The Unreported Bench Conference
You are the official reporter in a two-day civil jury trial in Arkansas circuit court. During the plaintiff's direct examination of a witness, the judge waves counsel to the bench and the three of them speak in low tones for about 90 seconds. You can hear the exchange, and it includes the judge telling defense counsel that a particular line of cross-examination will not be permitted and warning that a mistrial motion will be entertained if it is attempted. No party asks you to make a record, and no side-bar is later summarized on the record. After the jury returns its verdict for the plaintiff, defense counsel files a motion for new trial arguing the verdict is against the weight of the evidence and citing the judge's in-chambers remark as evidence of bias. Your notes contain the bench conference. The transcript you certified and delivered does not.
1. Identify the core obligations in tension here and explain what the court reporter should have done at the time of the bench conference.
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The tension is between the reporter's duty to create a complete and accurate record and the practical reality that unrecorded bench conferences are common. The correct approach is not to silently include or silently omit. The reporter should have preserved the bench conference in the stenographic notes (which happened) and then, at the next natural break, asked the judge on the record whether the conference should be reported. The judge controls what goes into the record; the reporter does not independently decide to publish a chambers exchange, nor does the reporter destroy the notes. If the judge directs that the conference be off the record, the reporter should note that direction. The failure here was procedural: no one put the question on the record, so the status of the exchange was left ambiguous, and the ambiguity is now being weaponized in a post-trial motion.
2. Defense counsel now subpoenas your stenographic notes for the bench conference. What is your response, and what does the certified transcript's omission mean for the motion?
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The notes are the reporter's working record; they are not the official transcript, and a reporter does not unilaterally release them. The reporter's move is to notify the court and counsel that the notes exist, that the conference was not reported at the direction (or with the acquiescence) of the court, and to ask the court to rule on whether the notes may be reviewed or whether a settled statement should be prepared. The omission from the certified transcript does not erase what was said, but it also does not make the omitted exchange part of the official record. The judge, not the reporter, decides whether to supplement the record. The reporter's certification speaks to the accuracy of what is in the transcript, not to a representation that nothing else was said. Practically, the reporter should be prepared to testify about the notes' authenticity and should not alter them.
3. What should the reporter have done differently in the certification and delivery process to avoid this dispute?
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Before certifying, the reporter should have reviewed the notes for any unreported sidebars and raised them with the judge on the record, so the transcript's scope was settled before certification. The reporter could also have included a neutral notation (if the court permitted) that certain bench conferences were held off the record. The certification should reflect only what the reporter actually transcribed. The lesson: the time to resolve record-scope questions is before certification, when the judge can still direct inclusion or exclusion cleanly, not after a verdict when the omission becomes a litigation weapon.