I was party to a hearing at BIIA in Washington state for a Worker's Comp issue. The proceeding was tape recorded and that used to create a transcript. 1. Is the transcript supposed to notate things like a witness crying excessively during testimony, struggling w/breathing or similar. Or rather is the transcript supposed to show only witness words w/o the emotion? W/o emotion noted (like excessive crying) the transcript reads very differently as if there was no emotion or affect on witness testifying about a traumatic experience. 2. The transcript company refuses to provide me with a copy of the recording. I have explained that due to a disability I am requesting a copy which the court has authorized. Can the transcript company refuse me a copy? 3. With a new judge taking over the case, that new judge will be reading the transcript w/o emotion noted nor did the new judge witness the emotion which seems to not fairly depict the testimony. Thoughts or suggestions?
1. The hearing transcript does not reflect emotion. That interpretation is too subjective to be a fair and balanced report of proceedings. 2. If you have a signed Order from the administrative law judge that a copy of the transcript is to be provided to you at no cost, and the company is refusing to provide it, I suggest that you submit a copy of your own letter to the transcript company, along with the enclosed Order, back to the ALJ for a finding of contempt and a fine of whatever the transcript costs, plus an extension of time for your appeal. 3. The new judge will be unaware of any emotion, breathing difficulty, etc. Judges are not medical or psychological experts, so any evidence about emotional distress, trauma, physical impacts from the distress, would have to come into evidence through expert witness testimony or personal observations of friends, family, co-workers (all of whose testimony would be weighed for bias).
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A transcript normally does not reflect such emotional reactions unless it is to denote that the person could not be understood. As for the actual recording, your best bet would be to make a motion to the court to ask that it order that the audio be turned over so that you could try make it part of your record, although I don't think you'll have much success.
My colleagues have given you sound advice , none of which will allow youto do whats necessary . Find the right lawyer. How many lawyers have you spoken to on this matter?
No attorney client relationship has been formed until you sign a representation agreement.
At this point in time there is absolutely no need for you to hire a lawyer. Can I ask a couple questions to help me answer you better. Do you have an attorney for you Worker's Comp case? (If not that's fine). Why is a new judge taking over? Usually one judge will stay through a case and the judge that hears the evidence almost always writes the order. Has an order been issued? If so you need to start working on a petition for review. The BIIA should have no problem emailing you a copy of the transcripts (usually printed out, not as a recording). I hope this helps, i agree with what a few of my colleagues above have said.
1 - The transcript does not 'illustrate' or document anything that is unspoken at the hearing, unless a person (party or judge) states, for example, "For the record, the witness is pointing to her left wrist," or "The record should reflect that the witness is emotional and crying." Such an effort to preserve that may be subject to either clarification or even a motion to strike, to the extent such a description is inaccurate, misleading or irrelevant, or on some other grounds. Imagine the transcript as an extremely cold document, utterly devoid of emotion, and you have a better sense of how these things read.
2. You should be able to get a copy of the transcript from the Board or the court reporter. You probably cannot get a copy of the recording, absent a compelling reason.
3. This is not that uncommon, actually, as many witnesses do testify by what is called a 'perpetuation deposition,' and do not appear in front of the judge. It may not be advantageous, but this is why a party (whether represented or not) makes the calculated decision to present testimony either live or via deposition.
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