The History of Conference Interpreting: The Other WWII Trials.

Dear Colleagues,

We commemorated International Conference Interpreters Day on November 20. The date was selected because on that date in 1945 the International Military Tribunal in Nuremberg started the trial of those charged with war crimes in Europe, using simultaneous interpretation for a matter relevant worldwide for the first time. Much has been written and researched about the trial, the interpreters, and the birth of simultaneous rendition as we now know it. For years I observed the date remembering these important circumstances that gave birth to the modern version of our profession, but I always wondered about the trials against the war criminals in the Pacific theatre of operations; there seemed to be little information available about the interpretation, the interpreters, and what really happened in Tokyo after World War II. As November 20 was approaching, I decided to find out what happened in Japan, and why these trials were left out as part of the birth of modern conference interpreting. This is what I learned:

The International Military Tribunal for the Far East (IMTFE) was convened on April 29, 1946, over five months after the Nuremberg tribunal was established, to try Japanese political and military leaders for crimes against peace, war crimes, and crimes against humanity. Twenty-eight Japanese citizens were tried, the tribunal had broader jurisdiction than its counterpart in Germany, as it covered the invasion of Manchuria and World War II, and the proceedings ended on November 12, 1948, making these Tokyo trials almost twice as long as the process in Nuremberg. No defendant was acquitted, but charges were dismissed against one of them because he was found mentally incompetent. Seven defendants were sentenced to death and executed.

Judges represented ten countries (Australia, Canada, China, France, India, The Netherlands, New Zealand, The Philippines, United Kingdom, and United States) with Sir. William Webb, Justice of the High Court of Australia presiding. Most of the prosecution was presented by American prosecutors, but prosecutors from the other nations represented intervened for certain witnesses, defendants, and charges. The defendants were represented by more than one hundred attorneys from Japan and the United States, and the official languages of the trial were English and Japanese.

Trying monolingual Japanese defendants who committed the atrocities on trial under a culture, and using a language so foreign to the members of the tribunal, presented challenges not found in Nuremberg where all languages involved were European, and all crimes had been committed by individuals who shared culture with the judges and attorneys.   

There were no English-Japanese interpreters in the West and there were no interpreters in Japan, period.

To solve this problem, the Tribunal hired twenty-seven Japanese citizens fluent in English who knew Japanese culture, history, and traditions, but they were not interpreters; they had no formal training, they had no experience as empiric interpreters either, and unlike the situation in Nuremberg where the interpreters were citizens of the allied countries, these individuals were from the same country as the defendants. It was decided to hold some “auditions” as mock trials to select the interpreters. Legal knowledge or aptitude to learn and understand legal proceedings was an important consideration also. Those selected were hired by the Language Division of the IMTFE. Because these ad-hoc interpreters were Japanese, the Tribunal established the position of Monitor. These individuals were American citizens children of Japanese (Kibei Nisei) who were proficient in both languages. There were four of them. Their job was to supervise the rendition by the Japanese interpreters, and amend the record when needed, due to the lack of experience and technique of the Japanese interpreters. During the War, these monitors: David Akira Itami, Sho Onodera, Hidekazu Hayashi, and Lanny Miyamoto, worked for the Allied Powers’ Translation and Interpretation Section (ATIS) and as children they all attended school in the United States.

The interpreters, and their monitors, worked in a booth; they worked in teams of two or three; they had a rotation according to an established schedule, and they used the same IBM simultaneous interpreting equipment used in Nuremberg,  

There was no simultaneous interpretation during the Tokyo trials. Interpretation was rendered as follows:

All written opening statements, closing statements, charging documents, etc. were translated, and when attorneys or judges read them for the record, the translations were read simultaneously by one of the four monitors;

All witness examinations, cross-examinations, and re-direct examinations were interpreted consecutively by the Japanese interpreters. Attorneys and witnesses were instructed to speak clearly, slowly, and to pause frequently to give the interpreters a chance to catch up. Whenever an interpreter fell behind a speaker, the monitor would signal the court so the speaker stop and even repeat what was said. Monitors also assisted interpreters with note taking of names, addresses, figures, etc. Preserving an accurate record was a priority.

When a witness or a prosecutor spoke in a language other than English or Japanese (all defense attorneys spoke English or Japanese) other interpreters would participate. Beside the twenty-seven English-Japanese interpreters, there were seven Chinese, six Russian, six French, and one Dutch interpreters. Relay interpreting was used when one of these languages was spoken in the courtroom.

Because Japanese was not widely known in the West at that time, and because knowledge of Japanese culture was practically non-existing, there was the possibility of conflicting interpretation of terms or concepts. To prevent this from happening, the IMTFE created a system of checks and balances by establishing a Language Arbitration Board to settle matters of disputed interpretation. Once the dispute was resolved by the Board, the arbitrated rendition had to be used for the rest of the trial. This process was used both ways: To solve interpreting issues into Japanese and into English.

After the trial all Japanese who worked as interpreters went back to their prior occupations. None pursued a career as a professional interpreter; however, two of the monitors continued to work (at least occasionally) as interpreters, one for the Japanese diplomatic service, and another one for the emperor.

The trials did not give birth to our profession in Japan; there were no simultaneous interpreters yet, and the equipment had been used for other purposes (synchronized reading of translated texts, and consecutive interpretation from the booth). After learning these facts, it became clear to me why the International Military Tribunal for the Far East is not considered as the birth of modern simultaneous conference interpreting. The Tribunal did all it could to ensure the administration of justice and to preserve the record, but it did not have professional interpreting services, the IBM equipment was not used as it was in Nuremberg, and the trials did not contribute to the development of simultaneous interpreting in Japan.

Things to look for in an interpreting contract.

Dear Colleagues:

There has been a lot of discussion about interpreting services contracts in the past weeks.  The SOSi immigration court interpreter contract was a trending topic all over the social media.  Many colleagues debated, attacked, and defended parts of the contract like I never saw before.  This circumstance, together with other events in the professional world that involve contract negotiation (and the contents of the agreement itself) such as all federal contracts that were up for renewal at the beginning of the new U.S. federal government’s fiscal year, several irregularities with some state government contracts that appeared prior to their new fiscal year in August, and just the wording of quite a few contracts drafted by interpreting services agencies, large and small, made me think long and hard about the importance of negotiating an agreement and reviewing the letter of the proposed contract before committing myself to anything by the power of my signature.

Signing a contract is a very important act that can impact our professional career and reputation for a long time. It is not, as some colleagues may think now and then, a simple ceremonial thing that needs to be done in order to get the big assignment or the prestigious event. A contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. (Black’s Law Dictionary). As Samuel Williston puts it, “A contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty…” (A treatise on the Law of Contracts §1, at 1-2. Walter H.E. Jaeger ed., 3d ed. 1957)

I suggest that we should all reflect on the meaning and magnitude of the concept above, and apply ourselves to the negotiating of the terms and conditions that will govern our professional services with a client, and that we review in detail the final document that the client (whether it is a direct client or an agency) tenders for our signature before we undertake any obligations.  In fact, I recommend that before signing any agreement, you give your attorney a chance to review the terms of the contract to see if there are any “unwanted” harmful terms. Even if you do not have an attorney who regularly works with you, I encourage you to get one. It is that important, and in most countries it is tax-deductible as part of the cost of doing business.  Just think for a moment: the other party had a lawyer draft the contract, that attorney is being paid by the party who has an interest in the delivery of the professional service that is different from yours, and many times it is the opposite.  Although ethical and professional, the job of the counterpart’s attorney is to protect his client’s interests, not yours.  Just like you would never enter a car race on foot while the others are driving a car, you should never sign a contract unless, and until, you are familiar with all of its contents because all of your questions have been answered to your satisfaction, and all your concerns have been put to rest.  Remember: You are an interpreter and you provide a professional service.

There are different types of contract that you will encounter during your professional life; government agencies will always have their standard contract, some large agencies, corporations and organizations will have their own contracts as well.  Smaller agencies and direct clients will likely accept your version of a contract or will adapt their own document to your demands and suggestions. Finally, some of your regular clients may not use written contracts. They will negotiate assignments with you more informally. That is fine, but remember, the document is not the contract; the contract is the meeting of the minds, the agreement of the parties. In other words, even in these cases you have a contract.

I always review all contract conditions, even when dealing with the government, and when I dislike a certain term, or I consider necessary to add some conditions, I propose the changes. You will be surprised to learn that more often than not, the counterpart agrees to the amendments to their standard contract. By the same token, I am also flexible and open minded about the counterpart’s proposals and suggestions. I always consider them and give them a lot of thought. On many occasions I agree to the changes, provided they do not leave me unprotected and the potential risk is something I can live with.  Finally, in the case of a regular client who never signs any documents with me, I always put all essential terms of the verbal contract in writing and send them to the client by email as a memorandum of understanding, stating very clearly that by receiving the email and not taking any action within the first 24 hours, the client is consenting to the terms and conditions included on the email. This way essentials such as type of event, dates and location, scope of services and fee are always included, as well as reimbursement of expenses, travel costs and fees, late payment penalties, cancellation policy, and standard working conditions according to the type of assignment (equipment, booths, team interpreting, materials and glossaries, etc.)

As we see above, contracts can come on different presentations and they originate for different reasons depending on the client who drafted the contract; but, regardless of the type of contract, there are always certain things we should look for in an interpreter contract. I will share with all of you some of those items I look for in all contracts, and I hope this helps you as much as it helps me; however, I would like to make it very clear that my suggestion is that you always go to an attorney before signing any contract. The following are just suggestions that have worked for me, but in no way they are intended to constitute legal advice of any kind. All situations are different and I do not know your particular situation, so please understand that this is not legal advice. Only your lawyer can give you that kind of professional help.

These are the things I look for in a professional contract:

First. The scope of the service. I always look for the specifics: What the client is actually retaining me for. It is very important because some clients have the idea that once you are hired, you are theirs during the assignment to do anything that they consider part of the service. They are wrong. You agreed to perform a certain service and you are only getting paid for that service. Nothing else. Be careful about services description that may “include” translation services, being responsible for giving out and collecting interpreting equipment, other peripheral interpreting services not previously discussed such as dinners, press conferences, book signings, etc.

Second. I always pay attention to the wording because it tells me a lot about the client. I look for “telling” words such as interpretation industry (instead of profession) and in the case of an agency, how they refer to their end client: If they refer to them in the contract as “the customer” instead of “the client”, we will have a very difficult relationship because it is clear that my profession is an industrial commercial activity to them. I always discuss these issues when present in the contract, educate the client about the profession, and usually they agree to change the contract’s terminology (at least for my assignments if not for the rest of my colleagues)

Third. The grounds for termination of the contract. This is a crucial item because an early termination could impact your income for at least a few days or weeks. The reasons to terminate a contract early have to be fair, and they should include both parties. I have found many contracts where only the client can do an early termination. That is wrong, unfair, and highly suspicious. The grounds should apply to both parties, and in long-term contracts, they should include the lack of payment or late payment of your fee as a cause for early termination.

Fourth.  The famous confidentiality clause that although redundant since we are professionals and as such are legally and ethically bound to this duty of confidentiality, it should be included for the peace of mind of the client and his attorneys; however, the same provision should always include that the confidentiality will be observed with the exceptions of law. Yes, the law allows you to break this duty of confidentiality, even in the client-attorney privilege case, when there are certain facts that justify the lifting of this duty. For example, if you have to file a lawsuit against your client for lack of payment, or when your client sues you and you need to defend yourself. In those cases (and others) the law allows you to break the duty, limited to what may be necessary, to defend yourself or to exercise legal action.

Fifth. I look for cases where the client contractually limits his liability, and when I find it I do not like it and demand that it be changed. Although many legislations permit that an individual’s liability be reduced or limited by agreement of the parties, it is ridiculous for the other party to suggest, and for you to agree, to be exposed to all kinds of damages in case of a lawsuit, while the agency and the end client just sit and observe how you lose your business (in one of the best possible outcomes) or all of your assets and life-long savings (as a very good possibility). This is a no-no. Everybody should have the same exposure and respond for the damages caused according to their contribution to the loss. This is a very good reason why the parties should always request a copy of the other parties’ liability insurance certificate.

Sixth. There are some provisions that raise many red flags as they denote a clear intent to tilt the balance in favor of one of the parties (and that party is not usually you). Any provision that makes it illegal for the interpreter to talk to the media about the terms and conditions of the contract, unless we are dealing with information protected by the duty of confidentiality or the client-attorney privilege, and all clauses that force you to “consent” to resolve any controversies through arbitration instead of going to court are a huge warning sign.  You see, businesses prefer arbitration because it is less expensive, but mainly, because they get to “pick” the arbitrator. Unless you know several arbitrators that you trust, which is unlikely, they will always get to suggest the arbitrator. This individual will know them, it is very likely that he has presided over other arbitrations with the same party, and he will probably, be inclined to keep the client (your counterpart) happy for business reasons into the future.  Of course this last part cannot be demonstrated and I have no basis to claim that this is what happens during arbitration. The question is: Are you willing to take the chance? I personally would not do it. I would seek justice in the court system. Yes, it will take longer, but impartiality is more common in the courtroom, and if you win, the losing party may have to pay your attorney’s fees.

Seventh.  All terms and conditions must be in writing and they must be part of the written document. Even those terms and conditions contained in an appendix to the main contract should be referenced to and identified within the body of the contract by a number or a letter. Make sure that all attachments are signed by all parties, and dated with the same date as the main contract.  Most legislations abide by the parol evidence rule which clearly states that all agreements previous or contemporary to the signing of the contract must be in writing and appear as part of the physical agreement. Those that do not follow this rule will not be considered as part of the contract.  Be very careful with all those promises and concessions on the side.  They are not part of the contract unless they are in writing and in the document itself.

Eight.  Travel expenses must be included in the contract. The document should clearly state what expenses are reimbursable: airfare, hotel, ground transportation, Per Diem, photocopies, etc. It should also spell the fees payable to the interpreter on traveling days.  Remember, you provide a personal professional service. You cannot provide your services to two clients at the same time, so on the days that you travel to and from the assignment location, you are not working for any client. Unless you like to lose money, you should clearly negotiate and include in the contract your travel fee. There is a cost of doing business, but you should never lose money for accepting an assignment. Maybe one half of your regular fee should be a fair compensation for your travel days. Make sure that reimbursement of expenses for travel days are for total expenses. You can charge a lower fee, but you cannot fly, sleep or eat for less money just because it is a travel day.

Ninth.   The cancellation policy will always be in the contract. I would never sign an agreement that does not deal with this issue.  This policy needs to be negotiated taking into account the time between the cancellation and the cancelled event.  The fact that your client just found out of a cancellation that was decided two weeks ago is no excuse to lower your cancellation fee. It is your client’s obligation and duty of due diligence to be on top of everything the end client is considering, pondering, thinking, and doing.  A last-minute cancellation should require a full fee and reimbursement of all monies disbursed to that point.  Remember, it is not your fault that the client lost the event. That is his risk, not yours.

Tenth.  A good contract should cover payments in detail: amounts, timetables, and penalties in case of late payment.  Just as you had to show up to interpret on the set date, and not 30 days later, the client has the obligation to pay you on the day agreed to, and if he does not, then you must be compensated by virtue of a penalty clause that provides for compensation in case of any delays.  This is extremely important with smaller agencies who sometimes come to the interpreter crying poverty and asking for more time to pay you because their client has not paid them yet.  Although some of you may be tempted to give the small business owner a break, I am not. Do not lose sight of reality: This individual is your client. He is not your partner. Only partners share the risks of doing business. He is not sharing his pay with you. You should not share in the risk. He pays you or else… Where he gets the money from is not your problem.  You should also look for unacceptable provisions, usually inserted by larger agencies, about penalizing you by retaining part of your (already earned) fee.  They often include deductions based on what they consider your “performance” and deduct part of the money you already made. This is unacceptable and illegal.  Nobody should agree to give up part of his fee based on the assessment of others, much less when there are no safeguards in the contract such as notice of the intent to deduct part of the fee, and a mechanism to have a hearing before an impartial authority. How about letting a real judge deal with this issue? Agencies should never get that power from the contract- signing interpreter.

There are many more points to be included and reviewed by the parties, but I believe that at least these basic elements put me on a leveled field with the client as equal parties to a contract. I now ask you to please share any pointers or comments you may have on this very important professional issue.

Attention certified court interpreters: You could be losing part of your profession!

Dear colleagues:

In my opinion the title of this posting is not an exaggeration of what is happening to the court interpreting profession in the United States and some other places.  Let me explain:  There are groups of community activists, profit-hungry interpreter training entities, and interpretation agencies (that do not represent the best interests of court interpreters) who are advancing the idea that court interpreters should only be required in the courtroom, and that out of court legal interpreting should be left to “other” type of interpreter who would provide a service that would be a mix of community and legal interpreting. They argue that court interpreters are required in court because of the impartiality that is needed and due to the formalities that must be observed. On the other hand, they claim that an out of court legal setting (that they refer to as “quasi-legal”) should be left to other interpreters without court interpreter certification who would (after they get trained by this special interest groups) be able to provide a service that, according to them, has a lot of community interpreting and some legal terminology that could be easily acquired by these “interpreters.”

This approach concerns me very much because as an attorney I do know that there are very delicate and extremely difficult legal issues that take place out of court.  These individuals have suggested that family law mediations, preparation of wills, and other legal services, be provided with the assistance of a non-certified court interpreter.  I dare to say that the best attorneys, the more difficult issues, and the ones that affect more people’s lives, are found outside the courthouse.  You only need to visit a corporate attorney or a corporation’s legal department to see it.

All legal interpreting should be done by certified court interpreters because they are the ones that know the law, are familiar with the terminology, and are backed up by a certification system run by the state or federal government.

There was a similar movement in the United States a few years ago.  That one proposed that to abate costs such as paying for the services of an ophthalmologist, optometrists should be allowed to perform certain types of surgery.  Let me clarify: an ophthalmologist is a physician, an optometrist is not.  You go to the optometrist when you need a new pair of eyeglasses. You go to the ophthalmologist when you need cataracts surgery.  Dear colleagues: We are the ophthalmologists in this example.  These special interest groups are trying to take away part of our field and give it to these new “optometrists.”  To do it, they are arguing that these individuals would do a job that nobody is doing and that does not need certification as a court interpreter.  What they are not telling you is that they will profit immensely from this scheme.  The trainers will make money by “training” these people, the agencies will make money by paying a lower interpretation fee to these individuals who will not be court certified, some state governments will continue to receive federal funds because they would be “guaranteeing access” to non-English speakers who go to court and do not need to appear before a judge, and the community activists will be happy because in their mind court interpreters charge too much for their services and their clients cannot afford it.

But wait a minute, let’s stop right there and talk about the losers under this scheme:

Many court interpreters make over half of their income from legal interpreting outside the courtroom: mediations, depositions, jail visits, witness preparation, sight translation of documents, arbitrations, administrative court hearings, and many other legal scenarios.

Attorneys have a legal duty to vigorously represent their client in order to achieve what is best under the specific circumstances.  It is hard to see how this can be accomplished by using lesser-interpreters, and in many cases paying the agency the very same fee they would pay for a competent professional. Attorneys do not know that the agency pays a lower fee to these non-certified individuals and therefore they get to keep more money.

The parties to a controversy or those seeking legal advice are paying for the best possible service, even those who approach non-for-profit organizations have to pay for filing fees and other administrative expenses.  It is only fair that when you go to see an attorney, the attorney’s advice be interpreted by the lawyer’s equivalent in the interpretation field: a certified court interpreter.

Our system, our government, the taxpayers… they all lose under this scheme. A poor interpretation will have consequences. I have seen many criminal cases being dismissed because of the police interview of the defendant. Those who advocate this change are proposing that non-certified court interpreters do police interviews. A poorly sight translated contract, an incomplete will due to a bad interpretation, an unfair parenting time schedule because of lack of understanding of the law on the part of the interpreter, they all lead to litigation and litigation costs money.  Surgery by an optometrist…  I would love to see the reaction of an administrative court judge when he is told that because his courtroom is not a real one he will have the services of a non-certified court interpreter.

It is true that in many places some of these services are currently performed by non-certified individuals.  It is true that the special interest groups will defend themselves by saying that with their “home-grown certification” the people who interpret in those settings will be doing a better job than the one that is provided right now.  The excuse that there is a great need for interpreters in many languages that have no court certification program is not valid either.  There are interpreters in these languages that have been evaluated by the court system and allowed to work in court. Until there is a court certification program by the state, these are the interpreters who should be doing all of the legal work. The “solution” proposed by the special interest groups does not improve the quality of the service.

Instead of rushing towards mediocrity and spending time and effort justifying why it is a good option, these special interest groups should join forces with the professional community (certified court interpreters, attorneys and government) and strive to attract more quality individuals to the profession, to demand first that everybody be certified as a court interpreter and that there be continuing education for those who may want to specialize in family law mediation, corporate planning, international arbitration, immigration law, etc.

Instead of marching in lockstep with the interpretation agencies, all community organizations and true trainers, who are concerned about the quality of the interpretation and the fulfillment of the existing demand, should join forces with the professional certified court interpreter community to demand from these agencies a better pay to the real quality-proven interpreters.

Dear colleagues, I don’t know if this will happen and I would not be surprised if these special interest groups and individuals attack and criticize what has been said in this posting.  Learn from our colleagues who are already fighting a battle to keep or recover their profession in other countries like the U.K.  We have to defend our profession. Paralegals are not opening shop all over to offer their legal services out of court. Do you know why? Because the lawyers would not let them. They would be charged with practicing law without a license. We need to do the same. We need to defend and protect our profession.

For that reason I ring this wake up call.  Be alert!  Educate your colleagues and clients; do not let them take this huge piece of you professional field away.  You will lose and everybody will lose.