Appeal Rights for the Poor Are Unfairly Limited
by Steve Thomas
One of the requirements for an appeal - when a party loses a case in trial court but believes the court made a mistake and takes it to a higher court - is that the appealing party must pay for a transcript of the trial court's proceedings. In most trial courts, a court reporter is present to take down everything that is said, or at least a recording is made to permit the court reporter to make a written record of what was said.
These transcripts can be very expensive, usually costing about one dollar per page. They are usually double-spaced with wide margins and large typefaces, so that even brief records can run many pages, and longer court proceedings take the court into hundreds or even thousands of dollars.
The problem is that this cost can lead a party of limited financial means to decide against filing the appeal.
The ironic thing about this is that there are ways such clients often can get around their financial limitations in practically every other aspect of taking a case to trial - they can apply for a waiver of the filing fee, and they can often find attorneys who will actually represent them at no cost (pro bono). But when it comes to an appeal and getting the required transcript, the court reporters have banded together and formed a policy in which under no circumstances will they produce a transcript of court reportings at a reduced cost.
In one of my recent cases, I represented a client who has limited financial resources. She was unemployed and receiving disability benefits. She was trying to get custody of her minor son returned to her. The trial court ruled against her, using reasoning and applying the law in a way that I felt was wrong. After the court denied my motion to reconsider its decision, my client's only possible remedy was an appeal.
The filing fee for an appeal is minimal ($25), and the right to appeal is absolute. What stopped the appeal dead in its tracks, however, was the cost of the transcript. There were lengthy court proceedings on my motions seeking relief for my client, so the transcript would have cost hundreds of dollars, which my client did not have. In this case I think there was an issue of law that the trial court got wrong, and that the appellate court should have considered. Unlike a trial court, when an appellate court decides such an issue, the decision is published and becomes binding on all trial courts from that time on. In this case, however, that did not happen because there was no way my client could pay the cost of the transcript.
There is nothing in current state law that requires court reporters to provide transcripts at reduced cost or at no cost, even if the party requesting it has no means to pay it and this prevents a possibly important issue from being heard on appeal.
I have asked the local State Senator, Chapin Rose, to consider changing the law on this. He did call me a few weeks ago (I write this on April 8, 2014) to say he has drafted a bill and would send me a copy to review. I thanked him for taking this issue seriously, but unfortunately I have heard nothing more from him since (as of August 1, 2014). Hopefully I will hear from him, and if so I will update this article. All I am asking is that there be some means by which court reporters are required to give qualifying parties access to the appellate courts that they would not otherwise have because of the high cost of transcripts. The rules of professional conduct encourage attorneys to do pro bono work, and courts have mechanisms by which poor persons can apply for a waiver of filing fees. I believe court reports should likewise do their share to offer qualified parties a way to obtain transcripts and thus make their right to appeal a real one.