April 27, 2015 § 6 Comments
I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand. This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.
Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service. When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population. The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.
In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state. These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.
When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job. Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else. This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate. It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.
Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended. They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:
Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator. This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born. The spirit of the law was ignored.
There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.
Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program. This was the origin of the next step backwards: Fee reduction.
Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.
Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators. What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?
These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.
I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness. I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator. As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.
They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals. All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.
September 4, 2014 § 12 Comments
Good professional interpreters are usually consumed with taking care of their clients, improving their skills, managing their agenda, and marketing to new clients. This takes a lot of time and energy, and it is essential to succeed as an interpreter. Unfortunately, sometimes during their career some interpreters may experience other aspects of the profession that are less pleasant, more time-consuming, and very stressful.
Our professional tools are our brain, mouth, and a language combination. We can make mistakes, we are susceptible to questioning and second-guessing by others, and in our litigious society we are exposed to lawsuits that can leave us with no career, no resources, and a tainted reputation.
There are many circumstances that can affect our career as professional interpreters, but at this time I would like to focus on two of them:
The first one occurs when our work is subject to criticism and questioning by our peers or by others. This often happens in a legal setting. All court interpreters have faced situations when in the middle of a court hearing a judge, attorney, witness, litigant, and even a juror, have interrupted our rendition to correct what we just said. Most of the time we were right and they were wrong. On occasion, because we are not machines, and because nobody can possibly know all regional expressions, these voices do us a favor as they correct our mistake and allow justice to be served. These are the scenarios we usually face when doing our job. It sounds simple and straight to the point: Either we are right and we say so in order to keep the process moving along, or we are wrong, and in that case we correct our error. The same facts are true in a healthcare or community interpreting setting; even at the negotiating table or in the booth during a conference we sometimes make mistakes out of exhaustion, due to bad acoustics, a speaker with a heavy accent, or because we misunderstood a word or term. This is why we have team interpreting, this is why good interpreting equipment, an appropriate conference room, and breaks or recesses are important.
Unfortunately in the real world we have to deal with attorneys who are not happy because their foreign language speaking client or witness is not saying what they wanted them to say in the trial, and with doctors and nurses who want to dodge the consequences of their negligence, and with the party that lost at the business negotiating table, or with the agency that tries to justify the disaster caused by its outdated broken-down interpreting equipment. The first thing they all do is to cast a doubt over the rendition of the interpreter. It is even worse when all of this happens and you know that those who are questioning your work are clearly wrong.
The second situation I want to bring to your attention is when the same individuals mentioned above, decide to go for the jugular and to put the blame on the interpreter’s rendition; so they take you to court. They argue inadequate interpretation and you are sued for damages. How can we defend our work when our rendition is questioned and we know we are right? What can we do to protect ourselves in case somebody takes us to court for damages? There are preventive measures that we can take as interpreters to diminish the possibility of having to defend our work, our assets, and our reputation.
There are also steps we must follow in case our professional work is questioned or attacked in court.
These complex issues have to be addressed, and as true professionals we must be prepared in case this happens to us. For this reason, I will present: “How to Defend Our Rendition and Professional Reputation as an Interpreter” during Lenguando Londres in London on September 13, 2014 at 2:30 pm. I invite you to attend the event on the 13 and 14 of this month and see how you will be able to interact with some of the superstars of all language-related professions, and I encourage you to attend this presentation where we will discuss these sad but possible scenarios, we will explore the different preventive measures that we should always take in order to avoid an adverse outcome, and we will talk about the path to follow once our rendition or our skill has been formally questioned in a court of law. I hope to see you in London; but even if you are not attending, I ask you to share with the rest of us your experiences on having your rendition questioned, challenged, or having a lawsuit filed against you as an interpreter.
July 14, 2014 § 4 Comments
I was contacted by a colleague who wanted my opinion about a professional situation that was making her life miserable. Her problem was that she had been part of a court assignment where an attorney did something she disliked. At the time she contacted me she was debating about letting it go, or reporting the situation to the judge of the case. I listened to the facts, and I immediately remembered other events where an attorney’s conduct had been questioned by other interpreters. This is her story:
An interpreter was hired to work during a deposition at a law office. While waiting for the assignment to start, she had a conversation with other individuals in the waiting room. One of the others was also a court interpreter. Finally, after a long wait, a secretary came to the waiting room and announced that the deposition had been cancelled. The interpreter went home, she got paid on time for this assignment, and she forgot about this incident.
Several months later, she was contacted by another agency that offered her a transcription/translation assignment. She agreed, and a few days later she received a CD with the audio recording. She began the transcription, and about an hour into the transcription, she concluded that she knew at least one of the voices in the recording; it was the voice of another interpreter, in fact, it was the voice of the interpreter she had been talking to, months earlier at the law office, while she waited for the deposition to start. She immediately knew that she had to stop the transcription and report this circumstance to the agency. A decision had to be made about her involvement in the transcription job. Before contacting the agency, the interpreter decided to see if the other interpreter’s voice was all over the recording or just at the beginning. She had just been working on the transcription for about an hour, so she wanted to find out. She fast-forwarded the recording, and to her surprise, she now recognized a second voice: It was her own voice! She was part of the recording the agency sent her, and the recorded conversation was the one they had at the attorney’s office on the day the deposition had been cancelled months earlier. This obviously changed everything, and the possibility of continuing on the job if the parties consented to it after a full disclosure was now gone. She knew she could not continue transcribing the recording. She immediately contacted the agency and told them what happened. The agency retrieved the recording and sent it to another transcriber. The interpreter was paid for the work done even though the agency knew that they would never use the transcription. The real problem for the interpreter was that she did not know that she had been recorded and she wondered why this had happened, what they were going to use the tape for, and what she should do about the whole situation. She did not even know if the recording was legal or not.
The recording was related to the case where she had been hired to do the cancelled deposition; she knew the attorneys involved, and she had heard that they both practice law very aggressively. She felt bad and she felt cheated. The interpreter thought that this strategy had been sleazy and perhaps illegal. Her first impulse was to contact the judge in the case and let him know that she had been recorded without her consent. Something had to be done.
Fortunately, she waited and thought it over. Without revealing any names or details of the case, she consulted an attorney and learned that in her state, as long as one of the parties to a conversation is aware of the recording, and she consents to it, the rest need not know or consent for the recording to be legal and even admissible in court. Based on this, the interpreter did not go to the judge or anybody else. She had no legal standing and no law had been broken by the attorney who ordered the recording. In fact, she realized that she could not even disclose any of these facts to anybody else because of the interpreter duty of confidentiality, which cannot be broken unless a crime was committed or may be committed unless the interpreter speaks. Going to the judge would have been the wrong thing to do because she really had nothing to report. She learned a valuable lesson after this case because she understood that in an adversarial legal system, the attorneys may do things that we dislike, but as long as they are legal, they are allowed to do them, and we should not get involved or judge the legal strategy.
On the second case I will now share with you, I was interpreting in a plea hearing many moons ago. The defendant was going to enter a plea of guilty to a federal offense. I was working for the court. I arrived to the courtroom about fifteen minutes before the hearing, which was customary at that courthouse, I let the clerk know that I was there, and I sat down to wait for my case. The defense attorney arrived about five minutes later and asked me to help him with his client. He told me that the defendant, who was in detention, was already in the holding cell, and that he needed to talk to him for a few minutes before the judge came out for the hearing. As many of you know, this happens all the time in federal court in the United States, so I agreed and off we went next door to the holding cell. The moment we arrived I realized that the defendant spoke some English and understood many things; however, he was far from being fluent, and definitely needed an interpreter for the most complex legal concepts. As soon as we greeted the defendant the attorney started this, in my opinion, self- serving speech telling his client (the defendant) how hard it was to get him the deal with the prosecution, and that this was his chance to bring the case to an end by just pleading guilty to the charge in the plea agreement. Then the attorney “asked him” but in reality told him “the agreement is almost identical to the version you already saw before when I went to see you with the other interpreter, remember?” and “…the judge is going to ask you if you were interpreted the new version by a certified interpreter and you are going to say yes because if you don’t, then the judge will continue your case for another day, maybe in a month or two, and you will have to sit in jail all that time waiting to come back in here. All of it for a document that practically says the same that the one that was interpreted to you before. Do you understand?” Of course I interpreted all of this to the defendant and he said yes. Next, the attorney told his client that “… when the judge asks you if you have any questions you need to say no, unless you have any questions, and if that is the case we will have to come back before the judge in the future, and he is going to ask you if everything was interpreted to you into Spanish and you will say yes because as you remember we went to the jail and the interpreter interpreted everything, including your questions, right?” The defendant said “yes.” The attorney continued: “…Well then, let me ask you right now: has the plea agreement been explained and interpreted to you in Spanish?” The defendant answered: “yes.” The lawyer continued: “…Has your attorney answered all of your questions with the assistance of an interpreter” The defendant: “yes.” Finally the attorney added: “…Do you have any questions at this time for the judge, for me, or for anybody else about your case, charges and plea you are about to enter?” Once again the defendant said “no.” “…Great” said the lawyer; and added: “… So you know why you are answering the way you are right?” The defendant: “Yes, so I can go to prison sooner.” Attorney: “…and, even though we didn’t interpret the latest version of the agreement, since we went over another version that was practically identical, you will tell the judge that we did right?” Defendant: “Yes, I will tell him that you explained everything to me through the interpreter, and in my mind you did, and I really believe so, and I have no more questions. I know what I am doing and I just want for all of this to be over.”
We went in front of the judge who asked the very same questions. Both, the attorney and his client answered almost with the same words as they had used in the holding cell. The judge entered the conviction and the defendant left very happy with the outcome of the hearing, on his way out he told his attorney: “…thank you very much. You are a great attorney. You know what you need to do for the benefit of your client. I will send you clients…”
Although the attorney and the defendant did not lie to the judge because they phrased everything very carefully, thus avoiding breaking the law, and despite the fact that the attorney had fought for, and vigorously defended his client’s best interest, which was to go to prison as soon as possible so he could start some treatment not offered by the jail, I left the courtroom feeling a little strange. I knew there was nothing for me to do since no laws were broken, and everything had been legal strategy between client and attorney discussed in confidence and under the protection of the client-attorney privilege, but it took me a couple of hours to get over it; you could even argue that I did not get over this case since I am still telling the story so many years later, but the truth is that yes I got over the case, and the reason why I am sharing the story with all of you now is because both the defendant and the attorney have since passed away, so there is no privilege anymore.
I would like to invite you to share similar stories or comments about things you have done or were tempted to do when in your opinion an attorney did something sleazy.
March 4, 2014 § Leave a comment
If you are a federally certified court interpreter in the United States you have surely provided interpretation services at the request of private attorneys, who are part of a panel kept by that district, according to the United States Criminal Justice Act, commonly referred to as the CJA (18 U.S. Code § 3006A) These attorneys, and I will refer to them as CJAs in this posting, are private lawyers appointed by a federal district court judge, or a federal magistrate, to represent a party who cannot afford his own private attorney in cases where representation by the Office of the Public Defender is not possible because of the physical location of the defendant or due to a conflict of interest. In other words, when there are codefendants and one is represented by the federal public defender, all others must be represented by private counsel or by a CJA panel attorney. CJA attorneys are known to most court interpreters because they are always at the courthouse, just like the public defenders. They have a big caseload, and many of their clients do not speak English. Because of defendants’ constitutional rights and the Civil Rights Act of 1964 these non-English speakers have the right to an interpreter that is also furnished under the same Criminal Justice Act: “…Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation…” (18 U.S. Code § 3006A) Federally certified court interpreters are asked to interpret during client-attorney office interviews, trial preparation, jail visits, and similar services requested by the CJA attorney. After the service is performed, the interpreter must prepare and submit to the District Court a CJA invoice form that the panel attorney signs. Once the form is submitted and verified for accuracy and completeness by the court’s financial department, it is sent to the federal district court judge or magistrate who has been assigned to that case for approval and signature. It is only after the judge signs the form and returns it to the court’s financial department that the interpreter gets paid. This process can take, depending on the district court, from one week to a month in average. All interpreters know this and accept it as part of the life of a freelancer. I should mention that this seemingly bureaucratic process is attractive to the freelance interpreter because of volume. In fact, in districts where there are several staff certified court interpreters this may be the bulk of the freelancers work for the courts.
Unfortunately, there are certain cases where this simple and straight forward payment process is unconscionably delayed. There are federal district court judges in the United States who hold back payment for incredibly long periods of time and there is no apparent reason or justification for this delay.
Dear colleagues, I am not talking about late filings or incomplete voucher forms; I am talking about withholding of invoices for no cause. I am afraid that there may be more that one judge following this practice; there is one among them, who shall remain anonymous in this blog, who has generated comments from colleague interpreters such as: “…Oh, that judge! One time it took well over a year to get paid for a half a day interpretation…he just didn’t approve the form any sooner…” And this one depicting the interpreter’s feeling of impotence: “…it always takes many months to get paid, but nobody dares to say anything because…well judges are appointed for life…” Finally, an interpreter summarized it very graphically in these words: “…the judge doesn’t care. There may be other priorities, but unlike federal judges, we cannot afford to go months without payment. We have to put food on the table for our families…” This particular judge has been on the bench for many years, by all accounts seems to have a good grasp of the law, but when it comes to other judicial skills, this judge has received poor reviews from a judicial evaluation commission such as: “…(the judge has exhibited) slowness when it comes to ruling on motions…” or: “…lack of punctuality to convene proceedings…” and even “…(having) poor judicial temperament while on the bench…” The judge was described as: “impatient,” “a yeller from the bench,” “mean spirited,” and “angry.”
I want to make it very clear that most judges and court clerical staff do a very good job at processing invoices and making sure interpreters are paid on a timely manner. Judges like the ones described above are the exception to the rule; but they exist and will continue on the bench.
Faced with this reality what can interpreters do to get paid on time? First the interpreter needs to make a distinction between those cases where the interpretation services have been rendered and the judge is procrastinating, and the cases where no service has been rendered yet.
For the first scenario there are the usual remedies that we all know: Talk to the chief staff interpreter once again, write to the clerk of the court, file a duplicate form with the court’s financial department; even talk to the judge’s clerk and explain your situation. This may accomplish the objective in some cases, but unfortunately it will fail most of the time because the approval of the form is not being delayed by any of these people. It is the judge who created the problem. So what is there left to do? Well, there may be a legal answer: The American legal system contemplates situations when the authority does not comply with its duty of doing or abstaining from doing something: The Writ of Mandamus. This may be an option available to the interpreter. The request for a Writ of Mandamus can be filed with the Court of Appeals having jurisdiction over the procrastinating district court judge asking the higher court to order the approval or denial of the interpreter’s invoice. “…(Courts) may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law…” [28 U.S. Code §1651(a)] Of course, before the interpreter decides to take this step, he must consider the consequences: (1) Because this blog is not giving any legal advice to anybody, the interpreter must consult with an attorney to see if a writ of mandamus is possible in that specific case; (2) The district court judge may simply deny the invoice. The writ can order that the authority take action but not the outcome of this action. Of course this may open other channels to the interpreter to appeal the judge’s decision on the invoice and that way get paid; and (3) The practical consequences of filing the petition including the possibility of being branded as a “troublemaker” by others, which could result in the loss of business and therefore the loss of income.
When the interpreter has not provided any interpretation services yet, that is, when interpreters are first contacted by the CJA attorney (or by the district court depending on the district) to request the interpretation services, the interpreter should always ask who is the judge in that particular case, and if it turns out to be a procrastinating judge’s case, the interpreter should refuse the assignment. Remember, you are a freelancer. Freelancing means that sometimes you may have to wait forever to get paid on a CJA voucher, but it also means that you are free to ban all procrastinating judges if you want to. The best way to avoid late payments is to avoid those clients who are always late. In fact, the interpreter should explain to the CJA attorney the reason for declining the assignment and reassure him that cases from all other federal judges will be accepted as usual. This should solve that interpreter’s problem. It may be very difficult to fix this procrastinating judges situation for all interpreters in all cases, but at least you will get paid on time.
Finally, I remind you again that this posting is not giving any legal advice to anybody, and I ask you to share with the rest of us your experiences and solutions to this terrible problem, and please do not mention any names.
November 11, 2013 § 7 Comments
In the past we have discussed professional and ethical issues in the blog, but I don’t believe we have ever tackled anything as serious as the situation I will share with you today. This happened to me many years ago and made me think about my professional and ethical boundaries as a court interpreter.
It all started when I was hired by an attorney to interpret during a final decree of dissolution of marriage hearing. In other words, I was retained to interpret in court for a person who was getting a divorce. I had never worked with this attorney before (or since) but I had seen him many times at different courthouses running from one courtroom to the next. He was a general practitioner who spoke Spanish, advertised on TV, and had a lot of cases. He called me, we agreed on my fee, and we made an appointment to meet at the courthouse right outside the courtroom some thirty minutes before the hearing. I arrived first and about ten or fifteen minutes later the attorney showed up accompanied by his client. Again, keep in mind that the attorney spoke Spanish. After the introductions, I asked the client the standard questions I am sure you all ask when you just met the non-English speaker: full name (for spelling purposes because there are no grammar rules when it comes to a person’s name) country of origin (for accent, regional expressions, and general vocabulary) academic background (to assess the individual’s mastery of the target language) and general health-related questions (in case the person may have a special request due to hearing problems for example) He answered all these questions to my satisfaction, and added that he “…had already discussed everything with (his) lawyer…(and) …everything was clear and in order…” The attorney, who was present during the exchange, confirmed in Spanish everything his client said. It was going to be an easy assignment.
When it was time for the hearing all three of us went inside the courtroom. As soon as I came in I noticed the court clerk, the court reporter, and the bailiff. I didn’t see the other party or her attorney. I asked my client about it, and he informed me that the other party was not going to appear. That she had been given notice by publication because she wasn’t at her last known address anymore, and that his client would probably be awarded sole custody of the children born to the marriage despite the fact that they were with the mother at an unknown location. This happens often, and I wasn’t complaining. The hearing was going to be even shorter. Boy I was glad I had successfully negotiated a generous minimum fee.
Next the judge came out and took the bench. The hearing started. After the bailiff called the caption of the case and my client and I entered our appearance on the record, the judge placed the Spanish speaker petitioner under oath and began questioning him. To my surprise, the petitioner told the judge that he and his wife had never lived together as a married couple in the United States. In fact, he told the court that his wife had never been to the U.S.
I looked at the judge and I saw that I wasn’t the only one in the courtroom that was shocked by the answers. The judge also learned that the petitioner had never paid child support to his children. Next the judge asked the petitioner when the last time he had known the respondent’s address was. The Spanish speaker said, and I interpreted, that although he didn’t know where his wife lived, he was pretty sure he could find out because her parents still lived at the same address they had lived at for over twenty years.
With that, the judge shook his head. Looked at the attorney for a long time, and then said: “…I hereby dismiss this petition for dissolution of marriage due to lack of jurisdiction. For this court to be able to hear this case, at some point in time the parties had to live within the judicial district as a married couple; unless without having lived within the jurisdiction, both parties voluntarily consent to the jurisdiction of this court. None of these circumstances happened in this case…” As if this wasn’t enough, addressing the petitioner, the judge added: “…Sir, I have no doubt that your attorney will explain to you what just happened. He will also explain to you the following order: It is the order of the court that petitioner pay child support to his minor children according to the schedule applicable to this district. The child support payment will be retroactive to the time when petitioner ceased to live with the minors. I find that I have jurisdiction to enter this order because petitioner is a resident of the judicial district. Good luck Sir…” The judge got up and exited the courtroom. There was absolute silence. The Spanish speaker turned to his attorney and asked him what had just happened. He even remarked: “…I don’t think I am divorced yet…” His attorney asked him to step outside the courtroom. We all did.
As we were leaving the courtroom, the attorney approached me and whispered to my ear in English: “…We better get your money from him right away. He won’t be a happy camper once he learns what just happened…” Once we were outside, the attorney told his client: “…Well, it didn’t go as we planned it, but we can fix it. I will explain everything when we get to my office…but first let’s pay the interpreter so he can go…” The Spanish speaker pulled out some cash and with no hesitation he paid me right at the steps of the courthouse. This was a first for me, but I had done my job, so I took my fee, gave him a receipt, and said goodbye. That was the last I heard about that case. To this date, more than twenty years later, I still don’t know what happened.
Now, for me to arrive to the conclusion that I should get paid for my services was a no-brainer. I did my job. The part of this situation that I had to debate in my head before I said my goodbyes was about the lawyer’s conduct and the damages caused to the petitioner by this apparent negligence. This is how I made my decision: First, I didn’t know all the facts. I had no way to know if the attorney and his client knew that a dismissal was a possibility, but what they were really trying to do was to avoid a long and costly divorce proceeding. It could be expensive to look for the spouse back in their home country. This could have been a strategy. Maybe the lawyer really spaced out and didn’t consider the possibility of a lack of jurisdiction; maybe they were going to regroup at the office and try to either find the spouse and get her to consent to the jurisdiction of the court, or to file a divorce petition in their country. Maybe the attorney was going to tell him that a child support order from this judge would be unenforceable back in his country, and that a child support ordered by a judge back home would involve a lesser amount that would be more in synch with the economy of the country of his children. Or maybe he was just going to apologize and refund the attorney’s fees. The thing is that I didn’t know and I had no reason to think the worst. Not many lawyers are willing to lose their license and reputation for a case that small. He was a big shot with TV ads and lots of clients. Moreover, that was not my role. I had no legal, professional, or ethical grounds to do anything other than to take my money and leave. There are legal channels for people who want to redress a controversy. The petitioner had to be the one to decide to do that, not me. The fact that he did not speak English did not mean that he was incapable to defend himself, and it certainly didn’t give me the right to get involved in a situation that was not my business. The judge didn’t get involved. He even said that he had no doubt that the attorney would explain everything to his client. So you see, I defeated that impulse that many colleagues have to become super heroes, and I stayed out of it. Of course, if subpoenaed, I would have testified to what I saw and heard, but that is different. To this day I believe that I did the right thing and I would like to hear from you to see if you agree or disagree. I also invite you to share with all of us other situations where you have faced ethical or professional issues and the way you resolved them.
November 4, 2013 § 15 Comments
Every time I write about some issue that involves consecutive interpretation in court, I get a considerable number of comments arguing for the disappearance of this mode of interpretation. Whether it is because of how difficult it is to render it, or due to some legal issue, the fact is that the number of interpreters, and courts, moving away from consecutive interpretation from the witness stand is growing every day.
Currently, there are many courthouses in the United States where the interpretation of a witness’ testimony is done consecutaneously: The attorney’s question is interpreted simultaneously by an interpreter sitting (or standing) next to the witness and the answer is rendered consecutively by the same interpreter. Other courthouses are using one interpreter for the simultaneous interpretation of the question, with the help of interpretation equipment, and a second interpreter, sitting (or standing) next to the witness, who renders the answers consecutively. The feedback from both systems, as far as I have heard, is positive. Apparently this approach solves the problems presented by the way cross-examination is phrased, keeps the jury focused on the witness, and not on the interpreter, and eliminates the unfair advantage that some witnesses have in cases when they speak some English, but prefer to employ the services of an interpreter, thus having an opportunity to reflect on their answer to a question while they “listen” to the interpreter’s rendition of said question. It is also true that this is not a “bulletproof” solution. Consecutaneous interpretation from the witness stand can be confusing to some lay witnesses; and in the case of different interpreters for questions and answers, it could present a problem when both, the question interpreter and the answer interpreter interpret correctly but using a different term. For what I hear, judges and court administrators love consecutaneous interpretation because it saves a lot of trial time, as the time for the consecutive rendition is eliminated altogether.
I must confess that for a long time I was a “purist” who opposed consecutaneous interpretation in the courtroom. Although I still dislike consecutaneous interpretation, I have changed my mind. Now I believe that in this world full of technology, where we go to the booth with nothing but an iPad, where we can do a word search in seconds, where we can interpret remotely from a different continent, we need to take advantage of everything that exists out there. The technology for simultaneous interpretation of a witness testimony already exists. I dislike consecutaneous interpretation not because I want to keep the consecutive mode for the witness stand. I dislike it because I think that we interpreters deserve better, the court deserves better, and the witness deserves the best possible access to the source language: simultaneous interpretation. Real time interpretation of everything that happens during the hearing or trial. Let us leave consecutive interpretation where it is needed: escort interpretation, jail visits, and some aspects of medical and community interpreting.
In an era where many hearings are held with the defendant appearing remotely by video, and attorneys file their pleadings electronically, there is no excuse to keep interpreting back in the Stone Age. There is no reason why the witness, judge, attorneys and jury cannot have access to a headset to hear in their native language the questions and answers. The argument that it is too complicated, that these people will be distracted by the equipment, is absurd. We are talking about the same people who drove themselves to court while listening to the radio or talking to their kids on the back seat of the car. We are talking about the same people who talk and text, walk and surf the net at the same time. Learning how to switch a button on and off is not brain surgery; moreover, they can just remove the headset when they don’t need to use it. By the way, this would also eliminate the distraction of having the interpreter next to the witness. It would remove the distraction of the interpreter’s whispering from the courtroom as we could be working from a booth like in all other venues where we render our services, and it would ensure more accuracy as we will be able to hear everything better from the booth. Will this cost money? Yes it will. Will these changes take time? Of course they will. It is all true, but at some point in time we have to start. Maybe if we start now the new courthouses will be designed and built with a booth. In new colleges and universities classrooms are built this way. Perhaps it will be other court systems that take the first steps towards this best solution. Many countries are switching over to the oral proceedings. They are building new courthouses. Maybe they can be the pioneers. Maybe the European courts will be the frontrunners now that they are implementing their new court interpreter system.
The point is, dear colleagues, it is clear that we need to move towards full simultaneous interpretation of all court proceedings. All that remains to be decided is when we start and where we take the first steps. Please share your comments and opinions on this issue.
September 16, 2013 § 11 Comments
During my years as an interpreter I have done a lot of court interpreting. I have worked interesting cases, boring proceedings, and nasty trials. While doing it I have had the opportunity to meet and interpret for great people and I have had the misfortune of interpreting, or better said: attempted to interpret, for horrible speakers. No doubt you all have had your share of difficult people regardless of the type of interpreting work you do; but court interpreting makes it particularly difficult when you are faced with the consecutive interpretation of the cross-examination of a witness.
For those of you who do not practice in the courts, cross-examination is a phase of a trial when the attorney for the counterpart interrogates a witness offered by their opponent. Because the witness has already testified for the side that originally offered him, the attorney for the other party in the controversy has the right to ask him questions about the contents of the statement provided during the interrogation by the party that presented him as a witness, to test inconsistencies in the testimony; in other words: to impeach the witness. To do it, attorneys are limited as to the questions they get to ask during this cross-examination. They cannot ask anything that goes beyond the scope of the original questions and testimony (called direct examination)
To be able to successfully uncover discrepancies and falsehoods, during cross-examination attorneys ask questions that suggest the answer to the witness and leave no room for long explanations or excuses. They do this by starting or ending all questions with phrases such as: “Isn’t it true that you saw him steal the money?” or “You knew all along where she was hiding, didn’t you?” This way the witness can only answer with a “yes” or “no.”
As you can imagine, this type of questioning is very difficult to interpret, not only because it is done consecutively, but because of the importance of the phrasing. The interpreter must interpret the question into the target language in a way that the answer has to be a “yes” or “no.” It is also important for the attorney asking the questions, and for the judge and jury, to see the immediate reaction of the witness after he listens to the question as the judge is developing a line of questioning that leads to impeachment, and the jury members are assessing the credibility of this witness. There are many attorneys that are very good at cross-examining through an interpreter. They know that they need to pause for the question to be interpreted before doing a follow-up question; they know that they must ask questions that are easily interpreted into the target language within the format explained above. Unfortunately, there are also many lawyers who do not know how to work with an interpreter in a trial, even if they have been practicing for a long time. You probably met these attorneys during your career. So did I.
However, among all those difficult to interpret lawyers I have worked with, there is one that is by far at the top of the list. I call him the attorney from hell.
Sometime ago I was retained to interpret for a very long trial with multiple defendants and many attorneys. My job was to exclusively interpret the testimony of the witnesses that took the stand. I knew several of the attorneys but not all. The trial started and we got to the witness testimony. Everything went fine for several days, until it was time for the attorney of one of the defendants to cross-examine a Spanish speaker witness from the prosecution. The attorney made this experience one of the most frustrating ones in my long career. In fact, he became a walking-manual of how not to cross-examine when working through an interpreter. First, he would repeatedly ask questions with double negatives, making these questions very difficult to understand, and portraying the witness as a liar when in fact he was trying to understand the attorney’s question. Next, when the witness would say that he had not understood the question (because it was a double negative) the lawyer would make fun of him and repeat the very same question very slowly and loudly. Obviously, he was trying to show the jury that this witness was reluctant to tell the truth, but in reality he was “talking to the wall” since his disrespectful questioning had to go through the interpreter before the witness knew what was asked. Obviously my interpreter colleague and I did not need him to repeat the question slowly; we needed him to get rid of the double negatives. By the way, we are not deaf either. I know many people speak very loud when talking to a foreigner who doesn’t know the language as if a loud voice could magically be understood in any language. This attorney never waited for the interpretation to be rendered. He would start making fun of the witness even before the witness had heard the full question; there were many occasions when the judge on his own; or at the request of the interpreter had to ask this attorney to wait for the question to be interpreted before asking something else again.
Imagine this problem, and combine it with countless false stops during the question where the lawyer stops talking, the interpreter starts the rendition, and half way through it the attorney continues with a second part of the question (which by the way is not allowed according to the rules of evidence). The result is a big mess. If this wasn’t enough, the attorney would constantly pull out pages from the witness’ prior statements to the Grand Jury (during the indictment phase of the case) and read for many minutes non-stop, then he would put the document down and ask the witness: “So is it or is it not?” Obviously it is very difficult to interpret this way as the interpretation of the written statement goes on for a long time, and then the interpreter ends with the question above. Needless to say, the witness gets confused, the attorney loses the jury as they have to sit there for a long time without understanding a word of what is being said, and the attorney gets impatient and interrupts the interpreter telling me or my colleague to stop right there, even though he doesn’t even know how far into the interpretation of the prior statements we got. Add to all of these atrocities that the attorney was sarcastic and used big words during the entire cross-examination (which many lawyers do and is justified as part of the impeachment process, given the fact that the witness will have a chance to rehabilitation during the re-direct examination by the attorney who originally offered his testimony) and the fact that the lawyer had a paralegal sitting at the defense table next to their client, and this person was acting as a sidekick to the attorney as he was constantly laughing at all the sarcasm during this dog and pony show. We did our job, interpreted everything as we should, asked for repetitions and clarifications every time it was necessary, and kept our composure and professionalism throughout the trial. Many people probably didn’t even notice the difficulties attorneys like this one create for themselves by not knowing how to work with the court interpreter, and this lawyer will probably work with interpreters many more times before his career is over. Now I invite you to enter your suggestions when this situation arises in court, and please share your stories about working with difficult attorneys during direct or cross-examination of a defendant or a witness.
June 4, 2013 § 12 Comments
Today I decided to write about something we all feel, or at least have felt at some point during our career. I am fortunate to have clients who hire me for assignments that are interesting, relevant, and professionally challenging. I get the topic, prepare, and execute my job to the best of my ability, and often during an event, I get stopped on a hallway by a person who recognizes me as the interpreter and congratulates me for the rendition or thanks me for my work. Interesting work, good working conditions, and excellent pay are key to a successful career, but that type of appreciation by those you just interpreted for (not by your peers or the agency programmer) is what keeps me going. That is my motivation to better myself every time I turn on the microphone in that booth. It is a pleasure to interpret for an audience and see how they are assimilating every word I interpret, how my job is making it worth for them to attend the conference, to listen to the presentation. When I am working I know that people are listening and understanding what I say. That is very rewarding.
Just like many of you, I have also worked in court for many years, and when I do, most of the time the experience is the opposite. When I am retained for a court proceeding I also prepare for my work, develop glossaries, learn the details of the case, and research the relevant legal aspects; however, as I begin to interpret a trial or a hearing, I soon realize that in most cases the defendant or whomever I am interpreting for does not understand what is happening. The purpose of this posting is not to underline the differences between these two kinds of clients; we all know that is a factor, I am not writing this article to talk about attorneys who do not explain the proceedings to their clients either. I am writing this posting to talk about the frustration that comes to you as an interpreter when you realize that after all the preparation and all the hard work, at the end of a two-hour hearing the defendant turns to you and asks you: “what did the judge say?” Once a colleague told me that the difference between conference and court interpreting was that in conference interpreting you prepare so that your audience understands your interpretation, and in court interpretation you prepare so that the other interpreter who is working the trial with you understands your interpretation, because she is the only one in the courtroom who will. That may be true.
My question to all of you is a complex one: How do you deal with the frustration that comes from knowing that those you are interpreting for do not, and will not, understand what you are saying, not because of a poor rendition, but because of their level of education? I am not looking for the legal answer that it is because of the constitutional principle of equal access to the law. I do not want the philosophical argument that it is the fair thing to do to serve justice. I don’t even want to hear that it is because we are interpreting for the record and not the defendant and our rendition is provided in case there is an appeal, and please do not take the easy way out by telling me that you are never frustrated when this happens. What I would like to read is your personal way to deal with this very human feeling of frustration of knowing that all your work will not be appreciated, that many times you could be there reciting a nursery rhyme instead of interpreting the hearing and the person you are interpreting for wouldn’t even notice. In my particular case, I do the best job I can because of me. I owe it to myself. It is my commitment to my own professional and moral standards to prepare and provide the best interpretation I am capable of. The owner of the ears that will hear me is irrelevant to my motivation to be the best. Of course I enjoy the praising that goes on when I interpret at a conference or diplomatic event, but I don’t let that be my motivation to excel. If I do, I would have a difficult time interpreting for those who I know will not understand and I cannot let that happen. Please tell us how you deal with this frustration.