The Record

February 2008
By Judge John Wittmayer, Multnomah County Circuit Court

I have written on this subject before, but difficulties continue for lawyers in producing a useful record. As you know, almost all the live court reporters have been replaced by electronic, digital recording. With no person taking everything down, many things can go amiss. Although the clerk in the courtroom operates the electronic recording equipment to make the record, it is the responsibility of each lawyer, for the benefit of his/her client, to make sure you have the record you need. You should keep in mind the following issues with electronic recording in the courtroom:

  • You must pay the hearing fee if you want your matter to be on the record. Even if you do not pay, many judges have the electronic record made, in which case the clerk codes the recording to indicate you have not paid, and it is for use of the court only. Thereafter, it is very difficult for you to obtain a copy to be transcribed. It takes a motion and order from the presiding judge to allow you to pay the fee after the hearing so you can get a transcript made. And these requests are frequently denied.
  • At the start of each hearing, every lawyer should state and spell his/her name on the record. Although the judge certainly may know you and know your name, you are "telling" the record, not just the judge, your name. And the point of spelling your name is so that a transcriptionist will later recognize your voice on the electronic recording so your statements can be accurately be attributed to you.
  • As you wander away from the microphone on counsel table during a trial or hearing, your voice might not be picked up by the electronic recording equipment. And when you have your witness step from the witness stand to use the easel in the well of the courtroom, the witness' voice may also not be picked up by the equipment. Every courtroom is different in this regard - ask the clerk how it works in each courtroom.