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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