Recording technology: Man vs. machine in the courtroom

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Eight years after becoming the first state judge to embrace audio digital recording in the court, Dodge County Circuit Judge John Storck is exploring another groundbreaking means of keeping records.

“I propose we have a blended digital audio-recording/stenographic-recording system,” said Storck, presiding judge in Dodge County, where he has been using the technology since 2001 and has been conducting a formal test of audio digital-recording technology for the past eight years.

“I see digital audio recording as a tool,” Storck said. “I believe that every stenographic courts reporter should also have available the use of a digital audio-recording system. It can be a backup, but you need to have this tool integrated into the court system.”

Yet for some, such as Washington County Circuit Judge Andrew Gonring, the debate over audio digital recording, often called ADR, is far from settled.

Since the state first began testing out the technology around 2006, only about 30 county units have adopted it; about half of those are in Milwaukee County. Many of the systems are used by court commissioners overseeing high-volume, low-transcript courts, according to the state courts office.

Use rates vary greatly by county. Dodge County’s courts, for instance, are equipped with ADR systems. The circuit branches there rely on Storck’s hybrid stenographer-recorder system.

Storck’s own branch goes even further, making exclusive use of audio digital recording. The systems, according to the state courts office, are also used by circuit court judges in Bayfield, Grant and St. Croix counties, and plans call for the technology to be installed in Adams County courtrooms in the next few months.

Not everyone is accepting of the changes.

“I have no interest in piloting anything,” said Gonring, presiding judge in Washington County. “The up and trendy thing is to buy into all these changes in the court system, and I second-guess those things.”

Gonring’s biggest gripe is that digital recording could be seen as a replacement for court reporters, otherwise known as people.

“I consider my court reporter an integral part of the Branch 4 team. I rely on her for recall of individuals, not to mention being able to provide me a rough transcript in just minutes. And there’s a lot to be said for immediate recall of a portion of the record, whether it’s a particular question asked or a particular response. I don’t know how you do that with a machine.”

You do it by replaying the audio, which can capture not only the words spoken but the way in which they were said, said Judge Richard Kopf, senior U.S. district judge for the District of Nebraska.

Like Storck in Wisconsin, Kopf has become a champion of adding the latest technology to his courtrooms. He was chief judge when his district went paperless, making his the first federal court in the nation to adopt that change. He was also quick to see the opportunities offered by audio digital recording, which he began using in 2004. And, most recently, he has been supportive of tests conducted in Lincoln, Neb., to learn the advantages of turning to video equipment to record court proceedings.

“I hope within my lifetime we’ll be able to upload video and the court would be controlling the cameras,” Storck said.

For Kopf, who first took the bench in 1987 and served as a U.S. magistrate for five years before being appointed a district judge in 1992, it’s all about transparency.

“It’s always seemed to me that the way for people to better understand the courts is to see how the sausage is made, and the way to see how the sausage is made is, I think, to hear what actually happened.”

So, every day, whether he’s in trial or engaged in sentencings or hearing motions, Kopf uploads the day’s audio recordings to an electronic filing system that the public can access through the online federal database PACER.

“I’ve been completely satisfied,” Kopf said. “And the attorneys who have spoken to me (about the system) are almost uniformly happy with it because they can pick it off CM/ECF without having to go through a court reporter. And if they really want a transcript, they can have somebody in their office transcribe it or they can hire their own transcriber.”

The response has been similar in Dodge County, where Storck said the only concern attorneys have raised is whether the recording system might pick up confidential conversations held at counsel tables.

Storck said, though, that in the 14 years he has used the technology, he has never heard a complaint about an ostensibly private conversation being intercepted. To prevent such mishaps, he reminds attorneys to step back from or mute the microphone when they are making remarks that are not intended for wide circulation. Signs posted throughout the courtroom also reinforce that message.

As for judges, Storck said, “If you ask the judges who do have (ADR systems), I think to the person they’d tell you they wouldn’t go back. I’d encourage judges and counties to look at it.”

In fact, Storck, who has relied solely on digital audio recording for eight years, is developing procedures to guide those who would adopt ADR. In the meantime, he said, he’ll continue to advise anyone who is interested.

He’s more than happy, he said, to explain how using ADR has helped his county eliminate overtime for paid-by-the-hour court reporters, how the county has only had to call for a backup stenographer once in eight years because of the digital system, and how court reporters have learned to rely on their audio recording counterparts to free up time for making transcripts.

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All this is not to say it’s a perfect system.

Kopf readily acknowledges that the startup costs can be large. Those costs can quickly undermine the estimated $110,000 in overall savings his courts have seen from adopting ADR; at the federal level, it can cost nearly $40,000 to equip a courtroom with ADR, although Storck estimated the state could set up a system for closer to $5,000 or $6,000 per court.

Kopf also predicted increasing resistance from what he’s dubbed the “court reporter mafia” — which is his way of referring to the many judges who go to great lengths protect their staff members.

“You do have employees who are at risk,” conceded Kopf, who estimated nine out of 94 federal district courts — only 61 courts in total — are using ADR systems. “So, this is going to be a slow process.”

And yet, he said, change must come.

“Not to be flip, but welcome to the digital world. I’m sympathetic, but I think the economies and the improved product are going to drive the use of court reporters down. I think there will be jobs for court reporters, but I think their jobs are going to be different.”

On that point, even Gonring can agree. Almost.

“I suspect at some point someone is going to say, ‘It’s cheaper to have this machine than a certified court reporter,’ and that may control things,” Gonring said. “There may be a time when somebody says, ‘We don’t have enough certified court reporters,’ and you have to go to a machine.

“But until that day comes, the benefits of a live court reporter outweigh having a machine recording the record,” he said. “I just really do believe that a live court reporter is essential to the courtroom litigation process and the orderly presentation of evidence.”