March 24, 2014 § 8 Comments
As many of you know, over the last few years there has been a tendency among Latin American countries to switch from their traditional, and much slower, inquisitorial written procedural legal system, based on Roman and Napoleonic Law, to the quicker adversarial oral Common Law system followed by many Anglo-Saxon countries, including the United States. These changes have been difficult and have required a long time. For many decades, and more so within the last twenty five years, many Spanish speaking individuals have been forced to seek the protection and advantages of the American adversarial legal system to assert their rights, exercise their defenses, and create brand new legal obligations. Differences in the two types of systems, and specialized terminology exclusive to them, made it difficult to communicate with accuracy and legal precision complex concepts that are essential to prevail in a contractual situation and in court. It was then that many concepts and terminology were created out of necessity by translators and interpreters in the United States and Latin America. In many cases with plenty of good intentions and in good faith, but without even considering legal figures and concepts. This is how we got the “first generation” of bilingual “legal terminology” born from a linguistic conception without a legal perspective.
Globalization, immigration, and the exchange of goods and services between the United States and Latin America, especially Mexico, brought us a more coherent and consistent terminology and legal doctrine based on comparative law. This made it possible for interpreters and translators (in the United States and Latin America) to work with attorneys and law firms that required an interpreter/translator with a more sophisticated knowledge of the subject matter and correct terminology than a defendant in a criminal case with no formal legal or business background. It is from this point in time that we see translations and hear renditions that make sense to the legally-trained individual, and use the same language and terminology that lay individuals used to hear back in their country of origin. These terms and legal figures were correct and they could be found in the law; however, they still required of a legal expert interpretation to be correctly matched to their legal counterpart in the other legal system.
Finally this all changed. Due to the tremendous judicial backlog and the need for more transparency in the administration of justice, several Latin American countries decided to reform their procedural legal systems shedding the old written inquisitorial system and replacing it with the faster and more transparent adversarial system where proceedings are oral and open to the public.
There were many that debated the change but Chile and Mexico undertook the greater changes. Chile decided to create a new system based in part on the German legal system. Mexico decided to base its reforms on the legal system of the United States.
Dear friends and colleagues, the journey to an acceptable, accurate and coherent translation and rendition is finally over: On March 5, 2014 Mexican President Enrique Peña Nieto signed into law the new Federal Code of Criminal Proceedings applicable throughout Mexico. This new legislation will apply to all criminal proceedings at all levels: local, state, and federal. This new system embraces an adversarial system similar to the one applied in the United States with public and oral hearings, rules of evidence taken from the American legislation and adapted to the Mexican culture, and a sentencing system based on the one used in America. The biggest differences between the Mexican and American systems are found in the trials. Mexico will only have court trials, the U.S. has both: court and jury trials.
These new legislation gives us the equivalent legal figures, procedural stages and terminology necessary to do a precise rendition and an accurate translation. Moreover, by integration, reference and interpretation, all substantive terminology contained in the criminal, civil, constitutional, and administrative legislation will now make it easier for any interpreter or translator to use the correct terminology and legal concepts. This legislation has been analyzed and drafted by legal professionals; it contains all required legal concepts and structures needed to have a coherent product, and creates, just like American legislation, a separate but precise legal terminology derived from legal concepts and not linguistic considerations. Remember, this is not English, this is not Spanish. We are talking about legal English and legal Spanish. In fact, we are referring to American legal English and Mexican legal Spanish. Translators and interpreters will be able to communicate the legal message to their clients without any ambiguities. No more “agreement/ contract/convenio/acuerdo/contrato salad.” We now have the correct legal figures for each situation. This new terminology is the one that the brand new Mexican court interpreters and legal translators are learning and will use during the proceedings down there.
Some of our colleagues may resist this change but it is inevitable. Arguments that the terminology is too technical and their clients will not understand it do not apply anymore. This is the same terminology they will hear in their own countries, at least the overwhelming majority of the litigants who are from Mexico, or have a connection with Mexico. We have to keep in mind that we have been using a combination of terminology that was never correct and some valid terms that are now obsolete. You cannot continue to say something wrong and make it right by mere repetition. It is also important to remember that good court interpreters should widen their practice, and only those who can be understood will work with Mexican attorneys. Even attorneys and judges from other Spanish speaking countries will favor the Mexican terminology as it is legal terminology and not just a translation with no legal foundation. Those of you who may consider taking the Mexican court interpreter certification (not in place yet) in order to work in court south of the border, and even those of you who may want to do depositions in Mexico will need these new legal terms. This is the time to learn and grow. This is the time to be ahead of the rest and find your place in the new market. Unfortunately, this is also the time to become obsolete and irrelevant.
Although the law is already gone into effect, the new legal system will be fully implemented by 2016 so there is time for all of us to learn and be ready.
For all of these reasons I have been studying the new legislation, and because of my unique position as an attorney who knows both, the American and the Mexican systems, and as an interpreter who has plenty of experience in both systems, I have designed a series of workshops on this subject. I will teach the first two workshops based on this brand-new Mexican legal system in Mexico City on March 29 & 30, and in Guadalajara Mexico on April 5. In the United States I will teach these legal changes for the first time on May 16 as an all-day pre-conference workshop within NAJIT’s annual conference in Las Vegas Nevada. I invite you to attend these or other workshops that I will be teaching on this subject, and I invite your participation and comments on this issue right here on the blog.
March 16, 2014 § 19 Comments
Last year I interpreted for several medical and pharmaceutical conferences. Some were presentations of scientific papers before an audience of peers, others were geared to non-physicians who work in the pharmaceutical field. All of them were interesting and they all paid well. They also had something else in common: There were absolutely no medical interpreters or former medical interpreters in any of the booths. As I sat in the Spanish booth during a conference on the 98th floor of the Hancock Building in Chicago, I examined all the booths for the other languages and realized that there were excellent, very dedicated professional conference interpreters everywhere. I knew the interpretation was going to be top-notch, but I couldn’t help but notice that there were no medical doctors, registered nurses, or medical interpreters anywhere.
My friends, conference interpreters are second to none as far as quality and professionalism; they prepare for every assignment and show up to work equipped with the experience, knowledge, and skill needed to take care of just about any possible situation that may arise during the assignment. A conference where real conference interpreters are hired to work could not be in better hands. However, even though the same can be said of any other subject matter, in the United States, and other countries, you can find former attorneys and court interpreters in many events that deal with legal and business issues. Medical interpreting attracts hundreds of interpreters in the United States alone. Every day these professionals work in hospitals, clinics, emergency rooms, and medical offices, so the logical question is: Why this does not happen in the medical conferences?
I do not have a general answer, but based on my observations and years in the profession I can bring up the following factors:
There are several very capable medical interpreters who regularly work as conference interpreters. I know this because some of them are my friends and I have shared the booth with many. The problem is that there are not enough of them. Please understand that here I am referring to what is generally recognized as conference interpreting, and purposely excluding community interpreting even though some colleagues, in my opinion erroneously, on occasion refer to this boothless informal interpretation as conference.
Compared to legal interpreters, medical interpreters have a tougher time “breaking away” from medical interpreting because there is a widely shared concept that medical interpreters are not good or professional. This is a belief that many agencies, and even other interpreters, share.
Now, we have to recognize that this characterization of the medical interpreter profession has some truth to it. At least in the United States until fairly recently there was no regulation or minimal standards in medical interpreting. Many bilinguals who failed the court interpreter certification went to the medical field because there were no rules and often no quality control. Because the conditions were so poor in this unchartered territory, many language agencies filled the void by taking over most of the things needed to provide a medical interpreting service. They were setting policy and criteria as far as who could work, how they could work, and more importantly, how much these interpreters would be paid. For years I heard this all over the United States: “Medical interpreting? No way! It pays nothing.” Unfortunately my friends and colleagues, that was (and regrettably still is) the case.
So there you have it. Most interpreters who had invested time and money studying and getting themselves ready to practice their profession did not want to work for very little pay. This scared many good people away from the field.
There is much to be done at this time. Too many doctors and hospital administrators to educate, too many bad agencies to expel from the field, and too many mediocre interpreters to push to the side so there is room for those, new and experienced professionals, willing to play ball under the new rules of certification, ethics and uniformity.
It is certain that the profession will continue to grow and will eventually catch up with older interpreting fields such as conference, diplomatic, court, and military interpreting. As this happens, medical interpreting will attract more capable professionals, competition will be brutal like in all profitable professional environments, and interpreting fees will dramatically increase. In the meantime during the process, and in my opinion, to enhance our professional versatility and skills, good medical interpreters who want to elevate their profession, better themselves, and receive a fair decent compensation for their service will have to look at expanding their practice. To achieve this goal you basically have two options: The less complicated possibility of doing medical-related work that up until now, with some exceptions, has been handled by court interpreters: interpreting for independent medical examinations and evaluations specifically done for litigation purposes in the area of worker’s compensation and civil law. Medical interpreters should be able to learn and provide these services by taking advantage of their medical knowledge. The sad part is that this field, like most of the medical interpretation field, is controlled by agencies that pay very little. In fact, they are many times the same agencies that hire interpreters for medical work.
The second option, and my motivation for writing this piece, is conference interpreting. Undoubtedly a more difficult goal. Medical conferences require of knowledge in the medical, biological, and pharmacological sciences. Good medical interpreters should already have it, especially if they have a medical or nursing background. It also requires familiarity with the “medical culture.” Medical interpreters come in contact with it on a daily basis.
Conference interpreter also requires that the professional providing these services be able to do it simultaneously. It demands agility of mind and speedy thinking while handling very complex concepts and precise terminology. It requires of booth etiquette and assignment preparation, and it must be performed as a team. Most if not all of these characteristics are not part of an everyday medical interpreter repertoire. It sounds hard and complicated because it is very difficult and extremely sophisticated work.
However, my dear friends and colleagues, the rewards are enormous: you get to develop as an interpreter by acquiring the master key that opens the door to all interpreting work: simultaneous rendition. Working as the interpreter for a medical conference you will earn amounts never seen in the medical interpreting field, and you will learn about the science and policy that is applied to hospitals, medical practitioners, and insurance companies every day. As conference interpreters you will experience the satisfaction of doing a job that is understood by all those who are listening as part of your sophisticated audience. Now, you may say that conference interpreting will not give you the satisfaction of helping to save a life, of being a part of preventing a disease; that you decided to become a medical interpreter for this reason. That is not true. As a medical conference interpreter you will be right in the middle of saving lives as the interpreter who reveals a medical breakthrough for the first time in your language pair; you will be the voice of physicians who will ask questions about a new drug or procedure; and of course, keep in mind that you will not stop medical interpreting. You will diversify your practice and widen your clientele. I look forward to the time when I regularly get to share the booth of a medical conference with a professional and highly capable interpreter with a medical interpreting background. I invite you to share your thoughts and opinions about this very important professional aspect of our profession.
March 4, 2014 § Leave a comment
If you are a federally certified court interpreter in the United States you have surely provided interpretation services at the request of private attorneys, who are part of a panel kept by that district, according to the United States Criminal Justice Act, commonly referred to as the CJA (18 U.S. Code § 3006A) These attorneys, and I will refer to them as CJAs in this posting, are private lawyers appointed by a federal district court judge, or a federal magistrate, to represent a party who cannot afford his own private attorney in cases where representation by the Office of the Public Defender is not possible because of the physical location of the defendant or due to a conflict of interest. In other words, when there are codefendants and one is represented by the federal public defender, all others must be represented by private counsel or by a CJA panel attorney. CJA attorneys are known to most court interpreters because they are always at the courthouse, just like the public defenders. They have a big caseload, and many of their clients do not speak English. Because of defendants’ constitutional rights and the Civil Rights Act of 1964 these non-English speakers have the right to an interpreter that is also furnished under the same Criminal Justice Act: “…Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation…” (18 U.S. Code § 3006A) Federally certified court interpreters are asked to interpret during client-attorney office interviews, trial preparation, jail visits, and similar services requested by the CJA attorney. After the service is performed, the interpreter must prepare and submit to the District Court a CJA invoice form that the panel attorney signs. Once the form is submitted and verified for accuracy and completeness by the court’s financial department, it is sent to the federal district court judge or magistrate who has been assigned to that case for approval and signature. It is only after the judge signs the form and returns it to the court’s financial department that the interpreter gets paid. This process can take, depending on the district court, from one week to a month in average. All interpreters know this and accept it as part of the life of a freelancer. I should mention that this seemingly bureaucratic process is attractive to the freelance interpreter because of volume. In fact, in districts where there are several staff certified court interpreters this may be the bulk of the freelancers work for the courts.
Unfortunately, there are certain cases where this simple and straight forward payment process is unconscionably delayed. There are federal district court judges in the United States who hold back payment for incredibly long periods of time and there is no apparent reason or justification for this delay.
Dear colleagues, I am not talking about late filings or incomplete voucher forms; I am talking about withholding of invoices for no cause. I am afraid that there may be more that one judge following this practice; there is one among them, who shall remain anonymous in this blog, who has generated comments from colleague interpreters such as: “…Oh, that judge! One time it took well over a year to get paid for a half a day interpretation…he just didn’t approve the form any sooner…” And this one depicting the interpreter’s feeling of impotence: “…it always takes many months to get paid, but nobody dares to say anything because…well judges are appointed for life…” Finally, an interpreter summarized it very graphically in these words: “…the judge doesn’t care. There may be other priorities, but unlike federal judges, we cannot afford to go months without payment. We have to put food on the table for our families…” This particular judge has been on the bench for many years, by all accounts seems to have a good grasp of the law, but when it comes to other judicial skills, this judge has received poor reviews from a judicial evaluation commission such as: “…(the judge has exhibited) slowness when it comes to ruling on motions…” or: “…lack of punctuality to convene proceedings…” and even “…(having) poor judicial temperament while on the bench…” The judge was described as: “impatient,” “a yeller from the bench,” “mean spirited,” and “angry.”
I want to make it very clear that most judges and court clerical staff do a very good job at processing invoices and making sure interpreters are paid on a timely manner. Judges like the ones described above are the exception to the rule; but they exist and will continue on the bench.
Faced with this reality what can interpreters do to get paid on time? First the interpreter needs to make a distinction between those cases where the interpretation services have been rendered and the judge is procrastinating, and the cases where no service has been rendered yet.
For the first scenario there are the usual remedies that we all know: Talk to the chief staff interpreter once again, write to the clerk of the court, file a duplicate form with the court’s financial department; even talk to the judge’s clerk and explain your situation. This may accomplish the objective in some cases, but unfortunately it will fail most of the time because the approval of the form is not being delayed by any of these people. It is the judge who created the problem. So what is there left to do? Well, there may be a legal answer: The American legal system contemplates situations when the authority does not comply with its duty of doing or abstaining from doing something: The Writ of Mandamus. This may be an option available to the interpreter. The request for a Writ of Mandamus can be filed with the Court of Appeals having jurisdiction over the procrastinating district court judge asking the higher court to order the approval or denial of the interpreter’s invoice. “…(Courts) may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law…” [28 U.S. Code §1651(a)] Of course, before the interpreter decides to take this step, he must consider the consequences: (1) Because this blog is not giving any legal advice to anybody, the interpreter must consult with an attorney to see if a writ of mandamus is possible in that specific case; (2) The district court judge may simply deny the invoice. The writ can order that the authority take action but not the outcome of this action. Of course this may open other channels to the interpreter to appeal the judge’s decision on the invoice and that way get paid; and (3) The practical consequences of filing the petition including the possibility of being branded as a “troublemaker” by others, which could result in the loss of business and therefore the loss of income.
When the interpreter has not provided any interpretation services yet, that is, when interpreters are first contacted by the CJA attorney (or by the district court depending on the district) to request the interpretation services, the interpreter should always ask who is the judge in that particular case, and if it turns out to be a procrastinating judge’s case, the interpreter should refuse the assignment. Remember, you are a freelancer. Freelancing means that sometimes you may have to wait forever to get paid on a CJA voucher, but it also means that you are free to ban all procrastinating judges if you want to. The best way to avoid late payments is to avoid those clients who are always late. In fact, the interpreter should explain to the CJA attorney the reason for declining the assignment and reassure him that cases from all other federal judges will be accepted as usual. This should solve that interpreter’s problem. It may be very difficult to fix this procrastinating judges situation for all interpreters in all cases, but at least you will get paid on time.
Finally, I remind you again that this posting is not giving any legal advice to anybody, and I ask you to share with the rest of us your experiences and solutions to this terrible problem, and please do not mention any names.