Transcript Spring 2011

THE
RANSCRIPT
www.nyscra.org
New York State Court Reporters Association
Spring 2011
The Empire Is Struck Back
JWH contests the application of sales tax on transcripts sold to the legal community
n Thursday, February 10, 2011, State
Supreme Court Judge John A. Michalek
made the final ruling on a case brought by
our firm, Jack W. Hunt & Associates, Inc. (JWH)
contesting the application of sales tax on transcripts sold
to the legal community, going back three years. Here is
the newspaper article in that regard:
O
http://www.buffalonews.com/city/police-courts/police-blotter/article339689.ece
We're not dancing in the streets yet because the state
could still appeal, but this is a much better position to be
in than if we had lost.
For those who may find themselves in a similar
situation, basically there's no doubt that in NYS
transcripts sold in the first instance to litigants are not
taxable. However, the sale of transcripts are taxable on
secondary sales to the same party (where separately
enumerated) or on sales to third parties. Also it is a grey
area in the case of transcripts which comprise testimony
previously supplied, which is now incorporated into the
final transcript. This would be the situation of an expedite
of a witnesses testimony at a trial sold to one of the
parties and that party then loses and orders the Record on
Appeal which contains the previously transcribed
testimony. The charge on those previously produced
pages probably should have NYS Sales Tax charged and
remitted (remember that you need to remit the tax even if
you don't collect the tax since NYS Sales Tax is an
accrued tax) or there should be no charge for the
production of those pages which makes the tax zero.
We will be charging sales tax if we act as a Kinko's,
i.e., making a second copy to the same party or selling a
transcript to a non-participant in the underlying action.
We ended up paying the state a total of $170.61 in
un-billed and therefore un-remitted sales tax because on
3 invoices we made a mistake. This was an error rate of
0.000035.
Independent businesses that are trying to offer
transcripts for sale through a transcript repository
(such as DRI and some other organizations) may find
themselves in the cross hairs if they don't charge
sales tax, because they clearly are doing nothing
more than providing a "copy" to non-participants in
the underlying action. The distinction for court
reporters is the initial transcript reflects the "service"
of memorializing the spoken word, and without the
physical transcript the client wouldn't know if the
service was done or not.
We are hopeful that the only thing the state can
really appeal is the amount the judge says we're owed,
due to the state's conduct. Obviously we hope that they
don't but since it doesn't cost them anything to appeal, it
wouldn't surprise me if they do ...
The above is a simplified report. For those
which want more information go to page 20.
Save The Date
NYSCRA Convention
Suffolk, NY
October 5-6, 2012
The President’s Report
Happy Spring! I would like to remind our student members that
Horizon Scholarship applications are due by May 31, 2011. For
applications, contact Larry Donnelly at nyscra@nyscra.org. Good luck to all candidates who are taking the upcoming
NCRA and CSR exams.
I am personally looking forward to NCRA’s National
Convention being held in Las Vegas this year. I will do my best to
represent our Association at the NCSA meeting and keep you all
updated on current events. Hope to see some of you there!
As I’m sure all of the official reporters across the State are
aware, the Unified Court System’s budget was cut by $70 million for this fiscal year. UCS is
intending to lay off approximately 400‐500 employees with the possibility of many other
employees being displaced. On April 20, 2011, fifty‐six Office of Court Administration
employees were given lay‐off notices. At this point we are unsure what positions will be
affected and how many court reporters, if any, will be laid off. The tentative date for
notification of layoffs is May 18th. UCS will establish a Preferred List for rehiring of employees that are laid off. The
Preferred List will take
precedence over all other
lists if a rehiring occurs and
the list will last for four years. For updates on layoffs, you
can visit the CSEA website at
www.cseajudiciary.org. NYSCRA will give updates
through e‐mails with any
news that we obtain.
In closing, I would like
to remind you that the Board
of Directors is here for you
and are open to your input
and suggestions. We are
here to serve our members.
Sincerely,
Lori L. Strong, RPR, CRR, CSR
President NYSCRA
Index Page
The Empire Is Struck Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The President’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Index Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NYSCRA OFFICERS AND BOARD OF DIRECTORS 2010 - 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Happenings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Welcome to our Newest Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legislative Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
New eligibility requirements for NCRA's exams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Special Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Horizon Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
New York judiciary proposes $100 million cut in a revised budget plan
Frustrated when your court reporter interrupts? You’re not alone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Connecticut Court Reporters Criticize “Unfair” Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
End of an Era for Court Reporters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Washington County lawyers say trial records were altered
Deletions alleged in transcripts from high-profile murder case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Dear Nancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
MEMBERSHIP APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
“Save The Dates” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
NYSCRA OFFICERS AND BOARD OF DIRECTORS 2010 - 2011
Officers
Board of Directors
President
Lori Strong CSR, RPR, CRR
Buffalo
Vice President
Harriet Brenner-Gettleman
Garden City
Board Chair
Secretary/Treasurer
Amy L. Mohart RPR
Dunkirk
Immediate Past President
Stephen A. Zinone RPR
Albion
First Department
Alan Bowin CSR, RMR, CRR
Myron Calderon
Toni Figueroa RMR, CRR, CSR
Second Department
John Pisano
Victoria Torres Butler RPR
Fourth Department
Mary Jo Dean RPR
Board Members at Large
Ellen Gianoulakos-Cruz CSR, RPR
Renee D. Leguire CSR, RPR, CRR
Third Department
Adam Alweis RPR
Terri Austin RPR, CRR
Cynthia Napiorkowski CSR, RPR
Executive Director
Larry Donnelly
Librarian
New York State Court Reporters Association
734 Franklin Ave., #319 ! Garden City, NY 11530
Phone: (800) 697-7016 ! Fax: (516) 678-6811
email: NYSCRA@NYSCRA.org ! web site: www.NYSCRA.org
The Transcript Update is a publication of the NY State Court Reporters Association, Inc. NYSCRA claims no
responsibility for statements or claims made in The Transcript. Statements of fact, opinion, and all advertisements are
the sole responsibility of the author or advertiser alone and do not express the opinion or endorsement of NYSCRA
or anyone connected with NYSCRA.
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NYSCRA
Spring 2011
Happenings
Welcome to our Newest Members
(from 1/26/2011 to 4/25/2011)
Thank You for Your Support
Myra Brodsky
Tony Comunale
Debbie De Micco
Stephanie Dietz
Lurene La Lumia
Robert E. Levy CSR
Ellen Maguire RMR
Donna Maloney
Iliana Perez
Kathleen Wetzel
The Legislative Committee would like to report to the membership on the following items:
•
•
•
•
CSEA is posting updates on its website www.cseajudiciary.org keeping its membership informed regarding
current and future layoffs
OCA is not placing electronic recording in Supreme Court in the City of New York as a result of the layoffs
Will continue to work with and support the Verbatim Reporters of the NYS Workers’ Compensation Board in
their efforts to address the issue of electronic recording
Myron Calderon, formerly Legislative Representative for the Association of Supreme Court Reporters Within
the City of New York, who has retired from his official position, is currently making himself and his vast
experience available to us by actively representing our interests in Albany along with our lobbyist, John
Kiernan. Myron has already made several trips back and forth in the last few months since his retirement. We
truly appreciate his efforts and continued commitment to the well-being of our court reporting interests.
Respectfully submitted,
Harriet Brenner-Gettleman, CMRS, CRI
NYSCRA Vice President and Legislative Committee Chair
New eligibility requirements for NCRA's exams
Starting with the 2010 October and the November skills exams, candidates no longer need to be members of
NCRA in order to take the RPR. Candidates must be stenographic reporters in order to take the RPR.
Note: Both NCRA members and stenographic non-members may sit for the RPR examination. However,
should a non-member successfully complete all portions of the RPR certification, he/she must join NCRA to
use the designation. Only NCRA members may hold the RPR certification.
From Laura Bisignano - A message to her fellow court reporters.
“We must be all we can be with realtime before we are replaced.”
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NYSCRA
Spring 2011
Contributors
ith the hiring of our Lobbyist, NYSCRA has been losing money every year. We try to keep the membership dues
as low as possible and have instead sought voluntary contributions from our members. Your support has been very
generous and we thank you. The Horizon Scholarship was started in 1991. Since that time, NYSCRA has granted
more than 100 scholarships to deserving court reporting students throughout the State. This year we gave six students $500
scholarships. Once again, we thank all of our members who have contributed to this worthy cause.
W
Special Fund (8/1/2010 - 8/1/2011)
Horizon Scholarship (8/1/2010 - 8/1/2011)
Summa Cum Laude ($100+)
Gold Contributors ($100+)
Adam Alweis RPR
Mary Kate Babiarz
Jean Beskin
Christopher Butters
Karen Ann Carney-Giles CSR, RPR, CMRS
Steven Cohen
Ellen Gianoulakos Cruz CSR, RPR, RMR
Kevin Hunt CSR, RPR
Susan Marrone
Marita Petrera
Eric Pollyea
Patricia Tauber RPR
George Trovato CSR, RPR
Kristin Young Malito RPR
Jean Beskin
Felicia Biase CSR
Christopher Day
Annette Forbes CSR, RPR
Ellen Gianoulakos Cruz CSR, RPR, RMR
Clifford Koppelman
Michele Nardone CSR, RPR, CRR
Patricia Tauber RPR
George Trovato CSR, RPR
Magna Cum Laude ($50 - $99)
Constance Berrill CSR, RMR
Harriet Brenner-Gettleman CMRS, CRI
Karen Ann Carney-Giles CSR, RPR, CMRS
Beth Cicero CSR, RPR
Linda Dougherty
Linda Hanna
Donald Lynskey CRR, RMR
Susan Marrone
Kerry Meegan RPR, CRR, CSR
Marguerite Monastero RPR, RMR, CRR
Eric Pollyea
Jane Sackheim
Andrea Slobodow Nagrotsky CSR, RPR, RMR, CRR
Joanne Stallone
Lori Strong
Elizabeth Tobin RPR
Jennifer Troy RPR
Silver Contributors ($50 - $99)
Kathleen Arent CSR, RMR, CMRS
Constance Berrill CSR, RMR
Beth Cicero CSR, RPR
Barbara Cultrara CSR, RMR, CRR
Annette Forbes CSR, RPR
Linda Hanna
Christine Hayes RPR, CSR
Donald Lynskey CRR, RMR
Theresa McKibbin RPR
Kerry Meegan RPR, CRR, CSR
Amy Mohart RPR, CSR
Michele Nardone CSR, RPR, CRR
Warren Simonoff RMR
Andrea Slobodow Nagrotsky
Lori Strong
Elizabeth Tobin RPR
Jennifer Troy RPR
Regina Zielke RPR
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Spring 2011
Cum Laude ($15 - $49)
James Allocca CSR, RMR, RPR
Kathleen Arent CSR, RMR, CMRS
Joan Boncore
Tony Comunale
Barbara Cultrara CSR, RMR, CRR
Barbara Dalzell
Mary Jo Dean RPR
Elizabeth Donovan
Maria Gordon RPR, CSR
Lorianne Jasinski RMR, CSR, CRR
Catherine Marra-Lopez
Ronald Marx
Catherine Mercorella RPR
Audrey Minkel CSR
Apryl Montero
Jack Morelli
Jack Rando CSR,RPR
Lee Ruthen
Kathleen Trost
Elisheba Vera
Deenie Weisbrot
Kathleen Wetzel
Cynthia White
Martin Wright
Regina Zielke RPR
Bronze Contributors ($15 - $49)
Dianne Adkins-Forte
Joan Boncore
Barbara Dalzell
Mary Jo Dean RPR
Elizabeth Donovan
Maria Gordon RPR, CSR
Lorianne Jasinski RMR, CSR, CRR
William King CM, RPR
Barbara Kubarek
Ronald Marx
Catherine Mercorella RPR
Audrey Minkel CSR
Jack Morelli
Patrick Reagan CSR, RDR, RPR, RMR
Lee Ruthen
Jane Trey RPR
Kathleen Trost
Elisheba Vera
John Walker
Deenie Weisbrot
Cynthia White RPR
Diamond
Reporting, Inc.
16 Court Street
Brooklyn, NY 11241
(718) 624-7200
info@diamondreporting.com
www.diamondreporting.com
Seven office locations: Brooklyn, Queens,
Manhattan, Bronx, Staten Island,
Mineola and White Plains.
Diamond Reporting is always looking to
add dependable, experienced court reporters
and scopists to our top-notch team.
6
NYSCRA
Spring 2011
New York judiciary proposes $100 million cut in a revised budget plan
a 4 percent cut from its total.
The governor’s office had no immediate comment.
Lippman said he has been in contact with Cuomo and
legislative leaders.
The chief judge said major long-term savings of at
least $250 million to $500 million could come from
mandatory electronic filing of court documents and
consolidating New York’s 11 types of trial-level courts.
Legislation will be offered this year to authorize the
switch to mandatory computer filings, similar to the
federal court system. Lippman said the existing paper
system is out-of-date, and changing would provide
“dramatic savings“ to the public. “Without this we’re
living in the dark ages. We can’t continue like this,“ he
said.
Lippman also wants Cuomo, with his record of
pushing for government consolidation, to help craft state
constitutional amendments that will reduce New York’s
11 trial courts, another vestige of an earlier age, to some
smaller number. He said there are internal constituents
who will resist ending their particular courts.
“Could there be any doubt you’d be far more
efficient?“ he said. “Particularly in this economic crisis
it’s an idea whose time has come.“
LBANY, N.Y. (AP) — New York’s judiciary
has proposed trimming its budget by $100
million following criticism by Gov. Andrew
Cuomo that its $2.7 billion spending plan for the
upcoming fiscal year didn’t cut deeply enough.
Chief Judge Jonathan Lippman said Wednesday
administrators propose more cuts from a budget that
already had no increase in operations spending despite
record caseloads related to a troubled economy. There
have been more foreclosures, evictions and debt and
domestic cases, and judges haven’t had raises in 13 years.
The harsher measures include a hiring freeze,
possible layoffs and cutting aid to local courts in fiscal
2011-2012 that begins April 1. A commission is set to
review possible pay raises for the 1,300 state-level judges,
though they aren’t expected to affect spending until the
following year.
“We can keep our courthouse doors open and we can
meet our responsibilities to equal justice,“ Lippman said.
Beyond “a hard freeze on hiring,“ he said most details
haven’t been decided yet.
Cuomo faulted the judiciary’s initial proposal, saying
it failed to match the 10 percent cut in state support he put
in his budget proposal for other government departments.
Wednesday’s revised judiciary proposal amounts to about
A
Syracuse.com 3/2/2011
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Spring 2011
Frustrated when your court reporter interrupts? You’re not alone.
t’s game day. You’ve prepared hard for this
most important deposition, the big witness;
your client is in attendance watching intently.
It’s a chance for you to shine. The deposition starts off
easy enough, and you get into a rhythm, you’re in total
control, just as planned. Then it happens, the court
reporter interrupts because he/she isn’t getting the
record, then interrupts again and again and again
throughout the day. So much for making a great
impression on your client, not to mention the
distraction to your flow.
Sound familiar?
Interrupting by the court reporter is one of the
most common reasons that attorneys complain to court
reporting agencies. Ironically, one of the biggest pet
peeves that court reporters have with their agencies is
when the agency does not support the court reporter
when a client calls to complain that the court reporter
was interrupting too often.
Tricky, huh?
So I set out to tackle this perplexing dilemma. I
started by surveying nearly 100 highly experienced
court reporters throughout the US and even abroad,
and the results were quite interesting. What I found
were some practical ideas that attorneys can
implement immediately to limit the number of
interruptions at their depositions. And here’s the
kicker, implementing these ideas will also give
attorneys cleaner realtime feeds, better roughs
delivered faster at the end of the day and higher
quality final transcripts.
Of the reporters surveyed, 62% have over 20
years of experience and 92% of them have at least 10
years of experience. Additionally, nearly 75% of these
reporters write (when the court reporter records the
spoken word it is called “writing”) at 225 words per
minute or faster. That’s fast! These court reporters
work for most of the well known agencies, so some of
them likely have reported for you. We asked them a
series of questions on how they handle interrupting
and what they think can be done to limit how often
they need to interrupt. Many of the responses were
fascinating and some of the results quite unexpected.
After reading through zillions of ideas from these
I
court reporters from around the world, I’ve come up with
one simple observation, one provocative opinion and several
practical ideas to help attorneys keep interruptions to a
minimum.
One of the most fascinating discoveries from the survey
is that the most experienced and talented reporters indicated
the most willingness to interrupt, although they are least
likely to need to interrupt due to the speed they write at. Less
experienced reporters were less likely to interrupt due to fear
of seeming inexperienced and more likely to rely on
“getting” the record from their audio back-up. So which
reporter do you think will deliver a higher quality transcript?
Like it or not, if you’re lucky enough to have a real pro
reporter working for you, they are nearly certain to interrupt
if they are not getting the record.
Maybe you’re thinking the simple solution is to use the
same court reporter you’ve grown to love over the years or
to keep the same court reporter for the entirety of a case…
aah, if life were that simple. The reality is your favorite court
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NYSCRA
Spring 2011
responsible for the amount of interrupting that occurs are the
same attorneys that are likely to experience fewer
interruptions, better realtime, better rough ASCII’s and
higher quality final transcripts.
So if you’re willing to do something about it, here are
the top two ideas you can implement immediately:
Idea #1: – For the taking attorney: When delivering
your “ground rules” to the witness at the beginning of a
deposition be CERTAIN to include and emphasize “verbatim
etiquette” including:
1) Explain the court reporter is not a machine, and just
like everyone else in the room, he/she has to hear what
everyone is saying in order to construct an accurate record
2) Specify only one person is to speak at a time
3) Remind everyone to be considerate of the speed they
speak at
4) Remind everyone to speak loudly and clearly
5) Remember #1 – 4 applies to you as well
Idea # 2: – You know everything about this case, and
having that context helps you more easily “get” everything
being said, especially when heavy accents are involved. The
court reporter is coming in blind and does not have the
benefit of this context. So to give the court reporter a more
level playing field and fighting chance, here’s what you can
do.
Prepare and provide the court reporter/agency as far in
advance with any/all of the following:
• The deposition notice
• A list of names
• Word indexes
• Words of art
• Expert reports
• Previous transcripts
• Extra credit – a brief synopsis of the case and the
roles of the key players likely to come up in
testimony
reporter is not always available, the deposition sites for
a case are not always in the same locale and you do not
always get to select who the court reporter is.
Also, just to be fair, I am the first to agree that
there is plenty that court reporters and agencies can do
to address this problem as well. But since my target
audience here is attorneys, my focus for this blog is
what attorneys can do. I do plan to write another blog
on this topic geared towards the court reporter and
agencies.
We got some fascinating feedback from the
comments on the survey. And as you’re reading them,
remember, I’m just the messenger. These feelings are
directly from the court reporting community,
representing countless agencies, most likely including
the one you use.
Simple Observation: Court reporters nearly
universally feel that their skill level and difficulty of
their job is often underappreciated by attorneys who
“just don’t get it.”
Maybe you don’t believe me, or maybe you don’t
care. Well, here are real quotes from many different
court reporters that came from the survey when asked
about this topic.
“The reality is that most attorneys and witnesses
have no understanding of what we do and how difficult
it is. They think we are tape recorders.”
“Get clients/lawyers who know how to make a
record.”
“Most attorneys are totally ignorant of the effort
the reporter must go to in order to make a record.”
“Unfortunately, the attorneys and witness control
how much interrupting should go on.”
Simply implementing these two ideas
consistently will save you a lot of frustration.
Give it a try.
“… with over 25 years of reporting experience
speaking fast is just part of the job, it’s going to
happen. no matter how many times you ask them to
slow down or not speak over each other, it is a battle
that you just have to grind through because sometimes
they just don’t listen…”
DavidFeldman.com
Provocative Opinion: Those attorneys that
understand, accept and embrace that they are partially
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NYSCRA
Spring 2011
Connecticut Court Reporters Criticize “Unfair” Report
fter a committee was commissioned by
Connecticut State Supreme Court Chief
Justice Chase P. Rogers to look into
making the record, a report was issued that advocated
for the switch to digital audio recording from
stenographic court reporters. The Connecticut Court
Repoters Association (CCRA) defended the role of
the stenographic court reporter in an editorial
published in the Connecticut Law Tribune titled,
“Committee’s Report Unfair to Court Reporters.”
The article corrected some misperceptions and
misleading information that were presented as fact in
the court’s report.
“CCRA urges the Committee on Court
Recording Monitors and Court Reporters to seek
input from court reporters in the system, to revisit the
evidence, and to reconsider its conclusions,” wrote
CCRA President Les Seligson. “A digital court is not
necessarily cheaper than utilizing stenographic court
reporters, and it certainly is not more dependable.”
CCRA worked closely in conjunction with
NCRA’s Government Relations Department to
formulate this response. NCRA’s Government
Relations department stands ready to work with our
affiliate associations with whatever legislative
services they may need. For more information on
how the GR Department can assist you, visit the
Government Relations homepage.
Please contact Adam Finkel at
afinkel@ncrahq.org for more information.
A
National Court Reporting Association
4/19/2011
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NYSCRA
Spring 2011
End of an Era for Court Reporters
ALTIMORE (AP) The Baltimore County
Circuit Court is quietly
losing 237 years of courtroom
ompliments of
experience. Its 14 court reporters
learned last month the courthouse
will convert entirely to digital
recordings by the summer.
The Association of Surrogate’s
The move was not a surprise
And
to the court reporters, just its
Supreme Court Reporters
suddenness.
"It hurt because of our
Within the City of New York
relationships with the bench,
the lawyers and each other,"
60 Centre Street Room 420
said Edward Mintzer, who has
New York, NY 10007
worked 47 years as a court
reporter, the last 13 in Towson.
(212) 374-8762
"This is family."
Baltimore County is one of
the exceptions to the rule when
ASSCR is proud to be a Corporate Member of
it comes to having court
reporters, however.
NYSCRA
Montgomery County has been
exclusively digital for almost a
decade and was using reel-toreel tape almost 30 years ago.
And a profession losing jobs
"We knew it's been coming," Mackubin said.
because of advances in technology is nothing new.
Court reporters are county employees, and according
But the departure of familiar faces in Towson, the
to Administrative Judge John Grason Turnbull II and others,
loss of court reporters anywhere, comes with a familiar
there had been a long-standing, if unwritten, agreement
concern voiced by judges, lawyers and court reporters
between the court and the county: the court reporters would
themselves.
be phased out by attrition only.
"The county is not getting the same record they
But new County Executive Kevin Kamenetz came into
would get with court reporters," said Randy Mackubin,
office vowing to make government more efficient and has
the county's chief court reporter.
already consolidated three county agencies and eliminated
Mackubin has been a court reporter in Baltimore
more than 140 vacant jobs. Ellen Kobler, a Baltimore
County since 1979. Asked when he thought he would be
County spokeswoman, said doing away with court reporters
replaced by a machine, he laughed.
is part of the county's effort to become more efficient and
The county first installed CourtSmart, a digital
increase its use of technology.
recording system, in three courtrooms in the mid-1990s as
Under the plan, four court reporters will remain in the
part of courthouse renovations. In the last few years, all 16
courthouse but not in a courtroom; instead, they will
existing courtrooms have been retrofitted for digital
monitor the CourtSmart system's screens in a designated
recording, and three recently opened courtrooms feature
room.
state-of-the-art technology.
B
C
11
NYSCRA
Spring 2011
The remaining court reporters will
move to civilian jobs with the Baltimore
County Police Department by May 1,
retire effective June 30 or, in one case,
leave county employment. Kobler said
the reassignment will allow more officers
to go back on the street. She declined to
comment further about the personnel
changes because details are still being
worked out.
Turnbull, court administrator
Timothy Sheridan and county
administrator Fred Homan met with the
court reporters in mid-March to deliver
Serving
the news.
"It's a cost-saving measure,"
Turnbull said. "I'm not overly joyful with
it either, but it's a situation we didn't have
control over."
Mackubin said he and his colleagues
were in shock upon hearing the news.
"We're all happy they have a plan
for us," he said. "We would've liked more
time."
David R. Dawson, a court reporter for 44 years and
former president of the Maryland Court Reporters
Association, said he was "distraught" to hear the news.
"It's a sad thing," said Dawson, who works in
Worcester County Circuit Court. "It's been really a
disservice and compromises the record."
Baltimore County court reporters used words such as
"heartbroken," "devastated" and "unconscionable."
"We understand today's economy," said Melissa
Anderson, a court reporter for 22 years, eight of them in
Baltimore County. "This is going a step further and
eliminating a profession."
All of the court reporters emphasized that they were
not angry or trying to point fingers. The inevitability of a
switchover to digital did not lessen the sadness when the
day finally arrived.
"We're grateful the county is finding us positions, but
we're losing our chosen careers," said Barbara Ely, a 24year veteran, including 15 years in Towson.
Central control
Turnbull has already heard from lawyers concerned
about losing the court reporters. Richard M. Karceski, a
R
adazo
eporting, inc.
46 Cobalt Lane
Westbury, NY 11590
Phone: (516) 248-1020
Fax: (516) 248-1024
the Legal Profession For Over 55 Years
12
John Pisano,
President
Board of Directors, NYSCRA
veteran Towson criminal defense attorney, said lawyers are
accustomed to having a person take testimony verbatim.
"We'd rather have the reporters there," he said. "What
you need to be the most effective is to be able to review
what a witness said."
Some judges also prefer a court reporter to worrying
about the recording equipment.
"I always had a court reporter," said Court of Appeals
Judge Joseph F. Murphy Jr., a Baltimore County Circuit
judge from 1984 until 1993. "A judge shouldn't have to be
the producer or director of the show."
Andrew Treinis has heard all of the questions about the
effectiveness and accuracy of digital recording. The
president of North Chelmsford, Mass.-based CourtSmart
Digital Systems Inc., Treinis points out that his company
only provides the technology and is not responsible for the
record itself.
"Technology depends upon its implementation," he
said.
To Treinis, the question is not which method is better,
but which is more effective.
"The profession is changing," Treinis said from his
office in Massachusetts. "What profession is there that
NYSCRA
Spring 2011
hasn't been affected by
technology?"
With CourtSmart, audio
recordings in each courtroom are
funneled to a central control room.
Workers there can remotely
control the settings in each
courtroom, with the most common
setup being one person controlling
four courtrooms, according to
CourtSmart's website. The system
allows for annotations and tags to
be entered into the transcript, as
well as playback into the
courtroom.
Court reporters in Maryland
receive at least $3 per page of a
transcript under guidelines
established by the Judiciary. The
state is billed for requests by
prosecutors or the public
defender's office; otherwise
individual lawyers must pay the
court reporters, according to Diana
Wakefield, president of the
Maryland Court Reporters
Association.
A court reporter operating
CourtSmart has more chances to transcribe cases,
according to Treinis, noting that court reporters' income in
one Illinois jurisdiction jumped $100,000 after CourtSmart
was installed.
"They've increased fourfold their ability to raise
revenue," Treinis said. "Court reporters have to embrace
technology to use it to their advantage."
Many of the Baltimore County court reporters have
the latest stenograph machines with Bluetooth technology,
meaning anyone on their network can get real-time
reporting in the courtroom. It also can be used for closed
captioning for jurors or witnesses who are deaf or hard of
hearing.
"It's not as though we're not keeping up with the
technology," Anderson said.
___
Shifting need
The changes in Baltimore County come as
employment opportunities for court reporters are projected
to grow 18 percent through 2018, faster than the average for
all occupations, according to a December 2009 report by the
federal Bureau of Labor Statistics.
However, most of the growth will come in closedcaptioning for broadcast and in translations, not the
traditional service areas.
"Increasing numbers of civil and criminal cases are
expected to create new jobs for court reporters, but budget
constraints are expected to limit the ability of Federal, State,
and local courts to expand, thereby also limiting the demand
for traditional court reporting services in courtrooms and
other legal venues," the report states.
Jim Cudahy, a spokesman for the National Court
Reporters Association, said courthouses across the country
have converted to digital recording in search of what might
be "phantom savings."
"In an era where courts are looking for a place to cut,
13
NYSCRA
Spring 2011
Appeals because of inaudible transcripts. Lawyers' attempts
to re-create the record don't always work, he said.
"To me, it's being penny-wise and pound-foolish,"
Murphy said of Baltimore County's personnel decision.
But Murphy acknowledged that problems with
transcripts from digital transcripts are uncommon, even
though "it happens more than it should."
Court of Special Appeals Judge Alexander Wright Jr.,
president of the Baltimore County Bar Association, has not
heard any concerns from the group's more than 1,200
members.
"I've never had a problem with accuracy," Wright said.
"It's not something I ever looked at and I have not heard any
other judge say anything about it."
Similarly, Baltimore County State's Attorney Scott D.
Shellenberger said that while court reporters are "superior,"
he is not worried about the exclusive use of digital
recording.
"The high quality you get with a court reporter is
lessened, but you still get good transcripts that are preserved
for the record," he said.
Turnbull said he hopes to bring court reporters back for
death penalty and other high-profile cases if they are
available.
For now, court reporters will continue to transcribe in
person the six-month trial of Jacksonville residents' massaction lawsuit against ExxonMobil Corp. stemming from a
massive 2006 gasoline leak. Lawyers in the case, which is
scheduled to conclude at the end of June, receive real-time
transcription of testimony to computer screens in the
courtroom.
Esworthy, though, said what qualifies as a "highprofile case" can be subjective.
"Everybody's trial is big to them," she said.
it's an easy place to go to," he said. "It's simply not always
done with the best interests of the court, the litigants and
citizens in mind."
The NCRA has 20,000 members, and Cudahy said
there are around 36,000 stenographic reporters nationwide.
The government estimates there were 21,500 court
reporters nationwide as of 2008, with more than half
working for state and local governments.
Court hearings or trials recorded digitally still must be
transcribed onto paper for appellate purposes. And that's
where court reporter advocates say humans outshine than
technology. Digital recording requires outsourcing to
obtain transcripts, while a court reporter sitting in trial can
turn around pages of testimony in a day upon request.
Wayne S. Goddard, who handles a variety of civil
matters in the circuit court, has asked for and received
settlement transcripts in less than a day from court
reporters.
"They are very good in making sure the record is
clear," said Goddard, of Cuomo and Goddard LLP in
Towson. "They appreciated and understood their role in
the process."
Joe Grabowski, owner of Gore Brothers Video and
Recording Co. Inc., said court reporters "hear in three
dimensions," while transcribing off a recording is onedimensional.
"The best way to capture the record is to have a court
reporter there," he said.
Wakefield, a court reporter in Prince George's County
for 12 years, and 35 overall, cited many reasons: coughing,
the shuffling of papers, two people talking at once,
someone speaking too soft or with a heavy accent.
"All these things leave gaping holes in court
transcripts that are taken down digitally, whereas a court
reporter can control these things by asking people to repeat
what they said or instructing them that they can only take
down one person at a time," she said.
Should those problems arise in a digital recording, a
court reporter is better trained to decipher the missing
words or phrases, according to Marina Esworthy, who has
been in Baltimore County for 13 of her 14 years as a court
reporter.
"We're not going to put 'inaudible' at first glance," she
said.
Judge Murphy recalled sending a "good many cases"
back for retrial while sitting on the Court of Special
The Daily Record of Baltimore, Danny Jacobs, April 9th, 2011
14
NYSCRA
Spring 2011
Washington County lawyers say trial records were altered
Deletions alleged in transcripts from high-profile murder case
wo Washington County defense attorneys are
claiming transcripts from a murder trial two
years ago have been altered, with intemperate
comments the judge made removed and defense motions
deleted or moved.
The county's former chief prosecutor is calling the
allegations politically motivated and "fallacious." But
both lawyers have raised the issue in connection with
appeals of their clients' convictions in the killing of a
retired Carroll police chief and his wife. One
unsuccessfully petitioned the state Superior Court this
week to order the release of an audio tape of the trial of
three men charged in the case; the other raised the issue
in his petition to overturn the sentence of his client.
At issue is whether President Judge Debbie O'Dell
Seneca improperly interfered with the duties of her court
reporter -- also referred to as a stenographer -- and
whether she or any member of her staff tampered with
transcripts of the high-profile murder trial and related
sentencing hearings in her court for Gerald Szakal, 28, of
Rostraver, Justin J. Welch, 24, of Charleroi, and Tecko D.
Tartt, also 24, of Donora.
During the October 2009 jury trial, Mr. Szakal was
found guilty of two counts of second-degree murder,
robbery, theft and other crimes related to the March 4,
2008, shooting deaths of Howard and Nancy Springer.
Calling his actions "senseless, brutal and heinous,"
Judge O'Dell Seneca sentenced Mr. Szakal to two life
terms, plus an additional 20 to 40 years, in prison.
His two co-defendants pleaded guilty to their roles in
the robbery and conspiracy that led to the murders and
testified against Mr. Szakal.
Mr. Szakal was accused of murdering the Springers
to keep his mother from finding out that he stole jewelry
and coins from her house to support a drug habit. He had
sold some of the items to the couple, who operated a
precious metals business out of their home.
Judge O'Dell Seneca last week declined to comment
about the transcripts, citing canons in the state judicial
conduct code that advise judges to abstain from public
comment about pending proceedings.
Though defense lawyers have since declined to
T
comment publicly about the cases since the end of the
sentencings, they weren't as reticent in petitions with state
Superior Court.
In a brief filed with the court in January, Mr. Szakal's
lawyer, Noah Geary, said he wants to appeal his client's
conviction, but cannot do so "because the trial transcript
has been tampered with substantially, materially and in
numerous respects."
"Specifically ... timely objections made at trial and
motions for mistrials ... have been deleted from the
transcript altogether and in some instances, removed and
placed later in the proceeding than when the motions were
actually made," he wrote.
On Wednesday, Mr. Geary asked the court to order
Judge O'Dell Seneca's court reporter, Toni Dinardo, to
produce the original, unedited audio recording of the trial
and to extend his Friday deadline to file an appeal. The
court denied his request the next day, but told Mr. Geary
he could raise the tampering issue in his appeal.
15
NYSCRA
Spring 2011
Mr. Geary claimed in his petition that Ms. Dinardo
told him she could not hand over audio tapes of the
weeklong trial because she was "not permitted" to do so
by Judge O'Dell Seneca.
"Such interference by the trial judge" in his efforts
to obtain a copy of the audio of the trial is "improper,"
he wrote.
In a discussion with Mr. Welch's lawyer, Joseph
Francis, Mr. Geary said he learned of apparent changes
to transcripts from sentencing hearings for Mr. Welch.
Mr. Welch had three sentencing hearings before Judge
O'Dell Seneca.
Mr. Francis described what had happened in his
appeal of Mr. Welch's sentence filed last year in
Superior Court.
At the Oct. 27, 2009, sentencing hearing for Mr.
Welch, lawyers in the courtroom realized that Judge
O'Dell Seneca was about to sentence Mr. Welch twice
for the same conspiracy. When an assistant district
attorney stood and attempted to clarify the matter, the
judge "responded by telling the assistant district attorney
to sit down and cease speaking," Mr. Francis wrote.
Two days later, the judge made the same mistake in
re-sentencing Mr. Welch. After that hearing, Mr. Francis
said the judge chastised him in her chambers for
speaking to the media about her mistakes. She corrected
the error in a third sentencing hearing Nov. 25, 2009.
In his appeal, Mr. Francis told the court that the
original transcript from his client's Oct. 27, 2009,
sentencing hearing omitted several details, including the
judge's "sit down" order to the assistant district attorney.
Mr. Francis said that nine days after he notified Ms.
Dinardo about the omissions, he received an amended
transcript that included some of the missing statements,
though it also excluded several details.
Mr. Francis asked the Superior Court to overturn Mr.
Welch's sentence of 20 to 40 years in prison as excessive,
maintaining that the sentence should have been shorter
because he cooperated with the prosecution against Mr.
Szakal. The court denied his appeal in a decision handed
down Thursday.
Along with appeals to Superior Court, the lawyers
could initiate proceedings concerning Judge O'Dell
Seneca with the state Judicial Conduct Board, which
investigates allegations of wrongdoing by lawyers and
members of the judiciary. It is not known whether they
have done so because those proceedings do not become
public until and unless charges are filed. The Judicial
Conduct Board then serves as the prosecutor before the
Court of Judicial Discipline. Judge O'Dell Seneca formerly
served as president judge on the Court of Judicial
Discipline.
Though lawyers sometimes challenge the accuracy of
statements in court transcripts, it's unusual for a judge or
any staff member to be accused of tampering with a
transcript -- which would be a crime -- said longtime
Duquesne University School of Law professor and author
Bruce Ledewitz.
"It's a very serious allegation," Mr. Ledewitz said.
"It's hard to image a more serious allegation."
It wouldn't be simple to alter a transcript, he said.
"That would require collusion between the court
reporter and the judge and that's highly unlikely," Mr.
Ledewitz said. "It would require a high degree of
coordination."
Herman Bigi, a former Washington County district
16
NYSCRA
Spring 2011
attorney and Springer family lawyer, said he's known
Judge O'Dell Seneca her entire life, including when she
was his chief of litigation in the district attorney's
office from 1980 to 1984.
He doesn't believe she would tamper with a
transcript or allow her staff to do so. "She's been
nothing but honorable," he said. "And she has an
honorable reputation."
Judge O'Dell Seneca was elected to the Common
Pleas Court in 1991 and rose to president judge in
2004. She won a 10-year retention vote in 2001 and
faces another retention vote in this year's general
election.
Mr. Bigi said he believes the accusations against
her are politically motivated.
"They're after her politically because she's on [the
ballot] this year," he said of Mr. Geary and Mr.
Francis. "She's a hard-nosed judge and she offends
some attorneys, but it's not personal."
Ms. Dinardo couldn't be reached for comment
because she is on maternity leave, but a former coworker and owner of a local court reporting business
also said it would be difficult to alter a transcript without
a court reporter's knowledge because security keys and
special software are used in the recording and transcribing
equipment.
Though laws governing court reporters vary from
state to state, and sometimes even differ by county, court
reporters working in the judicial system in Pennsylvania
have to meet certain qualifications, such as the ability to
decipher up to four voices at once and to type 225 words
per minute with an accuracy rate of at least 95 percent.
Michelle Hall of Pittsburgh Reporting Service said
court reporters translate data verbatim from their
shorthand notes or transcribing machines and later add
punctuation marks.
After the transcription is complete, but before the
record is certified, a court reporter will typically forward
the transcript to lawyers from each side, who have several
days to object to any of the content. If no one objects, the
record is then certified by the court reporter and lodged
with the Clerk of Courts or Prothonotary's office.
If someone does object, as Mr. Francis did with the
October 2009 sentencing transcript, the court reporter can
rely on notes and audio recordings to clarify issues.
Statements should never be omitted from the record,
Ms. Hall said, even if a judge issues an order to "strike"
testimony.
As impartial officers of the court, it's essential for
court reporters to be accurate and honest, she said.
"It's extremely important," Ms. Hall said. "If we were
not verbatim, people could change anything in the
transcript."
Janice Crompton: jcrompton@post-gazette.com.
Pittsburgh Post-Gazette , March 27, 2011
17
NYSCRA
Spring 2011
But since this is an advice column, remember, if
counsel (singular) is a wolf, his objections will
have some teeth. And if counsel are sheep
(plural), the objections probably make for a
baaaaad argument. BUT, if counsel’s a fox and
he’s single … well, you get the point!!
Dear Nancy: Two defense attorneys objected to
the introduction of a document. The judge says to
plaintiff’s attorney, “You have [counsels’/counsel’s]
objections.” I’m not sure whether to transcribe it
as a singular possessive or plural possessive. I am
inclined to go with plural possessive, You would
have counsels' objections, but counsel is already
plural, like children, so I'm thinking I need to
transcribe it as counsel's. I can’t decide and I
need your opinion.
Signed, In Conflict with Myself
Nancy Varallo RDR/CRR/FAPR, owner
of Court Reporting Management
Services, LLC, offers customized
business and office management services
to court reporters and reporting agencies.
Nancy has been a court reporter since
1979, and has trained hundreds of court
reporters, and fielded thousands of
questions from reporters. Please ask
your question at www.dearnancy.com.
Dear In Conflict with Myself: Counsel is both a
singular and plural noun (unlike children which is
always plural.) More like sheep. You can have a
sheep or many sheep. So a wolf in sheep’s clothing
is the same construction as many wolves in [many]
sheep’s clothing. Therefore, your first choice,
counsel’s objections, would be grammatically
correct.
18
NYSCRA
Spring 2011
Hunt - Sales Tax
Contd from p. 1
ith the caveat that we are not
attempting to be attorneys, nor
accountants, here in outline format
are some lessons learned and our personal
thoughts on taxes:
! JWH was audited in 1997 with a
conclusion in spring of 1998 on our
sales and purchases and passed that
audit with a minimal tax due of less
than $200. We were told at the time by
the auditor that we would probably not
be subject to another audit for 10 years.
! JWH received a notice of audited in the
fall of 2008 from the Department of
Taxation and Finance (DOTF).
! There were two parts to the Audit. One
was a review of purchases (to determine
a NYS USE TAX) and one was a
review of our billing practices to
determine a NYS Sales Tax (NYS
SLSTX).
" We are certified as a QEZE business which
allows for us to purchase various items used
by our business without paying NYS SLSTX
if those items are received and used in the
QEZE Zone.
!
An item we purchased for our employee
reporters were laptops for them to use to
create their transcripts.
" The Auditor determined that these were not
eligible for tax-exempt status because we
would have to prove they were used more
than 50% of the time in the tax-exempt zone.
- The amount of NYS USE TAX DUE
(since the vendor had not charged NYS
SLSTX at the time of the sale) was
approximately $1,073.54 so we had a
liability relating to the NYS USE TAX,
and JWH decided it was not worth it to
dispute that figure.
! Under NYS Taxation Law (NYS TL), services
are not taxable unless specifically outlined in
the Tax Code. Court Reporting and the service
W
of providing transcripts to litigants is not so listed,
we therefore felt that our services would not be
subject to NYS SLSTX.
! Under NYS TL, sales tax liability is not limited to a
corporation, the officers and principals of the
corporation are personally liable if the corporation
doesn't pay. So there is no "Corporate Shield".
! What limits the time frame of an audit?
" Under NYS TL, if an entity is registered with the
state as a vendor licensed to collect and remit NYS
SLSTX, any audit of that entity by the DOTF is
limited to the preceding 33 months from the date of
the audit.
" Under NYS TL, if an entity is not registered with
the state as a vendor licensed to collect and remit
NYS SLSTX, and it is determined that they are
engaged in the sales of services or products which
are subject to the collection and remittance of NYS
SLSTX, there is no limit to the time frame of the
audit if the DOTF desires.
" Typically most audits of sales and/or services will
select an audit month to review.
19
NYSCRA
" A review of each invoice from that audit
month is then made to determine if sales tax
should have been calculated or not on the
sale.
" All instances where sales tax was not
charged, where the auditor deems it should
have been charged, are then added together.
That total is then used to calculate an "error
rate" for the month.
" That error rate is then projected against each
month of the audit period to develop a total
amount owed.
!
Since we have an area of our business where
we collect and remit NYS SLSTX our audit
was limited to the 33 months preceding the
notice of audit. Otherwise the auditor could
have projected the error rate against our sales
since the founding of the firm in 1958
(unlikely but a possibility).
! The Auditor admitted that Court Reporting
Services are not enumerated in the NYS TL
but said that there are many service business
which are not enumerated and that what the
DOTF does is to see if one service business
is similar to another service business which is
subject to NYS SLSTX.
" NOTE: When the DOTF makes that
connection the business previously not
charging NYS SLSTX is then in trouble for
failure to collect and remit NYS SLSTX even
if they were never informed of the error by the
DOTF.
TEMPORAL THEORY
! The Auditor, while admitting that no reporter,
either freelance or official, had ever charged
sales tax on the production of transcripts, the
DOTF felt they should if the transcript was
not ordered at the time of the deposition
(described as the "temporal" theory).
" The Auditor provided a Technical Service
Bulletin (TSB) which dealt with an
Environmental Consulting Company (ECC)
that would be engaged by a third party to
review and create a certain specified number
of reports.
" If the same entity that engaged the ECC came
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back and requested a report above what was
originally agreed upon that "x+1" report was subject
to NYS SLSTX.
" If an entity that had previously not engaged the ECC
came and requested a report that report was subject
to NYS SLSTX.
" If more than one entity to the agreement with the
ECC deferred on the receipt of a report but then
ordered it, that report was subject to NYS SLSTX
" The Auditor referenced over 80 invoices in the audit
period (a sample month) that he felt met that criteria,
created the error rate, and then extrapolated it out for
the entire 33 month audit period, indicated we owed
approximately $65,000 including interest. He
determined that the error rate on our billing for the
month of August (the Audit Month) was 1.0627%
! JWH did an exhaustive review of each of the
transcript-related invoices and wrote a letter in
March of 2009 rebutting the "temporal" theory,
20
NYSCRA
Spring 2011
indicating that with the exception of two
invoices totaling $40.00 (a loss of $3.50 in
NYS SLSTX that we had not billed and
therefore not remitted to the state), none of the
other invoices were taxable because:
" Invoices were to Firms in NYS that were Tax
Exempt, and the documentation to justify that
had been previously provided to the auditor
" Invoices were to Firms outside NYS, and
therefore were not subject to tax
" One invoice was to the Federal Government,
which is a tax-exempt entity
" The rest of the invoices reflected separate
invoice dates for the same job because some
clients wanted their transcripts delivered on an
expedited basis and others did not and JWH
delivers the invoices with the transcripts,
hence the variation of invoice dates for the
same job. In some other instances, the
Invoices had different dates because they were
credit memos of the original invoice and then
re-invoiced after the corrections were made.
" Our letter determined that we had an error
rate in our billing practices for the month
of August of 0.0024%.
! A meeting was set up with JWH and their
financial advisor and the Auditor to review the
March 2009 letter.
CONTRACT THEORY
! The Auditor admits he didn't read the whole
letter because now they're not going with the
"temporal" theory, but one of "contract,"
indicating that there is a contract between the
entity calling JWH for the reporting service
and therefore only that Firm is tax-exempt,
every other Firm obtaining a transcript should
be taxed.
" The Auditor requested we provide the contract
that engaged us for each deposition and
indicated that we needed
to show which party set up the deposition.
" We pointed out that this was impossible to do
and that the world of depositions was not
conducted in that manner.
" The Auditor further indicates that even when
JWH was acting as an official reporter in
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Federal Court, that the contract was between the US
and JWH, and so any party obtaining a transcript
should be taxed.
" Adding emphasis, he indicated that every NYS
official reporter should be charging sales tax as well.
" The Auditor referenced the same TSB as under the
TEMPORAL theory.
" The Auditor closed the meeting by indicating that he
was being nice to JWH by not applying a penalty,
because it was clear we were not intentionally trying
to avoid paying the tax.
! JWH, upon recommendation from their financial
advisor, decided that it was now time to engage legal
counsel, and a well-known NYS tax law firm was
selected.
!
21
JWH met with the law firm and provided a NYS
First Department decision that was right on point
(found by the financial advisor), dealing with the
taxation of transcripts, which was ruled on the merits
in the court reporter's favor (Booth v. City of N.Y.,
268 A.D. 502, 52 N.Y.S.2d 135 N.Y.A.D. 1 Dept.
NYSCRA
Spring 2011
1944).
! It was decided to attempt to take a low key
approach and just have a single attorney visit
with the Auditor and his Supervisor and
explain the unfairness of charging back taxes
when taxes have never been charged, provide
the controlling law of Booth, and also provide
an invoice from the Department's own Tax
Court, which indicated that their own reporter
wasn't charging sales tax on transcripts sold to
litigants.
! The meeting was held in early June of 2009,
and the DOTF representatives indicated that
they were still going to adhere to the
"contract" theory, they indicated that they
were not aware of Booth or the fact their own
reporter was not charging sales tax, and that
again they were being nice to JWH by not
assessing a penalty and would review JWH's
attorney's presentation and get back to us.
! On June 29, 2009, JWH received a modified
Statement of NYS Tax Assessment, and now
the amount was approximately $85,000, and
for the first time included a penalty, without
any explanation for the penalty, and with all
of the clearly non-taxable items still included
in the assessment.
" The same amount of Sales Tas was due, what
changed the amount was $14,000 in penalties
added without explanation and a higher
interest rate which is charged because of the
penalties added called a "penalty interest
rate".
! At this point upon advice of JWH's counsel, a
lawsuit was instituted in early August of 2009
against NYS asking for a Summary
Judgement ruling that Booth was controlling
law and that the actions of the state were
contrary to law and were arbitrary, egregious
and capricious.
! Upon recommendation of the judge, a meeting
was held in November of 2009 with JWH, a
legal representative of JWH, and the Auditor,
the Attorney from NYS representing the
DOTF and the Auditor's supervisor.
! The March 2009 letter served as the predicate
"
"
"
"
"
"
"
"
!
"
"
"
!
22
of the review for each of the audit exception
invoices and it was agreed by all parties that:
The invoice to the US Department of Justice should
not have been included
All invoices to out-of-state Firms should not have
been included
All Invoices to the tax-exempt law firms should not
have been included
All invoices, based upon Booth, that were sold to
litigants and were the first sale of the transcript to a
litigant should not have been included
One invoice that due to a clerical error for a sale of
a copy of a videotape totaling $25.00 should be
included
Two invoices that were second copies of the same
transcript to the same litigant should be included,
both at $20.00
The total amount to be taxed should have been
$65.00 based on this review or an error rate of
0.0035% an increase of 0.0011% over what we
had told them it was in March or 2009.
In essence, if the Auditor had but read the March
2009 letter in 2009, and if the Auditor and his
supervisor had but listened to JWH's legal counsel
and followed the Booth decision in early June of
2009, JWH would have been requested to pay the
tax on $65.00 worth of goods and we clearly would
not have instituted the lawsuit.
Despite this, when JWH indicated that we would be
willing to pay the sales tax due and essentially settle
the lawsuit based on this assessment, if the State the
State did the following:
Issue a corrected Notice of Determination of Tax
Due for $170.61
Not oppose JWH to have the right to simply request
attorney fees ... not obtaining them, just merely
being asked to request them ... under Article 8600 of
the NYS CPLR, commonly known as the Equal
Access to Justice Act (EAJA),
The state refused, never issued a corrected Notice of
Determination of Tax Due and therefore on
principle, JWH refused to settle and requested the
Judge to rule on the original lawsuit.
In early August of 2010, the DOTF re-issued a
revised statement with the reduced amount, but it
included an error reflecting JWH owed
NYSCRA
!
!
Spring 2011
-
approximately $44.00 when in fact the math
indicated the amount due should be
approximately $19.00.
In the fall of 2010, Judge Michalek decided
the Summary Motion in JWH's favor and
denied the state's request to force this process
into the Tax Department's administrative
hearing process.
In the winter of 2010 Judge Michalek granted
JWH's motion to be eligible for attorney's fees
!
!
On February 10, 2011, Judge Michalek
pursuant to EAJA awarded JWH 100% of the
amount expended in this process, equaling
just shy of $160,000.
! JWH now awaits NYS's decision on whether
to appeal, which will most likely be limited to
whether JWH is to be awarded fees under the
EAJA.
Until the check is cashed, we won't be able to go
into much more detail than the objective descriptions
above, but here are the clear lessons we have learned:
! Excellent books and records are critical.
" Having everything in good order (actual
receipts versus credit card statements since a
credit card will not show NYS SLSTX
charged, etc.)
" Having a record of remitting the Use Tax,
where appropriate, when purchasing a product
from out of state
" Utilizing the ability of our electronic
management system (a shameless plug for our
product The Analyzer here), that was able to
bring everything up in moments.
- For instance, at the November review, for
the first time the DOTF indicated they
wanted to see the actual transcripts
relating to the invoices to prove that the
attorneys being invoiced were not only
appearing, but their clients were reflected
in the title of the action.
- Since we have all of our transcripts
electronically archived and they're
associated by the Job/Witness, in seconds
we were scrolling through titles and
appearances satisfying their every need.
!
I'm sure they thought we'd have to adjourn to
compile the voluminous number of paper
transcripts, but no such luck.
# NOTE: If we had not been able to show the
connection between the billing and the
transcripts we would have been subject to
NYS SLSTX on those transcripts.
Be very involved in the review and creation of the
legal papers. Kevin and I did a lot of research on our
own, and challenged the logic and wording and
theories that were being proffered by our legal
counsel. We are smart enough to not act as our own
attorneys, and we listened extensively to our
counsel, but no one looks at your case like you do,
and if you're paying the bill, you might as well make
sure that you're getting the best your money can buy.
Make sure the parties of interest in your firm are on
the same page.
" Clearly, the economics would have screamed out for
settling if not in early March of 2009 with the first
assessment, certainly in late 2009 when everyone
agreed to the taxability of only three items totaling
$65.00.
" Luckily (I think at times our advisors felt foolishly),
both Kevin and I are guided by acting on principle,
and we felt sure that if we rolled over in early 2009,
that would have set the precedent for every other
reporting firm in NYS and officials as well.
" While with us the state by law was limited to going
back only 33 months, anyone who had not
previously registered with the DOTF would have
been in danger of paying back taxes on every
eligible transcript back to the very first transcript
they ever sold.
! After we had won on the taxability, we again on
principle decided not to settle and take this to the
ultimate conclusion because on principle, we feel if
the state acts egregiously there has to be some type
of restraint placed on them, and that's the very
reason why the EAJA was enacted.
As wonderful as this ruling is, it only approaches to
making us whole if we are ultimately reimbursed the fees
expended. There is no penalty that pays us more, there is no
recompense for the time and emotional stress one is placed
under (if you want to have a fun time, have your wife open
23
NYSCRA
Spring 2011
done right, it's downright expensive. Oliver Wendell Holmes
once famously said "Taxes are the price we pay for a
civilized society" and while we may not always be getting
our money's worth, there is no doubt we'd all rather be living
here than in Russia, or Iran, or North Korea or quite literally
any other place on this planet.
Clearly today there is the hue and cry against bureaucratic
payrolls, and one can easily find instances of the extreme and
the absurd, and we have no sympathy of the "gaming" of the
system with the loading up of overtime at the end of one's
public career to artificially inflate one's pension.
The danger with cases like these is that we judge all taxes
alike and we then demonize all government, and we would
argue they are clearly not. Taxes that are retroactive,
punitive, unsubstantiated by the law? We are 100% against
them. Reasonable, fairly applied, clearly understood and
apportioned to the general welfare of our cities, states and
country? Count us in.
Our Dad used to tell us "Never Start a Fight, But Always
Finish Them." Kevin and I didn't want this fight, we'd much
prefer to have resolved it in 2008 without even calling on our
accountant (who didn't get involved until we were about
three months into it) and while this isn't quite over yet, we're
much further along than we were in late 2008 and for better
or worse we're committed to seeing it through to the bitter
end. While it is true that fighting the proverbial "city hall" is
not for the faint of heart, it is also not an impossible task
when the facts and the law and your principles are behind
you.
the letter from the DOTF indicating you personally
owe $85,000, it was really a hoot!!! and then consider
that both of our wives received this).
For the first time in the over 50 year history of our
firm, in the midst of the worst recession of our
country, in order to continue this fight we had to lay
off two office personnel. In addition, we ended up
putting our own money back in to ensure the viability
of the firm and the ability to continue to make payroll.
The background context to this is by the admission
of both the former and current governor, NYS is
broke. In an effort to remedy that situation, NYS
DOTF hired an unprecedented number of auditors to
try to wring every last dime they can possible find.
Our newspapers are filled with articles of various
businesses being audited and aggressively pursued for
a variety of reasons, many of them valid (like
restaurants not maintaining good records) and many of
them not (see my outline above).
The terrible irony is that we have no problem
paying taxes that are fair and equally applied. We
understand that if we don't have the infrastructure that
our taxes pay for, we wouldn't have the standard of
living we all currently enjoy.
! We want fairly compensated police to keep
our streets safe,
! We want firemen to be paid a fair wage to do
a job we quite frankly doubt very few of us
could ever do.
! We want the brightest teachers we can afford
to be educating the future of this country,
which is the only way we'll have a chance of
overcoming the overwhelmingly statistical
disadvantage we will have in the coming years
with China and India.
! We want a military that is capable of
defending our shores.
! We want a public health system that ensures
our food is safe and the unfortunate amongst
us can be cared for.
! And we want a civil service system that
provides for judges and clerks and attorneys
generals and official court reporters who
ensure that there is a civil means of
adjudicating the law while striving for justice.
None of that comes for free. In fact, if you want it
Thanks,
Tim and Kevin Hunt
PS For those interested, once this is completed and all
appeals exhausted, and the check, if any, has been cashed,
we will be posting all the relevant papers up on our website
that registered users will be able to review. If you have
question in the meantime, please email us privately at
management@jwhcorp.com with a subject of NYS Sales Tax.
Please visit us on the web at http://www.jwhcorp.com
24
New York State Court Reporters Association
MEMBERSHIP APPLICATION
Please fill in the information requested below as you want it to appear in NYSCRA’s records.
Name __________________________________________________________________________________
Address _________________________________________________________________________________
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Please Note: This dues payment is not deductible as a charitable contribution but is deductible for most members as a business
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734 Franklin Avenue, #319 ! Garden City, NY 11530
Phone: (800) 697-7016 ! Fax: (516) 678-6811 ! e-mail: nyscra@nyscra.org ! www.nyscra.org
“Save The Dates”
NYSCRA
Date
Locations
April 9, 2011
Various http://www.courts.state.ny.us/career
s/exams.shtml
April 11-23, 2011
http://www.pearsonvue.com/ncra/
May 1, 2011
May 7, 2011
Event
Sr. Court Reporter Exam
Written Knowledge RPR, RMR,
RDR, CCP, CBC, and CLVS
The Transcript posted on website and
notice emailed to members
Various
May 31, 2011
July 11-23, 2011
NYSCRA
http://www.pearsonvue.com/ncra/
August 1, 2011
Skills RPR, RMR, CRR, CBC, and
CCP
Horizon Scholarships Applications
Due
Written Knowledge (NCRA RPR &
CLVS only)
The Transcript posted on website and
notice emailed to members
RPR, CRR, CBC and CCP skills tests
August 13, 2011
Various
October 10-22, 2011
http://www.pearsonvue.com/ncra/
Written Knowledge RPR, RMR,
RDR, CCP, CBC, and CLVS
November 5, 2011
Various
Skills RPR, RMR, CRR, CBC, and
CCP
October 5-6, 2012 Suffolk, NY
NYSCRA
Convention