What is this lawsuit about?
Historically, California courts relied on court reporters to create a word-for-word record of what happens in court, known as a “verbatim record.” In recent years, California courts have experienced a growing shortage of court reporters, and now they are regularly unable to provide free court reporters in many cases. And although many California courtrooms are equipped with electronic recording equipment, a state statute prohibits its use in most civil cases, including family law and probate matters. People can only get a verbatim record created in those cases if they hire their own private court reporters. Because low-income people cannot afford this, they are forced to proceed with their cases without any verbatim recording. Each day, thousands of hearings happen and there is no verbatim recording of what occurred. Last year over a million proceedings in California courts went forward with no verbatim recording.
Petitioners Family Violence Appellate Project and Bay Area Legal Aid brought this case as an original petition to the California Supreme Court, arguing that the courts have a mandatory duty to make verbatim recording available for litigants who cannot afford a private court reporter, even if that means a court has to use electronic recording because the court has no court reporter available.
Why is this important?
A verbatim recording can be crucial to a litigant’s ability to fully access the justice system. For example, in most cases it is not possible to appeal an adverse decision if there is no verbatim record of the proceeding in the trial court. This means that depriving litigants of verbatim recording effectively deprives them of their right to appeal. Verbatim recordings can also be very important in the trial court itself, such as where different judges are assigned to a case that spans for months or years, and the parties and the court need an undisputed record of what has been said in past proceedings.
What did the Court find?
On August 10, the California Supreme Court issued a decision that grants a sweeping victory for Petitioners and civil litigants across the state. The Court held that California superior courts have a mandatory duty to provide verbatim recording of all civil court proceedings for litigants who cannot afford to pay for a private court reporter. If a court reporter is unavailable to fulfill that duty, the Court further held that courts must use electronic recording, notwithstanding the statutory language that would otherwise prohibit it.
How many people are affected?
Hundreds of thousands of low-income civil litigants in the California courts will be affected by this decision, which affects cases involving domestic violence, child custody and support, guardianships, and a host of other legal issues that ordinary people rely on the courts to address every day.
Which courts does this decision now apply to?
Although only the superior courts of four counties were named as respondents in the case, the rules of law announced by the Court on August 10 apply to all superior courts in California.
What types of cases does this apply to?
The Supreme Court’s decision applies to all civil cases, but it specifically ensures that cases heard in family law, probate, and unlimited civil departments in the California superior courts receive verbatim recording—including by electronic recording if a court reporter is not available—despite the statute’s ban on electronic recording of those cases. This includes cases involving domestic violence, child custody and support, guardianships, debt collection, and a host of other legal issues that ordinary people rely on the courts to address every day.
Is this decision limited to trials?
No. The Court held that California courts have a duty to provide a verbatim record of all court proceedings for litigants who cannot afford to pay for a private court reporter.
Does this apply to criminal matters?
The Petition only sought relief in civil cases (including family law and probate matters), and the Court’s opinion did not address criminal matters. However, most courts prioritize assigning court reporters to courtrooms hearing felony cases, while electronic recording is already permitted in misdemeanor cases.
When do these legal rulings take effect?
Superior courts should already be moving expeditiously to comply with the Court’s ruling.
How does a litigant now get a recording?
A litigant who is unable to afford a private court reporter is now guaranteed verbatim recording of their proceeding upon request. The Court was clear that securing a verbatim record should not be an onerous process. A person who cannot afford a court reporter should be able to ask the judge for electronic recording if a court reporter is not present and recording the proceedings.
Is the decision limited to litigants who qualify for fee waivers?
No. The Court made clear that the decision applies to any litigant who cannot afford the cost of a private court reporter, even if they do not qualify for a waiver of court fees, which typically cost much less. The Court predicted that the number of litigants in this category could be “large.”
Does this ruling effectively override the Legislature’s decision in Government Code section 69957 to limit electronic recording?
Yes, but only in specific circumstances. The Court held that, under the “in forma pauperis” doctrine, which empowers courts to ensure equal access to justice for people of limited means, there is an implied exception to the statutory ban for cases in which the court is unable to supply a court reporter itself and the litigant cannot afford a private court reporter.
Does the ruling create any obligation for courts to notify litigants of the availability of electronic recording when a reporter is unavailable?
The court held that superior courts have a mandatory duty to ensure that a verbatim recording of some kind is available to litigants who cannot afford private court reporters. The opinion did not directly address how courts are to characterize this in communicating with litigants, but Petitioners believe the decision inherently requires that litigants be made properly aware of their right to request verbatim recording.
Is this decision going to require courts to make huge new investments in electronic recording equipment?
Because electronic recording has already been permitted for many years in some kinds of cases, virtually all superior courts already have electronic recording equipment installed in at least some courtrooms, and some have it installed in all of their courtrooms.
Do Petitioners disagree with the argument put forward by some that electronic recording is inferior to recording by a live court reporter?
As the Petition made clear, and as the Court’s opinion confirms, this asks the wrong question. The Petition did not ask the Court to hold that electronic recording be used in lieu of a court reporter when the court has one available; nor did the Court so rule. Instead, the question in this case was whether electronic recording is better than no verbatim recording at all. Everyone agrees the answer to that question is “yes.”
