Articles
Look a Gifthorse in the Mouth:
The Pitfalls to Gifting and Ethical Obligations
By Lisa Migliore Black, Written for distribution in Kentucky and edited for national distribution.
The advice given in the “Don't look a gifthorse in the mouth” proverb is, when given a present, be grateful for your good fortune and don't look further to assess its value. This may not be sound advice in our legal arena.
Gifts and incentives designed to influence your decision on which firm to use for court reporting work are coming in all forms. You might wonder why your court reporter doesn't offer such incentives. The answer is simple: According to the state and national court reporting associations and the Kentucky Bar Association, Rules of the Supreme Court of Kentucky, such practices can be considered unethical, depending on the value of the gifts and the terms under which they are being offered.
The NCRA and KyCRA Code of Ethics state that court reporters must, "Refrain from giving, directly or indirectly, any gift, incentive, reward or anything of value to attorneys, clients, witnesses, insurance companies or any other persons or entities associated with the litigation, or to the representatives or agents of any of the foregoing, except for items that do not exceed $100 in the aggregate per recipient each year." This guideline has recently been updated to exclude any form of cash or point systems as acceptable gifts and also provides for a fair market valuation of the gifts being offered to further guide court reporters on how to avoid the appearance of impropriety. Justice simply can't be sold to the court reporter with the highest reward, incentive, or kickback for the work.
What's more, since the parties to the case are the ones who are ultimately paying the bills associated with such incentives received by attorneys and their staff, litigants are funding the bill for some vendors' marketing strategies. Whether a violation of our rules as court reporters or the rules governing attorneys, these practices can be detrimental for all involved.
Additionally, you should test how the gifting practices of your firm’s vendors (including court reporters) apply to the Kentucky Bar Association Rules of the Supreme Court of Kentucky, Practice of Law, SCR 3.130(1.8) Conflict of Interest: A lawyer shall not accept compensation for representing a client from one other than the client unless such compensation is in accordance with an agreement between the client and the third party or the client consents after consultation."
While non-lawyers are not subject to professional discipline, the lawyer for whom they work is responsible for ensuring that their conduct is compatible with their professional obligations. Many of these incentive programs target the staff that book depositions--$100 gift cards, iPods, Wii systems, points redeemable for limousine rides, etc. Some firms and many governmental agencies and state bar associations have a strict policy that prohibits gifting from vendors to protect their attorneys and staff.
In summary, examine how your actions may affect all parties involved in litigation: attorneys and their staff and court reporters. We all need to work together to uphold the integrity of our court records.
NCRA Legislative Bootcamp 2008
By Lisa Migliore Black, Published KyCRA Newsletter, Spring 2008
Let me start by thanking all of our membership for allowing me to attend the 2008 NCRA Legislative Boot Camp. For the uninitiated, the Legislative Boot Camp is an intensive two-day seminar held in Washington, D.C., designed to train court reporters to lobby for issues affecting our profession to their respective state representatives in the House and Senate. When I was asked if I would like to attend, my first response was, "Me? Really? Are you sure you want ME to attend?" Refusing to let fear and self-doubt stand in the way, I humbly accepted.
Our day started at 3:30 a.m. on Sunday. Kathy Nold and I jumped on a plane and arrived at the hotel 15 minutes before the seminar was to start. Our first day of training focused on basically getting us up to speed on how bills become law, basically a recap of Schoolhouse Rocks' "I'm Just a Bill," and the status on NCRA's lobbying efforts over the past seven years to obtain monies for our court reporting schools so that they would be better equipped to provide CART and captioning training to the 30 million deaf and hard of hearing in need of such services. The presenters also made it clear that this was not merely training, but that our visit to Capitol Hill on Tuesday wouldn't be the tour and sightseeing that I was expecting, but that we would actually be lobbying and presenting to Congress. Still the thoughts rushed through my head, "Me? Really? But I'm just a court reporter. Okay. Time to pay attention!"
Our second day was spent delivering our pitch to different mock audiences so that we would be prepared to answer any questions that might be thrown our way: "Why should the Federal government pay to train court reporters? Why don't broadcasters pay to train court reporters? How many captioners are needed? How does this help the deaf and hard of hearing? How quickly can court reporters be trained?"
By the end of our second 15-hour workday in a row, Kathy and I were prepared to answer any question, including those that you may have. In short version, the Telecommunications Act of 1996 mandated that 100% of programming be close captioned by the year 2006. While the intentions and mandates were admirable, they did not create the workforce designed to provide the services. When captioning isn't available due to a lack of trained captioners, broadcasters are subject to fines imposed by the FCC. Broadcasters are already required to pay the salaries and wages of the captioners, and since their business is television, the education of the workforce needed to fill these empty seats is best left to the court reporting schools.
Unfortunately, our schools are most readily equipped to train judicial reporters, not captioners, and much funding is needed for equipment upgrades, scholarships, recruitment of students, and distance learning programs. Schools could then apply for competitive grants to obtain such funding. The need for captioners is only going to grow with new channels being added. With the aging Baby Boomer population reaching the age where hearing loss is of higher likelihood, the estimated number of 30 million deaf and hard of hearing is only likely to increase exponentially. In the event of disaster situations, it is of the utmost importance that accurate closed captioning is available. In situations like Hurricane Katrina, it can actually be a life-and-death situation for those who could not hear information being broadcast about evacuations and shelters.
After what seemed like a short night's sleep, Kathy Nold and I loaded the bus that would take us to Capitol Hill. After a quick group shot of all of the attendees, we made our way to our meetings with Senator Mitch McConnell; William Henderson, Legislative Counsel for Senator Jim Bunning; and Congressman John Yarmuth. All were very welcoming and gracious listeners and agreed that they would look over our information. I was simply amazed at how accessible our government is to the people. After seven years of NCRA's lobbying for this cause, my hope is that this is the year that those efforts will come to fruition.
My song has changed since my attendance at the Legislative Bootcamp. I'm just a court reporter with a voice and a vote. When you have the opportunity to ask yourself, "Me? Really?" make sure to answer yourself, "Yes! Me! Really!" Together we can accomplish so much more.
Thanks again for this incredible opportunity.
Reference Check on Firms
By Lisa Migliore Black, Reprinted from Journal of Court Reporting, June 2008
How many reporters quit the business altogether because of bad firm experiences?
As a court reporter and former teacher who loves our profession, I hate seeing new reporters end their careers before they have even begun. Our future relies on these rare souls with the tenacity to make it through the program to begin with. Even seasoned reporters can fall victim to the unscrupulous, relying on the reputation of honesty and integrity that most court reporters deservedly enjoy. These reporters end their careers feeling ashamed and defeated. When these things happen, it should be a crime for all of that talent and education to be thrown away due to the likes of a few firms that should come with a warning label.
There are many questions to ask of a potential employer during the interviewing process: "What are my job requirements? Do you offer training? What can I expect to be paid? What are the terms of payment? Will I work onsite or work from home?"
These questions might have been thorough over a decade ago when I started reporting, when firms were named after the people who had client contact and a reputation to uphold. But, with the proliferation of non-reporter owners who may be more interested in the bottom line than the firm's reputation, do they need to probe deeper?
One question that may not come to mind or that you may be uncomfortable asking is: "What is your reputation in the community in which you work?" Of course, you would expect nothing but accolades from the reporting firm representative, but I suspect that the firm you wish to work for may not be the source that will give you the most accurate information.
One would think that a reporter could phone attorneys and ask for a reference on the court reporting firm with whom they're seeking employment. Calls to a state association to check on their membership status could also produce valuable information. A few phone calls later, you might find that, yes, their clients are happy with them. But what value is this information really? Being members in good standing with their state association means they pay their yearly dues. The clients have nice things to say about them, but if they didn't, wouldn't they find someone else for their reporting needs?
My advice to reporters seeking employment is to phone a reporter colleague in the area and ask, "Who would you work for?" After years of coexisting in the same market, the reporters are the ones most privy to the reputations of the firms in the area, and they have learned by trial and error who is deserving of praise and respect and who should be approached with caution. I suggest that if the firm you are thinking about working for isn't mentioned in their list, that might be a red flag for you to keep looking for alternative means of employment. Make more than one call, too. If the firm you're considering is seeking employees from four states away, is that due to a shortage of reporters in the area, or because they have already burned too many bridges locally to entice reporters to come aboard?
Keep in mind that competing firm owners or reporters may be leery of saying anything negative because they have their own interests to protect, i.e. slander. But to date, I haven't heard of a lawsuit being filed against someone who had a compliment to pass along.
Do your research, ask around, and ask the right questions of your prospective employer before you make the decision to come aboard.