Is the U.S. Supreme Court Decision Defining the Concept of “Interpreter” Good for Judicial Interpreters? Part I.
May 29, 2012 § 3 Comments
After watching many of our colleagues celebrating because the U.S. Supreme Court reaffirmed the definition of an interpreter in the Taniguchi case, and more importantly, after reviewing the briefs, oral arguments, full written decision, and the dissenting opinion by Justice Ginsburg, I wonder if this decision should be cause for joy or grounds for concern.
The first thing we must do is to put this decision in perspective. The Court decided a case about court fees. The question before the Supreme Court was about the right that a prevailing party has to recover court fees from the losing party. The Court had to decide the extent of this right and clarify if it covered translation fees or not. To decide this controversy, the Court looked at many legal arguments and also took into account the “…ordinary and technical meanings of interpreter…” Yes, the majority concluded that interpreters “speak” and translators “write”, but is this what judicial interpreters and translators needed from the Court? In my opinion, there are two crucial points that we must consider before we answer this question: (1) does the express exclusion of translation services from those that can be considered recoverable as court fees advance the interest of justice? To say yes to this question, we need to consider that the interpretation services during a judicial process are more important than the translation of documents, statements, records, statutes, case law, etc. This is a dangerous path. As an interpreter, translator, and in this case, as an attorney, I cannot imagine a well-prepared attorney who has not reviewed the foreign language contract subject matter of the litigation, or a good extradition lawyer who does not bother to read the foreign country statute because it is written in another language. This would be a violation of the client’s constitutional rights and would constitute disciplinary grounds against the attorney. (2) The second point to consider has to do with the following question: Will the Court’s decision have a chilling effect on private attorneys who will now pause and consider translation costs over translation quality? If the answer to the first point was, as it is in my case, that interpretation and translation services are of the same importance for a case, then the lawyers would have to “chance” the outcome of the case and retain a translator. However, “just in case” that the jury were to decide for the other party, attorneys may want to consider a less-expensive translator, even if the credentials or reputation are not as good as the ones of the translator they used to hire before the Taniguchi decision. This could harm the client, and it will definitely hurt the translators’ market.
On her dissenting opinion, Justice Ginsburg did not question who “speaks” or who “writes”, she argued that “…many dictionaries’ definitions of “interpreter” included the translation of written documents…” She pointed out that several federal courts also used similar definitions, and that courts have awarded the costs of translating documents for decades. Justice Ginsburg emphasized the importance of parties’ access to translated documents, and that the line between translated and interpreted communications was not a clear one. She read the briefs, listened to the oral arguments, checked the technical definitions, and then tackled the two points that I have inserted above. Her answer, and that of the two other dissenting Justices: Breyer and Sotomayor, was that translating and interpreting services are both essential for the administration of justice, and for that reason alone, the risk of having to disburse a considerable sum of money to pay for translation fees should not be part of the decision making process. The majority decided to exclude translation services exclusively because of their traditional strict interpretation of the constitution and the law. They did not consider anything else.
This is why, after reading all the materials, letting myself rejoice for a moment as an interpreter, and analyzing the full decision using my training and experience as an attorney, I think that the Alito decision will cause more harm and confusion than ever before. I would like to hear your opinions as interpreters and translators.