbatim record in those proceedings. It does not discuss deposition procedures or modify California's discovery rules.

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