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The Court Reporter Spring 2008
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For Professionals in Electronic / Digital Court Technology

Volume 13, Number 1 — Spring 2008 . . .

 

 
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Weighing Science

O
nly one kind of witness can give extensive hearsay testimony in court, provide elaborate opinions, and proffer long narrative answers to such simple-sounding questions as "So, what does that mean?"  Who are these people who fall into this specially privileged group of witnesses?  Experts.

That's because judges, when faced with complex scientific or technical questions which lie far outside the realm of commonsense knowledge, are just as incapable of coming to reliable conclusions as any lay observers are — jurors, for instance.  That's the whole point of expert testimony:  to assist judges and jurors reach decisions based on solid evidence rather than falling back on prejudice, passion, or mere whim.  (Or equally unacceptable, by flipping a mental coin when matters have become simply incomprehensible.)

Of course, judges are the gatekeepers of all evidence introduced at trial.  Traditionally, an attorney who wanted to present expert testimony had to convince a judge:

  • that the issue involved information beyond the ken of ordinary lay observers;

  • that the witness had the education, training, or experience to discuss it;

  • and that these views had been published in authoritative journals and reviewed by others in the field, or were generally accepted as reliable.



But a new wrinkle was introduced when Jason Daubert's parents went to court.  Jason was born with serious developmental defects.  The suit hinged on whether his mother's use of a prescription drug during her pregnancy had caused these problems.  And when the case finally ascended the appellate ladder to the Supreme Court, the justices used it to craft guidelines for when expert evidence should be admitted in a case, and when it should be kept out.  See Note below.

The trial judge had accepted a single expert's affidavit, in which he said there was no evidence in the medical literature that the drug was harming unborn children, and he had rejected the views of eight other experts who testified the drug could reasonably be blamed for Jason's difficulties.

How could one expert outweigh eight — assuming all held equivalent credentials?  [They did.]   Because the eight opinions were based on recent re-interpretations of prior data, on animal and test-tube studies, and on the drug's chemical similarities to known teratogens (agents known to cause birth defects).


The judge found that those eight opinions, derived from such recent investigations, were not yet "generally accepted as reliable" — that is, they had not been published and peer-reviewed well in advance of the Dauberts' lawsuit.  This made them "iffy," because if they were specifically prepared with this particular case in mind, they were probably little more than litigation science, possibly even junk science.  So the Dauberts lost.

Judges are in a tight spot here:

They can open the floodgates and fill the record with any and all expert opinions the lawyers wish to float into the room — and risk a reversal on appeal for being too lax.  Or they can reject all "recent evidence" as clearly obtained only with litigation in view — (thus, by definition, self-serving and unreliable) — yet still risk reversal for being too restrictive.

"Courts shouldn't set rules, a priori,
to say which studies are good or bad
."
David Michaels, George Washington University.

Timing is everything:

Many developments in our complex world are radically new — so novel, in fact, that they become "cases of first impression" to our courts.  Simply put, not enough time has elapsed for lengthy periods of in-depth scientific inquiry, publication, critique, and re-publication on these mind-numbingly abstruse and vexing issues.

  • Scientists want a long time to ponder, debate, and only then announce preliminary results . . .

  • Litigants want their decisions right away . . .

  • Judges want finality, so cases can become res judicata, "decided things."



And there's the conflict:— how to bring the gavel down so litigants receive speedy justice, so decisions are based on evidence sufficiently solid that society is not misled, and so the law books are not overburdened with half-baked conjectures, personal speculations, and untested theories.

Perhaps we expect too much:

"People assume science will give
black-and-white answers when
[most] of the time
the best it can give us is a 'maybe.'
"
William Freudenburg, U.C. Santa Barbara.

  So, now what does it take to get expert scientific / technical opinions before a jury?  The required elements are codified in Federal Rule of Evidence 702, which the justices specifically validated and elaborated upon in Daubert.

Find Rule 702 here (in the entire set of evidence rules), courtesy Cornell University Law School.
                           


Note.  Click here to read the Daubert v. Merrill Dow Pharmaceuticals opinion, 509 U.S. 579 (1993),

plus the views of the two dissenting justices, Rehnquist and Stevens, courtesy Cornell University Law School.

 

 

 
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  Do you hear what I hear?

¿
Jura solemnamente, o afirma, que el testimonio que va a dar ser la verdad, toda la verdad, y nada menos que la verdad, ante Dios?



Have you ever heard those words at the start of a deposition or in the courtroom?  Do you know their significance?  Do you hear what I hear?

It is common these days in either the deposition setting or in the courtroom to hear this oath administered in Spanish.  Throughout America there is a significant need for competent and certified judicial interpreters in Spanish and dozens of other languages.

Are you aware that as a court reporter in a deposition setting you may be required to administer an oath to the interpreter before you swear in the deponent?  The Indiana state rule illustrates this point very well.  Its Code 34-45-1-5 states:


Every interpreter for another person who is either a party or a witness in a court proceeding described in this chapter shall take the following oath:

Do you solemnly swear (or affirm) that you will justly, truly, and impartially interpret to            the oath about to be administered to him [her], and the questions which may be asked him [her], and the answers that he [she] shall give to such questions, relative to the cause now under consideration before this court so help you God (or under the pains and penalties of perjury)?

Photo,  left to right:
Gail Malm Armstrong, CERT, and
Kimberly Hayes Perez, newly certified court interpreter.



Gail is a practicing E-Reporter in Logansport, Indiana.  She prepared this article for the Indiana Shorthand Reporters Association, and with her permission we have extracted and amplified remarks which have nationwide application.

 
A judicial interpreter plays a vital role in enabling non-English-speaking litigants to communicate effectively and to understand the proceedings.  Availability of competent interpreters is a fundamental factor in providing access to justice for all.  In Indiana, and now more and more across the country, a Court Interpreter Program provides seminars for bilingual applicants, includes a code of ethics for interpreters, and sets specific certification standards for them.  Certification examinations then test bilingual fluency, consecutive and simultaneous translating skills, translation of documents, and ethics.

On December 5, 2007, in the Indiana Supreme Courtroom, Indianapolis, I was privileged to attend a ceremony to swear in 28 certified judicial court interpreters.  At that time my colleague, Kimberly Hayes Perez of Logansport, was sworn in as a State-Certified Judicial Interpreter for the Spanish language.  She is the first certified Spanish judicial interpreter for our county and for Indiana's District 5.  The ceremony was introduced by Justice Theodore R. Boehm.

But is being bilingual sufficient to become a certified judicial interpreter?  No.  Professional interpreting requires more than being bilingual.  Court or deposition interpreting, like court reporting, is a highly skilled profession that requires training, education, experience, and knowledge of legal terminology and proceedings — only in two languages!  Currently, interpreter certification is not required in many jurisdictions.  But as with court reporters, certification assures a level of competence, training, and skill.  Thus, since 2000, the State of Indiana has had a Court Interpreter Certification Program.
  What steps are generally required? 

  • Attend a seminar on interpreter ethics, court protocols, criminal procedure, and the three modes of interpretation:

        (1) on-sight document translation,
        (2) consecutive interpretation
    , and
        (3) simultaneous interpretation;

  • Pass a written exam covering vocabulary, criminal procedure, and ethics with a score of 80% or better;

  • Pass an oral exam with a score of 70% or better in each of the three sections:— on-sight document translation, plus consecutive and simultaneous interpretation;

  • Submit to a criminal background check and swear to comply with court rules and procedures.


If you are fluent in more than one language, you definitely have a skill that can be used to assist others and to earn an excellent wage.  While a court reporter may not serve as both reporter and interpreter in the same proceeding, being bilingual can provide a definite advantage.  Is there anyone that you know that is bilingual?  Are your children commencing language studies in school?  Encourage them to learn another language.  Being bilingual will give them insight and understanding of fellow humans and could also provide them with an occupation where the need is tremendous and the opportunities are without limit.

  Now then, do you hear what I hear?   ¡Espero que sí! 

Gail Malm Armstrong, CERT — gailmalm@tds.net

                   


      For Indiana, click here to view the state's Court Interpreter Certification Program webpage..

      Certified Indiana court interpreters can be located here, by county or district, at the Interpreter Registry.

 

 

 
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Networked — with people, that is!

Does this guy sound familiar?  He knows 400 people.  So he's really networked, right?  Well, six months later he still knows 400 people — but not the same 400!  So, yes, he's networked indeed, for superficial social purposes, but surely not for serious business.

Like most overused words — (cool and awesome come to mind) — networking has lost much of its meaning, although it remains a popular buzzword, even so.  Plus, it sounds so easy to do.  But how easy is it?

Successful, long-term business networking implies a good deal more than merely
meeting lots of people,
      trying to remember their names,
            and gathering their business cards.
It's also more than contacting lots of people,
      hoping they'll remember your name,
            and handing out your business cards.

Indeed, our industry is largely based on long-distance interactions, so direct personal contact may be limited.

Getting started— consider these principles:




  • First impressions DO count, even if face-to-face contact isn't in the cards for a while.  Whether by e-mail or letter, remember that this will BE the all-important first impression you will ever get to make with this person.  So prepare your message carefully — plan it, rather than just dashing off a quick, chatty note you hope will somehow get read.

    Read it aloud — (a venerable technique of authors) — listening to how it sounds to the ear, not merely how it looks on the page.  Even send it as a test e-mail to yourself, just to see how it "opens."

    Proofread what you write.  Court reporting and transcription are word-intensive professions, so parse your sentences with care.  Grammatical or spelling errors will seriously undercut any statements you make about your expertise.

    DO pare down your résumé, IF you decide to include one.  Only the first page will probably be looked at, anyway.

    And time your e-mail so it does not arrive lost in the early-morning crush of accumulated incoming items, particularly on a "blue Monday" morning . . . much more effective to have yours arrive splendidly alone a bit later in the day!

  • Find out something about the people you're contacting — what their areas of specialization are, if any.  This may not always be possible, so . . .

  • State what you're looking for — don't make them guess.  If they can't tell what your area of interest is by reading the first paragraph, the contact will likely prove unfruitful.

  • Have a clear understanding of what you do and why, and what makes your doing it special.  This is simply a matter of directing your presentation so they can see you as a potential asset.

  • In a telephone conversation, answer questions succinctly — rambling on about yourself can turn people off.

    And in this setting, if you're not getting the information you need, ask open-ended questions rather than ones that get answered Yes / No.
  • Be genuine and authentic — people quickly pick up on "puffery" and know when they encounter it.  If you comfortably produce 12 pages of proofed, formatted transcript per hour, don't say it's 20.

  • Be appreciative.  Yes, you've spent time preparing this contact, but you've also taken up their time, as well.

  • Persevere, but be considerate.  A second contact is almost always appropriate, perhaps a third — a fourth or fifth may be viewed as pestering.

  • If all goes well and a work referral ensues, follow through quickly and professionally.  This, too, is a form of first impression — the first impression of your work product.

  Okay, that's all very well and good for contacting specific individuals or firms I've taken the time to identify.  But is there a way to make myself generally known "out there"?  Yes.

  • Volunteer for positions or projects available in organizations like AAERT.  People in the field will come to recognize your name.

  • Post a note about your availability on our Bulletin Board — but remember, this is tantamount to a "first impression" encounter, so take the same care with this posting as though you were directing it to someone specific.

  • Make yourself known as a resource.  Post on our Bulletin Board that you can assist with technical questions, if that's an area you're comfortable with.  If you're a whiz on law Latin, announce that people can call you with "Have you ever heard this phrase before?"

  • Follow through on your commitments, and
    word of mouth will serve you well.


This is a process which takes time.  Developing any business relationship involves a personal investment.

True, some interconnections are fragile, no matter how long they've been "on the books," while others are robust from the get-go.  This owes much to personalities and "chemistry."  That said, all successful networks need regular care and feeding.
Best wishes!

 

 

 
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President's Message


Greetings, my friends,

Six weeks ago AAERT's Board met in San Antonio, Texas, for our mid-year meeting.  All Board members were present, one by way of video and Skype!  Your Board is excited about this profession and about the Association which brings us all together.  We are committed to the growth of AAERT.  Board members are not reimbursed for the cost of attending these meetings, and consider this one of their ways to show support for the Association.

Speaking of that, if YOU are interested in serving your Association, there are two Board positions up for election at the June 2008 Member's Meeting.  Sorry, no big bucks or fancy perks, but I can promise you a rewarding adventure and the opportunity to see "iron sharpening iron" in action.

Some Board members stayed an extra day to meet with the Conference Committee.  Texas members of the Committee drove in for the meeting, and we had an exciting day ironing out the details of Conference 2008.  Not to mention sampling some of the local fare to make sure it will meet your standards!  You will not be disappointed!  This will be AAERT's first conference in Texas — and, by the sounds of the "big Texas howdy" they're going to give us, definitely not our last!

Judge John Delaney, of Bryan, Texas, is a senior district court judge who used electronic recording for over ten years in his courtroom.  He has been an honorary member of AAERT since 1996.  We are privileged to have him as our keynote and banquet speaker in June.
During recent weeks I've seen the standard harvest of emails which extol the benefits of real-time reporting.  The emails have been peppered with the usual knee-jerk disdain for electronic recording and the fact that "someone still has to make a transcript from the recording."  Let me see, I'm sure I could find a few good men and women to do that!

I have friends who are full-time E-Reporters, full-time transcribers, full-time Machine Reporters, and full-time Voice-Writers.  They're all very busy.  They don't voice concerns of being out of work.  They are busy pushing for tighter certification requirements, producing transcripts of unequaled accuracy, and projecting a positive image to the community at large.  Which brings us to the questions which everyone must come back to:  Do we do what's right to get what we want?  Or do we do what's right because it's right?  I suggest the latter.  But as many of you have learned along with me, when you do what's right just because it's right, it almost always gives us what we want, as well.

Work hard.  Support your fellow court reporters, whatever their method.  Get your transcripts out on schedule, because that's your part in ensuring justice is provided to your fellow citizens.  Do what's right because it's right, and things will all work out just fine.  And besides, you're too busy working to spend time doing anything else!

I think AAERT and Texas share a common spirit.  Texas Senator Lyndon B. Johnson (1949-1961) put it nicely:  "We have a tradition of looking forward, and not looking back to see where we have been or who is following us."

Come join us in San Antonio!

Sincerely,


  AAERT President
  Gillian.Lawrence@flcourts18.org

 

 

 
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  OF NOTE:
Budget constraints continue to constrict
penny-wise, pound-foolish at the statehouse?

The states face budget meltdowns during this period of economic malaise.  As is their wont, elected officials much prefer to slash funds where affected constituences and special interests will be the least vocal ( = hire fewer lobbyists).  For constitutional reasons, the judiciary has historically been reluctant to plunge too deeply into these political frays, but events may be forcing them to speak a bit louder than usual.

Minnesota's judicial branch is actively pointing out the flaws in legislators' thinking that cutting back on court-related costs and services is a neat, tidy, and painless way to free up piles of dough.  Click here to view a brief outline [PDF] of some surprising unintended consequences which flow from the misguided notion that starving the courts can feed the budget.

We might add, of course, that cost economies are predictable when E-Reporters are on the job.
Membership dues not inflating

Just so we all know, the Board wishes to maintain stability in our membership structures, so no dues increases are planned for 2008 / 2009.
June 22 test cycle marks 11 years for CER/T examinations!
fees set to increase after San Antonio Conference

For the entire 11-year span since testing began in 1996, E-Reporter and E-Transcriber certification exam fees have remained static.  The June 22 test cycle in San Antonio will be the FINAL ONE administered at the old $50 rate, and thereafter the registration fees will be $100 for either reporter or transcriber testing.  This adjustment results from the pressures of rising administrative costs, largely related to testing sites, which have escalated dramatically.  But we expect the new rate to remain in place for a while, too!
New practical examination A/Vs for certification testing

The Certification Committee has completed the recording of new sets of DVDs for our E-Reporter practical tests, and additional digital audio script versions for our E-Transcriber practicals.

We expect both practicals to début at the April 5th test sites in Connecticut and Florida.

        Go to AAERT's test page for specific test-related information.

 

 

 
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The Nature of Words


Making flat bread with my Sunday school kids set me to thinking about words regarding relationships of lines — they were busily cutting the bread into little rectangles, more or less, with a pizza cutter.

  I say more or less, because a rectangle's four parallel sides result from its having four right angles, from the Latin rect-, right, plus angulum, angle.  So I commented that they were aiming to make the vertical lines perpendicular to the horizontal ones, and explained that this means the lines should meet at 90-degree angles:— right angles.

Wandering through the dictionary, I learned that the Latin perpendiculum is a plumb line, which in its purest form is a string with a conical lead weight tied to its end, called a plumb bob.  The Latin for lead is plumbum, and that's why lead, at atomic number 82 the weightiest of the common metals — (heavier even than gold!) — is abbreviated Pb in our periodic table of the elements.

And reading above and below the entry for plumb, I discovered that an early definition of plumber was someone who works with lead or similar metals — not surprisingly, as lead, being so easily malleable, was used in early piping systems.  Rome's famous waterworks were often plumbed with lead, leading some historians to cite chronic, low-grade lead poisoning as at least partly to blame for the empire's slow decline.

Then I found that Plumbaginaceae, the leadwort family of plants, was once believed to cure lead poisoning — apparently not too successfully for the Romans.  And something that is plumbaginous is made of graphite or "black lead."

Further investigation reveals that the Latin plumbago translates the Greek molybdaina, lead ore — a derivative of molybdos, Greek for lead.  Small wonder, then, that in 1778, when a brand-new metal was discovered, one that formerly had been confused with lead, we named it molybdenum, or lead-like.

A line that is plumb is absolutely vertical, and informally the word is used to mean completely or absolutely.
And now I'm plumb tuckered out, as my grandmother would say.

Laurel H. Stoddard, CET (Austin, Texas)
On The Record Reporting & Transcription, Inc.
laurel@ontherecordreporting.com
www.ontherecordreporting.com

 

 

 
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  It's likely that in the past decade American English has coined more words and phrases than the rest of the world's languages combined — novel constructs now commonplace from Andorra to Zambia, even among non-English speakers.

One such creation is webinars — a useful combo of
      web-based  seminars.

 Okay, but what are they, and what are they good for? 

Unlike broadcasts, which are one-way dead ends — (We show and tell, you watch and listen), webinars are two-way streets — (Hey, we all take part) — and FTR's webinars are free.



instructional webinars to introduce / explain FTR products and solutions to E-Reporting issues. . .
click logo for topics / schedules.
 What can I expect to happen? 

You will be able to hear and watch the FTR presentation on your own monitor.  You can also ask questions you'd like to have answers to — just use the Chat feature to type and send them in during the session.  (The webinar platform is Webex — easy, peasy — and unlike old-fashioned conference calls, a webinar doesn't tie up your phone line, should you be expecting an important message!

 So how do I participate? 

Click on www.fortherecord.com/webinar.asp  to ID the session you are interested in.  Then follow the directions there to register for it.  After you get your confirmation e-mail, follow the e-mailed instructions when the session's date / time arrives.

If you have questions about signing up for these web demonstrations, call Ron DaLessio at 877.650.0958, extension 224.

The webinar-ers look forward to meeting with (and hearing from!) you.

 

 

 
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  A continuing reminder:   Pengad offers a significant membership benefit.

AAERT members receive Pengad's lowest catalog pricing on most court reporting supplies, regardless of quantity.
This means we do not have to buy in bulk to save.

Just identify yourself as an AAERT member when ordering, and you automatically receive this consideration on your purchases of

 
  • Transcript covers

  • Laser supplies

  • Data accessories

  • Stock forms

  • Mailing supplies

  • Index tabs, and much more.
 

800 631-6989   —   fax 800 631-2329   —   sales@pengad.com

www.pengad.com

Note:   Promotional items, billheads / invoices, business cards, flat or raised print stationery,
and printed mailing envelopes are not included in this benefit.

 

 

 
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  Exhibitor Information on...  



www.ergogenesis.com




A new exhibitor at this year's conference in San Antonio is ErgoGenesis, manufacturer of BodyBilt seating.

BodyBilt chairs are renowned for their comfort, styling, and ergonomic adjustability.

Please click on the icon below for a downloadable brochure detailing the use of BodyBilt chairs in the courtroom.




Downloadable
PDF brochure




 

 

 
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15th Annual Conference
San Antonio
June 22, 23, 24, 2008


We will meet at the El Tropicano Riverwalk,
starting with Sunday evening's 7:00 p.m. Reception
    — see the map at the bottom of this section.

 
Click here for Conference registration
    or
here for hotel information and reservations.

Agenda topics include:



    Financial Strategies
    Ergonomics at Work
    Problems and Issues
          in Transcription
    WordPerfect practicum
    Lunch-and-Learn presentations
    Microsoft Word practicum
    E-Reporting Around the World
    Voice-Writer demonstration



Continuing education credits will be available.

To become a Conference exhibiter or sponsor, click here.


 

Conference co-chairs:


    Randel Raison, CET
      — rraison@aplst.com — (713) 637-8864

    Margaret Morgan, CERT
      — Margaret.Morgan@courts.state.mn.us — (507) 206-2474


 



       
 
 

The hotel is near a river-taxi dock so you can travel by water
— and is also at a  Blue Line  trolley stop, the direct line to The Alamo,
the Rivercenter Mall, and historic parts of the city.

 
  The red block on this map marks the El Tropicano Riverwalk.



 

 

     
   
   
     
  The Alamo, San Antonio, Texas
 

 

 

 

 
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A warm welcome to our new members
since the last issue of The Court Reporter

AAERT members can go to our on-line Directories by clicking here.

Corporate

  Terry L. DeMarco
Amici Curiae Transcribing, LLC
Blackwood, New Jersey
tldemarco@comcast.net
Pamela Borges DosSantos
PBH Paralegal & Transcription Services
New Bedford, Massachusetts
p.dossantos@verizon.com
Linda S. Foley
Transcription Support Services
Anchorage, Alaska
lsfoley@acsalaska.net
  Marike Edler
California Reporting, LLC
San Rafael, California
californiareporting@sbcglobal.net
californiareporting.com
  Deborah Caruso
Hansard Reporting
    and Interpretation Service
Toronto, Ontario, Canada
deborah_caruso@ontla.ola.org
Members
  Renee O. Bass, Maryland

Julie Ann Burress, California

Debra Jean Carter, Wisconsin

Maribel Chinea, Puerto Rico

Christopher Coleman, Delaware

Jan Correggio, Florida

Karmen Dickerson, Georgia

Laura Egan, Florida

Charmaine D. Ellington, New Jersey

Anne Marie Flynn, New Jersey

Jocelyn D. Foster, Delaware

Keith Hartsfield, Florida

Nancy Lee Horst, North Dakota

Dorene Humphries, Ohio

Alicia Faye Jarrett, Tennessee

Debra G. Jones, Florida

Lisa M. Kane, New Jersey

Matthew David Kuiper, Nevada

Loretta Lee, Florida

Gary E. Lesch, New York

Josie MacLaine, Delaware

Mary E. Mielke, New Hampshire

Cindy L. Miller, New Mexico

Melissa Miller, Virginia

Dana L. Moore, Delaware

Alenette Opena, Florida

Diana D. Ortiz, Florida

Nylka Enid Rivera Lopez, Puerto Rico

Lori L. Schlieve, North Dakota

Cassandra Lorraine Sines, Kansas

Jason W. Smith, New Jersey

Linda Wachlarz, Michigan

Jennifer G. Wilson, Florida

Return to Table of Contents

 

 

 




www.aaert.org


Contact the Editor


The Court Reporter is published by
The American Association of Electronic Reporters & Transcribers, Inc.
All rights reserved, whether by electronic or print modalities.   © 2008.

Gillian Lawrence, FPR, CERT, President

AAERT   /   23812 Rock Circle   /   Bothell, WA 98021-8573.

 

 

 
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