For Want of a Tape ~ Court Reporters Needed

Here is another prime example of a recording system failure that cost the litigants time and money with the courthouse saving a few dollars by not employing a competent court reporter.

One has to wonder the wisdom of investing in mechanical equipment when investing in people in the courtroom is really a wiser investment. It is the Beagle's observation herein that a qualified "court reporter" would have saved the day again.

I can only hope that courthouses across the nation actually share this type of information so that other failures, mechanical or otherwise, can be avoided.

~ the Beagle

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Subject:

Good read, good lesson--this was on Courts Tech site

For Want of a Tape, a Case Was Lost
Judge orders mistrial when failure to record testimony leaves jury hung
By Henry Gottlieb New Jersey Law Journal November 2, 2007

A mistrial caused by a courtroom recording failure may have cost a
medical malpractice plaintiff in Essex County up to $560,000 of a
high-low settlement, and it is stirring calls for more stenographers
in New Jersey courts.

The incident also prompted administrators in Essex to order an
overhaul of the courts' entire stock of aging tape machines ? the
audio version of used cars from the early 1990s.

Judge Verna Leath declared the mistrial on Sept. 26 after she was
unable to meet the jury's request for a playback of crucial testimony
during a six-day trial. Without the testimony, the jury declared it was deadlocked.

Leath did not know at the time that the lawyers went to trial with a
high-low agreement to cap any verdict at $800,000, but give the
plaintiff at least $240,000 in case of a verdict below that, a no
cause, or a hung jury.

So Leath's grant of a mistrial didn't give the plaintiff's lawyer
another chance to try the case. A strict reading of the high-low
agreement requires the plaintiff to take the $240,000 minimum.

"Who could have anticipated something so strange," says plaintiff's
lawyer Larry Leifer of Maplewood. He wrote to Chief Justice Stuart
Rabner to complain, and his client says an award dictated by a
reporting glitch is a travesty of justice.

Last week, Leifer asked the trial judge to set aside the high-low
agreement and order a retrial on grounds the pact did not contemplate
a mistrial due to technical error.

"This was not a hung jury, this was a mistrial due to a loose plug,"
he says in a motion returnable Nov. 16.

Defense lawyer David Weeks of Ruprecht Hart & Weeks in Millburn wants
the agreement enforced.

Parties who make high-low deals know that no matter what a judge or
jury rules, there will be no right of appeal or post-trial motions, Weeks says.

"Sure it's unusual, but it's no different than the many things we all
agree to waive so that there is finality," he says. "The bottom line
of these things is that when it's over it's over."

In Branham v. Raina, Esx-L-744-05, Justine Branham is suing as the
executrix of the estate of her sister, Annabelle Jones, who died of
breast cancer in 2006.

The plaintiff's evidence at the trial said defendant Suresh Raina, a
doctor at the University of Medicine and Dentistry-New Jersey,
misdiagnosed a mass in Jones' breast in 2002 and failed to order a
biopsy, causing the cancer to flourish and, ultimately, Jones' death.

The defense countered that Raina met the standards for care and that
even if she had ordered more tests the outcome would have been the same.

Leifer says he thought he had a good case, but he also says there was
good expert evidence on the other side. So the day the trial started on Sept.
17, Weeks wrote the high-low agreement in longhand and he and Leifer
signed it.

"As is standard in such agreements, the net verdict governs and any
verdict of $240,000 or less (including a judgment of no cause for
action or other dismissal) or a mistrial due to a hung jury will
result in the defendant paying $240,000," the agreement says.

The judge wasn't told. Weeks says that's common because lawyers don't
want judges to be influenced by the fact that their rulings are not
going to be subject to appeal.

About two hours after the jury began deliberating, it requested a
playback of the cross-examination of a defense expert. But when a
clerk played the tape it was inaudible. Leath declared a mistrial.

Leifer argues in his motion that the phrase "mistrial due to a hung jury"
is inapplicable because the mistrial was due to audio failure. And if
the phrase is ambiguous it should be construed against the defense
because Weeks was the scrivener.

"There was no meeting of the minds and no contemplation by the parties
to the events which befell the parties to this litigation, in terms of
a 'loose plug,'" he says.

Weeks says the phrase "mistrial due to a hung jury" is designed for
the protection of the plaintiff and insures against a defense lawyer
engineering a mistrial through mischief.

What caused the jury to fail to reach a verdict doesn't matter, Weeks
says. "They said they couldn't reach a verdict and that's a hung jury."

He says he has made eight or 10 high-low agreements in the 100 or so
cases he has tried and that these pacts, whether written or oral and
regardless of clauses, contain an irrevocable assumption.

"It is final, it is over, no matter what happens," he says. "When this
is over it's done and you're going to get one of the numbers, whether
it's the high the low or the one that falls in the middle."

Paul Piantino III of White and Williams in Paramus, who represents
defendants and plaintiffs and has made high-low agreements, says it's
hard to imagine a repeat of what happened in the Essex case.

He says the only problem he has encountered results from failure of
the lawyers to be specific about prejudgment interest. Plaintiffs who
come out on the low end will sometimes argue that they also are
entitled to prejudgment interest, as long as it doesn't take the final
payment above the high figure.

Dated Equipment Still in Use

The day of the mishap in Leath's court, a technician declared that a
loose plug was responsible, but court officials are now blaming a part
in the recorder and it remains unclear whether human error was responsible, too.

"These machines we are using now are very, very old and are no longer
in production," Essex Trial Court Administrator Collins Ijoma says of
the 15-year-old Sony BM246 recorders in use in Leath's court and most
other tribunals in New Jersey. "They were the Cadillac of systems for
many years, but now we are in a digital age."

He says all the indicators on the machine showed that sound was coming
in during the trial before Leath and he says the operator took all the
required precautions. The final investigation showed that a spindle
wasn't working so the tape wasn't moving, he says.

So he ordered the replacement of all the spindles on at least 30 tape
machines. "We have not experienced it in the past, but obviously this
can happen again," he says.

Under the system now in use, an operator monitors the machine to make
sure it is running and listens with earphones to a delayed play of the
recorded version of the tape, to ensure that the voices are registering.

But if the operator was listening, why didn't he know nothing was
registering?

"It's not possible," says Thomas Graziano, whose company, Gramco
Business Communications in Clifton, is doing the repair work on the
Essex recorders. He doesn't know what happened to the monitoring in
Leath's court, but he says, in general, "We go through this every day
in the Superior Court and municipal court. They rarely use the monitor."

Essex County is currently discarding tape for digital recording that
will send sound directly to a central disc system, with a backup for
each individual court.

But Graziano says, "They'll have their troubles with that, too.
Whether it's tape or digital, nothing is 100 percent."

Leifer says what happened to him proves that stenographers, not
electronics, should be used for any trial with significant money at
stake, perhaps all medical malpractice trials.

Amos Gern, president of the New Jersey chapter of the Association of
Trial Lawyers of America, says he agrees.

"What happened in this case is an indictment of the New Jersey court
system and its inadequacies," says Gern, of Starr, Gern, Davison &
Rubin in Roseland.

Jeffrey Newman, who heads the state courts' reporting services branch,
says technical glitches like the one in Essex are unfortunate, but
rare, and that the court is trying to increase the number of stenographers.

But they are hard to recruit, he says. Out of about 70 slots, 16 are
vacant, he says, and the first priority is to use them for criminal cases.

Rick Paone, president of the Certified Court Reporters Association-New
Jersey, says, however, the courts caused the shortage of reporters by
replacing them in the early 1990s. The problem now is that freelance
work is more lucrative than court work, which drives reporters out of
the state system, he says.

Plaintiff Branham, a Newark police officer, says she wishes there had
been a shorthand reporter in the courtroom.

She says she was upset that Leath insisted the problem wasn't anyone's
fault. "We were prepared to hear a verdict from a jury, not 'oh, well
we're going to give you a mistrial because our equipment wasn't working.'"

"You would think someone would check the equipment, because everything
we went through was in vain," she says.