When court officials in Wisconsin learned that Darrell Brooks, who is charged with driving a car through a parade and killing six people last November, had been released from jail 10 days earlier on $1,000 bail on a separate charge of running over another person with his car, they wanted to review the transcript to see why the bail was set so low.

But they encountered a big problem: The court transcript doesn't exist.

A problem with the digital court reporting equipment prevented a transcript from being created, Holly Szablewski, a district court administrator, confirmed to Law360 Pulse.

Essentially, the digital audio recording system was integrated with an old audio system in the courtroom and not integrated into the new system.

Digital court reporting has come with numerous technical challenges. As more courtrooms adopt this technology, problems with the equipment could result in more missing testimony and incomplete transcripts, which could hobble the legal system.

First, Some History

Trial and deposition transcripts have traditionally been prepared by a live court reporter who manually takes notes with a stenography machine.

Digital reporting, which uses audiovisual recording to document court hearings and depositions and speech recognition to prepare transcripts, has been making its way into courtrooms as an alternative to stenography over the past three decades.

Malfunctions have followed.

For example, 90 hours of testimony digitally recorded in a trial in the Northern Mariana Islands in 2008 resulted in poor audio quality and transcripts that were deemed unreliable and inaccurate.

Darren Meade, a criminal defense attorney at Parks & Meade LLC, told Law360 Pulse that the benefit of a digital recording system is that it doesn't require cost of a trained stenographer. Stenographers are also sometimes in short supply, which could result in delayed hearings.

However, he said, with digital reporting if a speaker isn't speaking clearly, the record may not be intelligible.

Meade said he experienced this firsthand about 25 years ago when he was arguing his second jury trial. He was nervous and was speaking really fast. Along with a glitch in the court reporting machine, this resulted in a transcript with a disclaimer added to the beginning of his closing argument that said much of what was said on the recording couldn't be understood.

This could happen any time a live court reporter isn't present, as in this case, although Meade also said court reporting tech has improved recording quality in the past quarter-century.

Still, problems persist. A glitch in Leelanau County, Michigan, in 2018 resulted in no recording and no transcript for the first day of a trial.

In a separate incident, Law360 Pulse obtained a 285-page transcript of a Maryland administrative hearing in 2019 where there were 108 "inaudibles," passages where the recording system could not tell what was said.

Planet Depos, the court reporting and litigation tech company behind that transcript, told Law360 Pulse that the problem was not the technology but rather the setting of a public hearing.

"They are unable to control such things as quality and volume of audio, overlapping speakers, and random, unidentified speakers scattered across a large room," a spokesperson said.

Brian Jasper, a personal injury attorney at Thomas Law Offices PLLC, told Law360 Pulse that he has had a handful of glitches in recorded depositions in the last two to three years. He recalled an instance where a recording device lost power.

"The technology was a problem, and it interrupted the deposition," Jasper said. "I don't scrutinize the depositions for perfection, but as an attorney, I have much more confidence in a stenographer because they are taking it down in real time."

Brewster S. Rawls, founder of Rawls Law Group, told Law360 Pulse about an incident around 2019 during a deposition in a federal tort claims case where the transcript produced by the digital tape recorder was "abysmal."

"Voice recognition is fine, but it still takes a human to be interpreting and figure out who was talking when, who was talking over each other and to make some sense out of it," Rawls said. "Maybe artificial intelligence will get us to a different point down the road, I have my doubts about that, but that is certainly not the case yet."

Rawls added that the quality of transcripts produced by digital court reporters is "very hit or miss."

Speech Recognition Shortcomings

Most digital court reporting systems rely on automated speech recognition, or ASR, which converts speech to text. A common example of ASR is consumer-based voice assistants such as Amazon.com Inc.'s Alexa.

But speech recognition may not be up to the task for all users.

Researchers at Stanford University ran thousands of audio excerpts through the speech-to-text assistants from Amazon, Google, Apple, Microsoft and IBM. Their study, published in the Proceedings of the National Academy of Sciences in 2020, found significant racial disparities.

For every 100 words analyzed by the speech-to-text platforms, the researchers spotted 19 errors for white speakers and 35 for Black speakers. In particular, error rates for Black men topped 40%.

Overall, these systems produced less accurate results for people who spoke African American Vernacular English, or AAVE.

ASR depends on machine learning algorithms that discover patterns from data, but a lack of training data from different demographics could be the problem.

Study co-author Allison Koenecke, now a visiting assistant professor at Cornell University, told Law360 Pulse that this creates a feedback loop where the people benefiting the most from ASR products are the ones feeding it more training data.

"It's very hard to break out of this issue where your ASR technology only works for one demographic of people," Koenecke said.

Given the flaws in ASRs, it is particularly concerning for this technology to be unleashed in the U.S. legal system, which has historically been unjust for Black people.

For example, phrases involving double negatives, which Koenecke said are common in AAVE, may not be transcribed properly by the ASR.

"You have the important question of what are the impacts downstream if courtroom transcriptions are only accurate for white defendants but not Black defendants," Koenecke said.

That is why it is crucial to feed the ASR systems datasets from diverse sources.

"If, for example, you have an inclusive group of software engineers and product managers and designers all working on a product at its genesis, it's much less likely to be the case that fairness is only considered as an afterthought after the product has been pushed to market and people are negatively affected due to poor design choices there," Koenecke said.

She added that human court reporters can be fallible and biased as well. A 2019 study of court reporters by the Linguistic Society of America found accuracy concerns in the transcription of AAVE.

As digital court reporting is becoming a bigger part of the legal system, Koenecke recommended evaluating the ASR used in legal proceedings before it is used to make high-stakes decisions.

"It's important to audit the technologies that you bring into a system to ensure that the results of using those technologies are fair and equitable," she said.

Digital's Glitchy Transition

Stenograph LLC, a longtime provider of hardware and software for stenographers, moved into new territory in 2021 when the company launched a digital court reporting division.

Since then, the company has fielded complaints that its traditional stenography tools have been riddled with glitches.

Jessie Waack, a stenographer based in New York City, told Law360 Pulse that she has run into server issues with the company's software since late 2020. This includes a glitch in the session code that kept telling her that her software license had expired.

Anir Dutta, president of Stenograph, told Law360 Pulse that some stenographers have been having downtimes of 15 to 20 minutes in the pandemic. Dutta said that the system was not designed to handle the influx of remote depositions that came with the pandemic.

He added that the worst of those glitches seem to be over and a solution will be released by the end of the second quarter.

This isn't the only recent problem with the company's tools.

Lisa Migliore Black, a stenographer in Kentucky, told Law360 Pulse that her digital stenograph machine, known as a writer, has been repeatedly dropping the Bluetooth connection to her laptop since September.

Dutta attributed this malfunction to the ongoing global supply chain disruptions, especially with the semiconductor chip shortage.

"Apple is hoarding all the Wi-Fi chips in the marketplace," Dutta said. "We're not Apple. We can't compete with Apple."

He added that if the Bluetooth connection drops, a wired connection is available.

The company's technical support team has also come in for criticism. Black said she had to wait 45 minutes to get on the phone with tech support, and she said they never followed up afterward.

Dutta said that the tech support team has been dealing with COVID-19 and labor shortages in recent months. He added that Stenograph, which completes as many as 70,000 customer service calls annually, decreased its average hold time from 11 minutes to seven in the past year.

"If that means that that customer is going to go on Facebook and make it so that everybody thinks that our average hold times are tremendously high, I think it's unfair and frankly malicious," Dutta said.

This has some customers wondering whether Stenograph is up to the task of handling both its traditional business and the more advanced technical world of digital court reporting.

"After 25 or more years of always keeping my Stenograph support contract up to date so that I would have the most current software advances, I let my support contract expire in January of 2022 due to long hold times with technical support and their failure to resolve the problems I was experiencing over the course of several months," Black said. "My perception as a customer is that Stenograph is pulling too many available resources to develop the ASR side of their business."

Dutta said that the launch of a digital court reporting segment is a natural step as digital is being used to meet a higher demand for transcripts.

"As a company that is here to serve the purpose of legal, our strategy is that we will serve all segments of the marketplace, not just one," Dutta said.

"If certain methods of practitioners are going to take that as a reason that we are not focusing on their specific solution and point to these things as some big narrative about Stenograph not providing quality solutions anymore, I don't think that's fair," he said.

He added that 80% of the company's investment is still in its stenography operations and it is a "false narrative" that going into digital court reporting is shifting its focus. "If Apple started making iPhones, does it mean that they make substandard laptops?" Dutta said.

When asked about the concerns about ASR technology raised by the Stanford researchers, Dutta said that the technology has evolved since then.

"People can quote studies from three years ago," Dutta said. "We all know that technology doesn't work that way. Technology moves a million miles every three months."

Dutta said that whether it's stenography or digital technology, attorneys should expect the best quality for their transcripts.

"Lawyers have to adopt technology, get comfortable with it, but they should not ever compromise on the accuracy and the quality of the end product that they're receiving," Dutta said.

--Editing by Brian Baresch and Orlando Lorenzo.