Interpreting depositions correctly.

March 27, 2017 § 17 Comments

Dear Colleagues:

Next to interpreting in a hearing, legal depositions are the most common professional service provided by court interpreters. They are in high demand, the field is full of potential direct clients, and they usually pay much better than an assignment by the court. With so many apparent advantages, the question that first comes to mind is: Why so many court interpreters do not pursue these assignments? And even among those who provide the service regularly, why is it that so few of our colleagues know what depositions are for, and how to correctly provide the service to ensure top accuracy and quality? Let’s see:

A deposition is the testimony of a witness taken orally (oral deposition) or in writing (interrogatories) outside open court, but in compliance with a court order or statute. It is a pretrial discovery device by which one party, through their attorney, ask oral questions of the other party or of a witness of the other party. It is conducted under oath or affirmation, without a judge, usually at the law office of one of the attorneys or at a court reporters’ office, and a word-for-word transcript is made. Interrogatories are answered in writing under oath or affirmation as well.

Depositions take place in both, criminal and civil proceedings and they are an extremely important part of the discovery process that takes place in an adversarial system, so that the attorneys of one party know what the counterpart or their witnesses will say during the trial. (Fed. R. Civil P.26 et seq.; Fed. R. Criminal P.15)

Oftentimes I run into colleagues who complain about “having to interpret” during a pretrial hearing “instead of interpreting during the trial”. My usual answer has to do with the importance of the pretrial motions and the discovery in general. I try to convey the concept that most cases are won or lost during the pretrial. Ascertaining the facts, excluding illegally obtained evidence, impeaching a witness based on statements made during a deposition, are invaluable as these legal actions and decisions determine what a jury will and will not hear at trial. A litigant exits the pretrial process with a strong winnable case or weakened by the discovery and pretrial motions argued before the judge.

Because of the importance and complexity of a deposition (and all pretrial actions and motions in general) it baffles me how extreme professional interpreting services can be at this stage of the process.

As depositions do not take place in the presence of the court, interpreting services for non-English speaking deponents are left to the professionalism, knowledge, and pocket of the attorney who represents the client. Because many attorneys seldom deal with foreign-language speakers, and for that reason know very little about interpreters and their services, they tend to seek the services of an agency, not for its quality or reputation, but because it was suggested by another colleague who had a case involving a non-English speaker in the past. For the most part the recommendation by the other attorney has to do with things such as: “they are cheap and they are quick”. Quality and experience are mentioned every once in a while.

We all know that, for the most part, there are no standards or policy regulating who can be an agency in the United States. This is an invitation to those with little to no interpreting knowledge to throw their hat in the ring and profit from this very popular professional service.

For the same reason: lack of basic quality standards, many paraprofessionals who unsuccessfully attempted to become certified court interpreters and failed, gravitate to this goose with the golden eggs where they will be on high demand by the above-mentioned ignorant agency owners who in turn will satisfy the requirements of the law office by providing interpreting services that are quick and cheap, regardless of their questionable quality.

But the landscape gets more complicated: For the same good reasons that bottom feeder agencies and paraprofessional interpreters are attracted to depositions, the best of the best in the world of legal interpreting participate in this market as well.

You see,  federal and state court systems retain the services of certified court interpreters, these professionals are for the most part better than non-certified, and from that point of view they are in demand. The problem is that the judiciary does not pay that well, with federal fees being half or less of what a conference interpreter makes, and under constraints of fixed fee schedules and budget cut limitations, the courts are less attractive to the very best in the profession. On the other hand, these top-notch court certified interpreters can negotiate with responsible and experienced law firms that value quality over rock bottom prices. This is the world of the direct client. Reputable agencies who handle big law firms and have a name to protect will also approach and retain these same high quality individuals. In fact, the field is so attractive that even interpreters from the highest caliber who usually do not work in the court system, and despite their vast experience and great skill have never pursued a court certification (but no doubt that candle these assignments because of their knowledge and capacity) provide interpreting services in depositions.

The result of all of the above circumstances and the participation of the wide range of individuals involved in this professional service is a reality where some depositions are interpreted at the highest possible level while at the same time many others are being butchered by paraprofessional interpreters, unscrupulous agencies, and careless lawyers. What a mess!

The good news is that, if they choose to do so, the best interpreters will be able to find good professional profitable clients whose clients will benefit immensely of a properly conducted discovery. The bad news is that many litigants, unaware of this reality, will trust the judgement of their advisers and end up with a defective interpreting service that most likely will impact the outcome of their case one way or another.

The solution to this problem, from the interpreters’ point of view, is relatively simple: stick to the good clients and ignore the bottom feeders. You do not need them, and they think they do not need you.

To me the biggest problem for the best interpreters who work depositions is, dear friends and colleagues, the alarming practice followed by so many of the top interpreters who accept to work alone in a deposition. Yes, I am referring to all of those who work solo, even when they provide services to the richest law firms in the world, including the work they do in very high-profile cases.

Team interpreting is a typical professional practice where two (or more) interpreters work as equal members of a team, rotating responsibilities at prearranged intervals and providing support and feedback to each other. This practice provides continuity and accuracy in the message transmission as it avoids fatigue and allows for word and concept checking during the rendition.

The National Association of Judiciary Interpreters and Translators of the United States (NAJIT) clearly spells out the function and the need for the second interpreter: “…The typical team is comprised of two interpreters who work in tandem, providing relief every 30 minutes. The interpreter engaged in delivering the interpretation at any given moment is called the active interpreter. His job is to interpret the court proceedings truly and accurately. The other interpreter is called the support interpreter. His job is to… (2) assist the active interpreter by looking up vocabulary, or acting as a second ear to confirm quickly spoken… 4) be available in case the active interpreter has an emergency; and (5) serve as an impartial language expert in the case of any challenge to interpretation…” (NAJIT Position paper Team Interpreting in the courtroom. Primary author: Andrew Erickson. 2007)

Scientific studies have shown that mental fatigue sets in after approximately 30 minutes of sustained simultaneous interpretation, resulting in a marked loss in accuracy. This is so regardless of how experienced or talented the interpreter may be. A 1998 study conducted at the École de Traduction et d’Interprétation at the University of Geneva, demonstrated the effects of interpreting over increasing periods of time. The conclusion of the study was that an interpreter’s own judgment of output quality becomes unreliable after increased time on task.  (Moser-Mercer, B., Kunzli, B., and Korac, M. 1998. “Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” University of Geneva, École de Traduction et d’Interprétation. Interpreting Vol. 3 (1), p. 47-64. John Benjamins Publishing Co.)

It is true that most reputable agencies and experienced law firms grant the solo interpreter, who is providing the services at the deposition, the choice to take as many breaks as needed. This is often the justification I hear from my colleagues as well.

I am glad that they get to rest their brain and voice every now and then, but it is not enough. There is no scientific conclusion as to how long the interpreter needs to rest before being back in optimum shape in order to continue the rendition with the same quality and at the same level as it was done at the beginning of the session. Obviously, the University of Geneva’s findings suggest that it takes about 30 minutes to get back to the top of your game.

I do not work under these “solo” conditions, but I could assure you that interpreters do not get a 30 minute break for every 30 minutes of service, and if they do, the attorneys would be better served by having a second interpreter actively interpreting during those 30 minutes. You see, it is a myth that having short breaks here and there will protect the interpreter and assure the quality of the service. This “solution” was developed to make everybody feel good even though nothing is really accomplished from the interpreter’s and the interpretation’s perspective. The only “positive” outcome of this solo work with “as many breaks as needed” has to do with the pocketbook of the law office and the profits of the agency. That is all.

But moving beyond that, there is a second, and equally important issue that goes unsolved without team interpreting.

Interpreting is a human task. It is extremely complex and delicate. Depositions present difficult situations that interpreters must solve in order to fulfill the ultimate purpose of the deposition: to ascertain the facts of the case, and to learn the unknown, to be able to ultimately prevail in court. In a deposition setting, interpreters need to understand and convey the message in two different languages, often spoken by individuals of different backgrounds, education, and willingness to disclose the truth. Interpreters need to find in their brain the appropriate scientific terminology, technical word, and regional expression that a deponent has used in the source language. The need to double-check a term, clarify an idiomatic expression, and research a concept are always present; In fact, they are the regular practice of the best interpreters who understand the relevance of the task at hand, and professionally look for the appropriate equivalency with the right syntax and grammar. This is not a job for one. Team interpreting allows the active interpreter to remain mentally fresh, while the support interpreter takes on other functions that would lead the active interpreter to cognitive overload.

For these reasons, it is universally accepted that team interpreting is the standard practice in courtrooms, conferences, international organizations, government events, and any other assignment that may last over 30 minutes. I only agree to do a deposition when I am working with a partner. My sense of professionalism, my reputation, my health, and my sanity, would not allow me to do anything else.

I invite you to stand up for what is right for you and for the profession. Just as you refuse to interpret a trial unless you have a partner, I encourage you to demand team interpreting in all depositions. It is only then that you will be living to the highest standards that a legal process requires. It is only then that you can unequivocally say that you did your best job at a deposition. Working solo, even if you take short breaks, will not relieve fatigue and it will not magically produce a support interpreter who will help you navigate the treacherous waters of legal interpreting.  I now invite you to share your thoughts on this extremely important issue and the terrible practice that permeates deposition interpreting.

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§ 17 Responses to Interpreting depositions correctly.

  • Tomás León says:

    Tony: an issue that is often debated in Texas (without a ruling that I am aware of ) is whether a deposition interpreted by an unlicensed interpreter can be struck as invalid for evidentiary value. Can you contribute your two cents to this or tell us if you are aware of any such ruling, please.
    Tomas León
    Federally Certified Interpreter
    Leon Translations, Inc.

  • Lilia A Garcia says:

    What you are proposing would be ideal in an ideal world, but because it was not set as a standard practice when these services became available, it will be a very difficult task to accomplish now, unless it were to become a law. At least in southern California, where I reside and work as a certified court interpreter, if I were to require all the agencies I represent to provide a team interpreter for deposition assignments, which is most of what I do, I would be unemployed.

  • “… the field is so attractive that even interpreters from the highest caliber who usually do not work in the court system, and despite their vast experience and great skill have never pursued a court certification (but no doubt that candle these assignments because of their knowledge and capacity) provide interpreting services in depositions”.

    I agree with your comment, as always, but I take exception to the above comment. I know high caliber conference interpreters who have taken the state and federal exams and have failed. They assume that because they work in international conferences that interpreting in a legal setting is a piece of cake. Well, it is not. I encourage any professional interpreter to get certified even if he or she will never work in court. I frown upon anyone who calls himself a professional and fails to get the much-needed certification to work in a legal matter.

    I worked with a law firm in Texas who used a conference interpreter living abroad. She couldn’t keep up and did not know the protocol. She was summarizing and using the third person when interpreting. I saw the videotaped deposition. I flew to that country to finish the remainder of the depositions. Before doing this, I searched her name online and sure enough she was a reputable professional interpreter. This goes to show that if you have never been in a courtroom and have no idea of the significance of a deposition in litigation, then it is best to study and prepare for what may be a simple test for these highly qualified conference interpreters.

    We seem to assume that if they are good enough for an international conference that they’ll be fit for a deposition. That is far from the truth. The same could be same of a court interpreting trying to work on a high level international conference. You and you colleagues have already balked at that absurdity. For those who may not know this, there is no certification to become a conference interpreter. Most are trained and have college degrees in this field, which gives them an edge. However, no matter how many degrees you have you must take a test in order to be certified to work in legal matters. A non-certified interpreter, regardless of how qualified he or she is may jeopardize a case for lack of certification.

    As we struggle for recognition as professionals in the private legal sector, I find it highly unlikely that team interpreting will be an acceptable practice any time soon, namely, because of the high cost. Of course, we can argue that their ROI will well worth it. When working on a high profile, complex litigation I do encourage my clients to hire two interpreters. Sadly, not one of them has agreed. It does not mean that I will stop promoting team interpreting. We already know that in international law clients do hire two interpreters; a common practice among Japanese interpreters working in the international law field.

  • Tony, I’m now working on my Texas court interpreter license, and I’ve already done a few depositions. This is a good introduction. Depositions are both the low end and the top end of the legal profession. Some are routine, just getting facts on the record, but those are just as important as sessions in court. Several very experienced interpreters have told me that they don’t work in court any more, only in depositions, for high-end clients.

    It’s also interesting to hear from agencies who say, “Don’t worry about not having a license. It’s just a deposition.”

    P.S. You wrote: “… baffles me how extreme professional interpreting services can be at this stage of the process.” I think you’re missing a word, perhaps after “extreme”?

  • Sigurjon Helgi Kristjansson says:

    I quite agree. I was once in court, and the defendant thought the translation of the original was wrong. I looked at it (having just arrived and not seen any of the documents) and concurred; But I couldn’t say straight out that it was wrong and made him look guilty, I had to be diplomatic, and say, that the translation was incorrect and served no other purpose, than to displace the presumption of innocence.

    The prosecution took offense, as they had paid a fortune to have all the documents translated and used it as a basis to take the case to court. As I said, my comments were not appreciated by the prosecution, and the court requested the translation be reviewed. They took it to THREE different translators, who all concurred with my findings.

    The prosecution didn’t want to admit that they had been in the wrong, and instead said, that the translation had been reviewed by three separate translators, and that the prosecution and defense had agreed on a translation. The judge looked at me and smiled, and the jury sniggered.

    The defendant was found NOT GUILTY.

  • Maria Galetta says:

    I could not agree more with you, Tony!
    I work quite often at depositions. Just adding a couple of notes based on my experience.

    Often times law firms hire different interpreters and they assume that having a check interpreter in addition to the main interpreter solves the problem of having an accurate rendition.
    The result is an overworked main/active interpreter and a bored check/support interpreter (or sometimes a check interpreter who interrupts for minute issues, to justify his/her presence).
    When I know that a check interpreter is being hired and that the law firm hiring me will not hire more than 1 interpreter, I look for an opportunity to mediate and make it so that both interpreters share the interpreting taking turns being active/support, so they can check on each other and improve the overall accuracy. Just a suggestion.
    Also, most times I insisted with an agency that, if working alone, I would take my own breaks, I found out they never told the client, and the client resented me for “taking all those breaks”. So it’s definitely a situation to be avoided.

    If a conference interpreter is fully trained, as I was in my Italian school, they know full well how to work during a deposition, as they train in consecutive as well as simultaneous interpretation.
    It does not sound like the interpreter Esther mentioned was fully trained in consecutive. The mistakes Esther is mentioning are very basic.

    Also, please be aware that there isn’t only Spanish out there. And there is no federal certification for Italian, so not everybody has a chance to be certified. But a 4-year full-time university-level specialized training could very well do the trick (as it happened for me). It’s a question of knowing how to read a resume.

  • Michelle Gonzales says:

    I recently accepted an assignment to interpret a deposition and told the court reporting agency that hired me that I would need a partner. They agreed and everything was all set. However, shortly after we arrived the day of the deposition a third interpreter arrived who had been hired by one of the parties. He is State certified as I am. When he saw that I had in mind to team interpret he so proudly made the comment in front of all the attorneys, as if he were the expert, that team interpreting is NEVER done in depositions. I didn’t have a good come-back at the moment and have since thought of how many things I wish I would have said. Of course the attorney that hired him insisted on using him and dismissing us. Anyway, it’s people like him that make it harder for the rest of us to get team interpreting accepted! Done venting, thank you.

    • Maria Galetta says:

      I hear you Michelle! It happened to me as well, although not with qualified interpreters. I find that it is often insecure people in all fields who need to attack and undermine others.
      My suggestion would be to answer that the fact that s/he has never seen it done before does not mean that it is the best way to do things, and that everyday new ways of doing things are implemented, as it is always possible to improve on things. That’s how progress is achieved.

  • Luis M Echeverry says:

    Tony, I do agree that fatigue can be a factor that would affect the accuracy of the interpretation by the interpreter during long depositions. This is particularly true when dealing with difficult subject matters. However, as somebody that has interpreted at thousands of depositions and also as an agency owner in California, here are a few things I feel we all need to keep in mind. Most depositions usually last under two hours. Sometimes an attorney does not know going into a deposition if the deponent is going to answer in such a way that it will make the process take longer than most depositions, or if the deponent’s counsel will be adversary and state so many objections that the proceeding can last forever. Also, most of the verbiage in a deposition is very repetitive and very easy for just about anybody to interpret without much effort. I’m talking about the admonitions at the beginning of the deposition and the final stipulation by the attorneys at the end of a deposition. Also, the majority of the depositions we encounter are for personal injury cases whether they be civil or workers’ compensation cases. Most of these depositions don’t require any special vocabulary or research on the part of the interpreter. If I were to direct my staff to inform our clients that for all their depositions we would need to hire two interpreters, my company would be out of business within days.

    • Thank you for your comment, Luis. I appreciate your position but I respectfully disagree. Interpreting is a very difficult task and even going for 2 hours is way too much. Interpreters cannot show up to work hoping that an assignment will end within 2 hours. We cannot take that chance. I also disagree that “the majority of the depositions we encounter are for personal injury”. Most of the work I do involves products liability, intellectual property violations, medical malpractice, and international arbitration. I respect your opinion, buy it concerns me that a veteran of the profession, and an agency owner would call any interpreting work “very easy for just about anybody to interpret without much effort”. I do not know your clients, and you know what you do to keep them happy. My clients expect two interpreters for the assignment. Thank you for reading the blog.

  • Muhammadi Kroatov says:

    Thank you very much for blog. Totally agree with it.
    Now my English language significantly improved, so I can interpret for an hour without a visible drop in quality.
    But I remember times when I was feeling really fatigued and mentally tired after just 20 minutes of interpreting.
    So I’m all for team interpreting in any sphere: legal, medical, etc.
    Whoever disagrees with it didn’t really have an actual experience in interpreting.

  • AJ says:

    Thank you for your blog on the subject of interpreting in legal settings. Court interpreting certainly requires both the simultaneous and the consecutive modes.
    What is your experience with technical international arbitrations (with a court reporter) for which two interpreters are hired by the agency to interpret mostly for LEP witnesses, but for which they require simultaneous interpreting (!)? (By the way, federal court procedure requires consecutive interpretation for witness testimonies.)

    • Dear AJ, thank you for your comments. International Arbitration Commissions have different requirements and protocol. Some require simultaneous interpreting and we do it with interpreting equipment, others are fine with consecutive renditions.
      Federal Courts in the US develop their practice by district; as a consequence some federal district courts require consecutive interpreting for witness testimony; other districts prefer simultaneous questions and consecutive answers from the witness stand. They both work fine.

  • AJ says:

    Dear Tony Rosado, thank you for your feedback and clarification.

  • Tony, what you wrote it is still valid, but rereading it today something is potentially unclear. In Texas, a deposition has the same requirement for a licensed court interpreter as if it were taking place in a courtroom in front of a judge. For years, many agencies and even judges and lawyers have not enforced that provision in this state, but last year the state reprimanded two interpreters for providing services at depositions in cases for which they were not licensed.

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