All Family Law, All Around the WorldSM

If you want your day in Court, make sure you get it recorded.

“Is there a court reporter?” “Is this being taken down pursuant to the rule?” These questions are asked in court rooms from Muscogee County to Camden County, Fulton County to Chatham County, Gwinnett County to Cobb County and everywhere in between in Georgia on any given day. What do they mean?

The first is self-explanatory: in certain counties a court reporter is provided by the Court, in others the parties need to coordinate to ensure someone is there to make a transcript of what is said in court. The answer to this question should, in my opinion, always be yes. Whether you hire an attorney or whether you are representing yourself, know whether a court reporter is going to be present and if you can, make sure one is.

The second question is simply asking whether the costs of the court reporter are going to be split evenly by the parties. Like the first question, the answer to this question should be a resounding yes. But why should you agree to take on additional costs in a lawsuit?

A court reporter specializes in capturing what is said in Court, every question, every answer, every objection, everything that comes out of someone’s mouth in Court. Having your appearance in Court memorialized is crucial for many reasons. By having a hearing recorded (taken down) you are ensuring that, if there is another hearing in the matter, you or your attorney are able to use what was said at the last hearing as evidence at the next one. If a witness answered one thing at the first hearing and decides that they have suddenly had a change of heart later on, you can use their previous testimony to impeach them and undermine their credibility. Among the other uses for a transcript, perhaps none are as important as the following: a transcript helps you preserve issues for an appeal and can actually allow you to argue your case to an appellate court who can help correct or clarify any missteps at the trial level.

Under Georgia law, if you wish to appeal an issue from a trial court you bear the burden on proving that error occurred. Given that it is your responsibility to show the appellate court that error occurred, a transcript is essential in helping you meet the showing required to be successful on appeal as it preserves everything that happened allowing you to point to the record to support your case.  Another reason you always need a court reporter is because of the presumptions that apply in appellate courts if you do not have transcript of your proceedings. Because error must be shown on the record provided to the appellate court, if there is no evidence in the record to support the contentions you make on appeal, the court must presume that the trial court’s actions were supported by the evidence presented. Even if what occurs in the trial court should be changed on appeal, if you don’t have a record to show where the error occurred, the presumption that the trial court acted properly can thwart your chances of receiving the relief you seek.

If the trial court finds that you declined to share in the cost of take down, that you won’t pay your half, that court cannot compel a court reporter to provide you with a transcript. The court must find that your refusal is express and explicit, meaning that the refusal cannot be inferred from conduct. As is the case with the law, there is always an argument to be made that even if you did not agree at the beginning to share in costs you should be allowed to purchase a transcript from the court reporter, if one exists, after the fact. That is an uphill battle.  Agreeing to split the cost at the beginning, or hiring your own court report, takes any ambiguity out of the equation: you will be able to get a copy of the record by paying the court reporter, no if ands or buts.

While you can show up to court and be successful without a court reporter, knowing that someone is creating a record of what is happening acts as a safety net ensuring that if something does go wrong it is not lost to the ether, rather it is in plain text on a page ready for you to use to try to right any wrong.

Felix Kloc