The California Appellate Law Podcast

Why the Lack of an Record Is a Constitutional Problem, with Erin Smith (Part 2)

• Tim Kowal & Jeff Lewis • Season 1 • Episode 150

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Responding to a decades-long lack of court reporters, the Los Angeles Superior Court in September 2024 ordered that electronic recordings may be made. This arguably violates a statute prohibiting the use of electronic recordings. But Erin Smith, co-founder of the Family Violence Appellate Project, explains why the lack of meaningful access to an appellate record is a constitutional crisis. She explains how the General Order is carefully drawn to avoid any prejudice to the interests of the court-reporters association while providing opportunity to create the all-important appellate record.

Erin Smith’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Announcer  0:03 
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,

Tim Kowal  0:17 
well, Jeff is absent again. We are recording this the same day that Jeff is stuck in in a settlement conference, and the judge won't let him out. But I'm Tim Kowal AS certified appellate specialist. Both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, please recommend it to a colleague. Here's where Jeff would usually offer his quip, but again, he's not here, but we do welcome back Aaron Smith to the show, as our listeners learned last time, Aaron is the co founder and former Executive Director and CEO of the family violence appellate project. If you didn't listen to the first episode, please go back and listen to that. You'll learn about Aaron's 11 years leading the family violence appellate project and the 50 or more published appellate decisions that it was able to garner, we talked with Erin about how she was able to get that amass all of those appellate victories despite a lot of her clients coming to her with with records that were in disarray, and speaking of records that are in disarray, That's we're going to be talking about in the second part of our conversation. Aaron, tell us a little bit about back. We're recording this in late October, 2024 in early last month, September, 2024 the LA Superior Court issued a general order directed at the California's long standing court reporter shortage, which is, you know, turned into a crisis. I think the word crisis has been used pretty uniformly to describe this issue, because we've gotten to the point where probate and family law departments, which for a long time, had been holdouts, and they were still able to provide court reporters to ensure which and you know, as most of our listeners know, I think court reporters are absolutely essential if you're going to preserve your issues for appeal, because it's the rare case that you can take up to appeal without a verbatim record. And we talked a little bit about, well, can't you possibly use the settled statement in some cases? And you know, maybe yes, but you're I think your shorthand answer was probably best, no, just assume no, unless you can somehow get lightning in a bottle. But tell us your take on this general order. The LA Superior Court has issued a general order that says that judges may now use their electronic recording equipment to go ahead and record the proceedings that occur in in, I think, in all, basically, all departments, under certain conditions. So tell us a little bit more about that order, and what do you think it means?

Erin Smith  2:43 
Yeah, and thanks again, Tim for having me back on on this episode of this particular issue, the court reporter crisis and creation of verbatim records has been something that I've been working on since, honestly, even before the first day family violence appellate project opens its doors, because when we were starting that organization, we realized, as you just said, and as we discussed last time, we're going to have to have records. We're not going to be able to win any cases if there are no records. And we knew that already at that time, this is like 2012 that I'm kind of referring to, I believe at that time, the majority of counties. I think it was 30 out of the 58 counties in California had no court reporters in family law already. And so I've personally been really struggling with this issue and working on it for well over a decade, and feel very passionately about it. And the reasons for that are, you know what we discussed in the last episode, it really for the domestic violence survivors that we tried to help sometimes, an appeal is really their last chance to get whether it's physical safety, personal safety, safety for their children, personal well being and a life of peace, and that's really what all human beings are entitled to and have a right to, in my opinion, and what I feel so passionately about. But for them, if there's no record of what happened in the trial court, there's no appeal, and so you're just out of luck. And so it really is for these, these particular, you know, set of clients, but also, frankly, everybody, it's such an important issue because you effectively have no right, no ability, to go to the Court of Appeal effectively and achieve the justice that our court system is supposed to be providing. So the LA order. I mean, let me tell you going back to 2012 from 2012 until September 4 of 2024 there was very little movement on this issue. I mean, I have done bill after bill and case after case, and there was no meaningful movement in that 12 year period. COVID on what was happening? I mean, it was just chronic court reporter shortages, chronically courts, adding court reporters back, taking them away, informing people about it, not informing people about it, just really, no meaningful change, until what la did. Yeah, I see you wanted to jump in with a question, yeah.

Tim Kowal  5:21  
I wanted to ask, in your experience with the family violence appellate project, did you? Did you encounter many potential clients who called and said, I want to take this up on appeal. And then you probably asked, Do you have a court did you have a court reporter? No, we tried, but none was available. Did you encounter that specific situation?

Erin Smith  5:42 
Yeah, absolutely. And in addition, I mean, that was pretty common. And in addition, there is a Supreme Court case that I worked on in 2018 we filed an amicus brief in Jameson versus desta, which says, Yeah, which says that if you have a fee waiver, so it's a very small group of people, you have to qualify for a fee waiver, and have received one, which, unfortunately, in domestic violence, many people never go through that process, because there are no fees. In domestic violence cases. There's no filing fees, so there's no reason to get a fee waiver. It's

Tim Kowal  6:25  
kind of a perverse disincentive. Yes,

Erin Smith  6:28  
it's, it's very, I mean, it's one of those sort of like Kafka asks that she

Tim Kowal  6:34 
would be entitled to it if they had to pay any fees, but they don't have to pay fees, so they can't get the fee waiver. So they can't get the Jamison

Erin Smith  6:40 
or you could get a fee waiver. But why would you know that you need that? You would only know that if you knew you were going to need a court reporter, which you would only know if you knew the court wasn't going to have one, which sometimes you don't find out until the day of trial. So it's just this, like catch 22 situation. But so there are even cases happening since Jamison, where folks are going in and saying, I want my Jamison court reporter, right? And the courts are saying, Okay, well, we don't have one today, come back next month, and then you show up next month, come back next month, come back next month. That doesn't work if you if you're talking about child custody or personal safety in domestic violence cases. So, you know, even is

Tim Kowal  7:23 
there no preference, our our court report, you know, I'll tell you sometimes in, in, you know, regular civil cases over money, even still, I'll show up to a hearing and I've ordered a court reporter. And, you know, I had said it's, it's my emotion, and then the other side, you know, I show up at the hearing, and the other side is also ordered a court reporter. So there's two court reporters, the clerk has to let one of them go. But meanwhile, there are these family violence appellate issues that don't have any court reporter because they're not available. There's got to be some sort of, you know, priority rules about who gets court reporters and making sure there's no duplicate court reporter showing up on the same matter,

Erin Smith  8:04  
you would think, yes, that is really a kind of a perverse, you know, misuse of resources that situation you just described. I mean, there are, I believe, statutory priorities of where court reporters are supposed to go, and it is reflected also in the Government Code Section. I know we're going to be talking about, you know, prioritizes criminal cases, generally speaking, with felonies at the top, juvenile dependency cases are prioritized as well. And then there's a statute somewhere. I can't give you off top of my head, but it kind of goes down the list. And domestic violence is up there. I want to say maybe it's like sixth on the list, or something like that, but you don't we never even get there. I mean, we don't even get past felonies and juvenile dependency cases. They're barely enough court reporters to cover those cases. And in some courts, there aren't even enough for that. Some some courts have had to start electronically recording felonies because there are just not the court reporters in existence.

Tim Kowal  9:03  
I wonder if, during the pandemic, after all of the courts got outfitted with electronic recording equipment and micro new microphones, and it was easy at that point for for the court to just hit the record button, and now we have an electronic record, record of the proceedings. I wonder, if Did you ever experience surprise that the courts weren't just doing that that it took so long. It took until september 2024 for the LA court to issue this general order to basically allow that under certain conditions,

Erin Smith  9:36 
absolutely. I mean, I think lay people, non lawyers, who I talked to about this issue since the pandemic, just cannot understand why we're not just using the same technology we were using during the pandemic four years ago. It's so obvious and it's accessible and it works, and we all got used to it, and there's rules to allow remote, fully remote court proceedings. Now, even for those electronic, recording is not allowed, even if they're on Zoom, they can't push the big red record button to create the electronic which we all know works just fine. So it is, it is truly absurd. And I thought that, you know, since 2020 maybe we would be able to get some legislation on this, because it was so obvious at that point, but I was wrong on that. So, yeah, you know, you know, back to your I think original question of, you know, what do I make of the LA order? I'm so grateful. I think it's wonderful and bold and brave and necessary. And I really applaud judge Jesser, the presiding judge there, for taking this step and just saying enough is enough this situation that we're in now the statute, there's really one statute on the books that prevents courts from pushing that record button in courtrooms where it already exists, or if they're on, you know, remote court. And she just concluded, as I do as well, that as applied to the current situation, that statute is unconstitutional, and as an officer of, you know, beholden to the Constitution with a duty to uphold it, she could not, in good faith, continue to follow it. And you know, declared, you know, that the courts in LA had the authority to start recording. And I really applaud that step. Now

Tim Kowal  11:30 
to let's see, I wanted to give our listeners just a brief rundown on what the what the LA general order says, what the procedure is for getting an elected forgetting electronic recording of their proceeding. The electronic reporting procedure is available when, when it's requested by the judge presiding over the proceeding, and when the court reporter is not available. So you have to make some kind of showing that you tried to get a court reporter and the court reporter was just not available. And then it's even then it's only available in certain family law proceedings, certain probate proceedings and certain civil proceedings. I'm not sure what that leaves out exactly, but, but you'll have to check the order to make sure that your proceeding is covered by the rule or by the order, and the order applies only where the court is again unable to provide an official court employed court reporter due to the shortage, and when the litigant is unable to secure the services of a private sector court reporter at the litigants expense, and when the judge makes the specific findings that fundamental constitutional rights are at stake. So that's general order, 2020 4g, E, N, zero, 11, 00, and it's effectively immediately throughout the LA Superior Court system, in the specified case types. And one, one appellate attorney on the on the LA appellate listserv has indicated that when these criteria are met, I imagine that the electronic recording would be accepted as the basis for a settled statement, even if some Court of Appeal later is queasy about accepting the the electronic recording as an official reporter's transcript in the usual way. And we touched on that a little bit in the lat in our the first part of our conversation, Aaron, but I, I wanted to ask your in your opinion, in the electronic recording that is made through the use of this general order be used to create an actual reporter's transcript, the same that would be created, the same verbatim transcript that would be used in any other case where the court Reporter was present and contemporaneously making the verbatim record?

Erin Smith  13:42 
Yes, I think so. And I also think that because that's the case, there's no reason to even think about using an electronic recording to create a settled statement. The electronic recording, either itself in audio form or transcribed into written form, is 100% of the time going to be better than a settled statement. So there's no reason to even use settled statements, which are deficient for all the reasons we discussed last time. Yes, it's so government code, 69957, that's, that's the mischievous Code Section. Yeah, the unconstitutional code section, in my opinion and the opinion of Judge Jess in Los Angeles, buried in the middle of that code section, it says that a transcript derived from an electronic recording can be used whenever a transcript of court proceedings is required. So to me, I think that's enough statutory authority to say yes, a transcript from that can be used as a reporter's transcript. There's also a rule of court that allows you the part the parties can stipulate to submit the audio recording, the electronic recording itself, just the audio. Portion as the record on appeal, if the parties stipulate that's rule of court, 2.95 2j since I know all your appellate listeners are going to want to know the citation, so yeah, I think, I think the authorities already out there, the courts have already figured out how to use electronic recordings as records. They're already allowed in misdemeanors, infractions and limited civil cases. There might be a tweak to the rules of court here or there that might be helpful to clarify this, like in Title eight, the appellate Rules of Court, but I think, I think the authority is already there for it. Yeah,

Tim Kowal  15:39  
and you mentioned the the mischievous statute that could be a wrinkle in the LA general order six, Government Code, 69957, elsewhere in that, there is some other language that will likely be used in in litigation, as as I'm sure you know, back in the 90s, the court reporter Association litigated against the Judicial Council when the Judicial Council promulgated some rules of court that would allow electronic recording of court court proceedings when court reporters were not available and and I anticipate that there's going that there may be another lawsuit coming, and I'm sure that the front and center in that litigation will be Other language in 69957, that says that the electronic recording may not be used to create the official record in other cases, not not covered under this section. Really.

Erin Smith  16:28 
What it effectively says is you cannot use, you cannot create an electronic recording in unlimited civil cases. That's the only category of cases that's left out really, because you have, as I mentioned earlier, felonies and juvenile dependencies. You it's it's statutorily. You've got to have a court reporter, and then government code 69957, says, Well, if you don't, you can electronically record, but only in misdemeanors, infractions and limited civil so the only category of case that you're that's left out. And it's a big one. It's unlimited civil because that's all civil matters where the dispute is worth more than $35,000 all family, all probate, all domestic violence. So there's, it's massive numbers of cases. But you're right. I mean, on it, that's what the statute said. But you know, Judge, just nurse move was to say it's unconstitutional. So I believe that we're in a posture where the constitutional, constitutionality of that statute is squarely teed up, whether it's going to be from a challenge from the court reporters to try to enjoin judge Justin's order, or from someone else. It's, you know, it's there for the taking that that issue is teed up. And I think it's really time for for the courts to address that question. Yeah, at

Tim Kowal  17:50  
the time, in the 90s, when there was that, the previous challenges by the Court Reporters Association to the to the Judicial Council, efforts to get electronic recordings there, we didn't have a crisis of the same magnitude that we have now. And you could understand the the Court Reporters Association perspective that, well, we need to electronic recordings are not as good as as having a a live, certified shorthand reporter contemporaneously making the the verbatim record. That's the gold standard, right? And and I don't think you have to dispute that, that position, you know, it is the gold standard. But for whatever reason, the the court reporter industry has not been able to maintain a stable number of court reporters, and so we have a crisis. And unless there is some other solution that is going to imminently start manifesting. A lot of court reporters to fill this huge Gulch, we need to have another option, even if it's a second best option. And I wonder how the court reporter association is is going to answer that argument, because that's going to be the argument on everyone's minds, certainly on the judge's minds and the Court of Appeals mind when it wins its way up to the Court of Appeal and the Supreme Court. How does it answer that question? As you mentioned in a letter to the editor last month, you said, in the past 18 months, 525,000 people just in Los Angeles, had no record of their court proceedings. So I think that's going to be the question, how do we get these people a record? How do we preserve their right to appeal?

Erin Smith  19:26 
That's right, and I couldn't agree more with all of the premises behind what you just said. I mean, you can agree, and you can agree that court reporters are the gold standard and that they're better than electronic recording. But you know what? Electronic recording is better than nothing. And the situation

Tim Kowal  19:45  
statement

Erin Smith  19:49 
this the situation we're in in 2024 is the alternative is not a court reporter. The alternative is nothing, no record for literally hundreds of 1000s of. Californians across this state every single year who have no record of what's happening in their court cases, and therefore no effective ability to appeal and achieve justice. And so, you know, it's a it's a due process problem. It's an equal protection problem for the people who don't have the means, the wealth means, to hire a private court reporter on the private market. I believe it's also a separation of powers problem. I think that providing enough of a record so that litigant litigants have meaningful access to the courts of appeal is an inherent duty of the courts, and that the legislature hasn't currently infringed that as applied to this current situation we're in, in 2024 that prohibition on electronic recording in unlimited civil cases is unconstitutional. Do you know

Tim Kowal  20:49 
of any other ways that that we can, you know, preserve or enhance the the stable of court available court reporters, like some options, for example, that have been floated have been, you know, for for depositions. You know depositions, you know, don't always have to have a court reporter. Of course you want a court reporter there. But I wonder if you know, we could encourage litigants to use electronic recordings for court for for depositions instead, and then and only if you decide later on that you need that turned into a to a transcript you could use it. Are there? Are there ways like that that could help preserve the stable of court reporters so that they can still be available without having to resort to electronic recordings?

Erin Smith  21:39 
I mean, that's really a question for the court orders representatives and the Judicial Council. I think I know they've been, you know, talking about this for decades. I personally a couple of the efforts that I was involved in to get legislation passed in Sacramento in the last, I don't know, five, six years we're around, increasing the rates, increasing the transcript rates for court reporters to, you know, be able to earn more money when they are creating the official record from their from their notes, you know, their real Time notes, as well as as well documented, in jest, nurse, general order, just a general sense, we need more money to hire court reporters and increase salaries, because it's not a, you know, it doesn't pay enough to recruit people. Okay? So, like, on both of those points, I was personally involved in legislation, like, Okay, we'll increase the transcript rate. Okay, we're gonna give you the court system 30 million extra dollars just to hire court reporters and just in family law. Go do it. Please, please. We would love nothing more than to increase the number of court reporters. Problem is, it didn't work. It didn't work, and it really is for someone else, not for me to decide or figure out how to increase the number of court reporters. They can figure that out. Please do. I would love nothing more. But it doesn't change the fact that today, as justner articulated in her order, 1500 people today, 1500 people yesterday, 1500 people the day before, every single day, you have these violations of people's constitutional rights, really, to be able to access the court system. So if we can solve that in the future, great, we won't have to do that, but we have, we have an imminent problem now that needs to be solved because litigants have rights that I really believe the courts need to be Yeah, hiring, yeah.

Tim Kowal  23:43  
But, and I believe the same day that the general order was issued, there was a statement by a representative from the California Court Reporters Association calling it unlawful. And I'm I can't remember if, if the representative cited to Government Code, 69957, the statute that we had talked about, but I assume that's what the reference was to,

Erin Smith  24:01 
I assume. So, I mean, it is in direct contravention of that statute, or at least a reading of that statute, a reading of that statute, but in my opinion, it's completely valid still, because the Constitution trumps the statute. And I think Judge Jessen is right about that? Yeah,

Tim Kowal  24:20  
and the way judge Jess drafted the general order, again, it still maintains the premise that the that a certified shorthand reporter transcript is the gold standard, because the order does not authorize use of electronic recordings in all cases only after has been shown that there is no court reporter available. So it maintains the legislative intent that the court reporter is to be used as the gold standard. But Judge jester's order was that, well, we need to have an alternative for when that is impossible. And so I guess I just going back to the same question. And. But of how trying to anticipate what the Court Reporters Association would argue as Okay, well, how is this? How is this in how is this hurting? Or maybe it's maybe it's a, maybe you've got a standing argument against the Court Reporters Association. How are you aggrieved? How Are any of your members aggrieved? Because you have the same job as if they're available, there's a job for you. It's only when none of your members are available that we have to create some second best option. I think

Erin Smith  25:27 
that's exactly right, and what you said is correct. You know, the legislature has expressed a preference for court reporters, and apparently a belief that they create the best record fine. Great Judge schesner is respecting that, and that's the way the laws are written. That's fine. This does not really affect that. Like you said, it really only comes into into play in situations where there's, there's no court reporter there, and it's really indisputable that, you know, having some record is better than than nothing. That's right.

Tim Kowal  25:59  
One other question, something that Jeff brought up because a few weeks ago he was in a courtroom that it turned out, did not have electronic recording equipment available, that I wasn't aware, that I thought they were all, you know, retrofitted after the pandemic, but apparently some are still getting there. Have Are you aware of of that problem in any, any family law departments where, despite the general order that allows for electronic recording, the equipment might still be a problem. Yeah,

Erin Smith  26:29  
I was really interested. I listened to that episode of your podcast where Jeff gave that anecdote, I guess he was in the Torrance courthouse and was told that the that court, particular courthouse, doesn't have the equipment installed. I don't know what's going on there. Because if you dive deep, like I have done, into the general order, LA's general order, the declaration of the I believe he's the CEO of the Superior Court, David Slayton, says that the equipment is installed. I believe the words are all, or substantially all of the courtrooms in Los Angeles Superior Court. So maybe the court, how the Torrance courthouse, is the, not substantial part of it. Jeff found the one. Department found the one. Yeah. But I mean, you know, the the court itself is saying it's all, are most vast, vast majority, right? And I do think that is either the reality. I happen to know, Contra Costa County, up here in the Bay Area, they're completely outfit. I don't think every county is completely outfit, but I do think they're in the process. And you know, as you pointed out, the pandemic, I think accelerated this. You know, the types of equipment that is allowed and reliable and usable has already been vetted and approved by the Judicial Council. It's really just a matter of going through the process of installing it, and I think all the courts are working on that. So I would not think that that would be a big impediment to electronic recording. Just a

Tim Kowal  27:59  
couple of a couple other questions. You have been outspoken on this issue of the court reporter shortage for a long time, and the importance of having the verbatim record to safeguard these important appellate rights. Have you received comments from court reporters or representatives of the Court Reporters Association over the years, or especially lately, about any of the views that you've expressed, I haven't heard

Erin Smith  28:22 
anything since the letter to the editor that I wrote, which was, I think, the week after, maybe the same week that LA's general order come out, I came out. I haven't heard anything. I mean, over the years, sure, you know, I worked on a lot of bills in Sacramento. You know, working with the court reporters representatives on that, like I said, we, we agreed with them a lot of the time, okay, let's pay them more. Okay, let's get let's infuse the courts with more money to hire more. Okay, what now? Like, how? What else can we possibly do to solve this? A lot of the time it was okay, let's work together on that, and those bills were passed, and the money was provided, and the transcript rate went up to the expense of litigants, but it didn't work. And so now that we are where we are, where I feel like we've really tried everything, I don't know what else there is to do. And even if there isn't, like I said earlier, even if there is another brilliant idea, great, try that. But it still doesn't change that, you know, today, tomorrow and the next day, there are people in a record and we need, we need a plan B for them, yeah,

Tim Kowal  29:34 
yeah, yeah. And then just the last, last question on that. And I think I know the answer is, the is the electronic recording option. Is the LA Superior Court order a good idea because there's a shortage, or is it also good because it helps save costs? I think we talked about that you can get a waiver. It would a lot of the family violence, appellate project, cases, clients, be entitled to a. A fee waiver for the transcript? Yeah,

Erin Smith  30:02 
I think a lot are already entire there's certainly a family violence appellate projects, clients, I would say the majority, certainly of them, do qualify for a fee waiver under that income standard. It's 200% or below of the federal poverty line. I think they probably do qualify for a free court reporter under the Jamison versus desta Supreme Court case of 2018 but, you know, like I said earlier, the problem is that that case, the implementation of that is really very imperfect. You know, the process of getting a fee waiver is not obvious, not easy, and not necessary in domestic violence cases, even if you do it, the court reporters just aren't there, and it's just not a realistic option for people to continue their case again and again, you know, steal their nerves and to to face their abuser in court month after month after month. That that is a very difficult thing to do, you know, for low income folks to take a day off work and find childcare and pay for childcare, and, you know, take public transit and all the things that are required to get down to court, these are big hurdles for people, and it's not fair, frankly, to them and not realistic to have them come back month after month after month. So many of them just opt to go forward, and then they have no record, and then family violence. Appellate project can't help them. So I think you know, back to your question, is this a good idea because of the shortage, or because it saves costs? It's a good idea because of the shortage. I have no idea, from the court's perspective, if it saves costs or not, you would need a budget person, you know, to answer that. But that's really beside the point. It's there's a shortage, so we've got to do something Yeah,

Tim Kowal  31:53 
and then the last question, and maybe this will be a segue for for to have either you or someone from the family violence appellate project to come back. Have have any of the projects clients? Have you? Have you represented any appeals that have involved the the use of the electronic record that have been created since the September 5, 2024 general order,

Erin Smith  32:20 
well, I don't work at Family Violence appellate project anymore, so I don't know if they've picked up a case since then. It's certainly possible. I think that one challenge with that there have been a variety of cases since Jamison versus desta where people were trying to enforce their right to get a court reporter under that case and several successful cases, because Jameson versus Dustin is a pretty clear opinion, yes, you have a right to it. And then they went to court and they didn't get it so, but then they had to go all the way through the appeal, right? And there's, there's a couple of published opinions, and several more unpublished opinions on this, where the Courts of Appeal say, Yeah, you're, you're entitled to a court reporter, but the remedy is to go back and get a court report, which is the whole problem in the first place, is there are none so, so it's, it's not, it's not an effective system, but that's why I say, really, it's time the constitutionality of this statute and this whole system, it has got to be challenged, because the implementation of Jess and Davis Jameson versus just trying to work work around that, it really is quite flawed, unfortunately, and not an effective solution at the statewide level.

Tim Kowal  33:37  
Yeah, yeah. Well, I'd love to continue the conversation after. There are a couple of cases under our belts that have gone up on appeal and gotten decisions after there's using a reporter's transcript made from an electronic recording, and we'll see how that's done. I mentioned to you offline that I had published an article a few months ago in in California litigation about the issue. And there was, there's one case I was trying to remember the name of the case. It's a unpublished decision from the fourth district Division Three back in shortly after the litigation in the 90s, which had allowed a reporter's transcript based off an electronic recording and but that was, that's the only case I can find that was like that. Was like that. But the court of appeals seemed to be untroubled by the prospect that it was not made contemporaneously and only made afterward by by relying on a electronic recording. But there, there is some, some precedent, albeit unpublished precedent, of that having been done in the past.

Erin Smith  34:39 
Yeah, there was also an instance up in Shasta County in the north of the state, where I think that court had no choice but to electronically record a felony. And I believe the defendant in that case, or maybe it was, the public defender's office, challenged that under the statute, but it. Is, again, I, you know, found, okay? I mean, there's no alternative, so I don't, I don't know, you know, really, what to say about that. There's not a lot for the courts to sink their teeth into in terms of the analysis there.

Tim Kowal  35:12  
Yeah, and that, in that case, by the way, I just found the name Gandalf, gandal versus Grimes. It was a 1998 case, but unpublished. All right, was Erin? Was there anything else that that we didn't cover, that we should cover before we close? I

Erin Smith  35:28 
mean, I guess the one thing I would would say is that as wonderful as what, as I think what la just did, and the bravery and boldness of Judge Justin's order, as you were describing for the listeners, what it actually does. It actually, in my opinion, doesn't go far enough. I think it needs to go even farther. And a constitutional challenge really would, I think, you know, you mentioned the criteria that a case involves a fundamental right. You know, that's going to exclude most commercial disputes, probably all commercial disputes, employment. You know, I don't domestic violence, like personal safety and domestic violence restraining order case that Judge Justin kind of suggested she thinks that's a fundamental right. I'm not sure that's been found by a court yet, so I think it's what she did is is simultaneously bold and wonderful and a little conservative. You know? I think she she charted a narrow path that she felt she could was was very comfortable defending. If she was going to get sued, the court was going to get sued by the court reporters. And I think that's smart. I think that's smart. I completely understand that strategic choice. And I do think that order is, you know, going to be hard to to enjoin. And I think, honestly, we need an even bigger solution, because we're just leaving out still too many people. She set up kind of a case by case judges discretion. Scenario, again, I understand why that's the way it's written. But you know, your due process rights are your due process rights, and the courts need to provide that regardless of the, you know, personal whims of a case by case decision by different judges. So think there's a number of ways in which really, the issue is already teed up to be decided on an even more broad scope than what la did.

Tim Kowal  37:32  
Yeah, that is interesting, and that's now that you mentioned that that's that's another issue that could lead to further litigation, if you absolutely if the judge exercises discretion against granting the electronic recording because your case or the issue doesn't involve a fundamental what was the standard? Do you recall?

Erin Smith  37:49  
Oh, it has to involve a fundamental right. That's one of the six criteria. And then there's five more,

Tim Kowal  37:54 
yeah, yeah. So if you don't in the judges discretion, if you don't meet those criteria, maybe you have to consider taking up a writ petition, or you know that it's not, it wouldn't be a statutory writ so it would still be preserved in the direct appeal later on. But that could, that could be another layer of litigation and something else that you have to that that trial attorneys have to be aware of, and that appellate attorneys now have to be aware of, but, yeah, I agree with you that's, that's a good perspective, that it's, it is a very even, it's bold yet narrow and conservative. And I think you're right, that, that I think it, I just, I don't know how, how it would be overturned, because it's so cautious. It's, it's, it waited for the, you know, the peak of a crisis, and took the chart of the narrowest path, just relieved some of the pressure, with no prejudice to anybody. So,

Erin Smith  38:50 
yeah, and I think the way it's written, you know, the constitutional analysis being rooted in fundamental rights is going to require strict scrutiny. I especially don't know how you knock down that or under strict scrutiny, there's no, certainly no compelling government interest in depriving hundreds of 1000s of civil litigants of their record in the court system. I mean, I just cannot possibly imagine a Court of Appeal agreeing with that. So, yeah, I think the way it's written is it's designed to sustain a challenge, and that's great, and I totally understand that, and we need even more. So I really hope that the order encourages other courts to do the same, that, you know, some litigation comes along that really takes on the constitutional constitutionality of that statute head on and that we finally, after all these decades, get a statewide resolution that preserves litigants rights.

Tim Kowal  39:49  
Yeah, all right, Aaron, thank you so much for taking the time to think about this issue. And if you're listening to this and you have run across an instance where the judges deny. Made your request for an electronic recording, or you're looking to you're the respondent on an appeal, and you want to challenge the use of the reporters transcript made from electronic reporting. And you you have some interesting insight into this situation, please email us at info, at Cal podcast.com, and we'll see you next time with some more interesting insights and guests.

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