It was a situation that La Crosse civil trial lawyer Mike Gill would run into from time to time while practicing in western Wisconsin and Minnesota in the late 1990s and early 2000s: He would attend a deposition and afterward get a huge bill from the court reporter.
Without being able to prove it, Gill’s suspicion came to be that reporters had contracts guaranteeing low rates to the parties that had scheduled the deposition proceedings and that Gill and his clients were being charged more to make up for the discounts.
Gill, a partner at Hale Skemp Hanson Skemp & Sleik, recalled how he once received a $1,000 invoice for a copy of a deposition transcript taken by a court reporter who had traveled from the Twin Cities to La Crosse that day. Gill had been expecting the bill to be in the $300 to $400 range.
A resolution to that particular dispute followed from a phone to call to opposing counsel and the reporting firm itself. But situations like these continue to arise, despite state lawmakers’ attempts at prevention.
In 2003, Wisconsin’s Legislature passed a law prohibiting law firms and insurance companies from entering into contracts agreeing to give all the depositions scheduled in their cases to particular court-reporting firms. Since then, Gill has found that the practices he is complaining of have become much more uncommon in his neck of the woods.
Bob Gramann, president of Milwaukee-based Gramann Reporting, said the law prompted his company to drop contracts it had with two insurance companies. The trouble is that not everyone is playing by the same rules.
Gramann says national reporting firms have been violating that statute in order to compete with local companies like his. He and others on a committee at the Wisconsin Court Reporters Association are investigating what can be done to prevent the abuses.
To swoop up business, Gramann said, national competitors have adopted basically the same practices that had once been common among local firms: They are offering low rates to the parties they contract with and making up for the discounts by charging opposing parties more for transcripts.
“I think if you’re talking strictly profit and trying to enter a market, that’s a way to do it,” Gramann said. “But as far as ethical treatment of the parties and equal treatment of all the parties to the litigation, it’s unfair for sure.”
Wis. Stat. 804.03(3) specifically prohibits court-reporting firms from entering into contracts giving them the right to take depositions in every case handled by a particular party. Instead, reporting firms are allowed only to contract for individual cases.
Lawyers who suspect there have been abuses can make formal objections and ask judges to disqualify a transcript or prevent a particular court reporter from taking depositions in a case.
Gill says there are good reasons for the law.
“I have not, in 35 years of practice, been in a situation where I feel a court reporter has tampered with testimony in a way to favor a particular party,” he said. “It’s the appearance of impartiality that’s important, and if someone has an interest or business tie to one party or another, that appearance could be impaired.”
Gramann noted that the statute is a result of court reporters’ ethical obligation to be an independent third party, free of conflicts of interest. But court reporters, unlike lawyers, have no agency making sure they adhere to a code of ethics.
But just because cost-shifting and contracting haven’t reappeared in western Wisconsin, where Gill practices, that doesn’t mean he isn’t concerned.
In the end it comes down to fairness, Gill said. He said much of the trouble comes simply from the way the system is now set up. Parties that are taking depositions are the ones who have the right to select court reporters; the other side, meanwhile, merely gets a bill whenever it requests a transcript.
“I think that’s really where the system potentially falls apart, because a lot of times you are set up for this situation,” he said. “I had no idea until I received the bill from the court reporter that this was going on.”
Despite his complaints, Gill has never had to resort to invoking the state statue aimed at preventing these sorts of abuses.
“I confronted head on the opposing attorney or court reporter and ultimately have been able to resolve the matter in a way I felt was reasonable,” he said.
Gramann says he and his reporters regularly hear from lawyers about high deposition-transcript prices.
“When we go to depositions our reporters will come back and say, ‘So-and-so just told me they got totally ripped off on their copy prices and they are so upset about it and want to do something.’” he said. “When I say, ‘Here’s our law, go after it,’ nothing happens. They just don’t want to do it.’”
Gramann and his committee have been watching other states’ attempts to fight these types of abuses. Washington state, for one, has been a hotbed of activity. Court reporters there have been proposing rule changes to their Supreme Court and lawsuits have been filed against court reporting firms.
In one case from 2011, a solo practitioner sued a court-reporting firm for treating her differently from lawyers who worked for large firms and for charging plaintiffs more for attendance fees and transcript copies. During discovery proceedings, she had been able to obtain invoices showing the firm had had a contract with an insurance company and had charged plaintiffs higher rates to make up for the difference.
The court-reporting firm eventually settled in December with Haskell for more than $200,000.
Another case out of Washington involved a standoff between litigants who had been plaintiffs in other cases and national firms. The litigants sued a national court-reporting firm in 2016 for contracting and cost-shifting, contending it had violated state court-reporting laws and the state’s consumer-protection law. A judge recently certified the lawsuit as a class action, and the case is scheduled to go to trial in October.
If the result bans cost-shifting, it could give Gramann some precedent to cite in a similar lawsuit. A ruling for the national firm, on the other hand, might mean Gramann will have to adopt similar practices or risk being left behind.
“If they succeed that could really send a tremor across the U.S.,” he said. Follow @erikastrebel