TYPISTS IN COURT PROCEEDINGS

When in court one thing you will notice is that the Judge or Magistrate as the proceedings in court are ongoing, he/she many at times will be writing on a piece of paper. What if, we say, there is an option to that, of course, backed by the law? Typists being present during court proceedings. Of course, having in mind with us that for every word used there is a different understanding to it. What one might think, is what the other might think otherwise. This article elaborates one such understanding. That actually we can have typists in court proceedings.

We ought to begin with first understanding how we come up with meanings to words in a legal document.

Meanings in a legal document are derived from the sentence structure that is put within it, and ultimately a clear understanding comes to light. There is the plain meaning interpretation and if that fails, if ambiguous, the rightly used one is to pin on the purpose or intent of the wordings or the context. As rightly put by Joel P. Trachtman, there is the subjective original intent, this to mean as you read what is that that one understands as. There is the objective original intent, where you look at the rationale of that wording after not understanding the wordings as they are when read. Lastly, it is the objective original intent with intended evolutionary change. This looks to the rationale while appreciating that times have changed, the society was not like what it was before. Initially perhaps the society was using telephone lines to communicate, but now they are using mobile phones.

Let us look at one such example. Initially for companies when we talked about meetings, it meant the physical meeting of people. However, that meaning was rather defined more by Sir Browne Wilkinson VC in Byng vs. London Life Assurance Ltd (1989) at the Court of Appeal to mean with the advancement of technology, electronically people can also meet and that is also in order, it can mean a meeting was undertaken.

The proposition backed by law of a typist in court proceedings to be discussed below fails on the plain meaning text. For there is no use of a comma, thus the subjective original intent fails, but looked closely from the angle of the objective original intent and the objective original intent with intended evolutionary change, it does make sense. Though this can be put into question, if really it is evolutionary, there might be varying perspectives to it.

The reference point is Order 42, rule 13 (4) (d) that states:

“13. Directions before hearing [Order 42, rule 13.]

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(4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—

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(a) the memorandum of appeal;

(b) the pleadings;

(c) the notes of the trial magistrate made at the hearing;

(d) the transcript of any official shorthand, typist notes electronic recording or

palatypist notes made at the hearing;

What that is derived from this Order specifically from (4) (d) is that it accepts that court records can be derived from typist notes, though not from the plain meaning as there is no comma to it, confusion rides. That meaning can be deduced from the purpose and context of the word typist notes is used at.

From this it is proper to say, the law does allow for typist to be present to take notes on what is happening in the proceedings done in courts by Judges and Magistrates.

This would also be in line to the oxygen principle as stated in Section 3A of the Civil Procedure Act that states for timely and efficient disposal of suits. The rationale for such a statement is that if we take into consideration how note taking is in any situation. It can be tiring and sometimes even cause one to be sleepy. Now imagine that with the seriousness that comes in with being a judge or a magistrate, with their pen they can alter a life, and having to write down the proceedings of the court together with being attentive and understanding the case as it is ongoing.

Additionally using typists during hearings, concentration of the judge is improved, if we are to put as rightly guided by Steve Ouma on the working of judicial officers post 2010 constitutional era. Where the “thrust for search of the truth is more defined than before.” A judicial officer does not only become an arbiter but they are a mixture as long as it is in the confines of procedural law. Being observant to the parties, their cues they showcase, like facial expression, tonal variation, their body movement, that can be an avenue of enhancing such journey to discovery of the truth.

Noted is that it is in tandem with Section 3A of the Civil Procedure Act that intends as courts to adopt to technologies to ensure access and dispensation of justice. Doing that, using the typists introduces the use of laptops in court proceedings which is a technological use.

However the above decision also goes against the oxygen principle sub head that talks about using properly judiciary’s resources. For you will be paying to the typists salaries as they become employees of the judiciary.

What we have to ask now is which of the subhead of the oxygen principle should be applied- adopting technologies or using properly judiciary’s resources?

Typists notes can be taken using a type writer or as going by the advancement of technology using a laptop. The query that comes is on the effectiveness of the laptops to be used. What guarantee is there that there would not be a future problem of hacking? This bearing in mind that laptops should be secure such that hacking becomes minimal or not to happen.

Truth be told, using a laptop to making of court records makes it susceptible to security issues. This is if we are to put the reality as it stands into perspective. It has happened not once but many times where it happens that court files go missing from court. It is highly likely chances are there for security breaches to happen to the laptops. Such that the laptops used by the typist in typing the contents of the courts proceedings to be hacked by either being deleted the typist notes of the proceedings or infused with a virus and the laptop does not even start.

Perhaps the answer to that lies on assigning those specific laptops or the system where such typed works are saved at to be designated as a critical infrastructure by the government.

The question that we ought to ask is, is it now, is the time ripe to use typists in court proceedings, considering that as it stands it has the backing of the law?

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REFERENCES

1.?????Joel P. Trachtman, “ The Tools of Argument: How the Best Lawyers Think, Argue and Win,” 2013.

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2.?????Steve Ouma, “ A Commentary on the Civil Procedure Act CAP 21,” 2nd Edition, LawAfrica pg.2-3