Interpreters’ rights under siege in California and other places.

March 21, 2019 § 5 Comments

Dear Colleagues:

Quite a few colleagues from California and other states, even foreign countries, have contacted me to complain about certain practices, and even legislation, that directly deprives them from their right to make a living by practicing as freelance court interpreters.

In California, the full implementation of the so-called “Language Access Plan” (LAP) goes into effect full blast by 2020. This is a strategy adopted by the State to meet the requirements of Title VI of the Civil Rights Act and keep California as beneficiary of federal funds attached to this legislation (http://www.courts.ca.gov/documents/LAP-Fact-Sheet.pdf).

The State had already partially complied with the federal mandate when it was sued by a non-for-profit organization, now a member of the State’s Advisory Committee on this Plan. As a result, California decided to provide, free, interpreting services to anyone who requests an interpreter in Civil matters. This is a universal rule, not limited by income-based eligibility requirements, and it applies to both: low income litigants with no ability to pay for an interpreter, who benefit greatly from this service, and Fortune 500 corporations that appear in court represented by high-price attorneys and rely on the expert testimony of expensive witnesses.

This decision by the State has nothing to do with the preposterous practice, followed by many States, to dodge Title VI of the Civil Rights Act’s mandate by creating de dubious “Justice System Interpreters” program (it goes by different names in various States) and save money, instead of fostering the development of real certified court interpreters and paying them a professional fee for their expert services. This mandatory policy California will fully implement by 2020 (unless the rule of law prevails and it is amended) impacts professional certified and registered (depending on the language combination) court interpreters.

California adopted a sweeping, populist demagogic policy that mandates free interpreting services for anybody in any court proceeding. At first, this looks like a fair and wise decision by a progressive State that wants to level the legal field for all its citizens, but if you just peel off the top layer, you discover the policy is wrong, expensive, incoherent, and illegal.

It is wrong because it treats all litigants the same way in non-criminal matters, going beyond Federal and State constitutional protections limited to criminal proceedings, and creating an even greater uneven field by rightly providing free interpreters to those civil litigants who cannot afford a private interpreter, and wrongly gifting the same option to those individuals and corporations with the means to pay for these services. A well-intentioned solution resulted in a policy that makes no sense.

It is expensive because the interpreters providing this service will be paid by the State of California through a judicial fund, wasting valuable taxpayer money in interpreter fees that should be paid by those civil matters’ litigants who can afford them. Court interpreter programs need more financial resources in California and elsewhere, and a State willing to invest money in language access programs should allocate those funds to professional development and better pay for those freelance interpreters serving criminal courts and interpreting civil matters for indigent litigants, not big business and wealthy individuals.

It is incoherent because Congress’ intent, in advancing these constitutional protections, was to give all individuals, regardless of their financial situation, the same access to the administration of justice even where they speak a language other than English. The legislator never envisioned a situation where taxpayers’ money would cover expenses derived of civil litigation, where life and liberty are not at stake, to favor those who do not need financial assistance. Under a rational basis criterion, taxpayers’ interest to judiciously spend their money substantially outweighs the needs of Fortune 500 businesses and millionaires to get an interpreter free of charge in civil matters.

It is illegal, because implementing this policy mandates all court administrators, managing interpreters, chief judges, and others in charge of court interpreting services at the courthouse level, to provide free interpreters in all civil cases, and, as it has been (almost) unanimously interpreted by these government agents, this means that freelance court interpreters should be banned and excluded from all civil court proceedings when their services are not paid by the judiciary, even when litigants prefer the services of independent court interpreters and they will pay for their services. California legislation establishes the requirements to practice court interpreting in the State as a certified or registered court interpreter (depending on the language combination). Perhaps these certification and registration requirements are meant to qualify as a court interpreter contracted by the court, but for the sake of argument, and because having certified and registered interpreters serve courts and litigants better, let’s assume however, requirements are necessary to practice as a court interpreter. Conclusion: As long interpreters meet the requirements, and until these credentials are suspended or revoked, they should be admitted to practice in any proceeding when the parties retain their services.

The other professional in a civil proceeding is the attorney. All parties may retain the attorney of their choice to represent them in any court matters; those who cannot pay for legal representation can seek assistance by non-for-profit organizations that provide attorneys for free or on a sliding scale. Attorneys are not excluded from a proceeding when paid by one party. I understand that, if you only see this situation from the litigants’ perspective, the issue is not exactly the same. Indigent litigants can appear in court pro-se if they cannot afford a lawyer, but non-English speakers cannot represent themselves, and their access to the administration of justice must be guaranteed by providing a court interpreter; however, in civil cases, said right should be tempered by the individuals ability to pay for an interpreter, so indigent litigants enjoy an even field with English speakers, taxpayers money is not wasted on paying for the services of an interpreter they can easily afford on their own, and freelance civil court interpreters can exercise their right to practice in the courts of California when their client will pay for their services.

Please remember that I am referring to those cases where litigants can pick their interpreters, just as wealthy people choose their doctors, lawyers, and accountants. I am not including in this category services provided by freelance court interpreters to indigent plaintiffs and defendants who cannot pay such fees but retain the interpreting services because they ignore a program would furnish an interpreter at no cost if they financially qualify for it.

The cases that concern my colleagues, and worry me as a member of the profession, are those controversies so complex, they need expert attorneys, witnesses and interpreters. These require of months of preparation, where interpreters are a crucial part of the legal team and often travel overseas with lawyers and investigators for interviews, inspections, and depositions. I am also talking about civil trials dealing with topics so sophisticated that attorneys, sometimes by agreement of the parties, hire freelance interpreters, not to be part of the plaintiff’s or defense’s team, but to interpret all court proceedings for the judge and jury. These interpreters are selected because of their experience on a particular subject, or because of their known skill and diligence, needed to prepare for a difficult, long trial, where branding, reputation, and a lot of money are at stake.

Some of our colleagues have told me that interpreters’ professional associations, interpreters’ labor unions (where they exist) and even staff interpreters oppose an amendment that will allow independent contractor civil court interpreters back in the courtroom.

This should not be the case. Staff interpreters should be glad to have one less issue to worry about. Civil Law and proceedings are very complex. Inexperienced civil court interpreters, even when they may have many years of criminal court practice, which encompasses most of those working as independent contractors with the courts, are prone to make mistakes when dealing with unfamiliar subjects and little time to prepare for a case. Professional associations, labor unions, and interpreters’ guilds are about advancing and protecting the profession. Excluding civil court interpreters from State courtrooms benefits no one. Even when the excluded professional is a non-unionized independent contractor, or these colleagues are not members of the professional association or guild, any policy that irrationally limits the livelihood of a group of interpreters eligible to perform a service hurts the profession and damages all, unionized, independent, and staffers. All agencies devoted to the advancement and protection of the profession must understand that independents, staffers, or members of a different association are not the enemy, we all play for the same team. We must channel our energy and resources to change legislation, regulations, and government policy like this one. We must remember: Those driving professional fees down, lowering professional standards, and destroying decent working conditions are the greedy agencies, not our fellow interpreters. In places like California where a professional association specifically deals with the interests of independent contractor court interpreters, such as AIJIC (http://www.aijic.org/), ask them to lead the campaign and support them in these efforts. States where there is not a professional association of independent or in general judiciary interpreters, local and State-wide professional associations must protect the profession by assuming leadership in this and other matters that affect professional interpreters in their State or region.

I have heard that government officials are unwilling to rectify because they do not want to lose face; that they worry about not getting federal funds if found noncompliant with Title VI of the Civil Rights Act; that they problem is stubbornness or ignorance of the interpreter profession or disregard for what interpreters do in a court proceeding.

Government officials must put constituents first and sometimes this means that a law, regulations, or public policy need to be amended. Can you imagine our country without the Twenty-first Constitutional Amendment repealing prohibition because legislators wanted to save face? Federal authorities over at the Justice Department would never retain federal funds from a State unless there was a violation of the Civil Rights Act. As long as there is equal access to the administration of justice, and the access is guaranteed to those who speak a language other than English by providing a free interpreter to those who cannot afford to hire one on their own.

The situation may be more difficult when dealing with stubborn or ignorant public servants. Here, after reasoning and dialogue takes you nowhere, and there is no other option, interpreters’ professional associations, such as AIJIC, supported by other national and local associations, including interpreter labor unions and guilds,  should stop wasting their time with government officials who do not want to listen, and take their concerns to the interested parties: Attorney State Bars, local Bars, ethnic and gender-based Bars, Law Schools, Judicial Colleges and Associations, carefully targeted judges and legislators (not bureaucratic committees ruled by the same rigid individuals they could not convince before), and social media. Make the case that quality suffers when unprepared interpreters work in a case; clarify that certified and registered court interpreters cannot be denied access to the place where they find their livelihood. Help them see this situation your way; they have an interest on this policy, but it does not impact the way they make a living if left unchanged.

Civil court interpreting is a niche. Most certified and registered court interpreters are not familiar with civil law and procedure; court interpreter certification exams cover criminal law and procedure, not civil law. Since the implementation of Title VI of the Civil Rights Act nationwide during the Obama years, I have talked to many court interpreters scheduled by the courts to interpret civil matters who feel apprehensive and not-prepared. Even though the purpose of this post, and all my posts really, is to protect our profession and show all issues from the often-ignored interpreter’s perspective, often, the quality of the rendition and the administration of justice, would greatly improve if freelance civil court interpreters are welcomed back to the courtrooms in California and elsewhere. I now invite you share with the rest of us the situation of these civil court interpreters in your State, given the implementation of Title VI of the Civil Rights Act. I would also like to hear from those colleagues in other countries who may be facing a similar situation. Finally, please share your ideas to right this wrong.

This road to hell is paved with good intentions.

March 7, 2019 § 1 Comment

Dear Colleagues:

Those who want to help us sometimes hurt us the most.  Court interpreters in Oregon face a situation faced by many colleagues elsewhere in the United States and abroad.

Often, while interpreting in a trial or evidentiary hearing, Oregon court interpreters are asked to sight translate lengthy documents they never saw before, or even worse, they are expected to transcribe and translate audio or video recordings during court breaks. Because the judiciary only covers the cost of interpreting services in courthouses and detention centers, as in many other jurisdictions, attorneys trying to save money use the services of interpreters paid by the court to translate and transcribe evidence otherwise having to be translated before trial by interpreters and translators paid by attorneys and their clients.

A well-intentioned effort to correct this practice, led by the Oregon Judicial Department Court Language Access Services (CLAS) filed a proposed charge to the Uniform Trial Court Rules (UTCR) on November 7, 2017.  Motivated by the desire to protect court interpreters, the quality of a rendition, and no doubt its own budget, CLAS proposed a change to UTCR Rule 2.010(9)(e)

Unfortunately, the proposed change was drafted with budgetary considerations as a priority, and without real knowledge of the role of the interpreter in court. The result, if it goes into effect as written on August 1, will hurt court interpreters in Oregon, the profession, and equal access to justice in that state.

Reading the explanation of the proposed amendment correctly states the abusive, incorrect use of court-sponsored interpreter services by attorneys as described above; it also recognizes the complexity of transcription and translation, and how difficult it is to hear and understand poor quality recordings:

“…• Transcription often requires additional resources that are not available during a court proceeding due to lack of time, the prevalence of slang and abbreviations in offered documents, and the inability of the interpreter to ask for clarification from the maker of the document;

The explanation also addresses potential ethical issues:

“…When an interpreter is asked to provide a transcription for one party, the interpreter loses the appearance of neutrality, which conflicts with the interpreter’s ethical obligations and makes them a potential witness…”

Unfortunately, and most likely unwillingly, the explanation begins with a very dangerous statement: “…Interpreters are trained to interpret spoken word, not written word…”  By saying that, and inserting it as the main argument to amend the Rule, CLAS is not only contradicting the Oregon Code of Professional Responsibility for Interpreters in the Courts, it is making an incorrect statement that erases one-third of the court interpreter practice, and negates our profession.

The Code of Professional Responsibility for Interpreters in the Oregon Courts reads:

“1. Accuracy and Completeness. The interpreter shall render a complete and accurate interpretation, or sight translation, without altering, omitting anything from, or adding anything to what is stated or written, and without explanation…”  (https://www.courts.oregon.gov/programs/interpreters/i-am/Documents/codeofprofresponsibility.pdf)

The State of Oregon correctly recognizes that court interpreting includes not just simultaneous and consecutive interpretation, but sight translation. Stating that “…Interpreters are trained to interpret spoken word, not written word…” contradicts the Code and diminishes the profession. This is a serious matter because in a world where people are just beginning to recognize, understand, and appreciate our profession, we cannot sit on our hands while a State Agency redefines what interpreters are and do. Even when well-intentioned, these comments motivated by ignorance must be challenged and discredit. The last thing we need as a profession is a “savior” to protect us from sight interpreting. Interpreters, not translators, are the only professionals equipped to sight translate a document and render it as if it was written in the target language. We must educate our clients, and government officials, to distinguish from a document that can be sight translated in a court hearing from a lengthy document that must be translated by a translator, or a video or audio recording that needs to be transcribed and translated by an interpreter who specializes in transcriptions.

Because of this false assumption that interpreters cannot sight translate, and undoubtably motivated by the Judiciary’s desire to save interpreter fee money by banning the use of interpreters on the Court’s dime for sight translating lengthy documents that should go to a translator, or recordings that must go to a transcriber (services that must be paid by attorneys and litigants, not the Court), those proposing the amendment to the rule drafted a disastrous text:

“…{(e) A court interpreter shall not translate or interpret an exhibit during the course of a proceeding. An interpreter may interpret oral testimony regarding the content of an exhibit. A person submitting an exhibit, including a non-documentary exhibit or electronic recording, that is in a language other than English must submit at the same time an English translation and a declaration under penalty of perjury from the translator: (i) certifying that the translation is accurate and true; and (ii) describing the translator’s qualifications.}”  (https://www.courts.oregon.gov/programs/utcr/Documents/18eBCM029jm_Notice-Seeking-Public-Comment-2019-Proposed-UTCR-Changes.pdf)

By saying: “A court interpreter shall not translate or interpret an exhibit during the course of a proceeding” the rules are restricting the scope of an interpreter’s practice. It is making sight translation illegal in Oregon. But the proposed Rule is so poorly written, that it bans sight translation in hearings, but opens the door to more difficult and prone to error interpretations of “oral testimony regarding the content of an exhibit”. Instead of handing a lengthy document to the interpreter for a sight translation, under the proposed rule, an attorney can ask the interpreter to interpret the contents of a lengthy exhibit while the witness is reading it in the source language at the speed of light; without the benefit of first examining the document, if briefly, interpreters have during sight translation.

The proposed Rule will deny equal access to justice to those litigants who appear pro-se because they cannot afford the services of an attorney. Poor people benefit of court-sponsored interpreter services every day. These interpreters sight translate birth certificates in family court, bills of sale in small claims court, medical reports in worker’s compensation court, restraining orders in domestic relations court. These litigants do not have the means to pay for translation or transcription services of these documents; they will not comply with the rule because they will not even know or understand that they now need a certified written translation. Unless the Rule is modified before its adoption, in the words of my Oregon Court Interpreter friend and colleague Adrian Arias, many pro-se litigants in Oregon will face the following message: “As to sight translating your exhibit during the proceeding, due to an access to justice issue, you cannot have access to justice.”

The Rule must be amended to accurately reflect what is really needed for protecting the interpreter, accuracy of the rendition, curtailing abusive attorney practices, and equal access to justice. It should clearly state that lengthy complex documents must be translated and certified by a professional translator before a hearing; that all transcription and translation of recorded evidence shall be done by professional interpreters specializing in transcriptions prior to all hearings; and court interpreters will provide sight translation of documents in a hearing when, in the opinion of the interpreter in the hearing the length of the document is appropriate for a sight translation, and its complexity is so it can be sight translated with no more in depth research process needed for written translations. It should be the interpreter who examines and assesses the document to be sight translated. The Code of Professional Responsibility for Interpreters in the Oregon Courts imposes a duty to assess at all times (their) ability to deliver interpretation services, indicating that when the interpreter has any reservation about his or her ability to satisfy an assignment competently, this should be immediately conveyed to the court. (See Rule 9. https://www.courts.oregon.gov/programs/interpreters/i-am/Documents/codeofprofresponsibility.pdf)

Dear friends and colleagues, we must remain vigilant, and see the final Rule due for recommendation by the Committee on March 8. This is a reminder we need to continue to defend our profession, because even when people propose changes meaning no harm, ignorance of the profession can create terrible consequences. I now invite you to comment on this issue in Oregon, or any other place where you live or practice.

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