What are court interpreters afraid of?

April 10, 2015 § 18 Comments

Dear colleagues:

During my many years of practice I have seen and heard a lot of things. As a staff interpreter and as a freelancer, I have attended meetings where court interpreter policy had been discussed.  I have many friends and acquaintances who were, and still are, court employees.  A good number of them do a good job, others do not. From the staff interpreter’s perspective, these policy meetings are permeated by two very strong forces:

The sense of duty to the profession that these colleagues experience as they hear the sometimes absurd proposals by their bosses. This makes them reflect on the reason why they were hired in the first place: Their knowledge of the profession, so they end up putting themselves in the shoes of the practicing freelance interpreter who is about to be victimized by the judicial system. They have to go through these emotions. No doubt. It happened to me when I worked for the courts.

The second, very powerful force in the meeting room is called the sense of loyalty, the corporate spirit. They are constantly reminded, directly and indirectly, that they are now one of “us”, the court administration; that they are no longer one of “them”, the freelancers.  They perfectly understand that loyalty is expected. These two forces clash inside the staffer’s head and heart, and the collision can produce two results:

The clear realization by the staff interpreter that he was hired to present the professional interpreters’ perspective, to make sure that no decision would be made without first considering and evaluating the effects of such changes on the delivery of the service and the quality of the performance. When this happens, the interpreter opposes all nonsense that is about to become institutional policy, and voices his objections out loud, perhaps suggesting a meeting with the freelancers before any decisions are made.

Unfortunately, the second result is the one that prevails most of the time: Staff interpreters, afraid of losing their jobs, or at least the favor of their supervisors, remain silent, and sometimes may even suggest the steps need to implement the new policy despite the freelancers’ opposition.  Of course, it is easier to act and react out of fear.  Some of these interpreters are more concerned about their retirement than about the interpreting services provided in their jurisdiction.  Others are terrified of the idea of losing their job and having to go out there to fight for every single dollar they would have to earn as freelance interpreters.  Fear means inaction. It means that harmful decisions, sometimes adopted in good faith by the administration, will become the new rules, and staffers will do nothing to stop it.

This is how bad policy comes to be. How it becomes a reality is up to the freelance interpreters, because once the wrong policy is implemented, independent contractor interpreters have two clear options: They can refuse to work under those circumstances and look for other clients, or they can renegotiate with the courts (sometimes they should even take legal action when the administration has clearly breached the terms of the independent contract they may have with the freelance interpreter).

Unfortunately, many interpreters prefer to submissively accept the new rules and comply, even if it means less income, even when it is demeaning to the profession.  They are acting and reacting out of fear.  The thought of waking up tomorrow and realizing they do not have to go to court because they were not asked to interpret scares them to death. To them, court work, even in exchange for a rock bottom fee is peace of mind.  They firmly believe that as long as they keep working, even when underpaid, they are doing the best they can.

This is the biggest problem that court interpreting faces as a profession in the United States, because, unlike our colleagues in the U.K., too many court interpreters in America are willing to roll with the punches and work more for less and under worst conditions.  Many interpreters forget that courts are a client, not an employer. The court administrator and the interpreter supervisor are not their boss, they are a client, and they are not even your best client, as courts pay far less than private clients in the legal field.  Interpreters must remember that as providers of a professional service, they are bound by a contract, and so are the courts. Both parties are equal. Nobody is less. Contracts are meant to be negotiated, not blindly accepted; and just like with everything else in life, when the terms of the contract are not what you want, walk away without signing on the dotted line. There are other clients.

When court interpreters start thinking of the courts as their client, not their boss, the free market will kick in, and interpreters, just as attorneys, will be able to get a professional fee. Until then, I am afraid that court interpreting will continue to go backwards.  I now invite you to share your ideas and proposed solutions regarding this crucial issue to the future of court interpreting, and please, do not answer by saying that there is no other work outside the courts, because there is.

Some interpreters in the U.S. may not have an even playing field anymore.

December 11, 2014 § 4 Comments

Dear colleagues:

The issues discussed in this post apply to situations lived by many interpreters all over the world. Our profession is growing and fighting for recognition and prestige. For this reason, I think all interpreters should read this story, regardless of the country where they provide their services.

Every interpreter who has worked with the judicial system in the United States knows that court interpreting at the state-level is very different from providing our services at the federal judiciary. We also know that there are sharp differences on how each state procures court interpreters to meet their legal needs. Although most of them pay very little to the certified court interpreter, some pay “better” than others; some treat interpreters better, and some remain ignorant as of the role of the interpreter and its high relevance to the judicial process. This is all widely known; some court systems are infamous for treating the interpreter as an inconvenience rather than a constitutionally-mandated component of the judicial process (in criminal matters). This is not the issue that I want to discuss with you today. I want to talk about something else.

I would like to discuss with you the new scenario that our state-level independent court interpreters in the United States are facing with the enforcement of Title VI of the Civil Rights Act of 1964 (not a moment too soon) and the financial difficulties and budgetary cuts that many states are dealing with at this time. As many of you know, Title VI of the Civil Rights Act is a federal law that requires all government agencies, regardless of their level, to give access to all services to everyone (including those who do not speak English) if they want to continue to receive financial assistance from the federal government of the United States. This includes courthouses. Until a few years ago, only criminal cases had to meet this requirement because, unlike civil law cases, it was a constitutional mandate. This means that now state-level courts in the United States have to provide interpreting services for all civil and family law cases with essentially the same budget they had for criminal cases only. Many states have struggled with this change and most of them are trying to find the correct strategy to meet their legal mandate while at the same time living within their budget. Of course, there are some obvious solutions that state courts have chosen to ignore even though they would greatly relieve their interpreting case load. I have talked about this issue before and, undoubtedly, I will discuss it again in the future.

The facts show that many states are now more cautious as to where and how they will spend their money (or I should say, their constituents’ monies) This has generated a more “creative” approach in many places where the goal seems to be to comply with the federal mandate by simply providing a “warm body” next to the foreign language speaker at the lowest possible cost. As a result, there are now more qualified top-notch court interpreters with less work than ever before, while there is an unprecedented number of underqualified, mediocre interpreters working the states’ systems for a lower pay and more advantageous conditions for the state’s judiciary. There is plenty to talk about, but my motivation to write this post came from something I learned from a colleague who works as an independent court interpreter with the court system of one of the states in the U.S.

Apparently, just before the beginning of the state’s budget cycle, known in the United States as the fiscal year, this state sent out to all court-certified independent interpreters within the state, a professional services contract that had to be executed and returned before the first day of said fiscal year. The contract was a multi-page document that spelled out in great detail the interpreter’s responsibilities to the courts. It also contained a clause on fee payments that indicated the state’s official fee and some other conditions. Among them, there was a minimum fee guaranteed to all interpreters who accepted an assignment with the state courts. The contract showed two different scenarios. Under the first one, and interpreter could be called in to work at the courthouse for two hours, and if the case or cases were resolved before the time was up, the interpreter would be paid for the guaranteed time. The second scenario operated identically, with the exception that it referred to more complex cases and for that reason the minimum guaranteed fee was of four hours. This seemed to be a fair provision that in fact incorporated into this contract a widely accepted practice followed in that state for many years. The problem was on the next sentence of the same paragraph. The contract established that if the cases the interpreter was called for were to end before the minimum guaranteed period was up, the interpreter had to remain at the courthouse in case something else would happen and interpreting services were required. Up to here everything was fine, but immediately after, the contract indicated that said interpreter could be sent to another courthouse in the state to work off the rest of the minimum guaranteed fee. The interpreter had the right to refuse the second assignment, but in that case he would be penalized with a pay cut as he would only be paid for the actual interpreting time, not for the guaranteed time. In other words, the “guaranteed fee” did not guarantee anything, as the interpreter would be at the mercy of the court who would become, for all practical purposes, the employer, because only employers can dispose of their employees time that way. A client cannot control the time of an independent contractor.

I immediately thought of two scary scenarios: Just imagine for a moment that an interpreter with a sick child agrees to work for two hours at her neighborhood courthouse. She needs the income, so she figures out her schedule, gets a babysitter for a little over two hours, and goes to work from 9 to 11 in the morning. All of a sudden, the cases she was called in for do not go to a hearing because the cases are continued to a future date (this happens every day in all courthouses of the United States) It is only 10 in the morning, so she reports back to the interpreter coordinator; she tells her what happened, and sits down waiting for possible cases between 10 and 11 o’clock when she is going home to her sick child. Unfortunately, the interpreter coordinator has other things in mind and asks her to go to a different courthouse 40 miles away. The interpreter objects and claims that going to that other location will take about 30 minutes one-way. The coordinator states that the 2-hour minimum is not over yet. The interpreter explains that she was counting on working until 11 in the morning, and going to the second location would result in an additional 60 to 90 minutes. The coordinator explains that the interpreter would be compensated for her travel time at the reimbursement rate. The interpreter declines the assignment and the coordinator explains that due to the refusal, she will be paid for one hour of services, not two. This could also happen to another interpreter who has other professional engagements (not with the court) immediately after the time she was hired for. You see? The “guaranteed fee” is not such a thing. The court does not understand that interpreters sell their time and from the moment they commit to an assignment they cannot accept anything else during that period of time.

The same contract indicates that the state shall pay the interpreter for the services rendered within 30 days from the time of filing of the invoice; unfortunately, it also states that the interpreter cannot add any late payment interest or penalties when the courts don’t pay on time. Obviously this turns this contract into a one-sided document with no contractual value but for one of the parties: the courthouse. Interpreters are barred from protecting themselves as they cannot pursue compensation for the damages caused by late or non-payment.

Apparently, this contract was exclusively crafted by the courts, and the interpreters did not have an opportunity to seek legal advice and representation before signing the document. Moreover, there is an advisory body for interpreting matters in this state where independent interpreters are a huge minority since all court players are represented separately: judges, administrators and staff interpreters. In other words, the interests of the state will always have a majority of votes in this advisory body. Obviously, something is wrong with this picture. I am not saying that it is exclusively the courts’ fault, because the interpreters needed to be more assertive. And this takes me to the real root of the problem: A silent careless interpreting community dealing with a court administration that wants to protect its interests (as it should) and will take everything it can as long as the interpreters do nothing about it.

Those of you who have met me in person or regularly read my blog know that I am not in favor of protectionism in any way, shape, or form; you have probably read my opinion regarding “equal assignments for all interpreters” and protection to those who are not up to speed with new technologies. I am totally against these ideas. I do believe that it is up to the individual interpreter to do whatever it takes in order to secure more work with the courts or with any other client. You also know that I am not a big fan of working for the court systems, especially at the state level, because they pay very little and often do not treat interpreters like professionals. The best and permanent solution to this problem, from the interpreter’s point of view, would be to leave the court work and do some other interpretation (including out of court jobs where interpreters can negotiate their professional fee with the attorneys) but for those who do not want to quit the courts, my suggestion would be to seek legal advice and negotiate before signing a contract, to use their professional associations to educate the interpreters and perhaps collectively retain the services of an attorney to look over their interests, not the courts’. I am not saying that professional associations should turn into labor unions, nothing like that; all I am suggesting is that besides continuing education, a member directory, and social events, these organizations should look into these issues not to improve working conditions, but to improve the level and quality of the professional service provided by its members. By doing this, interpreters’ working conditions would be indirectly improved as this is a needed requirement to raise the quality of the professional service. Finally, independent court interpreters must consider the court as a client, not an employer. Dear friends and colleagues, the courts are our clients, and they are not even our best clients; even if you get most of your work from them, they are not the best-paying client; therefore they are not your best client. To consider a client as the best because of how much work they send your way instead of because of how well they pay would be like saying that Wal-Mart is a great clothes store because of its volume, when you have many other businesses that sell better products of higher quality. I invite you to post your comments on this issue, and to share your experiences of what you have perceived as an abusive behavior by a state court; and remember, no names or specifics on the courts or people please.

The ten worst things an attorney can do to a court interpreter. Part 2.

April 2, 2013 § 4 Comments

Dear colleagues:

Last week I posted my first five worst things an attorney can do to a court interpreter. Next, I share the rest of my list in the understanding that there are plenty more examples of these “worst things,” and inviting you to review my top ten, share your “war stories” and share your comments and solutions with the rest of us.

Here we go:

  1. Six.  “Mr. interpreter let me introduce you to my daughter, she took Spanish in high school and spent a month in Costa Rica so I want her to start interpreting my easy cases. Just show her what you do. She’ll pick up in no time.”   I was asked once to help this lawyer’s daughter because she was “really good with languages.”  Fortunately for me, I have no problem establishing my ground rules when at work so I immediately declined.  Unfortunately, I have seen many of my colleagues playing this role of mentor/teacher/parent with the lawyer’s child who just wants to get her dad to send her to a foreign country during the summer and has no intention whatsoever to become an interpreter.  The only solution is to politely explain that you are doing a job and that the lawyers are paying you a lot of money to provide your services; that you are not a teacher (even if you are) and that the “future polyglot“ daughter would not get anything from following you around, so the only thing to be accomplished would be a heftier interpretation services invoice.  I would also bring up the client-attorney privilege rules, and remind the attorney that the daughter’s presence could be a waiver of the privilege, and as such, it is the defendant who has to decide after being advised of these potential complications. A more permanent solution could include a paragraph on the written contract stating that you will not train anybody unless you bring the trainee and the defendant agrees to her presence during the interpretation.
  2. Seven.  “You know what, you charge too much, so I want you to just interpret the main parts of the hearing so I don’t have to pay you that much.”  I have been told this… more than once! You have been hired to do your job: interpret a hearing because the person does not speak English and he has the right to an interpreter. The fact is that, just as the lawyer, you are a professional and you sell your time.  You are there at the courthouse and you cannot be anywhere else. You cannot make money somewhere else because you are committed to this particular client.  You are getting paid to be there and interpret everything that is said (ideally) or everything your client tells you to interpret; but you were hired to BE THERE. Because you charge by the hour, just like the attorney, you need to be paid for the time devoted to the case, whether you are interpreting, waiting for the case to be called by the judge, taking a bathroom or lunch break during a recess, or traveling back and forth between your office and the courthouse or law office.  Maybe you should remind the attorney of this circumstance when he tells you not to interpret and you will see how quickly he changes his mind and asks you to interpret everything.  Here again, the long-term solution to this situation is to educate the attorneys and to have a written contract that states your fee, services, and what you are being paid for.
  3. Eight.  “Do not interpret that!”   This usually happens when the client complains to the court about the lawyer.  I once had a case when the defendant was before a judge to be sentenced for the commission of a crime. After the prosecutor and defense attorney spoke, the judge asked the Spanish-speaking defendant if he had anything to say. As I interpreted this words to the defendant he looked at me, then he turned to the judge and said: “solo que mi abogado es un pendejo.” (just that my lawyer is an asshole) The attorney, who spoke Spanish, and had political ambitions, stopped me immediately and told me not to interpret what the defendant had said. He then told his client in Spanish that he should not tell those things to the judge.  The dialogue looked quite strange even for those who do not spoke Spanish and the prosecutor (who I believe knew all the bad words in Spanish like many Americans do) immediately said  to the court that he wanted to hear what the defendant had said. The defense attorney said that it was privileged information, but the judge ruled that it had been said in open court while addressing him directly so he ordered me to interpret the words, which I did with pleasure, to the endless laughter of everybody in the courtroom. The attorney was mad at me for many months as if I had been the one who said it.  In this case, the outcome was ideal (well not for the defense attorney) because I let the attorneys argue the point and then waited for the judge to decide. The solution to these situations when somebody raises client-attorney privilege is always to let the lawyers argue the law and then wait for the judge’s decision. It is a legal matter and as such, we should keep our opinions to ourselves.
  4. Nine.  I need you to tell the jury that my client did not understand because he speaks a different type of Spanish”  I have been approached, and sometimes retained as an expert witness to convince a jury that a person did not understand what he was told by another interpreter because she had used a “different kind of Spanish.” Of course I testify as an expert all the time, and when I do, it is because I was retained to assess what happened and give my expert opinion about the issue in question. I have never nor will ever take a case where they ask me to testify one way or another, regardless of what really happened.  The simple, and effective solution is to turn down the case; however, most lawyers are not really asking you to lie under oath; in reality they are just asking you to see if their theory is even possible. I usually meet with the attorneys, explain my role, and make sure they understand that most Spanish-speaking people understand Spanish in general, regardless of where they were born, but that there are real idiomatic expressions, cultural practices, and words that have a different meaning depending on the part of the Spanish-speaking world where they were said.  If I notice that the claim is frivolous because of the expressions or words involved, and due to the educational background of the individual, I explain to the attorneys that my testimony would only hurt their case; on the other hand, if I see merit on the allegations, I accept the assignment and go to work. I believe this is the best practice because it grants access to your services to those who really need them while at the same time you are avoiding being part of a useless unrealistic claim.
  5. Ten.  Please collect my fee from my client.”  Very few things can get me going the way this request can. Many lawyers have trouble understanding that we are hired to interpret what they tell their client, not to act as their representative or agent during a legal fee negotiation. Many years ago an attorney handed me an invoice from his law firm without saying anything. Of course, I immediately understood what he wanted. I handed it back and told him: “You gave me this document by mistake.”  I could see him getting mad, and later I learned that he complained to other interpreters that I was not willing to “work for my own pay.”  I never worked with that attorney again, and I have never bargained, collected, or prepared a payment plan for any of the clients of the attorneys I have worked for.  Sadly, I have seen how many of our colleagues play this game and spend hours on hallways and courthouse steps waiving invoices, collecting checks, and handing receipts to those who have never been their clients. It is important to set boundaries from the beginning. We all know that part of our job as interpreters for a private attorney includes interpreting fee negotiations between client and lawyer; that is perfectly fine as we are providing our interpretation services to facilitate the communication between the parties to that professional relationship.  There is an abyss between what I just described and what some attorneys ask the interpreter to do.  Negotiating on behalf of the lawyer is not interpreting and therefore it is not covered by my fee. It is not what I do for living. As I said at the beginning of this post, my clients are attorneys who know how to work with an interpreter and they would never ask me to act as their collections agent, but just in case, you should always be ready to tell the attorney that you are glad to interpret the negotiations, but that you cannot and will not negotiate for them.

As you know, this is only the tip of the iceberg. Please review these “ten worst” and if you are up to it, I would love to read your top ten, top five, or even top one.  This should be good…

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