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Take down Fees, Hearing Transcripts and "Pay to Play"

Posted by Sean A. Black | Mar 21, 2014 | 7 Comments

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.

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.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


Alisha Hurdle Reply

Posted Sep 30, 2015 at 14:36:12

I just want to be clear…. because my grandmother is having an issue obtaining transcripts from her Civil Case Hearing. In the state of Georgia, it is legal for transcripts to not be taken at a hearing? Also when and to whom would the question be asked if the parties (defendant and plaintiff) would like the transcript to be taken during the hearing.

My grandmother alleges no one ever mentioned it was an option. (Her case is in Chattam County: Savannah)

Sean A. Black Reply

Posted Oct 05, 2015 at 06:15:25

In a civil case in Superior Court or State Court, typically, the judge asks the parties at the beginning of the hearing whether they want the hearing taken down. If so, they have to arrange to pay the court reporter for it to happen. Magistrate Court matters are not required to be taken down, and if a party wants a court reporter, they have to arrange it ahead of the hearing

DJ Reply

Posted Nov 24, 2015 at 09:42:12

I think this “rule” is so wrong on so many levels. I have never heard of this until I moved to Georgia. All parties should be privy to transcripts of their own court proceedings and money shouldn’t be a deciding factor. It wreaks of classism and gives the party with more money and resources a major advantage.

Sadaja Reply

Posted Feb 02, 2020 at 20:15:17

I’m fighting a custody battle with my child father . He’s asking for take down . I’m not quite sure what that mean .but should I agree or disagree ? I have all types of proof on why he shouldn’t be the primary care taker of my child .

Sean A. Black Reply

Posted Feb 03, 2020 at 04:17:05

Take down usually comes up in a court hearing. It means that the court reporter will record the hearing in some way, usually mask dictation or steno dictation. Both methods use some elements of voice recognition these days. Basically, making a record of what is said and who said it so that it could be reduced to writing if there was a need. An old legal saying is that if it’s not written down, it didn’t happen. I always want take down unless it is something where the end result is known absolutely or doesn’t matter.

Lisa Schoch Reply

Posted Sep 24, 2020 at 09:08:27

There is a question with the court reporters as to what rule number this is taken from. There are Judicial Codes of Policies and Procedures for court reporters which state what we are allowed to charge per hour, $43.31. But where do they even get that rule when the parties say they want it taken under the rule? Thanks!

Sean A. Black Reply

Posted Sep 24, 2020 at 11:27:14

As far as I can deduce, the “rule” is a rule created by the Georgia Supreme Court that has been in place since the 1960’s in Georgia, but is set out only in court decisions. It is based on the idea that there is no legal requirement of takedown or transcription of a civil hearing. Consequently, if only one party or group of parties paid for takedown, it is their contract with the court reporter that controls access to the court reporter’s “notes.”

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