If need be, “BYOCR” to get it on the record. What Bay Area family law litigants must know.
Anyone old enough to be a party to a family law case is old enough to have a vision of what a day in court looks like, but increasingly that vision includes one element that is sorely missing: a court reporter.
Why? Because many superior courts in California have experienced significant difficulty in hiring employee court reporters in recent years due to an ongoing, nationwide decrease in the number of court reporters seeking employment—and this despite extensive recruitment and retention efforts by many courts.
Fifty years ago, a court reporter in every courtroom reporting every proceeding was the standard. That is no longer the case.
In fact, the situation is so serious in Alameda County that the court there has published its on directive (General Directive 2026-24) regarding the authorization of electronic recording (“ER”) for certain hearings to alleviate the shortage of court reporters. That directive extends to certain family law cases, but the details remain uncertain and it is much safer to simply “BYOCR” (bring your own court reporter) and not risk that one will not be available or that ER will not be authorized or available.
Some litigants will bristle at this additional expense. They are paying an attorney hundreds of dollars per hour and taking a half day or a full day off work to prepare and be present at a hearing. And now they have to pay for a court reporter, too? Answer: absolutely.
In fact, it is for the very reason that family law litigation is expensive, high stakes, and unpredictable that a litigant must be willing to shoulder the additional expense to “get it on the record.” Absent a verbatim transcript an innumerable parade of horribles might follow.
First, if one side is tasked with preparing the proposed order or judgment following the hearing or trial, it is usually difficult to do so in all but the simplest of cases without reviewing a verbatim transcript of the proceedings.
Second, the litigants, their attorneys, and the judge often have varying recollections of the details of what was said or what agreements were reached at the hearing. A verbatim transcript avoids all doubt.
Third, when a decision is adverse to a party and that party wants to appeal, he or she could be stuck without a transcript. One of the more memorable appellate decisions on this topic put it this way:
When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.
(Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)
The California Supreme Court put it this way:
… the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have his or her claims of trial court error resolved on the merits by an appellate court. This is so because it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
Fourth, many family law cases proceed piecemeal, with proceedings spread out over many weeks or months, and a verbatim transcript usually includes memorable verbal hooks that judges remember. Make it easy for them to remember your case, especially if you are the prevailing party or the party the judge found more credible. You want the judge to remember those things from hearing to hearing.
It is therefore strongly recommended that you ensure there is a court reporter for every proceeding where a dispute is being resolved or an important matter is being put on the record. The court’s own minute order (if the court even prepares one) and the resulting written order, often do not tell the whole story and sometimes they do not even tell the correct story absent a verbatim transcript of the proceeding.
Use a court reporter and get the proceeding on the record, unless you are willing to risk the possible outcomes without one or there are strategic reasons not to use one.
