The Christmas traditions we observe in the United States.

Dear Colleagues:

The end of the calendar year marks a time when most cultures in the world slow down their work routines, gather with friends and relatives, and reflect on what was accomplished during the year while setting goals to achieve what was not.  Some give the season a religious connotation, others choose not to do so. Regardless of the personal meaning and importance that each one of us give to this time of the year, there is a common denominator, certain actions, traditions, and celebrations observed and held dear by many. They vary from country to country, and are part of the national pride and identity of a nation.

The United States is a unique case because of the convergence of cultures and populations from around the world who have brought with them their language, beliefs and traditions.  With globalization many other regions in the world now live the same situation where not everybody celebrates everything, not everybody celebrates the same, and even the ones who celebrate a particular festivity or observe certain event will do it differently depending on their cultural background. I also want to point out that, due to the immense commercial and cultural influence of the United States just about everywhere in the world, some traditions below will be recognized as something that you do in your country.

Although Christmas is not the only festivity where we see this American reality, I decided to share with you our national traditions on this day because it is widely observed and understood throughout the world, and because it is a nice thing to share with all of you when many of us are slowing down and waiting for the new year.  Finally, before I share these American traditions with you, I want to clarify that although this entry deals with Christmas traditions, it does it from a cultural perspective with no religious intent to endorse or offend anyone. I know that many of my dearest friends and colleagues come from different religions, cultural backgrounds, and geographic areas; and the farthest thing from my mind is to make you feel left out, ignored or offended. This post is written with the sole intention to share cultural traditions, and invite an exchange of information about other customs observed at the end of the year by other groups and countries.  Thank you for your understanding, and please enjoy:

In the United States the Christmas season, now called the holiday season to make it more inclusive, starts on the day after Thanksgiving known as “Black Friday”. Many schools and businesses close between Christmas (December 25) and New Year’s Day (January 1). Most Americans take this time out from their professional and academic schedules to spend time with their friends and families. Because of the high mobility we experience in the United States, it is very common that families live far from each other, often in different states; so that children go home to the parents’ is more significant as it may be the only time they see each other face to face during the year.

Many Americans decorate the exterior of their homes with holiday motifs such as snowmen, Santa Claus, and even reindeer figures.  As a tradition derived from holding Christmas in winter in the northern hemisphere when daylight is scarce, Americans install temporary multi-colored lights framing their house or business.  Because of its beauty and uniqueness, this tradition has spread to southern parts of the United States where winters are mild and daylight lasts longer. The American southwest distinguishes itself from the rest of the country because of the lights they use to decorate their buildings: the luminarias, a tradition (from the Spanish days of the region) of filling brown paper bags with sand and placing a candle inside.

The interior of the house is decorated during the weeks leading to Christmas and on Christmas Eve. Christmas tree farms in Canada and the United States provide enough trees for people’s homes, although many prefer an artificial tree.  These trees are placed at a special place in the house and are decorated with lights and ornaments, and at the very top an angel or star is placed on Christmas Eve.  Unlike many other countries, in particular those where most people are Roman Catholic, Americans hold no big celebration on Christmas Eve, known as “the night before Christmas”, the time when Santa Claus visits their homes while children are sleeping and leaves presents for the kids to open on Christmas morning.  As a sign of appreciation, or perhaps as a last act of lobbying, children leave out by the tree a glass of milk and cookies for Santa to snack during his visit.

Special Christmas stockings are hung on the fireplace mantelpiece for Santa to fill with gifts called “stocking stuffers” that will be found by the kids on Christmas Day while the yule log will provide heat and holiday smells. Even those homes that have replaced the traditional fireplace with an electric one have kept the yule log tradition; and when everything else fails, cable TV and satellite TV companies offer a TV channel that broadcasts only a yule log all day.

Adults exchange presents previously wrapped in festive seasonal wrapping paper, and even the pets get Christmas presents every year.  With the presents exchanged,  people move on to their Christmas dinner that will usually feature ham, roast beef, and even turkey with stuffing, although many families skip the bird because they just had it for Thanksgiving dinner a few weeks before.  Potatoes, squash, roasted vegetables, cranberries and salads are part of the traditional meal, but in some regions of the United States, demographic cultural fusion has added other dishes to the traditional family dinner: It is common to find tamales in a Hispanic Christmas dinner, poi and pork in Hawaii, BBQ turkey or chicken in the south, and sushi and rice in an Asian household. Unlike Thanksgiving when pumpkin pie is the universal choice, many desserts are part of the meal: pies, cakes, fruit, and the famous fruitcake.  They are all washed down with the traditional and very sweet eggnog or its “adult” version with some rum, whisky, or other spirits.

The Los Angeles Lakers and the Chicago Bulls have made it a tradition to have home NBA basketball games on Christmas Day that are broadcasted on national TV.  Other traditions include Christmas carols, window shopping the season-decorated department stores, special functions such as the Radio City Music Hall Christmas show and the Rockefeller Center Christmas tree in New York City, the Mormon Tabernacle Choir in Salt Lake City, the National Christmas tree in Washington, D.C., the Very-Merry Christmas Parade held simultaneously at Disney World in Orlando and Disneyland in Anaheim, the Nutcracker ballet in theaters and school auditoriums all over the United States, and endless Christmas movies and TV shows, including the original “A Charlie Brown Christmas” and Dr. Seuss’ “How the Grinch Stole Christmas” with Boris Karloff as the voice of the Grinch.

I hope this walk through American Christmas traditions was fun, helped some of you to understand a little better the culture of the United States, and maybe part of what you just read will be handy in the booth one day. Whether you live in the U.S. or somewhere else, I now ask you to please share some of your country or family’s Christmas or other holiday-related traditions with the rest of us.  I sincerely hope you continue to honor us by visiting this blog every week in 2018. Thank you for your continuous preference, and happy holidays to all!

Is it true that interpreters must abstain from public commentary?

Dear Colleagues:

I have recently read many comments about the court interpreter in California who decided to talk to the media after she provided her services to the defendant in a high profile criminal case. To my surprise, must comments promptly endorsed the position that a court interpreter cannot make any public comment. Such extreme “black and white opinion” is quite concerning.

Before expressing such a sweeping opinion, interpreters should reflect on the purpose of their professional service, the reasons for the rule or legislation, and what the consequences of failing to observe it really are. Let’s see:

The main topic concerning this analysis is confidentiality. The nature of the duty of confidentiality is based on two things: the subject matter or area of interpretation, and a scale of values.

Different subject matters or fields of interpreting will be governed by different legislation, interests, and goals. If the interpreter’s professional practice involves intellectual property, diplomacy, or national security, there will be many limitations and restrictions as to the things the interpreter can share with others. Most of these duties will come from legislation, not canons of ethics of regulations. Many others will derive from contractual obligations regarding commercial brands, patents and copyrights.

The scale of values is also important: The more important the value, the stricter the responsibility.

Revealing the content of diplomatic negotiations could have implications of war and peace, and the interpreter could even go to prison, or at least lose his job and reputation.

Revealing medical information can disrupt a patient’s health or treatment, impact insurance coverage, kill a patient’s future employment opportunities, and generate legal problems for hospitals, physicians and interpreters.

When we provide diplomatic or military interpreting services at certain level, we are required to undergo a security clearance process and we take a legally binding oath to secrecy. Breaching this legal obligation will bring catastrophic consequences to the interpreter.

The California case gives us the opportunity to revisit a court interpreter’s duty of confidentiality, so we can see how sweeping statements like those made by some of our colleagues last week, most of them in good faith, are not so categorically right.

First, we need to understand what is protected by the duty of confidentiality, and who imposes the restrictions on the court interpreter.

Interpreters exist because there must be equal access to the administration of justice, regardless of the language the court or the parties to a controversy speak. Here we must make a distinction:

(1) The court interpreter as a communication tool to the litigant.
When a plaintiff, defendant or victim cannot actively participate in their legal case because of a language barrier, the court interpreter acts as the ears and voice of the foreign language speaker in communications with the court, his attorneys, and the opposite party. Interpreters render a complete, accurate interpretation of everything that is said during the hearing, and interpret to the court and parties everything the foreign language speaker says. These interpreters handle three types of information: public record, confidential information, and privileged communications.

These are the interpreters hired by the court, paid from the courthouse budget, and selected from a roster kept by the clerk’s office.

When a plaintiff or defendant want to be represented by a private attorney, but they cannot communicate with their attorneys because of a language barrier, those privately retained attorneys can also hire professionals court interpreters in private practice to help them communicate with their foreign speaking client, their client’s relatives, and with those witnesses who do not speak the language of the attorneys. In this case it is the attorney who selects the interpreters from prior experiences or referrals from others; and it is the attorney, not the court, who pays the interpreters’ fees (very likely from the plaintiff or defendant’s assets). This interpreters handle three types of information: public record, confidential information, and privileged communications.

As we can see, in both cases, interpreters work with information that is public record. This means that everybody has access to what was said or done. For example: As a rule, court hearings are open to the public. Anybody can go to the courthouse and sit in the courtroom during a trial. At the State-level, many jurisdictions broadcast their proceedings in public and even commercial TV. All legal arguments, court rulings, and witness statements are heard by all interested individuals.

Both, court appointed and privately retained interpreters are privy to confidential information not because of who the interpreters are as individuals, buy because of what they do for living. This information is sensitive in nature and if disclosed, it could adversely impact third party innocent individuals. For these reasons, interpreters are usually barred from sharing this information. Details surrounding a case that come to the knowledge of the parties, but are irrelevant to the outcome of the controversy are kept from the public. Names of business partners, financial information, paternity, personal health information, sealed court cases, juvenile court records, are just some of the examples that fall under this category.

While working with an attorney, all interpreters learn what is called privileged information. This is crucial, intimate information about the subject matter of the controversy that lawyers need to know to represent their clients and defend their interests. This information is treated differently because it is only when a person knows that statements made to their attorney in confidence cannot be disclosed to anyone, not even the judge or jury in the case, that clients can truly open up to their attorneys and share all details of a case. Those acting as agents of the attorney, such as paralegals, investigators, and interpreters, are covered by the client-attorney privilege, and nobody, not even a judge can compel them to disclose said privileged information.

(2) The court interpreter as auxiliary agent to the administration of justice.
The court system has a vested interest on the perception that the administration of justice within its jurisdiction is equally fair to all citizens, even those who do not speak the language of the court. For this reason, courts have set policy to clarify this principle, and reassure all potential litigants of the impartiality of the court, even in those cases when a foreigner is party to a controversy, especially in criminal cases where life or liberty are at stake.

This principle has motivated some courts (not all of them), in particular in the United States, to go beyond what many would consider reasonable, and impose the strictest restrictions to some of the things court interpreters can and cannot do. Based on this one-sided extremely restrictive rules, the federal courts of the United States abide by the United States District Court Code of Ethics for court interpreters, who have been sworn as officers of the court for the duration of the assignment, and interpret under contract with such court, “…to follow the Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts…” (USDC Code of Ethics. Preamble)

The Federal Code of Ethics contains some important principles needed to practice the court interpreter profession that are free of controversy, such as Rule 5: “Confidentiality. Interpreters shall protect the confidentiality of all privileged and other confidential information…”

It also covers other situations where restrictions seem unreasonable and arbitrary, like Rule 3 where it states that: “…During the course of the proceedings, interpreters shall not converse with parties, witnesses, …attorneys, or with friends and relatives of the party, except in the discharge of their official functions…”, or Rule 6: “Restriction of Public Comment. Interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential…”

Dear friends and colleagues, we must remember that the above restrictions by the United States District Court Code of Ethics only apply to court interpreters who are providing their professional services when they “…are sworn in (and) they become, for the duration of the assignment, officers of the court with the specific duty and responsibility of interpreting between English and the language specified. …In their capacity as officers of the court, contract court interpreters are expected to follow the standards for performance and professional responsibility for contract court interpreters in the federal courts…”

In other words, said restrictions, as they are not the law, but a mere contractual obligation, only apply to those who are providing their services in federal court pursuant to a contract with the court. These blanket restrictions do not apply to any of us when working as interpreters in federal court if we have been retained by one of the parties.

Once we understand this limitation, and the different role interpreters play when they act as a communication tool to the litigant with his attorneys, and in those cases when they also act as an auxiliary arm to the administration of justice and are paid by their judiciary. It is obvious that legal restrictions and limitations such as client-attorney privilege and confidentiality will apply to all interpreters as they are part of the essence of the legal representation, but other limitations that go beyond that scope will not apply to privately retained interpreters as they exist to assure impartiality and transparency to the extreme. This is not necessary with private attorneys and their interpreters as they are publicly known as part of a team: plaintiff’s or defendant’s.

To the latter group of interpreters, sharing what is already public record should be no problem; and in my personal opinion, I do not believe that even court appointed interpreters should be sanctioned for sharing public information with the media. I believe that telling a reporter that a hearing was moved from 1 pm to 2 pm and saving her the trouble to go up 20 stories to read the same information on the court’s bulletin board will hardly raise suspicion of prejudice, particularity when we know that interpreting is a fiduciary profession. To me, it looks very weird when the interpreter refuses to answer such silly questions and reacts by moving away without an explanation.

As far as confidential information, please be aware that the prohibition is not absolute either. A court order can compel you to testify. Please remember that the client holds the right to said confidentiality, and as such, he or she can always give consent. When this happens, confidentiality goes away. Will these ever happen in your professional career? We do not know, but we should always be aware that it is a possibility.

Even client-attorney privilege is not absolute. There are certain exceptions in the law that allow you to pierce the veil of this sacrosanct privilege. Among other possibilities, the client, who holds the privilege, can also lift it by giving consent; you can also pierce it when defending yourself from the actions of the client who holds said privilege. Let’s say that the client sues you arguing that the interpreter did nothing in the case. Under those circumstances you can pierce the privilege to prove that the client is not telling the truth and show the work you did, as long as the privileged information you divulged is limited and tailored to the point you are trying to prove in court. Statements and information provided during a client-attorney communication that include future illegal activity is not covered by the privilege either, and you as interpreter must disclose it to the authorities.

We must remember at all times that different jurisdictions will have different policy, rules and legislation, so we must adhere to all applicable rules, as long as they apply to us, depending on the type of professional service we are going to provide.

In the case of California, please keep all of the above in mind, and understand that Rule 2.890(c)(4) states that: “…An interpreter must not make statements to any person about the merits of the case until the litigation has concluded…”

Notice how the rule does not go beyond the conclusion of the case, because the rule (erroneously in my opinion) does not make a distinction between interpreters privately retained by the parties who act as a communication tool to the litigant, and those retained by the courts who also must play the role of auxiliary agents to the administration of justice and therefore be impartial at all times. Once there are no more appeals, there is no reason for the restriction on the first type of interpreter.

Finally, a couple of thoughts: I was saddened to see how must of my colleagues immediately assume the role of a criminal court interpreter retained by the court. I am always hoping that more interpreters view themselves as independent professionals working with private attorneys. There is an abysmal difference in professional fees, and the work is about the same. I ask you to please think like a private practitioner, instead of accepting the rules without any reservation. Question the rules and try to understand why they compel you to do or abstain from doing something.

It also concerned me how so many of our court interpreter colleagues rush to “obey” anything the courts say without even checking the source of the “command”. Many people criticized and condemned the interpreter who spoke to the media because of what the “Professional Standards and Ethics for California Court Interpreters” say. Please understand that this is just a manual, not legislation, regulations, or a court decision. It is just a didactic tool for those who are trying to understand the profession. Use it as such. Observe the California Rules of Court.

I hope we all understand that professional rules include universal standard values, but they also incorporate local culture so necessary for an administration of justice that reflects the values of the community it is meant to serve. For this reason, I. Sincerely hope we all come to understand that asking for universal rules or codes is not the best legal option. A system like the one we have is an appropriate one. We just need to understand the rules better, and fight to change those we believe constitute a hurdle to our profession. I now ask you to please share your founded legal arguments on this issue that could adversely impact our profession.