court stenographer

What follows is a guest blog post on a very timely topic, and one that may affect the practice of many Arizona lawyers. It is written by Stinson Leonard Street attorney Blair Moses (whose bio is at the end). Here’s Blair:

Important Changes to the Arizona Code of Judicial Administration (ACJA) Governing Court Reporting and Their Impact on Arizona Attorneys

In September 2013, the Arizona Supreme Court released proposed amendments to the Arizona Code of Judicial Administration (ACJA) governing court reporting—ACJA § 7-206. Arizona court reporters had immediate concerns that the proposed amendments might affect the integrity and impartiality of court reporters and promote unfair billing, exorbitant costs, and a break in the chain of custody of the confidential record. These concerns were due in part to amendments that 1) allowed national court reporting companies, who are not currently licensed in Arizona and have no accountability to the Arizona judicial system, to take control of the confidential record and all production and billing for that record; 2) limited the court reporter’s duty and accountability to accurately write the testimony; and 3) restricted the court reporter’s ability to inquire about and ensure fair dealing and equitable treatment of all parties.

Moreover, these proposed code changes could have negatively impacted an attorney’s duty to safeguard client information and confidences. The proposed amendments allowed the release of testimony and exhibits to an “authorized agent,” such as a national court reporting company, without requiring permission or notification of the witness or any party to a proceeding. Attorneys, like certified court reporters, have ethical obligations to prevent disclosure of confidential and protected information to nonparties of a proceeding and to prevent confidential information from being archived by a third party. Thus, releasing transcripts and exhibits to, and archiving by, a third party may have violated attorneys’ Ethical Rule 1.6.

Following the expression of these concerns at various public forums and through public comment letters from Arizona court reporters, Arizona attorneys, and out of state court reporters facing similar amendments, Arizona Supreme Court Chief Justice Berch appointed a Task Force to evaluate the proposed amendments, receive input on concerns, and make final recommendations regarding amending the code. And after months of analysis, collaboration, and attendance at meetings with the Office of Administration, the Court Reporting Board, the Committee on Superior Court, Chief Justice Berch’s Task Force, and the Arizona Judicial Council by Arizona court reporters and members of the Arizona Bar, the Arizona Judicial Council (“AJC”) approved significantly revised amendments to ACJA § 7-206 on March 25, 2014. The Supreme Court Order amending ACJA § 7-206 as approved by the AJC was entered May 21, 2014, and became effective September 15, 2014.

The final amended code is a significant improvement over the initial proposed amendments and goes a long way to ensure fair treatment of all parties in an action, including equal billing to all parties, preserving the confidentiality of the record, and preserving the ethical obligations of court reporters and attorneys alike. Accordingly, certain changes in the final code impact attorneys’ interactions with court reporters and reporting firms. A generalized summary of the more important of these changes to ACJA § 7-206 follows:

1. Individuals and entities, such as national court reporting companies, providing reporting services in Arizona must be registered with the Arizona Supreme Court, must comply with all provisions of ACJA § 7-206, including all ethical obligations in the Code of Conduct, and must submit to the authority of the Arizona Supreme Court.

2. Only an attorney, a party, or a registered reporting firm can retain court reporting services in Arizona cases. Arizona Certified Reporters and Registered Reporting Firms are prohibited from accepting assignments from any other individual or entity.

 

3. Reporters and reporting firms must now provide itemized rate disclosures prior to the commencement of a deposition and must charge all parties the same price for the same product or service.

a. Each invoice attorneys receive from a reporter or reporting firm must include a certification that the invoice and other business terms comply with the ethical obligations set forth in ACJA § 7-206.

b. If an attorney wants to review all parties’ invoices, the attorney must make that request of the Certified Reporter. Upon the attorney’s request, the Certified Reporter must provide copies of all parties’ invoices.

 

4. Reporters and reporting firms in a continuing contractual relationship[1] with “a party, attorney, or an entity with a financial interest in a case” must give written notice of that relationship to attorneys in the case and any unrepresented parties

a. The notice of contract must be made by the reporter and/or firm upon retention of their services and must contain the duration of the contractual relationship and whether it is exclusive.

b. Upon receiving written notice from a reporter or reporting firm that they are in a continuing contractual relationship, attorneys and unrepresented parties have five business days to respond with a written objection. If an attorney or any other relevant party objects, neither that reporter nor that firm can cover the deposition.

 

5. To enhance and ensure security, confidentiality and privacy, reporters and/or reporting firms may release (sell) transcripts only to witnesses, parties, and their attorneys, unless authorized otherwise by court order or agreement of the parties.

6. Attorneys and their clients can no longer receive from Arizona reporters, reporting firms, or their affiliates “additional advocacy or litigation support services, including but not limited to claim investigation assistance, trial preparation assistance, and deposition summaries.”

Except as expressly set forth, attorneys cannot waive the Arizona Certified Reporters’ and Registered Reporting Firms’ duties and obligations under ACJA § 7-206 by disclosure, agreement, stipulation, or otherwise.

Blair Moses is an associate in the Phoenix office of Stinson Leonard Street LLP. She primarily concentrates her practice in the area of commercial litigation, bringing a depth of experience that includes the representation of large corporations, small businesses and individuals. She also has experience representing defendants in labor and employment litigation matters. Prior to practicing law, Blair gained extensive experience in the health care field and she now assists in the representation of health care providers.

More information on Blair is here. And she can be reached at blair.moses@stinsonleonard.com

[1] Under ACJA § 7-206(J)(1)(l), a “continuing contractual relationship” is one where a certified reporter or registered reporting firm has a contractual relationship in which reporting services are provided “in multiple cases with a party, attorney, or an entity with a financial interest in a case.” (emphasis added).

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Letterpress BlogToday’s Change of Venue item is aimed at law students (sorry lawyers). But I’d sure appreciate your sharing it with worthy law student friends.

The sum of it is, there’s a blog post contest, and there is cash-money involved. Full stop.

(My blog title may have fanned the flames of your interest by mentioning “fame,” but who’s to say, really?)

The-Expert-Institute-square-logoThe Expert Institute is seeking great law student blog posts and decided a contest may be the best way to locate them (this is their first annual). You can read more details here.

There are a list of rules (it is a legal writing competition, after all), but note that the contest is (1) open to all law students in the United States and Canada and (2) open through December 31, so you have time to provide much valuable content for possible review.

And yes, as you might guess, posts must be related somehow to the use of expert witnesses in litigation.

Turn up, law students! If an Arizona blogger earns a prize in the contest, maybe we at Arizona Attorney Magazine will throw a little fame their way ourselves. (No promises; I’m just thinking out loud. Get writing.)

Have a marvelous—and blog-worthy—weekend.

ABA Section of Litigation logoLater this week, I’ll attend a conference focused on litigation. Just in case you can’t be there yourself, I thought I’d ask what you’d like me to cover.

The event is the annual conference of the American Bar Association Litigation Section (follow them on Twitter here). We are fortunate that the national event will be held April 9-11 right here in our state, at The Phoenician in Scottsdale. (The State Bar of Arizona CEO, John Phelps, is an Honorary Chair.)

The three days will have a boatload of seminars, 40 of them:

“including 3 plenaries and feature 150 of the nation’s most respected judges, academics and trial lawyers,as they address litigation development and techniques in trial advocacy. In addition to the education portion, the Section Annual Conference provides for an opportunity for meeting and networking with our distinguished guests and fellow participants.”

Wondering what the seminars include? You can breeze through the brochure here.

The ABA makes it even easier. Here is an abbreviated guide.

the phoenician scottsdale

The Phoenician Resort, Scottsdale, Ariz., site of the annual conference of the American Bar Association Section of Litigation, April 9-11, 2014.

I’ll be in and out of the conference this week, seeking stories and great new article ideas for Arizona Attorney Magazine. I’m developing my week’s calendar now, and I’d appreciate knowing which seminars sound most interesting to you.

Here are a few I may drop in on:

  • General counsel forum reveals the real deal
  • Janet Napolitano keynote
  • New technologies of evidence coming to court
  • Essential apps and websites for litigators
  • A lynching that forever changed law practice
  • DOMA’s dead: Now what?
  • Hot Internet litigation trends
  • Lean In for lawyers
  • Social media’s implications for litigation
  • Communicating about mistakes with clients
  • Litigating privacy and data breach issues
  • Dealing with difficult judges
  • Business divorces

… and, of course:

  • The Trial of Wyatt Earp

And then after lunch …

Only kidding. I may not have time to attend all of these. But look over the program and tell me what you’d love to hear a synopsis of.

And if you plan to be there yourself, let me know. Write to me at arizona.attorney@azbar.org. Or reach me on Twitter @azatty. I’ll also be tweeting, and here’s the conference hashtag: #14SAC

Let’s get litigious, shall we?

Arizona Attorney Magazine June 2013What happens in courtrooms may only be a part of the legal profession. But litigation and practice areas surrounding it are important indicators for the economy and more.

The current issue of Arizona Attorney Magazine includes some robust content on litigation. I leave the readers to adduce their own meaning.

You may read the entire issue here. Feel free to share it around.

Our cover story is one of our most-read recurring features: our annual roundup of the previous year’s top verdicts—plaintiff and defense. Snell & Wilmer partner Kelly Wilkins MacHenry continues to be our talented reporter and writer in this endeavor.

Also included is an analysis of litigation trends, courtesy of Tom Littler.

Read how Tom Littler describes trends in trials, discovery, litigation, fees and more.

Read how Tom Littler describes trends in trials, discovery, fees and more.

Finally, what about that long period leading up to trial (or settlement). Judge Douglas Gerlach and Eugene D. Cohen write on a proposed method of handling non-discovery motions. Let me know what you think.

Writing for Arizona Attorney remains one of the best ways for attorneys to distinguish themselves among their peers. It showcases legal knowledge and experience, and it helps lawyers convey their content in a timely and award-winning way.

Do you have story ideas? Would you like to be among those who display their talents?

Write to me at arizona.attorney@azbar.org.

8 play by Dustin Lance Black in AZAs I sidled my way last night past the crowds into the Herberger Theater in downtown Phoenix, I must admit I was skeptical. An entire play constructed mainly of a trial transcript? Really?

Anyone who has been to a trial or two knows you would need a genius writer to make that come together into dramatic arts. And so the play “8” had one: Dustin Lance Black had whittled a trial into an evening that was provocative, funny and compelling.

I mentioned the play last Friday, and I was pleased that my family and I were able to attend. “8” tells the story of the trial over the constitutionality of California’s Proposition 8, which banned same-sex marriage.

Black drew on his mondo skills to shape a play comprised almost entirely of the trial transcript. There are a few moments that are tough sledding, especially, I imagine, for the many nonlawyers in the house. Arguing over the standard of review is often a game-changer in a case, but it’s an oddly shaped building block in crafting compelling theater.

Performers in the play 8, Herberger Center Theatre, Phoenix, May 7, 2013

Performers in the play 8, Herberger Center Theatre, Phoenix, May 7, 2013

There are only a few of those moments, though. The craft and the words selected were amazing. And what consistently impressed was the quality of the performances. Non-actors almost all, the cast delivered a rousing and entirely convincing play.

I know that one actor–director was cast, to fabulous results. Ron May is the founder and artistic director of Stray Cat Theatre, and his rendition of a witness was wow-inspiring. Cast as David Blankenhorn, May encapsulated eloquently the ideologue who had never been challenged to defend his beliefs before he sat in a witness chair. As he is cross-examined by David Boies of Bush v. Gore fame (played superbly by lawyer and Phoenix Councilman Tom Simplot), bluster turns to anger turns to frustration turns to near-total capitulation. As the steam escapes from Blankenhorn’s pompous world view, the state’s case deflates before the audience’s eyes. If there’s one thing we know, it’s more Ron May, please.

View from Balcony, Row EE (hint: buy tickets earlier).

View from Balcony, Row EE (hint: buy tickets earlier).

The strong performing continued with the attorneys. Amazing work was delivered by Grant Woods (as Ted Olson), Nicole France Stanton (as plaintiff Sandy Stier), Terry Goddard (as trial Judge Vaughn Walker), and Bill Sheppard.

A marvelous moment occurred after the play and during a brief audience-question session. One man (whom I couldn’t see from the nosebleed section) rose to praise Grant Woods. The speaker said that when he was a young Assistant Attorney General 23 years ago, he had serious concerns about being a gay man in the large public agency. But he said that Woods had told him that all he would ever be judged on in that office was merit, the quality of his work. That compelling memory led to a standing ovation for the former Attorney General, which grew to include his own fellow performers.

(Years ago, I had the chance to appear on the Herberger stage in a father–daughter performance with our wonderfully ever-patient Willa. I thought I had turned in a pretty good show. But then I saw Grant Woods get a well-deserved standing ovation, so I think I’m done.)

Grant Woods gets a standing ovation, Herberger Theatre Center, May 7, 2013.

Grant Woods gets a standing ovation, Herberger Theatre Center, May 7, 2013.

My family and I greatly enjoyed the show. And I must add what especially struck me (caution: lawyer moment approaching):

It was remarkable to see, via the true-to-life transcripts, the power that an actual trial may have. In an age when trials are rarer and rarer and they are derided as the ultimate failure of negotiated resolution, it’s worth remembering that truth often peeks out of that ancient construct. Outside the courtroom, lying, puffery, bullying and rants may win the day. But seated in that witness chair, required to endure a series of simple questions, those resting on a crumbling foundation often founder. Except for the sociopathic, misstatements and worse cause discomfort and anxiety when one is required to raise a hand and utter an oath.

Not such a bad message to learn, for lawyers and nonlawyers alike.

Congratulations to all who participated.

8 the Play bare stage

Yesterday, I was looking for something on the CNN website (good luck) when I came across their recently omnipresent viewer-discretion warning about the Jodi Arias trial. Here’s a screen-grab (the big honking arrow is mine, though the station bosses might decide they like it).

CNN's Jodi Arias trial viewer-discretion warning

CNN’s Jodi Arias trial viewer-discretion warning

I’ve watched a bit of the Arias trial, but not much. Given the questions I’ve received from friends and colleagues around the country (usually beginning, “Let me get this straight …”), it’s helpful for me to know something about the case facts.

Long after those facts are adjudicated, though, the complex legal issues will be debated (probably with no viewer-discretion warning required). And even beyond that, we’ll assess the effectiveness of juror questions.

Yes, there have been a few tawdry inquiries from those colleagues around the country. But more often, I have been surprised at the number of them who have asked about juror questions: “You allow that in Arizona?”

Arizona Attorney Magazine cover, February 2001

Arizona Attorney Magazine cover, February 2001

Indeed we do, as well as note-taking and some other semi-unique elements.

The number of juror questions posed in this trial may be remarkable, but the fact that they may inquire at all has been a part of Arizona jurisprudence for a long time now.

For some background on that, you should read “O Pioneer,” our 2001 article about then-Judge Michael Dann. He and others were leaders in initiatives to transform the jury process. Other states have participated, but Arizona was (and is) a leader.

Posted on their website, the Arizona Supreme Court has the remarkable original report (from 1994 and 1998) called “The Power of 12.” It’s in two parts, here and here. It was drafted by the Court’s Committee on the More Effective Use of Juries.

For more recent coverage of courts that permit juror questions, go here. As the story opens:

“A small number of states have changed their laws and court rules to allow jurors to ask witnesses questions, either orally or in writing through the judge. Written questions submitted in advanced allow attorneys for both sides to make objections based either on the ground they would violate the rules governing the admission of evidence or would result in prejudice against their clients.”

Michael Dann, former Judge on the Superior Court for Maricopa County

Michael Dann, former Judge on the Superior Court for Maricopa County

“The states that expressly encourage judges to allow jurors to question witnesses are Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada and North Carolina. Out of these jurisdictions, Arizona, Florida, and Kentucky require that judges allow jurors to ask written questions. The respective highest state courts of Indiana and Kentucky have ruled jurors have a right to ask questions of witnesses.”

But changes like this can lead to unpredictable results. You should read this Washington Post story from 2007, titled “Jurors’ Queries Yield Insights—and Laughs,” which opens with a humorous anecdote showing that jurors may focus on areas that counsel may find irrelevant:

“Former New York Times reporter Judith Miller was on the witness stand yesterday and a juror wanted to know why she had decided to go to jail for 85 days before agreeing to testify about her conversations with I. Lewis ‘Scooter’ Libby.”

“Another juror had a different kind of question for Miller about her notes from a conversation with Libby: Was storing notebooks in a large shopping bag under her desk her standard method for saving her notes?”

“So the jurors asked.”

For trial lawyer readers, have you found juror questions to be a feature that improves the process? Have you found queries annoying? Or have they given you an opportunity to clarify issues that may be blocking a jury decision?

Write to me at arizona.attorney@azbar.org.

What is it about eDiscovery that packs the education halls?

I wonder this as I prepare to head out to yet another offering on the esoteric topic, this one at the Sandra Day O’Connor College of Law at ASU. It is a three-day affair, which starts today, and it features what appear to be terrific panels and a noteworthy keynote. More on all that in a minute.

First, though, I return to my question: Why am I—and many other lawyers—eager to hear about eDiscovery? After all these years of sessions and panels and speakers on the subject, don’t we have eDiscovery fatigue?

Part of the answer, I think, goes back to Marketing 101. Other areas of law manage to get along by labeling their elements with workaday words: Will. Contract. Crime.

But long ago, a few trial lawyers sat in a room and thought: What should we call that period of time in which we wrestle over documents and files? A generation later, associates worldwide deem it “drudgery” or “document hell.” But around that original table of esquires, a light bulb lit up: How about … “Discovery”!

A regular Ponce de Leon, those lawyers. So forever after, stacks of Bankers Boxes are not merely a felled forest made rectangle. They represent a journey, a quest—discovery.

Of course, the D word may enliven law practice, but it doesn’t put keisters in the seats at a CLE. For that, you need something else. And in regard to eDiscovery, it’s the old standby: fear.

Fear? Well, yes.

What I mean is, once you’ve been in law practice for a fair amount of time, you develop an expertise. You can spot issues, recall seminal law and trust your judgment and experience to make educated calculations. That is true among all lawyers, even trial lawyers when it comes to discovery.

But eDiscovery? That is a wiggly little creature. We think we’ve got it pinned down, but then a new development arises, as we can see in this scenario featuring an associate and a partner:

A: “Whew, I’ve gathered and indexed all of the files off the server. Done!”

P: “Did you remember to do the same with the emails?”

A: “Yep.”

P: “Including the deleted emails, and those residing on the secondary and tertiary servers?”

Less sure now.

A: “Um, yes.”

P: “And the applications that our client may have in the cloud. Did you index those?”

Panic in the eyes.

A: “I think so.”

P: “How about the thumb drives that our client handed out at four national conferences? And the transcripts and video from their 19 podcasts? The newsletters they distributed on Skype? The tweets that the summer interns may have foisted on the world? And don’t forget the company CEO’s holographic message to shareholders. You did capture all that data using the most recently accepted technological methods, haven’t you? Hey, why are you weeping?

(No associates were harmed in the making of this scenario.)

Judge John Facciola

The ASU Law School’s Center for Law, Science & Innovation knows your pain. And that is why their keynote speaker is ideally chosen. And why that speaker knows precisely what to talk about: the risks of being uneducated on the topic of eDiscovery.

That’s right. Judge John M. Facciola understands that the keynote’s job is not to provide the nuts and bolts that other panelists will offer up. Instead, his keynote topic hits lawyers right where they are most cringeworthy: competency. And, of course, the risks inherent in not being fully competent in this rapidly changing area of law practice.

The speaker is a Magistrate Judge for the U.S. District Court for the District of Columbia, and his keynote title is “Competency in eDiscovery: An Ethical Dilemma and Cooperation Among Litigants.”

Here is the school’s description of Judge Facciola and his presentation:

The Honorable John M. Facciola, one of the foremost jurists and educators in eDiscovery and the author of several heralded opinions including Peskoff v. Faber, United States v. O’Keefe, and Equity Analytics, LLC v. Lundin, will start the program with a fascinating keynote address that explores the ethical implications involved in violating perhaps the most basic rule of professional responsibility—competency.

Judge Facciola’s address on competency will be discussed in relation to the:

  • Developing law of sanctions with a focus on the present state of the law prospects of rule changes
  • Judicial involvement and movement of government agencies toward transparency and cooperation
  • New developments in the criminal law re eDiscovery
  • New federal judicial regime of enforcing the obligation to meet and confer
  • Whether the adversarial model of discovery is giving way to a new cooperative process

    Josh Abbott

Time to refresh your competence. You may read more about the conference and register here.

More on the Center for Law, Science & Innovation is here.

And congratulations to Josh Abbott, Executive Director at the Center, for staging what looks to be a great event. I’ll report back later on the judge’s address to attendees.