Legal aid groups sue to get California Supreme Court to expand electronic recording for civil cases

Legal aid groups are suing four California county courts — including two in the Bay Area — to get the state Supreme Court to widen the use of electronic recordings in civil cases, arguing that indigent people are losing due process rights because a chronic court reporter shortage has left them without essential records of their hearings.

In Santa Clara County, one of four Superior Court systems named in the Dec. 4 filing with the high court, a daily average of 290 civil and family court hearings between January and November 2024 proceeded without anyone creating a verbatim transcript, according to the petitioners.

They also cite figures from the state judiciary estimating that in a one-year period ending March 2024, more than 1 million hearings in family, probate and a plurality of civil cases in California had no verbatim record.

“The result is often devastating for low-income litigants including survivors of domestic violence who rely on courts for critical orders to protect them and their families, including restraining orders, child custody and visitation orders, spousal and child support orders,” said Jennafer Wagner, director of programs for the Oakland-based Family Violence Appellate Project, a petitioner in the lawsuit.

Organizations like Bay Area Legal Aid and Community Legal Aid SoCal — who are also petitioners in the Supreme Court filing — are joined by court reporter unions across the state in sounding the alarm on a dearth of court reporters, noting that the pandemic took a particularly devastating toll on their ranks.

The state judiciary currently allows electronic recording only in civil cases seeking less than $35,000 in damages. In other civil court cases where there is no readily available court reporter, litigants can postpone their cases until one becomes available, hire a private stenographer, or agree to proceed without a detailed record of the court discussion.

So if a person can’t endure delays because of the urgency of a situation — like the need for a restraining order or to modify a co-parenting arrangement that has become unsafe — and they can’t afford a stenographer, they’re left with taking a big risk by proceeding, said Kemi Mustapha, who oversees the family law attorneys at Bay Area Legal Aid.

“If the court makes legal errors, it’s insulated from appeal. We can’t appeal those orders since there is no record,” Mustapha said.

She added that enforcing orders from prior hearings that lack an official transcript becomes significantly more time-consuming, leaving attorneys dedicated to serving poor clients with less bandwidth to help their core constituency.

“It’s all for no reason,” said Brenda Adams, Bay Legal’s director of litigation. “We love our court reporters. This has to do with when a court reporter is not available. Why can’t the court press the ‘on’ button to record a proceeding?”

The state courts named in the Supreme Court petition are in Santa Clara, Contra Costa, Los Angeles, and San Diego counties. Ahead of the litigation and in response to earlier correspondence from the petitioners, Los Angeles County courts issued a general order in September giving its civil judges the discretion to authorize electronic recordings in the absence of court reporters. Santa Clara County courts issued a similar order last month.

But the litigants, which also include the statewide law firm Covington and Burling LLP, say those orders don’t go far enough to address what they call a brewing constitutional crisis. They take issue with how under the ad hoc orders — using the Santa Clara County court’s language — electronic records are allowed for “specific proceedings that affect fundamental rights and meet outlined criteria, including when parties cannot secure a court reporter and have a reasonable inability to pay for a private reporter.”

The problem, Adams said, is that the fast-moving dynamics of many civil court matters make it difficult if not impossible for a judge to know ahead of time if a hearing will involve whatever they define as “fundamental rights.” So if a hearing does cross into that vaguely defined territory midstream, she contends that the electronic recording will not reflect the leadup or even the judge’s reasoning beforehand.

Complicating the situation is opposition to the adoption of electronic recording by unions and the California Court Reporters Association, who allege that courts are skipping their obligation to hire sufficient numbers of court reporters, and are citing that shortage to turn to cheaper ways of getting the job done.

In a Sept. 5 letter responding to the Los Angeles County Superior Court’s electronic recording order, the CCRA called the move unlawful and wrote that it will “will create an expressway to unreliable electronic recording transcripts” and “will create chaos for litigants and continue to feed into a broken system inside the courts of disparity of justice between the haves and the have-nots.”

The trade association declined to comment on the Supreme Court petition, citing the need to study the filing. Both the state Supreme Court and Santa Clara County Superior Court also declined comment, citing policies on not giving public remarks on pending litigation.

Mustapha and Adams said an order from the high court, rather than the piecemeal response that has occurred to this point, is the only way to ensure consistency and equity across the state. They added that the tradeoff of continual delays with wanting a reliable judicial record is untenable for their low-income clients, whose lack of flexibility in their jobs, childcare and transit needs make repeat trips to court especially burdensome.

“Delays in proceedings can be very harmful to our clients, who urgently need the relief they are requesting,” Mustapha wrote in a declaration accompanying the lawsuit. “Our clients cannot wait several additional weeks or months for a court reporter when they have a hearing date scheduled now.”