Business Practices / Ethics - Questions and Answers
Dear Nancy: I'm a CART provider in business for myself, but I also subcontract for another firm on a semester-long basis. I'm always careful to mention my affiliation with the agency when introducing myself to CART consumers, and I make sure all significant communication with them gets cc'd to the office. I often wind up developing a good rapport with the CART consumers. If they offer me positive feedback about my work, would it be inappropriate of me to ask the firm owners whether I can use those testimonials on my website?
I don't want the firm to feel as if I'm threatening their client base. I would never poach a client, and I want to avoid even the appearance of impropriety. What should I do?
Signed, Tentative Self-Promoter
Dear Tentative Self-Promoter: You seem to have a firm handle on your personal and business ethics. Congratulations! Professionals often worry about the appearance of impropriety. And they should! But this is an opportunity for you to take the worry and turn it into a fruitful dialog.
It appears you and this agency have an excellent working arrangement. Talk to them. Ask the owners if they would permit you to use these testimonials on your website. As long as you're okay with the answer, be it yes or no, your discussion can produce valuable ideas about how each of you can benefit the other. I'm all in favor of pursuing brainstorming sessions like this because they promote a positive give-and-take. They improve relationships.
Testimonial pages tend to be a website's most frequently visited pages. A prospective customer wants to know who makes use of your services, are they satisfied, and what do they choose to say about you. It's important to keep testimonials up to date. In fact, the trend among court reporting firms is to skip the standard reporter bios and, instead, highlight testimonials from their own reporters describing what a great place it is to work.
Don't be tentative; be confident. Dear Nancy knows you can work this out!
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Dear Nancy: Should court reporters and companies videotaping depositions of witnesses in New York state charge clients sales tax? Can you quote the parts of the sales tax law that answers that? Thanks.
Signed, Rene
Dear Rene: I am, unfortunately, unqualified to answer this question. Perhaps my bottom would look fancier if I had those credentials...I mean my bottom line! As I say on my website, I offer no legal, financial, or professional advice. Your question is best asked of your accountant. Thank you for your question, and please keep asking!
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Dear Nancy: In my state we have an anti-contracting law, but exactly how does that affect us? I mean, I have a client in my area who just informed me that their client (insurance company most likely) has a contract with a certain court reporting agency based across the country, so all of the depos that involve that client have to be routed through that reporting firm. I have yet to find out if that means reduced rates, but I did call my client and mention the anti-contracting law here, but do I really have a leg to stand on with that argument?
Signed, Fed Up With Contracting
Dear Fed Up With Contracting: I'm not sure what state you're from, but this is probably a question for your attorney general. Nothing will ever be done to support anti-contracting legislation unless a complaint is filed and the court gets a chance to rule on it. More than half the states in the U.S. have anti-contracting legislation. Perhaps a visit to one of their websites could shed some light on how they're handling complaints.
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Dear Nancy: The case I worked on yesterday was an expedited job, and guess what? It just settled. I've edited the file already and sent it to my proofreader. I was told to bill the attorneys for what I'd done. I called my proofreader and told her to stop reading and bill me. Neither of us knows how to bill for this. Do you have any suggestions?
Signed, Going in Circles.
Dear Going in Circles: I'm intrigued by your name. Red circles on your transcript? Dark circles under your eyes? Or just the usual going in circles based on attorney requests? Yes, I need it tomorrow; no, hold up, we might settle; oh, we didn't settle, gotta have it for trial tomorrow. Good grief.
There is no widely accepted "custom and practice" that answers your question. I asked a few agency owners and got differing answers -- go figure! If the transcript is never completed, some firms would bill by the hour for the hours you've put into it; some would charge a percentage of what the page rate would have been had it been completed; some charge the full page rate for only the number of pages completed. And some agencies would have you complete the transcript and send a full bill. Sorry, that's not much help, but I hope it gives you some ideas. Only you can determine what is fair to yourself and to your client.
In terms of your proofreader, assuming you pay by the page, she should bill you for only the number of pages completed.
Response to Going in Circles
Our firm charges the same rate we use for writing time. We call the charge editing time and include editing, proofing, correcting, basically everything you have done so far to get that order ready. It can be fairly lucrative and sometimes they will ask us just to send the transcript and bill for that because it may be less expensive!But if you have already done the work, you should really bill for it.
Signed, Dianne in PA
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Dear Nancy: I feel some of my competitors are guilty of unfair practices. I would like to blow the whistle but I fear legal repercussions. What should I do?
Signed, It's Not Fair in Fairfield
Dear It's Not Fair in Fairfield: I guess it depends on those practices. Witchcraft? Gun running to North Korea? I'm sure the authorities would be interested in the latter, while lots of folks on MySpace would be interested in the former.
We work in the legal system, and there's one thing we love to do within the legal system: sue. But keep in mind that slander and tortious interference charges can be thrown around like pizza dough. So unless you have photos of your competitors in flagrante delicto (don't you just love Latin?) or other evidence to document your allegations of wrongdoing, you have no whistle to blow. It'll be a he-said/she-said mudslinging free-for-all.
Let's put things in perspective. The way you conduct your business is more important than how other people conduct theirs. Yours are the only actions you can control; nobody else's. Often the only reward we have for playing by the rules is going to sleep each night with a clear conscience. Would you feel better about yourself if you succeeded in outing your competitors? You already possess something of great value they will never have: self-respect.
Response to It's not Fair in Fairfield:
If sitting idly by makes you a sitting duck to a competitor's unethical practices, I would suggest action -- but, yes, smart action that doesn't subject you to personal liability. Are your competitors misleading the general public with false claims or unscrupulous charges? Educate the public with your own marketing/educational materials, highlighting your business's strengths (certification of your reporters and what those certifications mean, the benefit of transcripts that are formatted in NCRA or state-mandated format, upfront and itemized billing, the true cost of incentive gifting to your client's bottom line, etc.). Be loud and proud, even if you don't name names.
Are your competitors engaging in practices that violate state, federal, or tax law? There are agencies that can investigate these actions, some confidentially. Gather your information, submit a complaint, and be persistent in your follow-up. Get involved in your state association and volunteer your time to your cause. It's unlikely that your problem is one that you are facing alone. With combined intellect, passion, and tenacity, you are more likely to solve the problems you face in your market.
Signed, Lisa Migliore Black
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Dear Nancy: I had a job in which the witness and her attorney were 45 minutes late. The calling attorney started to state on the record about the nonappearance, and as he was almost done, they showed up, and we had the deposition. The calling attorney told me to "strike all that." Should I just delete that part from the transcript? That's what I took him to mean, but I wasn't sure.
Signed, One Strike and it's Out?
Dear One Strike and it's Out: Did the attorney and witness come straight from the emergency room? Because if the situation were reversed and you were 45 minutes late, you would have been having a coronary for sure! Well, don't get me started on that!
Actually, you're not striking anything from the transcript. You're just not preparing the "statement of non-appearance" as we call it in my neck of the woods. I assume once the witness and her attorney showed up, the deposition started, and you transcribed it. But you should archive the steno notes for the untranscribed portion, the statement of non-appearance, and refer to your local laws, custom and practice, or NCRA's guidelines in deciding how long to keep them.
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Dear Nancy: How do we get freelance court reporters to take more responsibility for communicating the details of the job orders without assigning punitive penalties for missing information?
Signed, Deviled by the Details.
Dear Deviled by the Details: Are you serious? Reporters don't provide all the billing/production details you need? That would never happen in my office. Yeah, right!
No two people see things the same way. Just listen to the testimony of two witnesses to the same accident. It's sometimes hard to believe it even was the same accident! Your reporter may think she is being perfectly clear about the details, but your production manager can't read her handwriting.
As with all things in life, most problems can be resolved by improvements in communication.and most problems are one's own fault. Are your job info sheets clear? Do you even have them? Are your instructions to the reporters in writing so they know exactly what you need? Do you ask for those details to be typed and not filled in by hand? (What is the new word for typed, anyway? I can't bring myself to say keyboarded, texted, computer-generated. Can anyone answer my question?)
Do you use order forms so the attorneys can fill out what they need at the job, including on the form a place for them to check ascii file, condensed, draft transcript, exhibits on CD, date transcript needed, etc.? Make sure you make it easy for everyone to get the details right.
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Dear Nancy: We pay our reporters upon transcript receipt. Should we charge back the freelance reporter when the firm is not able to collect an invoice perhaps a year later? And what are the tax benefits or detriments to both sides?
Signed, Pensive in Pennsylvania
Dear Pensive in Pennsylvania: First, my disclaimer: I'm not a lawyer, accountant, or other expert. So for legal or tax advice, those folks are available for hire.
I do know of a court reporting firm who paid reporters on invoice but did not guarantee payment, so when an invoice became 12 months old they reserved the right to get that money back from the reporter. Of course, if the reporter wasn't working with them any longer, they were out of luck. But together with that 'retaking' of money, they offered to let the reporter try to collect it. And sometimes the reporters were more successful collecting than the agency!
A wise reporter and former NCRA president once told me that an agency should use an outside service to collect overdue invoices from its clients...helps keep the client...because you don't want the outstanding bill to be the final bill. So check out my website at www.CourtReportingMgt.com. We might be able to get old invoices paid for you and turn your pensiveness into a pension plan!
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Dear Nancy: How long should a reporting firm proofread a new reporter's work?
Signed, Proud to be Proofing
Dear Proud to be Proofing: The answer to this question is obvious to me: until the reporter provides you with great transcripts, all the time. Hmm. That's too obvious, so I'm thinking there's more to your question. I'm guessing you know when it's time to let a new reporter "fly" on her own, but you're wondering about when to throw in the towel and part company with this newbie.
There's a lot to learn post-graduation, isn't there? I guess in any profession, but certainly in ours. Every deposition has its own quirks. Are you encountering troubles with her grammar, her speed/accuracy, her CAT skills? I've trained many, many recent grads in my 30 years of reporting. What do I look for in a new reporter? Not perfection. I want reporters who respect what I'm trying to teach them, who show that by improving constantly. If they don't improve, are they willing to get further training? Perhaps I could work with your new reporters for a bit to get them launched.
If a reporter continues to make the same mistakes over and over, she is either incapable of correcting them, or unwilling to correct them. Either way, it doesn't work for me. There are just too many agencies out there competing for business. Don't let a reporter's poor performance cause you to lose a client.
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Dear Nancy: Some reporters say selling audio tapes as an added value item with transcripts opens up a can of worms. Others say it is just one more service that we can sell, and if a lawyer wants it, why not? What do you think?
Signed, A Future Can Opener
Dear A Future Can Opener: Just where did the phrase "a can of worms" come from? We're word people. We should know what we say and say what we mean. To quote Wikipedia, "A can of worms is a complex, troublesome situation arising when a decision or action produces considerable subsequent problems." Food for thought, huh? Actually, I'm having trouble thinking about food and worms at the same time.
We can both conjure the "considerable subsequent problems" that could arise with selling an audio tape. Was it shut off during off-the-record discussions? Did all parties know they were being taped? Those are just a couple to start. Most states are developing rules to deal with these and other advancing-technology "can-o-worm" issues. If your state doesn't have local rules, check out NCRA's Advisory Opinion No. 38. It concludes:
"The Committee has determined that absent a court order to do so, the NCRA Code of Professional Ethics does not require that a reporter provide a copy of any backup audio media that the reporter uses to make the official transcript of a proceeding. However, Provision No. 1 of the Code requires that if the reporter chooses to give a copy to a requesting party, the reporter must offer to do so for all parties to the proceeding. Provision No. 4 also requires that the reporter maintain the original backup audio media and provide only a copy to any or all requesting parties. Finally, the Committee cautions that releasing copies of the media may result in a violation of Provision No. 4 of the Code if the media contains inadvertent, off-the-record or privileged information that should not have been released or disclosed."
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