March 21, 2019 § 5 Comments
Quite a few colleagues from California and other states, even foreign countries, have contacted me to complain about certain practices, and even legislation, that directly deprives them from their right to make a living by practicing as freelance court interpreters.
In California, the full implementation of the so-called “Language Access Plan” (LAP) goes into effect full blast by 2020. This is a strategy adopted by the State to meet the requirements of Title VI of the Civil Rights Act and keep California as beneficiary of federal funds attached to this legislation (http://www.courts.ca.gov/documents/LAP-Fact-Sheet.pdf).
The State had already partially complied with the federal mandate when it was sued by a non-for-profit organization, now a member of the State’s Advisory Committee on this Plan. As a result, California decided to provide, free, interpreting services to anyone who requests an interpreter in Civil matters. This is a universal rule, not limited by income-based eligibility requirements, and it applies to both: low income litigants with no ability to pay for an interpreter, who benefit greatly from this service, and Fortune 500 corporations that appear in court represented by high-price attorneys and rely on the expert testimony of expensive witnesses.
This decision by the State has nothing to do with the preposterous practice, followed by many States, to dodge Title VI of the Civil Rights Act’s mandate by creating de dubious “Justice System Interpreters” program (it goes by different names in various States) and save money, instead of fostering the development of real certified court interpreters and paying them a professional fee for their expert services. This mandatory policy California will fully implement by 2020 (unless the rule of law prevails and it is amended) impacts professional certified and registered (depending on the language combination) court interpreters.
California adopted a sweeping, populist demagogic policy that mandates free interpreting services for anybody in any court proceeding. At first, this looks like a fair and wise decision by a progressive State that wants to level the legal field for all its citizens, but if you just peel off the top layer, you discover the policy is wrong, expensive, incoherent, and illegal.
It is wrong because it treats all litigants the same way in non-criminal matters, going beyond Federal and State constitutional protections limited to criminal proceedings, and creating an even greater uneven field by rightly providing free interpreters to those civil litigants who cannot afford a private interpreter, and wrongly gifting the same option to those individuals and corporations with the means to pay for these services. A well-intentioned solution resulted in a policy that makes no sense.
It is expensive because the interpreters providing this service will be paid by the State of California through a judicial fund, wasting valuable taxpayer money in interpreter fees that should be paid by those civil matters’ litigants who can afford them. Court interpreter programs need more financial resources in California and elsewhere, and a State willing to invest money in language access programs should allocate those funds to professional development and better pay for those freelance interpreters serving criminal courts and interpreting civil matters for indigent litigants, not big business and wealthy individuals.
It is incoherent because Congress’ intent, in advancing these constitutional protections, was to give all individuals, regardless of their financial situation, the same access to the administration of justice even where they speak a language other than English. The legislator never envisioned a situation where taxpayers’ money would cover expenses derived of civil litigation, where life and liberty are not at stake, to favor those who do not need financial assistance. Under a rational basis criterion, taxpayers’ interest to judiciously spend their money substantially outweighs the needs of Fortune 500 businesses and millionaires to get an interpreter free of charge in civil matters.
It is illegal, because implementing this policy mandates all court administrators, managing interpreters, chief judges, and others in charge of court interpreting services at the courthouse level, to provide free interpreters in all civil cases, and, as it has been (almost) unanimously interpreted by these government agents, this means that freelance court interpreters should be banned and excluded from all civil court proceedings when their services are not paid by the judiciary, even when litigants prefer the services of independent court interpreters and they will pay for their services. California legislation establishes the requirements to practice court interpreting in the State as a certified or registered court interpreter (depending on the language combination). Perhaps these certification and registration requirements are meant to qualify as a court interpreter contracted by the court, but for the sake of argument, and because having certified and registered interpreters serve courts and litigants better, let’s assume however, requirements are necessary to practice as a court interpreter. Conclusion: As long interpreters meet the requirements, and until these credentials are suspended or revoked, they should be admitted to practice in any proceeding when the parties retain their services.
The other professional in a civil proceeding is the attorney. All parties may retain the attorney of their choice to represent them in any court matters; those who cannot pay for legal representation can seek assistance by non-for-profit organizations that provide attorneys for free or on a sliding scale. Attorneys are not excluded from a proceeding when paid by one party. I understand that, if you only see this situation from the litigants’ perspective, the issue is not exactly the same. Indigent litigants can appear in court pro-se if they cannot afford a lawyer, but non-English speakers cannot represent themselves, and their access to the administration of justice must be guaranteed by providing a court interpreter; however, in civil cases, said right should be tempered by the individuals ability to pay for an interpreter, so indigent litigants enjoy an even field with English speakers, taxpayers money is not wasted on paying for the services of an interpreter they can easily afford on their own, and freelance civil court interpreters can exercise their right to practice in the courts of California when their client will pay for their services.
Please remember that I am referring to those cases where litigants can pick their interpreters, just as wealthy people choose their doctors, lawyers, and accountants. I am not including in this category services provided by freelance court interpreters to indigent plaintiffs and defendants who cannot pay such fees but retain the interpreting services because they ignore a program would furnish an interpreter at no cost if they financially qualify for it.
The cases that concern my colleagues, and worry me as a member of the profession, are those controversies so complex, they need expert attorneys, witnesses and interpreters. These require of months of preparation, where interpreters are a crucial part of the legal team and often travel overseas with lawyers and investigators for interviews, inspections, and depositions. I am also talking about civil trials dealing with topics so sophisticated that attorneys, sometimes by agreement of the parties, hire freelance interpreters, not to be part of the plaintiff’s or defense’s team, but to interpret all court proceedings for the judge and jury. These interpreters are selected because of their experience on a particular subject, or because of their known skill and diligence, needed to prepare for a difficult, long trial, where branding, reputation, and a lot of money are at stake.
Some of our colleagues have told me that interpreters’ professional associations, interpreters’ labor unions (where they exist) and even staff interpreters oppose an amendment that will allow independent contractor civil court interpreters back in the courtroom.
This should not be the case. Staff interpreters should be glad to have one less issue to worry about. Civil Law and proceedings are very complex. Inexperienced civil court interpreters, even when they may have many years of criminal court practice, which encompasses most of those working as independent contractors with the courts, are prone to make mistakes when dealing with unfamiliar subjects and little time to prepare for a case. Professional associations, labor unions, and interpreters’ guilds are about advancing and protecting the profession. Excluding civil court interpreters from State courtrooms benefits no one. Even when the excluded professional is a non-unionized independent contractor, or these colleagues are not members of the professional association or guild, any policy that irrationally limits the livelihood of a group of interpreters eligible to perform a service hurts the profession and damages all, unionized, independent, and staffers. All agencies devoted to the advancement and protection of the profession must understand that independents, staffers, or members of a different association are not the enemy, we all play for the same team. We must channel our energy and resources to change legislation, regulations, and government policy like this one. We must remember: Those driving professional fees down, lowering professional standards, and destroying decent working conditions are the greedy agencies, not our fellow interpreters. In places like California where a professional association specifically deals with the interests of independent contractor court interpreters, such as AIJIC (http://www.aijic.org/), ask them to lead the campaign and support them in these efforts. States where there is not a professional association of independent or in general judiciary interpreters, local and State-wide professional associations must protect the profession by assuming leadership in this and other matters that affect professional interpreters in their State or region.
I have heard that government officials are unwilling to rectify because they do not want to lose face; that they worry about not getting federal funds if found noncompliant with Title VI of the Civil Rights Act; that they problem is stubbornness or ignorance of the interpreter profession or disregard for what interpreters do in a court proceeding.
Government officials must put constituents first and sometimes this means that a law, regulations, or public policy need to be amended. Can you imagine our country without the Twenty-first Constitutional Amendment repealing prohibition because legislators wanted to save face? Federal authorities over at the Justice Department would never retain federal funds from a State unless there was a violation of the Civil Rights Act. As long as there is equal access to the administration of justice, and the access is guaranteed to those who speak a language other than English by providing a free interpreter to those who cannot afford to hire one on their own.
The situation may be more difficult when dealing with stubborn or ignorant public servants. Here, after reasoning and dialogue takes you nowhere, and there is no other option, interpreters’ professional associations, such as AIJIC, supported by other national and local associations, including interpreter labor unions and guilds, should stop wasting their time with government officials who do not want to listen, and take their concerns to the interested parties: Attorney State Bars, local Bars, ethnic and gender-based Bars, Law Schools, Judicial Colleges and Associations, carefully targeted judges and legislators (not bureaucratic committees ruled by the same rigid individuals they could not convince before), and social media. Make the case that quality suffers when unprepared interpreters work in a case; clarify that certified and registered court interpreters cannot be denied access to the place where they find their livelihood. Help them see this situation your way; they have an interest on this policy, but it does not impact the way they make a living if left unchanged.
Civil court interpreting is a niche. Most certified and registered court interpreters are not familiar with civil law and procedure; court interpreter certification exams cover criminal law and procedure, not civil law. Since the implementation of Title VI of the Civil Rights Act nationwide during the Obama years, I have talked to many court interpreters scheduled by the courts to interpret civil matters who feel apprehensive and not-prepared. Even though the purpose of this post, and all my posts really, is to protect our profession and show all issues from the often-ignored interpreter’s perspective, often, the quality of the rendition and the administration of justice, would greatly improve if freelance civil court interpreters are welcomed back to the courtrooms in California and elsewhere. I now invite you share with the rest of us the situation of these civil court interpreters in your State, given the implementation of Title VI of the Civil Rights Act. I would also like to hear from those colleagues in other countries who may be facing a similar situation. Finally, please share your ideas to right this wrong.
March 26, 2018 § 25 Comments
A recurring theme among my court interpreter colleagues in the United States is the extreme difficulties they must endure when working under the Criminal Justice Act program (CJA). There are complaints about absurd paperwork procedures and unimaginable payment delays. Some colleagues’ invoices for professional services rendered under this program have been outstanding for over a year!
I worked with attorneys under the CJA program, but when the system changed about 18 months ago, and interpreters’ invoices had to go through the defense attorneys to get paid, and I heard some of the delayed payment stories from colleagues nationwide, I decided not to take CJA cases anymore.
For those of you who do not do federal court interpreting work in the United States, in 1964 the United States Congress enacted the Criminal Justice Act (18 U.S.C. § 3006A) to provide a system for appointing and compensating lawyers to represent defendants financially unable to retain counsel; and providing for payment of experts, investigators, or other needed defense services in federal criminal proceedings, including interpreters. Today, the Office of the Federal Public Defender, with the over 10,000 private “panel attorneys” who accept CJA assignments annually, represent the vast majority of individuals prosecuted in U.S. federal courts.
CJA panel attorneys are paid an hourly rate of $132 in non-capital cases, and, in capital cases, a maximum hourly rate of $185. These rates include both attorney compensation and office overhead. In addition, there are case maximums that limit total panel attorney compensation for categories of representation (for example, $10,000 for felonies, $2,900 for misdemeanors, and $7,200 for appeals). These maximums may be exceeded when higher amounts are certified by the district judge, or circuit judge if the representation is at the court of appeals, as necessary to provide fair compensation and the chief judge of the circuit approves. CJA attorney appointments are made by the Court on a rotating basis among members of the panel. Freelance federal court interpreters are paid with the same system, but with an additional step: Before their invoice goes to the judiciary, it must be reviewed and approved by the CJA panel attorney who requested the interpreter’s services. I guess interpreters are officers of the court of a lower tier, so they must be policed by the CJA panel attorney, apparently an officer of the court of a tier higher than the interpreter.
This process, not required when interpreters work directly for the federal courts interpreting court hearings or out-of-court interviews for public defenders or probation officers, created a burden on freelance interpreters who now devote a considerable, uncompensated time to the paperwork and its unavoidable eternal follow up process, that often takes many months and even years. Interpreters are billing for the time they worked as interpreters in a case, but that time represents but a fraction of the hours interpreters spend on paperwork, and follow up telephone calls, emails, and in-person visits to the courthouse, trying to discover the status of a payment for a service provided long before. This time goes uncompensated, and interpreters cannot work somewhere else, and generate income, while they are tied up in bureaucratic nonsense and begging for payment of rightfully earned professional fees. For all these reasons, and to keep my health, sanity, and dignity, as soon as the system started I decided not to take any CJA panel cases, and I have taken none.
I suggest you do the same. Once you do it, you will be surprised at the money you will save just by rejecting these cases. Those of you who know me, or have read this blog for years, know that I am always suggesting diversification in the profession among freelancers so you can keep steady income, and a stream of interesting assignments instead of a boring monotonous routine. Dear colleagues, there are plenty of options even if court and legal interpreting is your thing and you do not want to step outside your field.
The most desirable practice would be civil cases with well-established high-profile law firms. They generally handle interesting cases, have clients who understand and appreciate your work as interpreter, and pay excellent, professional fees when you negotiate correctly. Smaller civil law firms and solo practitioners are also a good alternative.
Next, you have the criminal defense private attorneys. They have time to handle their cases and they usually retain you for the entire case. Here your interpreting services are well paid, and you are exposed to challenging, but interesting cases. It is rare to work in a case involving white collar crimes when you spend your time providing services to public defenders and CJA panel attorneys.
Foreign law firms are also a very good choice. Globalization has generated a big multinational litigation practice, and those top-notch attorneys coming from countries where they do not speak English may need the services of a local court interpreter team. Fascinating topics, including intellectual property, foreign trade, mining, hazardous materials, are common with these clients. Family Law practitioners from these countries are also looking for interpreting services in cases of divorce, child support, international child abduction, and others.
If you want to fill in the rest of your agenda with more court/legal work, you can also provide interpreting services to the Office of the United States Attorney in your jurisdiction. Witness preparation, proffers, transcriptions, and other services are required by the AUSA. An added benefit: They are not bound by the (every-day lower) federal fees, so you can negotiate a much better compensation for your professional services.
If you like working with the federal prosecutors, then you must offer your services to the United States Trustee Program (USTP) for their exams and interviews in federal bankruptcy court cases. This is another source of legal/court interpreter income that pays well when you negotiate your fee correctly.
Finally, you can still work with the federal public defender and, if you want to interpret hearings instead of interviews, negotiations, and depositions, you can interpret for the federal courts. You will only make the set half –a-day or full-day fee, and you will usually get the same type of cases, but you will stay away from the long, demeaning, and never-ending invoice procedures associated with CJA panel attorney cases. As a less desirable option, but in many ways better than dealing with the CJA system, you could always work at the state-court level.
Dear friends and colleagues, there are plenty of alternatives to CJA assignments, even within the court/legal field. I believe that if you all were to do what I did from the beginning, the CJA system would have no choice but to change and become more interpreter-friendly. I do not believe on “fantasyland solutions” such as talking to chief judges and court clerks; it was tried in some districts and they accomplished nothing. We cannot continue to lose income, health, and dignity backing up a system that proved ineffective. I now ask you to share your comments with the rest of us.
October 12, 2015 § 9 Comments
We have seen over the past few weeks how a grassroots movement by some of our colleagues has produced results that until recently would have been considered unrealistic. I am referring to the freelance United States immigration court interpreters who, so far, have refused to accept the contractual conditions offered by a new federal government contractor that does not deal with them as language professionals but as unqualified laborers.
For many years, federal government contractors did their bidding and earned contracts from the immigration courts (EOIR) based on a widely accepted assumption that immigration court interpreters would take any fee offered to them, regardless of how low it was. This is how the bidding process worked and produced the abhorrent working conditions that LionBridge imposed on the interpreters, including extremely low fees, absurd cancellation policies, unprofessional treatment where the interpreters’ word had no credibility when their word conflicted with court staff, and even a penalty for those who wanted to be paid on time. For these reason many interpreters left, or never entered, the immigration court interpreting field. It was just unattractive to those who wanted to make a higher income and expected to be treated like professionals. Even now, the testimony of several attorneys reflects this reality when they comment that, many times, the quality of the interpretation in immigration court was lower than at those courts managed by the Administrative Offices of the Courts.
This is the environment that SOSi, the new bidder, encountered when they came into the picture. No wonder they pushed interpreter working conditions to a low never seen before. They assumed that this time would be like the others and interpreters would take the offer, no matter how unfair and insulting. They were wrong.
You see, friends and colleagues, a few things have changed since the last time the contract was awarded to LionBridge. By the time SOSi bids for the EOIR contract, there were more interpreters with a formal education than before; these colleagues had entered to the world of immigration court interpreting for many reasons: to gain some professional experience, to put their name out there, to have some income to begin to repay their student loans…
They worked as immigration court interpreters, but they were not there to stay; their time working over there would be a step towards a more fulfilling and better paid career. They did not plan to stay, but while they were there, they shared their ideas about professionalism and their personal dreams with the other interpreters who were already there. They inspired many of them to study to better themselves as interpreters, to go to a community college and study interpretation, to take a state or federal court interpreter certification exam, to become certified as healthcare interpreters, and so on. The crowd that SOSi encountered did not look much like the one its predecessor found some twenty years earlier. The result: They would not put up with worse working conditions than the horrendous ones they had suffered from the previous contractor, so they refused to sign the contracts, and the deadline for SOSi to take over interpreting services came and went without fulfilling their obligation because of their lack of the most precious and indispensable asset to provide interpreting services: the professional immigration court interpreter.
These colleagues took advantage of things that were not there the last time the contract was up for bids: social media, communication and peer support, information about the working conditions of other court interpreters working somewhere else, and the experience of our colleagues in the United Kingdom with another agency devoted to the degradation of the professional interpreter: Capita.
The refusal to sign these individual contracts happened all over the United States, the voice got louder, blogs spread the word and informed some not-so-well known facts about the contractor (https://rpstranslations.wordpress.com/2015/08/31/disrespecting-the-immigration-interpreter/) virtual forums were created, professional associations intervened, the media wrote about this issue in English (http://www.buzzfeed.com/davidnoriega/immigration-courts-could-lose-a-third-of-their-interpreters#.sopPZ5w26) in Spanish (http://www.eldiariony.com/2015/10/07/disputa-laboral-de-interpretes-amenaza-con-agravar-demoras-en-tribunales-de-inmigracion/) and discussed it on the radio (http://www.scpr.org/programs/take-two/2015/10/09/44770/backlog-at-immigration-courts-could-grow-with-a-pa/)
The contractor, probably frustrated by this “unexpected occurrence”, apparently decided to get help from local language services agencies all over the country to see if, by buffering this link between them and the professional immigration court interpreter, some colleagues would agree to sign the individual contracts, and, unless there is some legal figure no interpreter is aware of, as a result of their signature, they would become contractors of a sub-contractor (the local agency), putting them one more step away from the entity that won the contract: SOSi. In fact, I have heard from several interpreters in different cities who have contacted me with their concerns about the contents of this contract that has been offered to them.
Although the following is in no way legal advice, nor is intended in the slightest to be such a thing, I have decided to give my opinion about some of the portions of the contract as they were presented to me by my colleagues. Remember, this is just my opinion, based on my many years of professional experience as a professional interpreter, and my years in law school. Your opinion may be different and I will not dispute such a thing. Let’s see:
The most common concern about our colleagues can be summarized by this colleague’s observations: ‹In general, I have my doubts that my previously negotiated half/day and full/day rates would really be respected, in light of SOSi’s option to pay these “…unless EOIR determines that using a different CLIN would result in less cost to the government.” What does this mean in plain English?
There is a legal principle in civil law (and contracts are civil law) called the parol evidence rule. This principle states that all negotiations between the parties to a contract that took place before or simultaneously to the signing of a contract, that are not clearly spelled out on the document, are non-existent and therefore, non-binding and unenforceable. This means that all “negotiated rates” that are not in writing are irrelevant. (https://en.wikipedia.org/wiki/Parol_evidence_rule) (http://thelawdictionary.org/parol-evidence-rule/)
A follow up question to the last comment was this one: “what is a CLIN?”
Although I do not know for sure, I believe that “CLIN” in this context refers to “Contract Line Item Number” This would mean that if EOIR finds a legal way to pay less than the “previously negotiated rate” or If other interpreters are willing to work for less, the pay could be impacted.
Some interpreters are concerned about the travel expenses when they are asked to go out of town to interpret a hearing. Apparently, the section of this contract that addresses this issue does not mention the English<>Spanish interpreters. As far as travel expenses, keeping in mind that English<>Spanish interpreters cover the immense majority of the immigration cases, my feeling is that they could be leaving the English<>Spanish interpreters out of the equation because they feel they can meet these needs with Video Remote Interpreting (VRI) and with local folks if needed.
It is also worrisome that said contract seems to emphasize “telephonic interpreting”, indicating that this service will be paid at an hourly fee. As we all know, like all professional services providers, interpreters sell their time. Getting paid for the time interpreted based on an hourly pay would result in a detrimental situation for the interpreter, because nobody is paying for the time it takes to this professional services provider to get ready to do the rendition (travel to the courthouse or detention center, setting aside big chunks of time to do the assignment, etc.)
According to some colleagues, SOSi appears very firm on its insistence that interpreters compete for offered work assignments on a generally accessible “available assignments” website. In other words, interpreters would no longer be contacted individually, as with Lionbridge, to accept or reject offered assignments. Apparently, SOSi’s recruiters have explained the validity of this policy as a way to avoid having to hire assignment coordinators.
In my opinion, Immigration court interpreters must keep in mind that SOSi’s contractor history and system is based on bidding subcontractors. That is how most Department of Defense contracts work (and remember, they are primarily a defense contractor) so I don’t see them changing strategy. All interpreters could be considered subcontractors bidding for a job every time there is a need for an interpreter.
This is the most critical hour for our immigration court colleagues because this is when experienced agencies and contractors put in practice their well-rehearsed tactics. Some interpreters may decide to sign a contract even though the “promised, negotiated fee” is different from what the contract states, or it is hidden in an appendix or table. Immigration court interpreters will only achieve the dignified treatment they deserve, and has been denied for so many years, if they continue to speak with one voice, and it will get more difficult unless those with more experience and formal academic education step in and help their colleagues. We must remember that fear can derail any project, and the immigration court interpreters are not a homogeneous group. Unlike conference interpreters, many of them interpret at a questionable quality level, others may think, deeply inside, that the ridiculous fees offered by the contractor are not so bad, some may live from paycheck to paycheck, and may decide to sign the draconian contract; and some of them may not really be freelancers, but employees with no steady job.
The truth is, that to get to a professional fee, the interpreters have to be willing to stay away from the immigration courts for as long as it takes, and during that time, if they are truly freelance interpreters, they will find their income doing so many other interpreting assignments. If they are really independent professionals, they will have to come to terms with the realization that well-paid immigration court interpreting will not be an everyday thing; it will be one of many other interpreting assignments that the true freelancer will have to cover. EOIR is a client. It is not an employer.
The contractor, SOSi, LionBridge, or any other has a responsibility to their shareholders, and that is fine. The federal government has budgetary limitations, and that is fine. It is because of these undisputed facts that the independent immigration court interpreter needs to understand that to get the financial resources to cover his professional fee, the service will have to be more efficient. Less hours of work at the EOIR, but better pay. That is how the freelancing world works, and all interpreters will need to understand it; otherwise, the lesson learned will not be the one this entry begins with, but instead, the lesson will be that once again, because of the interpreters’ lack of determination and unity, things will stay the same. I ask my dear friends and colleagues not to waste this unique opportunity in their careers.
Although these lines merely contain my personal opinion, and in no way this pretends to be any legal advice for anybody, if I were facing the situation these immigration court interpreters in the United States have in front of them, I would hold on to signing anything until it is clear who stays and who does not. If SOSi stays, to become attractive to the interpreter community, they will probably make some changes to their contractual policy towards the interpreters. If there is a new different language services agency, I would wait to see what they have to say first. Also, for my peace of mind and for the safety of my professional future, I would never sign a contract after talking to the HR people. I would ask for the legal department because I would need to understand, and know, the contractual terms, and the likelihood that they will be honored by the language service provider. I now invite you to share your opinion with the rest of us, and for the benefit of as many interpreters as possible.
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.
Who should interpreters target as their clients in a world where many want to pay lower fees? Part 1.
July 28, 2014 § 15 Comments
I consider myself very lucky because my job takes me all over the world; this allows me to see many of my friends and colleagues as I visit their towns and countries, and also gives me the opportunity to keep up with the local interpreting and translation issues that are impacting that particular area. It gives me great joy to hear about the personal and professional accomplishments of so many talented friends; and unfortunately, I also get to see the sadness, anger and frustration of so many who are working under conditions that no professional should suffer or tolerate. I cannot tell you how many times I have listened to these horror stories where the main characters are permeated by mediocrity, ignorance and lack of ambition. It was after one of these episodes, not long ago, that I decided to write about this topic in order to identify the problems and propose some solutions that have worked for me and for other colleagues in the past. This topic is broad and will require of several posts. I will address separately on three different posts the situation of court interpreters, community interpreters, including health care interpreters, and conference interpreters.
First I will talk about the court interpreters because they are a large part of the interpreting community in the United States (only second to military interpreters) and they are a growing segment of the profession in many countries around the world. When I think of many of the freelance court interpreters I know, one thing that puzzles me is: how can they be happy and fulfilled working under such conditions? In certain administrative courts they are paid very little money, sometimes they do not get Per Diem when traveling to another location, and on top of that, they are not treated like professionals. They are required to get paperwork stamped and signed by others, sending the message that because they are not trustworthy, somebody else needs to watch what they do; And by the way, if they want to get paid on time they have to be willing to accept a smaller paycheck (there is a pay cut policy in exchange for faster pay). Of course this is an extreme case, and I would have called it the worst if this article had been written before the United Kingdom court interpreter fiasco that insulted capable professional interpreters in their professionalism and in their pockets. Of course you all know what happened over there and we are all familiar with the ever-bigger problems in the British justice system. Enough for now, but I will return to the United Kingdom court interpreter saga later on this post.
If you think that things get better for those interpreters who freelance in the state-level court system of the United States because these are not administrative courts, you have not worked there for at least a decade. At this level, in most states, interpreters make a little more money than those working the immigration court system, but they are still getting a laughable fee for their professional services. This low pay does not feel any better when you combine it with rules and policies designed for laborers and not for a professional service provider. I am talking about agency-controlled state court markets, incomprehensible policies that are keeping good interpreters from making a decent income in civil cases, the “annual payment limit” contained in some states’ independent interpreter contracts, the “even distribution” of work policy of other states where good and mediocre interpreters basically get the same amount of work from the state as long as they are state-certified, or the backwards legislation that gives certification and oversight of court interpreters to the state judiciary in a state where this was not the case, and now will pull interpreters down to the same level of the other states where the same party that hires certifies. A move unheard in other professions like lawyers and physicians, but even celebrated by many interpreters in this state. Add to this landscape all the endless and ever-changing micro-management requirements by local courthouses, many other rules that I will just skip for the sake of brevity; and finally, throw in there the agencies that are run by people with no formal education, experience, or practical knowledge of interpreting (as the ones who procure interpreting services for most administrative courts) and pay their interpreters even less money, and you will have the big picture; the same picture I see every time I hear a new story, learn of a new travesty, or witness a horrendous performance.
Dear friends and colleagues, I cannot help it, but it is at about this time that I always wonder why my friend or colleague is still working as a court interpreter under those circumstances! The answer is simple and complex at the same time. Simple because as a freelancer all it takes is a moment of courage when the interpreter decides: Enough! No more. Complex because not everybody is willing or capable of making this decision. Different people, different priorities, different ideas, different set of values, and different goals in life. Although I have belonged to the former group all my life, I understand those who belong in the latter. The thing I cannot understand is why they do not take action and change things for themselves, and maybe for their profession at the local level.
It is possible that many people living under the circumstances described above will not be able, for different reasons, to move on to another type of interpreting assignments, but they can always pick their clients wisely. Let me explain:
One thing I have never understood is why on earth so many of my freelancer colleagues see themselves as court employees. I have heard hundreds of times how they introduce themselves as interpreters for the courts; I have heard them refer to court administrators, court clerks, judges, and staff interpreters as their “boss”! Obviously this immediately tells me that if they see the court, the interpreting agency, or the state judiciary as their employer, they cannot see them for what they really are: their client.
Once the interpreter comes to terms with this issue, and understands that she does not work for anyone but herself, she can focus on picking her clients. She will soon realize that mediocre interpreting agencies, state judiciaries, and even the federal court system are nothing but clients, and clients that pay very little (some of them rarely on time) in exchange for what they expect from the interpreter. They pay low fees for the interpreting service, but many of them want you to do so many other things for the same token fee: these interpreters must prepare endless paperwork, learn (sometimes absurd) court or agency policies that are only applicable to that particular courthouse, translate documents in between hearings, attend (often self-serving) unpaid meetings scheduled by the agency or court administration; and many times they demand, without saying it, exclusivity and they “punish” an interpreter who cancels the assignment for a better paying professional opportunity. Once the interpreter sees them as another client, she will realize that, because of their practices and philosophy, they are not at the top of her client wish list, and she will understand the need to find better clients.
Now the question is: If all interpreting agencies that control the administrative courts, and all state-level court systems are not to be considered as top clients, what else is there? The answer is: The good clients!
All interpreters who want to make a decent living in the legal field need to provide their services to the private bar. It is true that in the United States the states are now observing Title VI of the Civil Rights Act, and in many cases the states are keeping independent interpreters from working any civil cases unless paid through the courts; but even under these circumstances, there is plenty to do. First, those of you who live in states where independent freelancers coexist with state contractors, and are allowed to provide their services in civil court to those who turn down the court-appointed interpreter and prefer to hire their own, you should enter this field full-blast. The federal system does not provide court appointed interpreters in civil cases, and for those who are federally certified this is another option, in fact, it is a much better option than working criminal cases for the federal court system because the pay is much better.
The main option available to all of those who have a valid certification at some level (state or federal. Private language agency certifications are not considered valid) is to become a legal or “out-of-court” interpreter instead of a court interpreter. Legal interpreters provide their professional services to Law Firms and attorneys for depositions, office interviews, witness preparation, jail visits, expert opinions, expert testimony, transcription and translation services, and even in court at the plaintiff’s or defense’s table. Interpreters negotiate their fee with these attorneys; there are no pre-set limits, no endless meetings, and for the most part, the cases are interesting: there is more variety in civil court; and the cases that you should go after involve enormous amounts of money in damages. These are the type of clients I try to have, and I spoil them, pamper them, and protect them with the best service you can find anywhere. The point is, my court interpreter friends and colleagues, if you don’t want to move to a bigger city, if you don’t want to travel, or to learn a new field, the next time you get angry because of an absurd new rule, because you are not getting paid on time, or because you got tired of being treated like a laborer instead of a professional, stop working for the system, get out there and look for the big clients: the large law firms, the corporate legal departments, and talk to them; sell them your services, and start enjoying your career once again. Who knows? If enough good interpreters leave the system, the system will have to hire mediocre individuals, and sooner or later the government will have to sit down with you and talk fees and other work conditions. This is what is happening in the United Kingdom where a group of courageous, determined, and brave interpreters walked out and never went back. They made history, inspired us all, and showed us that although difficult at the beginning, there is life after the courthouse. I invite you to share with us your opinions and comments, and I ask you to avoid name-calling, specific cases, and arguments defending agencies or the court interpreter wages.
June 18, 2014 § 4 Comments
I attended a professional conference not long ago, and during one of my presentations, I asked the audience what was their opinion regarding the fairly new requirement that state-level civil courts in the United States, that get federal funding, must provide free interpreter services in all civil cases or lose that federal assistance. I was shocked by the answer given by several colleagues: They thought it was a great idea and it was good for the profession. I can understand the principle of making sure that all litigants be guaranteed equal access to justice by eliminating the uneven situation encountered by those who do not speak English during a non-criminal court procedure. I applaud the existence of the Civil Rights Act.
This does not mean that the way to accomplish such a high goal is by eliminating a work source for an entire segment of the professional population. The right thing to do was to provide court interpreting services for free in all civil matters to those who could not afford to pay for the services when provided by a private interpreter. In other words, there should be a system that mirrors that of the attorneys in criminal matters where individuals have a choice to retain the attorney of their choosing and if they cannot afford one the state provides a public defender for free.
The current situation, which has been supported and celebrated by many interpreters and professional associations, is flawed. Courts at the state level are covering civil hearings with interpreters that they label as “certified” although in reality these colleagues have only been certified as criminal court interpreters. To my knowledge there is no court interpreter certification exam in the United States that tests the interpreter’s knowledge in Civil Law, civil procedure, or terminology. In fact, many certified court interpreters who had never worked in Civil Law hearings are now providing the service; some of them reluctantly and out of fear of not being hired by the particular state court system if they refuse to do civil cases. This specialty work, that until now was provided by a group of very capable Civil Law court interpreters, is now being performed by a mix of good interpreters, good interpreters who do not know civil law and procedure, and mediocre individuals who are hired by the state level courts in order to comply with the federal mandate even if it is by just having a warm body next to the non-English speaker litigant.
Unfortunately, the current system is causing that all cases be covered by court interpreters provided by, and paid for, by the states. Some of us are fortunate enough to have a portfolio of attorney clients who are used to our professional services, and will continue to use the services of private interpreters, at least in out-of-court settings such as law offices and boardrooms; The problem is that it is now more difficult to convince prospective new attorney clients, who do not fully understand the value of retaining your own competent professional court interpreter, and pay for the service, instead of using the court appointed interpreter. Ant it gets worse, some of my colleagues who are good interpreters and used to have a decent amount of work through private Civil Law attorneys have bought into the system and are now providing their same upper-end quality services for a very low fee paid by the states. As you all know, criminal court interpreting is not a very well remunerated practice in the United States, and when it comes to the state level it is frankly appalling in some states. Historically, the best way to make a decent living working as a court interpreter in the United States has been to work as a civil court interpreter. Now we are at risk of losing this important part of our practice. At the state level it is disappearing as far as in-court work, leaving civil court interpreters with only two options (for now): out-of-court work at the state level such as office interviews, depositions, and witness preparation, and federal court practice where private interpreters can still provide their services.
To me it is crystal clear that it is impossible to celebrate anything as a victory when the outcome of that change results on a direct elimination of the source of income of another innocent group, in this case the court interpreters. The sad part is that, as I explained, the same universal access to civil courts could have been accomplished by inserting a provision indicating that free court interpreter services would only be provided to those who could not afford to pay for the services of an interpreter according to a certain income level and cost of living criteria.
As bad as this is, it is more frustrating and even discouraging to see how so many of our colleagues just go about their lives accepting all of these changes and even applauding them without ever thinking of the consequences to our practice in general and to them as individuals. I cannot find a good explanation as to why professional interpreter associations have voiced their opinion in favor of this policy without even thinking of the harm to the profession, to their fellow colleagues. Dear colleagues: Nobody spoke for the court interpreters when these changes happened! I know I will continue to educate my clients so they continue to retain my services regardless of policy changes; I know I will continue to talk to all those colleagues who ask for my opinion when these type of unfair situations happen, whether it is state-sponsored civil court interpreters, agencies who want to force court interpreters to work depositions alone totally disregarding universal principles about quality of interpreting, systems that want to unilaterally impose low cost, and lower quality, interpreting services by using new technology even when the quality of the service suffers, or any other issue that could impact our work as professionals. I will also look for professional associations that may share this same philosophy and are willing to raise their voice to bring the attention of the professional community to unprofessional practices and policies that hurt the profession or those who practice it. I now ask you to please voice your opinion on this issue, especially on civil court interpreting and how state-sponsored civil court interpreting brings down our professional income.
May 12, 2014 § 8 Comments
With the new National Code of Criminal Procedure (Código Nacional de Procedimientos Penales) just enacted in Mexico this past March 2014, the country with the largest Spanish speaking population in the world took one of the most dramatic steps on the implementation of their new oral legal proceedings. As many of you know, for the past few years Mexico has been moving towards a new judicial system that resembles the adversarial procedure followed by Common Law countries, and distancing itself from the more formalistic written inquisitorial system that comes from the Roman/French legal tradition. There have been constitutional amendments, training programs for judges and attorneys, and they are currently in the middle of an important legislative overhaul to match all legal precepts to the new process. These changes have brought two significant changes to our profession as court interpreters in both, Mexico and the United States. The first one is the obvious greater need for court interpreters as the new system will require services that the old written procedural rules did not. The second fundamental change, and the one that will impact the profession in the United States more than anything in the past, is the creation of new terminology and vocabulary by the Mexican legislator that will mirror very closely the criminal (and later the civil) procedure followed by the United States. In other words, for the first time ever, we will have a catalog of legal terms in Spanish that will be the law of the land in a country with close to 115 million Spanish speakers. Add to this reality the fact that Mexican society has an intense interaction with American society, and that most of the Spanish speakers in the United States are Mexican, and you get a combination of trade, crime, cultural exchanges, and family matters in Spanish that involve the two largest Spanish speaking countries in the world.
For the Mexican court interpreter, living in Mexico or in the United States, this will translate in a tremendous workload increase on the Mexican side of the border; for the Spanish language court interpreters who work in the United States (with the exception of some areas of the country where non-Mexican Spanish, particularly from Central America and the Caribbean, is broadly spoken) this means the emerging of a new culture where people who recently moved from Mexico to the U.S., Mexican citizens who live in the United States but get their news from the Mexican media, and their relatives who continue to reside in Mexico, will need and demand an accurate interpretation employing the official legal terminology in the Mexican legislation. Many of you work, as I do, with Mexican attorneys, and you know how they are always looking for interpreters and translators who can work with Mexican legal terms instead of “homemade” terminology generated out of necessity when there was no adversarial legal system in any Spanish speaking country. My friends, I suggest that there will be an even greater need for Spanish interpreters as the involvement of Mexican attorneys and Law Firms increase and their lawyers retain the services of court interpreters who know Mexican legal Spanish. By the way, the same comments apply to those court interpreters with knowledge of legal terminology from other Spanish speaking countries where the oral system is being implemented; Chile and Costa Rica are pioneers of this change. I emphasize the Mexican changes because they are the most recent and impact a much larger number of people. At this time the big question on the table for us as interpreters, particularly those who live in the United States, will be: how do we react to this irreversible change? I know I will embrace it, learn the new terminology, and apply it to my work. I hope most of you will do the same.
To those colleagues who might say that there is already a terminology used by many interpreters in the United States, and that it is the Spanish speaker who needs to realize this fact and get used to this current vocabulary, I ask you to consider two factors: (1) the language used by many court interpreters in the United States has been helpful and even useful in its attempt to provide an equivalent term that non-English speakers could understand. It was a great accomplishment in times when there were no official sources in the Spanish-speaking countries; but it is not official and in many instances it uses non-legal or lay terms that are not catalogued in any legislation; and (2) Mexican attorneys want to understand what the interpreter says and at the same time they want to devote their attention and energy to the legal problems of the case, they do not want to spend their energy trying to understand the vocabulary the interpreter is using and they never heard before; in other words: from the interpreter’s perspective adapting to the change is also a business decision.
On May 16 I will take some of the first steps by offering a preconference workshop during the NAJIT Annual Conference in Las Vegas, Nevada. Those who join me will be exposed to the most recent legislative changes by the Mexican government, will hear of the policies that Mexico is adopting to forge ahead with the adversarial system, and will see first-hand how these oral proceedings are conducted over there. I invite you to please share your thoughts on this huge change, and to tell us how you plan to adjust to it; or, if you do not think that you have to change anything you are doing right now, please do not just say that you will continue to do the same, instead, I invite you to explain why you will not adjust to these changes, and how they will not impact the place where you work as a court interpreter.
June 25, 2012 § 2 Comments
As an interpreter who also teaches continuing education I am especially receptive to comments and criticisms by colleagues who attend continuing education workshops. I pay attention to what they have to say, good or bad, about a class they took, whether it is a college-sponsored seminar or a privately organized presentation. Many times I hear good things about the subject matter or the presenter, but it seems to me that the most popular complaint is that the classes are boring and they do not give anything to the interpreter that he or she can use to improve performance, access to the professional market, or plain and simple have a better income.
When I decided to teach continuing education for interpreters, transcribers, and translators many years ago, I made the decision to teach interesting topics that could aid the professional linguist in his or her career. This is what I have done all over the United States. Many of my students and workshop attendees have told me how they learned something that made a difference in their careers. I have always believed that a good interpreter must know his craft, and must provide ethical service. With this belief in mind, I have presented ethics and practical subject matters in different formats: One-hour to all-day presentations at national and regional conferences, multi-day workshops at colleges or privately sponsored events, and one-on-one tutorials. By taking my seminars, colleagues have passed court interpreter certification exams, they have been hired as staff interpreters, and they have secured professional contracts with governments and corporations.
This Friday I will be teaching a court interpreter ethics class in Columbus Ohio at the invitation of the Ohio Supreme Court. The day-long seminar will cover many relevant aspects of ethical interpreting in the court system, will analyze the code of ethics at the federal and state levels, and will give local interpreters an opportunity to test their knowledge and comprehension of interpreter ethics while participating in useful and fun practical exercises. The seminar, presented in English, will meet continuing education requirements for the Ohio court certification program and others.
On Saturday I will give a half-day presentation on Mexican legal terminology at the Texas Association of Judiciary Interpreters and Translators (TAJIT) IN San Antonio. The presentation will focus on Mexican Spanish legal terminology in Criminal, Civil, Family and Administrative Law. Those attending will get a better idea of the Mexican legal system, its similarities, and its differences with the American system, but more importantly, will teach them the methodology to research the meaning and significance of legal figures, terms, and principles. The idea is that at the end of this presentation the interpreters will be able to better understand what they do, and will feel comfortable about taking Mexican attorneys and businesses as their clients. Those attending this presentation in Spanish will receive continuing education credits in Texas, New Mexico, and other states.
I invite you to attend these classes and I encourage you to tell me what you would like to see as continuing education topics that I may teach in the future.