No One Is Recording What Happens in Family Law Court Anymore
San Diego Superior Court is no longer providing court reporters for family law proceedings, which means there is no verbatim, written record of the what happens in court. People involved in disputes can elect to pay for one themselves, which attorneys worry creates a two-tiered system.
On a hot afternoon in September, Superior Court Judge Paula S. Rosenstein sat from her bench at the Family Law Court downtown and conducted the day’s business. Clerks took notes from their desks and moved throughout the courtroom, handing documents to Judge Rosenstein. A bailiff held a clipboard, whispering to a man and woman, making sure they were there for the hearing. An attorney spoke for his client who sat beside him, silent and tense. And in the corner to the left of the judge’s bench, sat a small desk and chair.
One month earlier, a court reporter would have sat there with a stenotype machine, recording everything said during the hearing. But the desk and chair remained empty.
That’s because the San Diego Superior Court is no longer providing court reporters for family law proceedings.
Court reporters are responsible for creating an exact record of what was said during hearings, depositions and trials. Not having a court reporter present in court means there is no verbatim, written record of the proceedings.
The court reporter cuts, which went into effect Sept. 5, are drawing concern from local family law attorneys who say the changes will hurt low-income and middle-income individuals.
Since many people who go through the family courts cannot afford a lawyer — in two-thirds of all family law cases in San Diego, at least one party will not have legal representation — hiring a court reporter is often out of the picture.
The lack of a court reporter record creates complications throughout hearings, the trial and even beyond, if a person decides to appeal a judge’s decision.
Family law attorney Jane Wesley Brooks said that if a party wanted to appeal a judge’s decision to a higher court, a record of the proceedings is often required. The appellate court refers to such records to make its decision. With no record present, the appellate court would have little from the case to consider.
“Let’s say you’re a poor litigant and you didn’t have a court reporter,” Brooks said. “You’ve now lost your due process to appeal you case.”
The alternative for a person who wanted to file an appeal without a written record is submitting a settled statement, a document that summarizes the facts of the case and trial. Getting opposing parties to agree on the specifics of a trial, and getting the judge to sign off on it, however, is a difficult and lengthy process, said family attorney Brigid Campo.
“If you don’t have the transcript, you are spending a lot of time preparing a settled statement,” Campo said. “It could mean more attorney fees. It’s not ideal and very cumbersome.”
Judith McConnell, the administrative presiding justice of the 4th District Court of Appeal, said that most appeals she sees coming from the family courts are denied, since they often do not have a sufficient written record, such as one provided by a court reporter.
“It’s particularly troubling in family cases where issues are very emotional — where it’s child custody, or spousal support, or restraining orders — and they may not be able to appeal an adverse ruling,” McConnell said.
She acknowledged that most people are unaware of the settled statement option because of the high number of people who appear without a lawyer in family law cases.
Even if people representing themselves can maneuver the process and submit a settled statement, McConnell said the statement is not as complete as a court reporter’s transcript, and may lack key pieces of evidence from the hearings.
The lack of a record also makes it difficult when attorneys or opposing parties are caught in a dispute over a judge’s order.
For example, in a domestic violence restraining order hearing, or a hearing where requests for child support are ordered, a judge may make a detailed decision. Those types of hearings are often short and move quickly. If there is no court reporter present, and the exact terms of the judge’s orders were not recorded, disputes between the parties may arise.
Campo also said if people decide to shift their testimony and contradict themselves from hearing to hearing, which are often separated by months, the lack of a written record makes it difficult for attorneys to correct the discrepancies.
“If you have a transcript, it could show that there is an inconsistent statement, or consistent statement. If you don’t have a transcript, you have no way to prove that,” Campo said.
Previously, court reporters were paid for by the court, as well as about $30 from filing fees.
Now, if a court reporter appears in a family law case, it’s almost always because one of the parties has elected to pay for one themselves. (The court still provides court reporters for contempt hearings, where a person has gone against a court order, such as violating a restraining order or refusing to pay child support. Those are rare in family courts.)
“It’s almost impossible for people of low incomes or even middle-class incomes to have someone come in for $80 to $125 an hour,” said Stephen Davis, a family lawyer based in San Diego. “It doesn’t affect the rich — they can pay that — but it affects everyone else.”
Court reporter fees range from $700 to $800 for a full day. “It’s really cost-prohibitive for them to even go into court,” said Diane Delaney-Dauphine, a court reporter who has worked in the family courts. “Especially for family law, between attorney fees and supporting a household, I don’t know how they can afford it.”
Anton Georghiou, another family law attorney, who takes clients through the San Diego County Bar Association’s Modest Means Program, which assists low-income clients in finding a lawyer, said court reporter responsibilities have been outsourced to the litigants.
“By externalizing the costs to the litigants, we all but ensure that the system only favors those who can pay for access,” Georghiou said. “This means that the courts are open to the rich, but are all but closed off to the poor and middle class who cannot pay the court reporters, depositions and discovery often necessary to obtain justice.”
One of his clients, a single mother of two children, had to pay a court reporter $1,500 to be present for a two and a half-day trial. Obtaining a transcript of the trial from the court reporter cost her an additional $1,300. Georghiou’s office covered the payment when his client couldn’t afford the bill. Georghiou said such actions are not common and clients are often left on their own.
Another client of Georghiou’s, a non-working mother caring for her children, was facing a divorce while her husband quit his job, transferred all his income overseas and refused to help financially.
“Now how does that mom pay for attorney’s fees? How does she pay for costs such as a court reporter?” Georghiou said. “The answer is, she probably can’t.”
The court reporter cuts to family law courts are part of a long string of slashed funding and downsizing of county court systems throughout California. Since funding from the state began to decrease in 2008, during the wake of the recession, the San Diego court’s budget has decreased by more than $30 million and the court has eliminated about 400 positions, said Michael Roddy, executive officer of the San Diego Superior Court.
In 2012, the Superior Court stopped providing court reporter services for all civil cases. Exceptions included some family law cases, such as domestic violence-restraining order cases, contempt hearings and divorce hearings shorter than 40 minutes. For longer matters, such as family law trials, court reporter costs were left up to the litigants.
This year, the San Diego court’s budget is $6 million less than it was last fiscal year. The recent family court cuts, alongside blows to the juvenile courts in downtown and Chula Vista and tenant-landlord disputes in Vista, have been a last-ditch effort to minimize the damage, Roddy said.
“Frankly, anything we do at this point is going to disadvantage those on the lower end of the scale. If it wasn’t this cut, it would’ve been some other cut that would’ve hurt low-income, disadvantaged, [and self-represented] litigants.” Roddy said. “But these messages don’t seem to resonate in Sacramento, where the money goes somewhere else. They have not felt that we’re a high enough priority to adequately fund the court system.”