As he sought a restraining order in 2004, a New Jersey man claimed he feared for his life because his ex-wife repeatedly committed domestic violence acts against him and was still dangerous.

Seeking to dissolve the restraining order more than a decade later, the ex-wife alleged that being falsely portrayed as an abuser made her the real victim in the dispute.

The one thing both sides agreed on, however, was that a county court's failure to use a certified stenographer to preserve the original record in their case — as opposed to relying on faulty audio equipment — ended up prolonging their dispute for years and cost them both a bundle in additional legal fees.

But when the ex-wife petitioned New Jersey's Morris County Superior Court to vacate the restraining order in 2016, it was discovered that one of the tapes of the original 2004 proceeding was blank. And in a subsequent ruling by an appeals court, it was decided that in the interest of due process, it was necessary to recreate the case from scratch.

"My client basically had to try to recreate the testimony he gave many years before which led to the issuance of the final restraining order," said Laurie A. Bernstein, a New Jersey family lawyer who argued the case for the husband, identified in court records as G.M. "And you can imagine how difficult that is because you're reliving this horrific experience, memories fade and witnesses can't be found."

Steven M. Resnick of Resnick Law Firm LLC, who represented the ex-wife, identified as C.V., while at a previous firm, told Law360 it was definitely tricky to rebuild the record so many years later.

"I think it created emotion for both sides," he said. "My client was, in her view, falsely accused. So having to relive that was obviously upsetting. In her view, she felt like she was actually the victim back then. So it's kind of a bit of a revictimization, I think, on some level. And, you know, certainly, it ramped up the animosity between the parties to have to relive that and go through that again."

The situation highlights a growing problem for both courts and litigants as the number of stenographers has fallen steadily over the last decade.

A Growing Problem

According to the National Court Reporters Association, or NCRA, there is currently a shortage of 5,500 stenographic court reporters, a highly-skilled profession requiring graduates to type at least 225 words a minute.

The NCRA attributes the shortage to a decreasing number of court reporting school graduates, increasing retirement rates and an abundance of captioning opportunities for the hearing impaired. Broadcast captioners use court reporter skills to work for local stations and for national channels and networks captioning news, emergency broadcasts, sports events and entertainment programming.

Karen Santucci, director of the court reporting program at Plaza College in Queens, New York, said that part of the decrease was related to the pandemic.

When COVID-19 forced courthouses to close their doors and many nonessential trials and hearings were postponed, the slowdown pushed some court reporters to retire early, she told Law360.

And in a field where a lot of workers are older to begin with, she said the age of Zoom hearings ushered in by the pandemic saw many, less tech-savvy court reporters make a move for the exits as well.

"So now that everything is back up and running, they lost reporters, which they always were kind of low anyway, and now they're really low," Santucci said.

In the meantime, she said, many people simply weren't aware that court stenography was still a viable career path in the age of technology.

According to Santucci, Plaza College has seen its enrollment drop from about 200 students over the last few years to 150.

At the same time, however, once COVID-19 hit and the school went online, Santucci said she'd seen the school start attracting students from all over the country, including Nebraska, Connecticut, Florida, Pennsylvania, Colorado, Georgia and even one from the Virgin Islands.

And courts, she said, are clamoring to hire the program's graduates.

"There's not a problem placing students at all," Santucci said. "The problem is letting people know that this still is a very vibrant career. Honestly, I've never seen the courts so desperate for reporters. I get calls every day."

Despite the overwhelming demand, she said many people falsely believe that artificial intelligence will render the jobs obsolete.

"People think, 'Oh, they still use that little machine? Didn't Siri take it over, you know, voice recognition?'" she said. "But voice recognition can't take it over."

'More Accurate Than Tape'

G.M. and his former wife divorced in March 2004 after a 10-year marriage.

Five months later, however, G.M. was back in court to obtain a restraining order after accusing his ex-wife, C.V., of stabbing him in the arm, running after him with two butcher knives, locking him out of the house in cold weather when he was scheduled for tests on his heart and keeping him up by flashing lights.

The final restraining order ultimately issued by a superior court judge in August 2004 concluded that C.V. had committed "an act of domestic violence." The judge limited contact between the two former spouses to parent issues, forbade any harassment or abusive contact and required C.V. to undergo a mental health assessment.

While C.V. never appealed the final order, she filed a petition in March 2016, nearly 12 years later, seeking to dissolve the order in order to allow her and her ex-husband to mediate a new parenting time schedule.

As part of her petition, C.V., who had since moved to Florida, also claimed the order posed a hardship to her in getting work and that her ex-husband no longer feared her.

Her application to dissolve the order, however, did not include the transcript of the original 2004 hearing because Morris County court officials discovered that one of the tapes of the proceeding was blank.

Meanwhile, court records say the ex-husband "strongly" opposed dissolving the restraining order, alleging his former wife was "violent, irrational and mentally unstable."

A trial judge ultimately shot down C.V.'s dissolution bid after finding that without a transcript of the original hearing, her petition suffered from a "procedurally fatal defect."

On appeal, however, a panel of appellate division judges agreed in a January 2018 ruling that the trial court had erred by not allowing the 2004 record to be reconstructed so that her application could be considered.

At the oral argument, C.V.'s counsel suggested a two-step hearing process where the court would first reconstruct the record of the restraining order hearing and then address the merits of the order's dissolution.

It was a position the appellate court went on to agree with.

"Once the record of the [final restraining order] proceeding has been reconstructed, the court must determine whether the applicant has presented sufficient evidence to establish good cause to modify or dissolve the [final restraining order]," the panel stated in its decision to reverse and remand the case.

Resnick, the attorney for C.V., said that although they recreated the record, his client has not yet gone back to ask that the final restraining order be dissolved again.

"At some point, we'll use that record to dissolve the order if that's the way she wants to go," Resnick said. "We did spend the time, and we did recreate the record as best we could. And now we have that record should she decide to do that."

Bernstein, who represented the ex-husband, acknowledged the limitations of audio recordings and said she'd like to see more court reporters in New Jersey's family courts.

"With the audio, oftentimes it's inaudible," she said. "There are times when, for example, when you do a deposition, the court reporter will stop you and say, 'Could you spell the name?' 'Could you speak more slowly?' If it's a medical term, 'I didn't get the term.' When [the transcript is taken from] a recording, half of the time I didn't say that, or it's something I said, but it's attributed to my adversary. It's certainly not the best system by any means. But I guess it's more cost-efficient."

Bernstein added: "I'm not saying court reporters are perfect. But when it comes to court proceedings, court reporters are more accurate than tape."

Santucci said there were plenty of other examples of the limitations of audio recording and transcription.

Outside of New Jersey, she pointed to the recent case of Alex Murdaugh as an example of the difference a court reporter can make. Murdaugh, 54, a once-prominent South Carolina personal injury lawyer, is serving life in prison after being convicted in March of murdering his wife, Maggie, and their younger son, Paul, in June 2021.

"In that Murdaugh trial, the court used tape recorders. And when they got a transcript from that, it came out inaudible," she said. "And the judge said, 'Well, if you would have used the court reporter, you wouldn't have had that problem.'"

In an excerpt of the trial posted to YouTube by NCRA in February, South Carolina Circuit Court Judge Clifton B. Newman and defense attorney Dick Harpootlian discuss "how bad" the rough draft provided of the record by a digital firm was. Judge Newman noted the rough draft was not provided by the "excellent" South Carolina court reporters, and Harpootlian called the digital rough drafts a "deficient product."

Santucci said there are clear limitations to relying on recording systems instead of a live transcription by a court reporter.

"In New York state, our courts have already said they need court reporters. They don't want digital," she said. "You can't have somebody's life depend on a recording that, if say, someone slams a door, all of a sudden you can't make out what was said, where a court reporter can say, 'Excuse me, I couldn't hear that. Could you repeat it?'"

Santucci said she's also heard of situations where court staff forgets to begin recording and has seen many other cases where, subsequently, listeners are unable to distinguish one witnesses' voice from another's.

"So yeah, tape recorders don't work," she said. "The bottom line is: We need people. A lot of the reporters that are in court now are working a lot of overtime because they don't have enough people."

Santucci added that people have been saying computers will take over the job since she started her career in the 1980s.

"We have grown with the technology," she said. "You still need the human because the human has to control the situation. I mean, even when they had the recent trial with Johnny Depp, one day they said they had to wait because the court reporter was stuck in traffic. The court reporter is really a major role because they can't start until that person is sitting at that machine ready to take down what they're going to say. I think we'll always be a vital part of the judicial system."

Recruitment Efforts

To help deal with the declining number of court reporters, states are finding creative ways to attract people to the profession as older stenographers retire.

In February, for instance, the Los Angeles County Superior Court, the nation's largest trial court, announced it will earmark nearly $10 million in state funding to offer unprecedented incentives to recruit and keep official court reporters amid a critical staffing shortage.

Presiding Judge Samantha P. Jessner said in February that although state law does not require court reporters in probate, family law and civil cases, the court believed they provided an essential service, especially for self-represented litigants and those who cannot afford to hire their own court reporter.

To help in their recruiting blitz, the court has agreed to increase the starting salary for new court reporters from $108,460 annually to $114,502. They also are offering newly hired official court reporters a $20,000 signing bonus paid out over two years as well as court reporter school loan forgiveness totaling up to $27,500 over four years.

"The court has done everything it can over the last few years to avert the same change that many other California trial courts have been forced to make before us," Presiding Los Angeles County Superior Court Judge Eric C. Taylor told Law360 in a September email. "The court reporter shortage is a national crisis resulting from a precipitous decline in reporting school enrollment, school closures and the falling number of reporters passing accreditation exams — this combined with mounting retirements in Los Angeles."

One person who's made the leap into the court reporting field is Samantha Cipriano, a former fashion and beauty journalist from Long Island, New York, who was laid off from her job six months after giving birth to her first child in 2015.

She took a couple of years off to figure out her next steps, but while listening to a true-crime podcast that included a discussion about the importance of court reporters, she said something clicked. She decided to switch careers and enroll at Plaza College.

She's been a freelance court reporter for nearly two years, doing mainly depositions, personal injury and construction cases for the state Supreme Court from home.

"I work four days a week from home, and I'm still here to get my kids from school in the afternoon. It's wonderful," Cipriano told Law360. "It's probably the most challenging thing and the most rewarding thing I've ever done. You really have to learn a new language, you have to learn to read it, and you have to learn to see it in your mind. And then you have to learn to process the word from your brain to your fingers at lightning speed."

Cipriano said it's upsetting to her that there's a shortage of court reporters.

"It's such an important job and obligation that we have," she said. "I know that if I was being tried for something or there was something going on with me legally, I would feel way safer with a court reporter than with a tape recorder. I'm hoping that more young people will start to fill some of those gaps. I literally had a job two days after I graduated."

--Editing by Lakshna Mehta.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.