BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 1181 (Cedillo)
          As amended April 5, 2010
          Hearing Date: April 20, 2010
          Fiscal: Yes
          Urgency: No
          KB/AW:jd
                    

                                        SUBJECT
                                           
                 Shorthand Reporters:  Transcript Reimbursement Fund

                                      DESCRIPTION  

          This bill would extend the sunset on the Transcript  
          Reimbursement Fund (TRF) administered by the Court Reporters  
          Board of California (the board) from January 1, 2011 to January  
          1, 2013.  The bill would expand the applicants authorized to  
          obtain reimbursement from the fund to include indigent pro se  
          litigants, as specified, up to a maximum of $30,000 annually and  
          $2,500 per case, and require the board to report to the  
          Legislature no later than January 1, 2012, on expenditures and  
          claims by such litigants.  The bill would also expand the types  
          of services that may be reimbursed to include instant visual  
          display services provided at depositions up to a maximum of  
          $2,500 per case.  

                                      BACKGROUND  

          The Court Reporters Board of California is charged with  
          certifying and regulating shorthand reporters.  Since 1981, the  
          board has been charged with administering the Transcript  
          Reimbursement Fund (TRF).  The purpose of the TRF is to ensure  
          that low-income litigants in civil cases are able to afford  
          deposition and court transcripts by reimbursing eligible  
          applicants or certified shorthand reporters for the cost of  
          preparing an original transcript and/or copy of a California  
          state court or deposition proceeding.  Litigants appearing pro  
          se at any stage of a case are not able to apply for  
          reimbursement from the TRF.  

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          In fiscal year 2008-09, the board received 363 claims for  
          reimbursement and disbursed approximately $201 million to 330  
          applicant attorneys or shorthand reporters.  Of the 33 claims  
          denied, nine were from litigants who appeared pro se in the  
          underlying case.  

          This bill seeks to extend the sunset for the TRF and authorize  
          pro se litigants to apply for reimbursement for deposition and  
          court transcripts.  
                                CHANGES TO EXISTING LAW
           
           Existing law  establishes the California Court Reporters Board  
          (Bus. and Prof. Code Sec. 8000.) with, among other things, the  
          authority and responsibility to determine the qualifications of  
          persons applying for certification as a shorthand reporter (Bus.  
          and Prof. Code Sec. 8007(a).); make rules for the examination of  
          applicants and the issuing of certificates of qualification in  
          professional shorthand reporting (Bus. and Prof. Code Sec.  
          8007(c).); and charge and collect authorized fees (Bus. and  
          Prof. Code Secs. 8008(c), 8031.)

           Existing law  establishes the Court Reporters' Fund into which  
          all funds collected by the board shall be deposited. (Bus. and  
          Prof. Code Sec. 8030.)

           Existing law,  until January 1, 2011, establishes the Transcript  
          Reimbursement Fund to provide shorthand reporting services to  
          low-income litigants in civil cases who are unable to otherwise  
          afford those services.  Existing law also provides that the  
          board shall transfer up to $300,000 into the TRF from the Court  
          Reporters' Fund at the beginning of each fiscal year, from  
          excess funds needed to support the board's operating budget for  
          each fiscal year.  The board may transfer additional funds  
          available, provided that the additional transfer does not result  
          in a reduction of the balance of the Court Reporters' Fund to an  
          amount less than six months' operating budget.  The board is  
          required to maintain sufficient funding to pay all qualified  
          claims and is authorized to utilize all refunds, unexpended  
          funds, fees, and any other moneys received for this purpose.  
          (Bus. and Prof. Code Sec. 8030.2)

           Existing law,  until January 1, 2011, provides that an  
          "applicant," or certified shorthand reporter in a case handled  
          by an applicant, may apply, with supporting documentation, for  
          reimbursement from the Transcript Reimbursement Fund for the  
          allowable charges for preparing an original transcript, a copy  
                                                                      



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          of the transcript (or both if appropriate) of court or  
          deposition proceedings for litigation conducted in California.   
          These existing provisions also specifically exclude persons  
          appearing pro se to represent themselves at any stage of the  
          case.  (Bus. and Prof. Code Secs. 8030.4(e), 8030.8.)  

           Existing law,  until January 1, 2011, specifies that an applicant  
          includes a "qualified legal services project," a "qualified  
          support center," "other qualified project," or "pro bono  
          attorney," as those terms are defined, which generally includes  
          those non-profit organizations, attorneys, law firms, or legal  
          corporations providing legal services to an indigent person.  In  
          addition, the case may not be a fee generating case, which is  
          generally defined as a case that, if undertaken by an attorney  
          in private practice, may reasonably be expected to result in  
          payment of a fee from an award to a client, from public funds,  
          or from an opposing party. (Bus. and Prof. Code Sec. 8030.4.)

           Existing law,  until January 1, 2011, specifies the charges that  
          may be reimbursed from the Transcript Reimbursement Fund,  
          including regular customary charges for expedited deposition  
          transcripts up to a maximum of $2,500.  (Bus. and Prof. Code  
          Sec. 8030.6.)

           Existing law  provides: (1) that the instant visual display of  
          deposition testimony shall not be certified and cannot be used,  
          cited, or transcribed as the official certified transcript of  
          the proceedings; and (2) provides that the instant visual  
          display of testimony shall not be cited or used in any way or at  
          any time to rebut or contradict the official certified  
          transcript of the proceedings as provided by the official  
          reporter or official reporter pro tempore.  (Code Civ. Proc.  
          Sec. 273.)
             
          This bill  would extend the sunset on the Transcript  
          Reimbursement Fund and the accompanying provisions to January 1,  
          2013.

           This bill  would, until January 1, 2013, permit a person  
          appearing pro se at any stage of the case to apply to receive  
          funds from the Transcript Reimbursement Fund.  Pro se litigants  
          applying for reimbursement would be required to provide a fee  
          waiver from the court to establish indigent status.  In  
          addition, the amount reimbursed to persons appearing pro se  
          would be limited to $2,500 per case and not to exceed $30,000  
          annually for all cases.  This bill also requires the board to  
                                                                      



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          report to the Legislature by January 1, 2012, on a summary of  
          expenditures and claims paid to pro se litigants from the  
          Transcript Reimbursement Fund.

           This bill  would extend the sunset on these provisions to January  
          1, 2013, and permit the cost of services related to providing  
          instant visual display of deposition testimony to be reimbursed  
          from the Transcript Reimbursement Fund.

                                        COMMENT
           
           1.Stated need for the bill  

          The author states:

            The Transcript Reimbursement Fund (TRF) was established by the  
            legislature in 1981 and is funded through the Certified  
            Shorthand Reporters annual license renewal fees.  The purpose  
            of the TRF is to provide court transcripts or depositions at  
            little or no cost to non-profit legal service centers and pro  
            bono attorneys on behalf of indigent litigants in civil cases.  
             This fund is to sunset by January 1, 2011.  Since this is a  
            valued program serving the indigent community it is vital for  
            the court process to have an extension of the program.

            According to the Court Reporters Board, approximately a  
            quarter of all TRF claims are denied because they are  
            submitted by a litigant who represents himself/herself in a  
            lawsuit (known as in pro per litigants) rather than have an  
            attorney.  Many of these clients have obtained a fee waiver  
            for their cases and often assume that it applies to transcript  
            costs as well.  These people are unable to afford the costs of  
            transcripts and often time forego their efforts to pursue  
            civil litigation or defend themselves in an action.  Typical  
            cases involving requests for TRF assistance, in addition to  
            those who represent themselves, include: dissolution of  
            marriage/custody issues, evictions, unlawful terminations, and  
            probate disputes.  These litigants could be helped with the  
            use of underutilized funds from the TRF to be expanded to  
            include individuals representing themselves.

            In addition, current law does not allow TRF funds to be used  
            for the reimbursement of instant visual display reporting  
            rates for court reporters providing such services to counsel.   
            Instant visual display reporting is a near instant text  
            delivery of court proceedings and did not exist at the time  
                                                                      



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            the law was written.  Allowing the reimbursement for instant  
            visual display services would ensure speedy and efficient  
            transcripts to litigants.

           2.Bill would extend the sunset on the operation of the  
            Transcript Reimbursement Fund to January 1, 2013
           
          Authorization for the Transcript Reimbursement Fund would sunset  
          on January 1, 2011.  Funds currently allocated for these  
          purposes would instead remain in the Court Reporter Fund for the  
          purpose of operating the board.  The board may also reduce  
          certification fees to the extent these funds are not needed.

          As indicated by the author, without this fund, there would be  
          fewer resources available to indigent litigants to obtain a  
          deposition transcript that permits them to evaluate and prepare  
          for their case.  In addition, without a court transcript,  
          indigent litigants are unable to bring an appeal, which has  
          serious access to justice implications.  The author indicates  
          that many of the cases involve difficult family law and custody  
          disputes, unlawful detainer, unlawful terminations, and probate  
          disputes that they would otherwise be unable to defend or  
          pursue.  Extending the sunset for the TRF would help to ensure  
          that indigent litigants continue to be able to access this pool  
          of funds.

           3.Historical expenditures suggest underutilization of available  
            funding  

          As indicated above, each year, the board makes available at  
          least $300,000 that is transferred into the Transcript  
          Reimbursement Fund.  Based on data provided by the board, in the  
          nearly 30 years since the Fund's inception in 1981, the amounts  
          expended on an annual basis has ranged from a high in 1993/94 of  
          $417,778 to a low in 2002/03 of $146,649.  In the 10 years  
          between 1986/87 and 1995/95, expenditures exceeded the $300,000  
          budget on nine occasions.  However, since 1996/97, expenditures  
          have remained well below $300,000, and have not exceeded  
          $272,000.  According to the board, the chart below represents  
          recent historical claims and expenditures from the Transcript  
          Reimbursement Fund:



                      Historical Trial Court Reimbursement Fund
                               Claims and Expenditures
                                                                      



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                                 2003/04 to 2008/09

          
           ------------------------------------------------------------------ 
          |   TRF    | 2003/04 | 2004/05 |2005/06 |2006/07 |2007/08 |2008/09 |
          |Applicatio|         |         |        |        |        |        |
          |    ns    |         |         |        |        |        |        |
          |----------+---------+---------+--------+--------+--------+--------|
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          | Approved |   408   |   356   |  397   |  398   |  397   |  330   |
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |----------+---------+---------+--------+--------+--------+--------|
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |  Denied  |   26    |   32    |   31   |   13   |   29   |   33   |
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |----------+---------+---------+--------+--------+--------+--------|
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |  Denial  |    8    |    7    |   6    |   3    |   8    |   9    |
          | for Pro  |         |         |        |        |        |        |
          |    Se    |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |----------+---------+---------+--------+--------+--------+--------|
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          | Total $$ |$204,220 |$159,858 |$225,676|$219,308|$219,275|$201,259|
          |Disbursed |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |----------+---------+---------+--------+--------+--------+--------|
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |  Add'l   | $95,780 |$140,142 |$74,324 |$80,692 |$80,725 |$98,741 |
          |  Funds   |         |         |        |        |        |        |
          |Available |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
          |          |         |         |        |        |        |        |
           ------------------------------------------------------------------ 

          As these figures show, in no year has the amount of additional  
          funding available fallen below $70,000, or nearly 25 percent of  
                                                                      



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          the total funding available in each year of $300,000.

           4.Bill would expand those eligible to seek reimbursement from  
            the Transcript Reimbursement Fund to include indigent Pro Se  
            litigants  

          Under existing law, an "applicant," or certified shorthand  
          reporter in a case handled by an applicant, may apply for  
          reimbursement from the Transcript Reimbursement Fund for the  
          allowable charges for preparing an original transcript, a copy  
          of the transcript, or both if appropriate, of court or  
          deposition proceedings for litigation conducted in California.   
          (Bus. & Prof. Code Sec. 8030.4.)  These existing provisions also  
          specifically exclude persons appearing pro se to represent  
          themselves at any stage of the case.  An applicant includes a  
          "qualified legal services project," a "qualified support  
          center," "other qualified project," or "pro bono attorney," as  
          those terms are defined, which generally includes those  
          non-profit organizations, attorneys, law firms, or legal  
          corporations providing legal services to an indigent person.  In  
          addition, the case may not be a fee generating case, which is  
          generally defined as a case that, if undertaken by an attorney  
          in private practice, may reasonably be expected to result in  
          payment of a fee from an award to a client, from public funds,  
          or from an opposing party. 

          This bill would, until January 1, 2013, permit a person  
          appearing pro se at any stage of the case to apply to receive  
          funds from the Transcript Reimbursement Fund.  Pro se litigants  
          applying for reimbursement would be required to provide a fee  
          waiver from the court to establish indigent status.  In  
          addition, all other requirements related to the type of case and  
          the types of expenses to be reimbursed would continue to apply.   
          While it may appear that requiring the involvement of legal  
          services organizations would arguably tend to weed out frivolous  
          claims, the relatively low number of claims submitted  
          historically does not suggest that the fund's exposure would be  
          substantial.  On the other hand, many potential pro se  
          applicants may not seek reimbursement currently when made aware  
          of the rules for reimbursement.  Therefore, it is unknown what  
          impact the expansion of eligibility would have on the fund. 

          In order to ensure that any impact does not overwhelm the fund,  
          this bill would provide that amount to be reimbursed under the  
          proposed provisions for pro se litigants would not exceed  
          $30,000 annually and $2,500 per case.  These amounts are well  
                                                                      



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          below the historical amount of unexpended funds remaining at the  
          end of each year in the fund.  (See Comment 3.)  Taking into  
          consideration the number of claims denied solely on the basis of  
          the fact that the applicant was a pro se litigant, and assuming  
          that all such claims were approved in each of the years since  
          2003/04 with a limit of $2,500 per case, these claims would have  
          only added up to $22,500 (2008/09) in reimbursements.  

          However, as previously stated, the historical data may not  
          accurately reflect the true impact of expanding eligibility  
          because more pro se litigants may apply for reimbursement should  
          this bill be enacted.  Accordingly, this bill would also require  
          the board to report to the Legislature by January 1, 2012, on a  
          summary of expenditures and claims paid to pro se litigants from  
          the Transcript Reimbursement Fund.  This information would  
          enable the Legislature to determine the actual impact to the TRF  
          and assess whether the new eligibility requirement is serving  
          its intended purpose, or whether new avenues for making  
          transcripts more accessible for pro se litigants needs to be  
          explored.

          The following is a suggested technical amendment to clarify that  
          a pro se litigant should provide proof of a fee waiver from the  
          court to establish indigent status:

             Suggested technical amendment:    

            On page 6, beginning at line 39, revise the last sentence to  
            read:  "The person shall provide  proof of  a fee waiver from  
            the court to establish indigent status  in the case  .





           5.Bill would expand the types of costs that may be reimbursed  
            from the Transcript Reimbursement Fund to include "instant  
            visual display services provided at depositions"
           
          Currently, until January 1, 2011, an applicant may request  
          reimbursement for an expedited deposition transcript.  These  
          transcripts are usually provided within 24 hours of a deposition  
          and typically cost twice as much as a routine deposition  
          transcript.  

          Current law permits the use of "instant visual display services"  
                                                                      



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          at depositions provided that the noticing party notice an intent  
          to use that technology.  This technology generally permits an  
          instant visual display of the transcript for viewing during the  
          deposition.  It also allows scrolling backward and forward  
          through testimony and word searching of the transcript.  Some  
          providers permit a real-time feed from the reporter's computer  
          into the party's computer for use with litigation support  
          software.  Often, the reporter will provide a digital electronic  
          copy of the transcript at the conclusion of the deposition.   
          Currently, the cost of these services is not reimbursable from  
          the TRF.  

          This bill would authorize the reimbursement of costs for instant  
          visual display services.  Background information provided by the  
          author's office states that instant visual display transcripts  
          are "similar" to producing quick transcripts, but that this  
          technology was not available at the time the Fund was created.   
          However, is it not clear what additional or extraordinary effort  
          is related to producing an instant visual display as compared to  
          producing an expedited transcript.  Nevertheless, this bill  
          permits both types of transcripts to be reimbursed up to a  
          maximum of $2,500 per case.  Additionally, when this technology  
          is used to produce court transcripts, current law essentially  
          deems it to be a "rough draft transcript" that may not be  
          certified, used, cited or transcribed as an official certified  
          transcript.  Therefore, it appears that by authorizing the  
          reimbursement for instant visual display services, this bill  
          would set a precedent for reimbursing for a form of rough draft  
          transcripts.   

          Committee staff notes that the most widely used deposition  
          reporter services appear to offer instant visual display  
          services.  It is unknown what volume of claims might result from  
          this expansion and, therefore, what exposure the Transcript  
          Reimbursement Fund would have for these costs.  Notably, while  
          the other provisions of this bill related to permitting a pro se  
          litigant to be reimbursed from the Fund would be subject to a  
          report to the Legislature, there is no similar report required  
          relative to this cost expansion.  Accordingly, this committee  
          may wish to consider whether the provisions authorizing  
          reimbursement for instant visual display services similar to  
          "rough draft transcripts" should be removed from the bill.

             Suggested amendment  :

            On page 8, line 6 strike "or instant visual display services  
                                                                      



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            provided at depositions"


           Support  :  Bay Area Legal Aid

          Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None

           Prior Legislation  :

          SB 819 (Yee, Chapter 308, Statutes of 2009) required all  
          unencumbered funds remaining in the Transcript Reimbursement  
          Fund as of June 29, 2009, to be transferred to the Court  
          Reporters' Fund.

          AB 170 (Mendoza, Chapter 87, Statutes of 2009) provides that,  
          until January 1, 2017, a court reporter's instant visual display  
          of testimony or proceedings (also known as "realtime  
                                                                              reporting"), or both, may not be certified and cannot be used,  
          cited, distributed, or transcribed as the official transcript of  
          the proceedings.

          SB 963 (Ridley-Thomas, Chapter 385, Statutes of 2008) extended  
          the sunset for the Court Reporters Board and Trial Reimbursement  
          Fund until January 1, 2011.

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