One of the "rules" that civil lawyers work under are the rules about court reporting of civil cases. The issue arises most often in the context of domestic cases, where finances may be stretched. The rule is that Georgia courts do not provide court reporting services for civil cases. Court reporters do not work for free, so if the parties want a transcript, or the possibility of a transcript in the future, they must pay the court reporter to take down the hearing or trial.
At the beginning of a civil hearing, the court or the reporter will often inquire whether the parties want the matter taken down. The parties can elect not to have the matter taken down, to share in the take down, or one or more parties (but less than all) can pay for the take down.
If there is any possibility of an appeal being necessary for the party, a party should share in or pay for the take down of the matter. This is because the rule is that the court reporters' notes belong to the party or parties who pay for the take down. A party who does not share in the costs of take down is generally regarded as not being entitled to obtain the transcript. A transcript is often an essential element to a successful appeal. Often, an appeal is impossible without a transcript.
A recent case clarifies that determining the payment issue is but one step in the process to establish that the transcript belongs to the payers. The case is Beringer v. Emory, which was decided on March 14, 2014.
Beringer, the mother, was held in contempt of the court's custody and visitation order. The contempt involved violating a "morals clause" in the order and inappropriate communication with the minor child of the parties.
A "morals clause" typically prohibits a party from having an unrelated overnight guest of the opposite sex when the child is present in the party's home.
The trial court found that the morals clause had been violated and that inappropriate text messages had been sent. It found the mother in contempt, awarded attorney's fees to the father, and modified the visitation order.
At the beginning of the hearing, the father's attorney put on the record that the father had requested take down of the hearing and that the Mother had elected not to participate in the take down.
After the trial court ruled against her, the mother desired to appeal the court's ruling. She sought to have the hearing transcribed but was refused because she had not participated in take down. She sought to compel access to the transcript and was refused by the court. That brought about a first appeal which instructed the trial court to review and make a finding as to whether a necessary ruling had been made about access to the transcript. The trial court reaffirmed its earlier ruling without really addressing whether the father's attorney had invoked a ruling of the trial judge at the commencement of the proceedings that the other party had refused to share in the take down. On this, the second appeal, the Court of Appeals reviewed an excerpt from the transcript which did not include such an invocation or ruling.
Because transcripts are often necessary to obtain full appellate review, there should be a general interest in having proceedings taken down. However, Georgia places this burden on the parties. In cases where a party lacks the necessary resources to participate in those costs, the other side often gains a significant advantage. They can control access to the transcript. If the hearing goes in their favor, that party can keep the losing party from challenging the ruling on appeal. If the hearing goes against them, they have access to the transcript and can appeal the ruling. Once a party controlling the transcript appeals, they have to file the transcript with the clerk, and it becomes public record, available to the non-paying party.
For a lawyer handling these matters, there must be a priority on preparing clients that these costs are imminent and that the client should be prepared to pay those expenses. The lawyer needs to make clear the risks of proceeding without a court reporter. There are certainly matters that do not require take down or transcription, but significant risks are being taken when a contested matter is not taken down by a court reporter. Parties must pay the court reporter if they want to pursue appeals of rulings that they disagree with. One cannot rely on the possibility that a ruling will not be invoked that the party has refused to participate in the take down costs.
Sean A. Black of Black Law Offices, LLC, handles a variety of family law matters throughout northeast Georgia. Representations include divorces, suits for separate maintenance, child custody fights, child visitation disputes, child support establishment, enforcement and modification, and paternity and legimation matters. Let us know if we can be of assistance.