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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§ One Response to This road to hell is paved with good intentions.

  • André Csihás, FCCI says:

    I cannot tell you how many times I’ve had to sight-translate documents I’d never seen prior to the time the request was made either by the Judge, Hearing Officer or Counselor, and even an occasional colleague, that were simply thrown at me in the heat of the moment in the middle of a trial or a hearing.

    Somehow, those who listen to your interpretation in court, expect that you be able to do anything regardless of the difficulty.

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