In a Chinese court, a lawyer is speaking at a speed ten times slower than normal. Please don't think of it as the funny sloth scene in the animated film Zootopia, or a slow-motion scene in the movie. The experienced lawyer did so in order that the law clerk could accurately record all his opinions.
China’s Supreme People’s Court (SPC) promulgated the regulations as early as 2010, requiring courts at all levels nationwide to conduct full-time audio and video recordings of the trials to resolve the deficiencies of court transcript only recorded by law clerks. The regulation was further revised in 2017. In this revision, the SPC requires courts, where conditions permit, to get court transcripts converted from the intelligent speech recognition system.
According to the PRC Civil Procedure Law (CPL), the law clerk shall take down all the activities in a court trial into the transcript which shall, later on, be signed and confirmed by the judges, the law clerk, the parties and other litigants. Now, in addition to the clerk's record, Chinese courts have added audio/video recording to ensure that the court record is more accurate.
China’s courts attach so much importance to the use of new technical means to record the trial process because court records play an important role in Chinese litigation. In the past, the accuracy of the court transcripts recorded by law clerks couldn’t meet the courts’ need. The article entitled “Study on the Methods of Court Recording under the Background of Informatization”(信息化背景下庭审记录方式问题研究)  which was published in the “Journal of Law Application” (法律适用) in 2016 discussed the issue. The “Journal of Law Application” (法律适用) is a periodical of the China National Judges College, which is affiliated with the SPC and is the major education and training institution for Chinese judges.
Ning Jie (宁杰) and Cheng Gang (程刚), the authors of the article, two judges from Zhenjiang Intermediate People’s Court of Jiangsu Province, believe that the important role of the law clerk's court transcript in China's civil procedure is mainly reflected in the following three points:
1. In practice, the court transcript is the sole basis for court decisions. The statement and defense of the parties, the proof and cross-examination of evidence will ultimately be subject to the circumstances recorded in the court transcript. After the trial, the judge will draft the judgment mainly by reading the transcript.
2. The court transcript is the main evidence for judging whether the procedure is legal. If the parties question the legality of the trial procedures, then the court of second instance and the court of retrial will make a judgment based on the court transcript.
3. The court transcript is the main evidence for judging whether the judge's fact-finding and the application of law are accurate. If the supervisory authority wants to know whether a judge tried a certain case according to law or whether he/she should be punished, it usually can only rely on the court transcript.
Since the court transcript is so important, it should be as complete, accurate and true as possible. However, according to the investigation conducted by the authors of the article on an intermediate people’s court and seven primary people’s courts in a city in Jiangsu Province, the law clerk’s court transcript does not meet the requirement.
75.68% of the law clerks said that there was information omission; 84.87% admitted that the words of the parties and the judges could not be fully recorded; 75.68% pointed out that the disturbing of the court order was never recorded; and 88.1% indicated that they hoped to record the expressions and manners of the parties in the trial, but there was not enough time.
In addition, the authors also interviewed some law clerks.
Some said, “the parties were emotional and repetitive. For the convenience of record, I will not take down some words of the parties if I think they are not important; sometimes the words are not well-organized, and I will summarize them according to my understanding.”
Some said, “as for the content that the judge clearly asked me to record, I would accurately record it; as for the content that judge did not ask for, I would only record in general if I thought it was not important.”
Some said, “sometimes the judge would conclude and summarize the parties' statements, and I would only record the judge's summary. Sometimes the summary was not exactly the same as what the parties said, but the judge asked me to record so, and I had to record it in this way.”
The authors believe that the above-mentioned various situations occur because the language in the trial contains a lot of useless information. Therefore, the law clerk is usually required to summarize and refine the words of the parties and judges in court. This is likely to result in filtering or phasing out some discourse contents that contain important information at the trial scene. Moreover, the law clerk usually completely obeys the judge and will record, supplement, and correct the transcript at the judge's requirement.
In addition, the law clerk's typing speed also limits his/her ability to accurately record the trial process. The requirements of Jiangsu High People’s Court for the law clerk's typing speed are: 120 words/minute at a primary level, 160 words/minute at an intermediate level, and 180 words/minute at an advanced level. However, the parties in a trial usually speak 250 words per minute, and they will speak even faster in the heated court debate.
Many law clerks have to ask the parties to speak slowly in the trial so that they can record. Therefore, the weird “Sloth” scene described in the opening paragraph of this post appeared in the court: the experienced lawyer proactively spoke at a very slow pace for the convenience of the clerk’s record. This seriously weakens the effect of expression and the adversarial nature of the trial.
Finally, the authors of the article believe that audio/video recording or the automatic converting into text by using the artificial speech recognition system, will make up for the deficiency of the current law clerk's manual court transcript and improve its accuracy. And the accurate court transcript will also facilitate open justice and judicial justice.
Ning Jie, Cheng Gang: “Study on the Methods of Court Recording under the Background of Informatization”(信息化背景下庭审记录方式问题研究) “Journal of Law Application ”(法律适用) 2016(09):70-75
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Wu Xi also contributes to the post.