Fighting the elimination of their jobs, the Superior Court's official stenographers have launched challenges on several fronts, claiming that the layoffs break promises made to them by the court and also questioning the soundness of the method for taking the record that will replace them.

Oral argument before a panel of substitute Supreme Court justices, chaired by retired Supreme Court Associate Justice Sherman D. Horton, is scheduled for 10 a.m. on June 1.

In Lorenz v. Administrative Office of the Courts, et al. (2004-0552), nine remaining court stenographers employed by the Superior Court have asked the Supreme Court to overturn the trial court's dismissal of their petition for declaratory judgment to stop the Administrative Office of the Courts from proceeding with elimination of their positions by the end of the current biennial fiscal year, ending June 30, 2005. (A subsequent collective bargaining agreement has revised the date of the layoffs to begin in phases starting Sept. 15.) The Supreme Court appeal seeks to remand the case for a full trial on the issue of whether it was "reasonable" for the stenographers to have relied on assurances made by members of the superior court that their jobs would not be eliminated due to the implementation of recording technology.

The reporters' lawyer, David L. Nixon, argues that the court reporters were "promised by three different Chief Justices of the New Hampshire Superior Court that their professional careers as NH Superior Court stenographers would not be curtailed by the introduction or use of electronic recording devices..." except through attrition or for cause. The attorney general, defending the AOC, has maintained that promises made by the chief justices were unauthorized and beyond the scope of their authority.

Meanwhile, the legislature is being asked to consider the policy aspects of the issue, and there the stenographers have drawn the support of attorneys and judges who are concerned about the impact on due process of replacing the reporters with recording devices.

On March 30, the NH House of Representatives passed HB 617 that calls for the creation of a study committee to "study the future role of court reporters in New Hampshire's court system." At press time the bill had not yet been scheduled for a hearing by the Senate Judiciary Committee.

At a hearing on the bill held Feb. 17, several attorneys and two sitting superior court judges at the hearing supported retention of the stenographers. Judges James Barry and Larry Smukler both were testifying on their own behalf, and were not purporting to speak on behalf of the court system.

"I was hopeful that the Supreme Court would reverse its decision and keep the reporters," Judge Barry said in a brief interview, recapping his remarks before the committee. Barry referred in particular to the value of retaining the reporters for real-time reporting. Barry also spoke out on behalf of retaining the court reporters at a Manchester Bar Association meeting last year at which a petition was signed by a number of attorneys and members of the bench and sent to Chief Justice Broderick.

In a brief interview with Bar News, Judge Smukler also confirmed that he testified in support of keeping the stenographers and advocated a study of their use. Smukler said he disagreed with the conclusions of the Legislative Budget Assistant audit that urged the court to economize by reducing its use of stenographers. Judge Smukler, emphasizing that he was speaking as an individual judge, said that the study did not take into account the true value of the stenographers to the court system.

Several attorneys also testified at the hearing or have spoken with Bar News, saying that they believe that the increasing use of digital recording devices, even when a trained court employee monitors them, is producing more inaudible portions on transcripts.

"Many of our members don't like it," said Michael Iacopino, president of the NH Criminal Defense Lawyers Association. "I am hearing a whole litany of problems. There are more 'inaudibles' in the trial record."

The NH Supreme Court has said it is following up on the results of an audit of court operations conducted in 2003 by the Legislative Budget Assistant which recommended reducing the courts' dependence on court stenographers and more reliance on monitored digital recordings in order to save approximately $230,000 annually.

In an April 25 article in the Union Leader, Chief Justice John T. Broderick defended the policy of transitioning to monitored recordings for the trial record. "If the cost savings were not necessary where I could justify keeping [the reporters], I would," Broderick said. "I like them. They are very professional, and as an old trial lawyer, I value them. But I don't write my own checks and I'm trying to understand the needs of the state." The chief justice said electronic recording equipment is currently used for more than half the proceedings in the superior court, and is exclusively used in the Supreme Court, and in the district courts. He said the system has worked well in the Supreme Court and any problems that are occurring in the trial courts are being addressed.

In a letter to members of the NH Senate, the NH Court Reporters Association cited several instances of lost portions of testimony, and quoted anonymously one transcriptionist who it claimed had notified the court that the frequency of inaudible portions on recordings had led her to refuse to accept future transcription work from the state courts.

The NHCRA said that potential economic savings-the magnitude of which it also questions-should not be viewed simplistically. "A single trial overturned and retried due to a poor record could cost the State much more money than is hoped to be saved in an entire year by eliminating live reporters, which amounts to five thousandths of one percent of the Judicial Branch budget."

Recorders vs. Reporters: Across the Country

A recent study by a Massachusetts court committee, prompted by problems of delays in obtaining transcripts from proceedings where the record was taken by either stenographers or recorders, endorsed increased use of digital recording technology-with a caveat. "Based on the experience of other states... we believe that digital recording technology, annotated and monitored by a trained person, offers a cost-effective means to make a court record for later transcription, in circumstances where a real-time court reporter is not available or needed. Based on the current shortage of court reporters and forecast labor trends," the report continued, "we believe it unrealistic to expect that real-time court reporters will be available in the future to cover every Massachusetts trial court session."

Appeals Court Justice Mark V. Green chaired the Study Committee on Trial Transcripts, which issued its report in June 2003. The report is available at www.mass.gov/courts/trialtransrep.pdf.

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