The Bench Conference the Judge Says Not to Report
During a jury trial in the 19th Judicial District Court for East Baton Rouge Parish, plaintiff's counsel objects during voir dire that defense counsel is 'arguing the case' and 'seeking a commitment' from a prospective juror. The judge calls both lawyers to the bench and says to you, the court reporter, 'Don't take this; we're off the record.' The bench conference lasts about six minutes. When it ends, the judge announces in open court: 'The objection is sustained. I will give a curative instruction.' Neither lawyer objects to the off-record instruction or asks that the bench conference be transcribed. The jury later returns a plaintiff's verdict. On appeal, the plaintiff argues the trial judge improperly restricted voir dire and that the missing bench conference prevents meaningful review. Your draft transcript contains only: 'Bench conference held off the record.' You did not take down the bench conference, but you have notes of the preceding objection and the judge's subsequent ruling. What do you do?
1. Was it proper for the reporter to omit the bench conference from the transcript? Explain the effect of the judge's direction and the lawyers' silence.
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Not automatically improper, but the handling needs care. A Louisiana trial judge has broad authority over trial conduct and may direct that a bench conference not be reported. The reporter should not unilaterally declare something off the record; here the direction came from the judge. The lawyers' silence is not a stipulation, but it also means no one preserved a contemporaneous objection to the procedure. The better practice is to make a neutral notation-'Bench conference held at the court's direction; not reported'-so the record shows a conference occurred. Omitting every trace would be misleading. The reporter should not later describe the conference as 'off the record by agreement' because that would be false. If the judge wanted the conference excluded, the reporter should comply while preserving notes of what can properly be noted, such as start and end time and participants, without transcribing substance.
2. How should you prepare and certify the transcript in light of the missing bench conference?
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The certificate should identify the transcript as a true and correct transcript of the proceedings reported, not of matters the court directed be unreported. At the point of the conference, insert a parenthetical: 'Bench conference held at the direction of the court; not reported.' Do not leave a blank that suggests missing pages. If the judge later orders the conference transcribed from any notes, the reporter may do so, but the original certificate should not imply that the unrecorded conference is included. The reporter should also retain the draft, notes, and any backup for the appeal period. If appellate counsel asks for a supplement, the reporter should tell counsel the conference was not reported and that any reconstruction would require a trial-court order or stipulation, not a private re-creation by the reporter.
3. If the appellate court later asks about the missing conference, what may the reporter properly do?
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The reporter may authenticate the notes, state what was recorded and what was not, and identify the judge's direction. The reporter must not guess at words, rulings, or lawyer statements. Memory is not a transcript. Under Louisiana practice, an incomplete record may be supplemented by stipulation of the parties or by the trial court's settling of the record. The reporter's role is to provide accurate technical information, not to become an advocate for either side. If no reliable record exists, the reporter should say so in an affidavit. The reporter should not fill the gap with a reconstructed version that sounds plausible but cannot be verified, because that would create a false record for the appeal.