Interpreting depositions correctly.

March 27, 2017 § 17 Comments

Dear Colleagues:

Next to interpreting in a hearing, legal depositions are the most common professional service provided by court interpreters. They are in high demand, the field is full of potential direct clients, and they usually pay much better than an assignment by the court. With so many apparent advantages, the question that first comes to mind is: Why so many court interpreters do not pursue these assignments? And even among those who provide the service regularly, why is it that so few of our colleagues know what depositions are for, and how to correctly provide the service to ensure top accuracy and quality? Let’s see:

A deposition is the testimony of a witness taken orally (oral deposition) or in writing (interrogatories) outside open court, but in compliance with a court order or statute. It is a pretrial discovery device by which one party, through their attorney, ask oral questions of the other party or of a witness of the other party. It is conducted under oath or affirmation, without a judge, usually at the law office of one of the attorneys or at a court reporters’ office, and a word-for-word transcript is made. Interrogatories are answered in writing under oath or affirmation as well.

Depositions take place in both, criminal and civil proceedings and they are an extremely important part of the discovery process that takes place in an adversarial system, so that the attorneys of one party know what the counterpart or their witnesses will say during the trial. (Fed. R. Civil P.26 et seq.; Fed. R. Criminal P.15)

Oftentimes I run into colleagues who complain about “having to interpret” during a pretrial hearing “instead of interpreting during the trial”. My usual answer has to do with the importance of the pretrial motions and the discovery in general. I try to convey the concept that most cases are won or lost during the pretrial. Ascertaining the facts, excluding illegally obtained evidence, impeaching a witness based on statements made during a deposition, are invaluable as these legal actions and decisions determine what a jury will and will not hear at trial. A litigant exits the pretrial process with a strong winnable case or weakened by the discovery and pretrial motions argued before the judge.

Because of the importance and complexity of a deposition (and all pretrial actions and motions in general) it baffles me how extreme professional interpreting services can be at this stage of the process.

As depositions do not take place in the presence of the court, interpreting services for non-English speaking deponents are left to the professionalism, knowledge, and pocket of the attorney who represents the client. Because many attorneys seldom deal with foreign-language speakers, and for that reason know very little about interpreters and their services, they tend to seek the services of an agency, not for its quality or reputation, but because it was suggested by another colleague who had a case involving a non-English speaker in the past. For the most part the recommendation by the other attorney has to do with things such as: “they are cheap and they are quick”. Quality and experience are mentioned every once in a while.

We all know that, for the most part, there are no standards or policy regulating who can be an agency in the United States. This is an invitation to those with little to no interpreting knowledge to throw their hat in the ring and profit from this very popular professional service.

For the same reason: lack of basic quality standards, many paraprofessionals who unsuccessfully attempted to become certified court interpreters and failed, gravitate to this goose with the golden eggs where they will be on high demand by the above-mentioned ignorant agency owners who in turn will satisfy the requirements of the law office by providing interpreting services that are quick and cheap, regardless of their questionable quality.

But the landscape gets more complicated: For the same good reasons that bottom feeder agencies and paraprofessional interpreters are attracted to depositions, the best of the best in the world of legal interpreting participate in this market as well.

You see,  federal and state court systems retain the services of certified court interpreters, these professionals are for the most part better than non-certified, and from that point of view they are in demand. The problem is that the judiciary does not pay that well, with federal fees being half or less of what a conference interpreter makes, and under constraints of fixed fee schedules and budget cut limitations, the courts are less attractive to the very best in the profession. On the other hand, these top-notch court certified interpreters can negotiate with responsible and experienced law firms that value quality over rock bottom prices. This is the world of the direct client. Reputable agencies who handle big law firms and have a name to protect will also approach and retain these same high quality individuals. In fact, the field is so attractive that even interpreters from the highest caliber who usually do not work in the court system, and despite their vast experience and great skill have never pursued a court certification (but no doubt that candle these assignments because of their knowledge and capacity) provide interpreting services in depositions.

The result of all of the above circumstances and the participation of the wide range of individuals involved in this professional service is a reality where some depositions are interpreted at the highest possible level while at the same time many others are being butchered by paraprofessional interpreters, unscrupulous agencies, and careless lawyers. What a mess!

The good news is that, if they choose to do so, the best interpreters will be able to find good professional profitable clients whose clients will benefit immensely of a properly conducted discovery. The bad news is that many litigants, unaware of this reality, will trust the judgement of their advisers and end up with a defective interpreting service that most likely will impact the outcome of their case one way or another.

The solution to this problem, from the interpreters’ point of view, is relatively simple: stick to the good clients and ignore the bottom feeders. You do not need them, and they think they do not need you.

To me the biggest problem for the best interpreters who work depositions is, dear friends and colleagues, the alarming practice followed by so many of the top interpreters who accept to work alone in a deposition. Yes, I am referring to all of those who work solo, even when they provide services to the richest law firms in the world, including the work they do in very high-profile cases.

Team interpreting is a typical professional practice where two (or more) interpreters work as equal members of a team, rotating responsibilities at prearranged intervals and providing support and feedback to each other. This practice provides continuity and accuracy in the message transmission as it avoids fatigue and allows for word and concept checking during the rendition.

The National Association of Judiciary Interpreters and Translators of the United States (NAJIT) clearly spells out the function and the need for the second interpreter: “…The typical team is comprised of two interpreters who work in tandem, providing relief every 30 minutes. The interpreter engaged in delivering the interpretation at any given moment is called the active interpreter. His job is to interpret the court proceedings truly and accurately. The other interpreter is called the support interpreter. His job is to… (2) assist the active interpreter by looking up vocabulary, or acting as a second ear to confirm quickly spoken… 4) be available in case the active interpreter has an emergency; and (5) serve as an impartial language expert in the case of any challenge to interpretation…” (NAJIT Position paper Team Interpreting in the courtroom. Primary author: Andrew Erickson. 2007)

Scientific studies have shown that mental fatigue sets in after approximately 30 minutes of sustained simultaneous interpretation, resulting in a marked loss in accuracy. This is so regardless of how experienced or talented the interpreter may be. A 1998 study conducted at the École de Traduction et d’Interprétation at the University of Geneva, demonstrated the effects of interpreting over increasing periods of time. The conclusion of the study was that an interpreter’s own judgment of output quality becomes unreliable after increased time on task.  (Moser-Mercer, B., Kunzli, B., and Korac, M. 1998. “Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” University of Geneva, École de Traduction et d’Interprétation. Interpreting Vol. 3 (1), p. 47-64. John Benjamins Publishing Co.)

It is true that most reputable agencies and experienced law firms grant the solo interpreter, who is providing the services at the deposition, the choice to take as many breaks as needed. This is often the justification I hear from my colleagues as well.

I am glad that they get to rest their brain and voice every now and then, but it is not enough. There is no scientific conclusion as to how long the interpreter needs to rest before being back in optimum shape in order to continue the rendition with the same quality and at the same level as it was done at the beginning of the session. Obviously, the University of Geneva’s findings suggest that it takes about 30 minutes to get back to the top of your game.

I do not work under these “solo” conditions, but I could assure you that interpreters do not get a 30 minute break for every 30 minutes of service, and if they do, the attorneys would be better served by having a second interpreter actively interpreting during those 30 minutes. You see, it is a myth that having short breaks here and there will protect the interpreter and assure the quality of the service. This “solution” was developed to make everybody feel good even though nothing is really accomplished from the interpreter’s and the interpretation’s perspective. The only “positive” outcome of this solo work with “as many breaks as needed” has to do with the pocketbook of the law office and the profits of the agency. That is all.

But moving beyond that, there is a second, and equally important issue that goes unsolved without team interpreting.

Interpreting is a human task. It is extremely complex and delicate. Depositions present difficult situations that interpreters must solve in order to fulfill the ultimate purpose of the deposition: to ascertain the facts of the case, and to learn the unknown, to be able to ultimately prevail in court. In a deposition setting, interpreters need to understand and convey the message in two different languages, often spoken by individuals of different backgrounds, education, and willingness to disclose the truth. Interpreters need to find in their brain the appropriate scientific terminology, technical word, and regional expression that a deponent has used in the source language. The need to double-check a term, clarify an idiomatic expression, and research a concept are always present; In fact, they are the regular practice of the best interpreters who understand the relevance of the task at hand, and professionally look for the appropriate equivalency with the right syntax and grammar. This is not a job for one. Team interpreting allows the active interpreter to remain mentally fresh, while the support interpreter takes on other functions that would lead the active interpreter to cognitive overload.

For these reasons, it is universally accepted that team interpreting is the standard practice in courtrooms, conferences, international organizations, government events, and any other assignment that may last over 30 minutes. I only agree to do a deposition when I am working with a partner. My sense of professionalism, my reputation, my health, and my sanity, would not allow me to do anything else.

I invite you to stand up for what is right for you and for the profession. Just as you refuse to interpret a trial unless you have a partner, I encourage you to demand team interpreting in all depositions. It is only then that you will be living to the highest standards that a legal process requires. It is only then that you can unequivocally say that you did your best job at a deposition. Working solo, even if you take short breaks, will not relieve fatigue and it will not magically produce a support interpreter who will help you navigate the treacherous waters of legal interpreting.  I now invite you to share your thoughts on this extremely important issue and the terrible practice that permeates deposition interpreting.

When the court interpreter asks for a sidebar.

February 11, 2014 § 42 Comments

Dear colleagues:

There are times when the court interpreter is already working in the courtroom and he comes across certain information, notices something in the courtroom, or faces a situation that makes his job unnecessarily difficult.  Usually the recourse is to let the judge know. This is an effective way to solve most problems and continue providing interpretation services during the judicial hearing.  Unfortunately, depending on the issue at stake, this is more difficult when working in the presence of a jury.

All court interpreters should know that, to avoid a mistrial, certain things cannot be said in front of an already impaneled jury.  What is left for the interpreter to do under these circumstances?  The same thing attorneys do: Ask for a sidebar.  Now I would like to share a story that happened to me several years ago while I was interpreting during a criminal trial in the United States.

A colleague and I were interpreting for a defendant charged with a crime that involved some horrible physical injuries.  It took the first two days of the trial to pick a jury, and it took the prosecution another three days to present their case to the jury.  The first defense witness took the stand on the sixth day.  It just happened that this witness did not speak English so we had to interpret for both: defendant and witness. We did a consecutive rendition of the testimony and we positioned ourselves next and right behind the witness stand.  We interpreted over the courtroom sound system so the defendant heard all the questions and answers in Spanish.  Direct examination by the defense began that morning. Nothing out of the ordinary to this point except for the fact that the prosecuting attorney spoke Spanish.

It was my turn to interpret so I started the afternoon session. After the first standard questions about the witness’ name and occupation, the defense attorney asked him questions about the facts of the case.  The witness started answering in Spanish and his testimony disputed what up until then the prosecution had advanced as their theory of the case.  It was clear to all Spanish speakers in that courtroom that this testimony was not favorable to the prosecution. As the witness was speaking, the prosecutor stood up and objected to the witness’ answer stating that the testimony was hearsay.  The judge sustained the objection.  It bothered me that this English speaking judge had granted the prosecutor’s objection even before I interpreted the witness’ answer into English. The defense attorney said nothing. Two or three questions later the same thing happened again.  At this time I was very concerned about the direction this was heading to, so when the prosecutor objected for the third time I got up, raised my hand and asked for a sidebar.  The judge and attorneys were a little confused but after hesitating for a fraction of a second the judge asked us to approach. While walking towards the bench I turned to the witness stand and signaled the other interpreter (who was then sitting behind me as she was the supporting interpreter at that time) to join us for the sidebar.

As soon as we were all in front of the judge I voiced my concern. I told the judge that I believed that in order to sustain or deny an objection there has to be something on the record for the objecting party to object to a statement by a witness, and that sustaining or denying an objection without having heard the objectionable statement probably was not the best way to act.  The judge asked me to clarify so I basically told her that my rendition into English reported on the record by the court reporter is the actual testimony, that an attorney who objects to an answer given by a witness in a foreign language is not objectionable unless it is first interpreted into English. Before this happens the answer given in Spanish is not part of the record and therefore, there is nothing to object. My second argument was that the counterpart, the defense in this case, had no way to argue against the objection because he does not speak Spanish and does not know what the witness said.  Finally, I told the judge that in my humble opinion, as a non-Spanish speaker, she would also need to wait for the interpretation of the answer given in Spanish before she could decide what to do with the objection.  There was silence after I spoke. A few moments later the judge said: “He is absolutely right. We have to wait for the interpretation.” We had no more problems with that or any other Spanish speaking witness for the rest of the trial.

About two weeks later I was contacted by the head prosecutor in that judicial district who invited me to give a talk to all of this prosecutors about this issue.  Dear colleagues, do not lose sight of the fact that as interpreters we are officers of the court, and as such, we must use all the tools that the system gives us in order to do our part to preserve the integrity of the judicial process.  During my career I have asked for a side bar in countless occasions when I have faced a situation similar to the one I mentioned above.  Now I invite you to tell us your sidebar experiences and to share with us some of the difficulties you have faced while on the job and how you have solved them.

The ten worst things a judge can do to a court interpreter.

November 30, 2012 § 32 Comments

Dear colleagues:

I know that just the title of this article made you think of a myriad of things that go on in a courthouse that seem to be designed to make the life of the interpreter miserable.  Believe me, you are not alone. For this reason, I decided to compile some of the most infamous ones and share them with all of you. Keep in mind that I will focus on the judge, intentionally leaving the attorney’s worst 10, clerk’s worst 10, witness worst 10, and so forth for future articles.  I am writing this with a therapeutic perspective, trying to add some possible solutions to these problems while at the same time creating empathy and inviting a good healthy laugh when relating to these horror stories.

Here we go:

1.       Please ask him his date of birth.”  Those judges who insist to address the parties on the third person despite what they have been told over and over again.  A quick solution would be to “ignore” the judge and simply interpret on the first person even if “Your Honor” doesn’t. Long term solution: Talk to the judge over and over again. Organize a presentation for all judges and hope these judges show.

2.       Why do we need two interpreters?  We only have one court reporter.”  Those judges who think that a bilingual individual should be able to effortlessly interpret a difficult proceeding on their own, since we are “”just talking after all,” a good short term solution is to have the chief interpreter or his equivalent go to the judge (ideally with the two working interpreters) and explain the reasons why this is needed, assuring the judge that there is a budget for this “inconvenience.”  For a long term solution you can provide some team interpreting literature to the court , and maybe “arrange” a meeting with other judges who understand the team interpreting concept.

3.       Just have a seat. I will take care of the private attorney cases first because they are busy.”   For those state judges who need votes to keep their jobs and want the private bar on their side, a good short term solution could be to talk to the clerk and explain that you are needed somewhere else. Many “nice” clerks will help the interpreter.  A more durable solution would be to meet with the administration and point out the waste of resources caused by an interpreter sitting in a courtroom for hours doing nothing.

4.       When you cannot hear the judge. When the judge whispers or speaks away from the microphone making it impossible to hear what she said. We all know that drama in the court is part of the “showmanship” influence of the media, but we simply cannot interpret what we can’t hear. For a quick fix interrupt the hearing and politely ask the judge to speak louder and into the microphone. Of course, we all know that this request will only be honored for a few seconds, so the lasting solution has to be smarter; maybe getting the court reporter on board as she is probably having the same difficulties, or maybe drafting the IT people as your allies in those courthouses where the hearings are recorded.

5.       “Sorry Mr. Interpreter but we already did the case because the defendant’s spouse speaks English.”   It is getting better, but not everywhere.  You may want to establish a system with the clerk where she does not give the file to the judge unless the interpreter is in the courtroom. Another solution could be to involve the attorneys and explain to them the risk of an appeal for lack of a certified interpreter. Be creative, sometimes it works.

6.       “Would the interpreter stay still and speak lower? You are distracting my jury.”   I was asked once to “speak as lithe as possible.”  You should ask for a sidebar with all parties involved and explain how in order to interpret you need to talk. Maybe suggest the “distracted” juror moves to another seat, and maybe point out to the defense the fact that a “distracted” juror may not be who the parties want to have deciding the faith of their client.  Just a mere thought.

7.       “Why do we need you to interpret?  He’s been in the country for 20 years.”  Sometimes I ask myself that same question, however, the fact is that when the person does not speak English, he has the right to an interpreter. Maybe you can answer the judges question by saying, very politely though, that it is because he does not speak English.  The long-term solution to this problem is non-existent with this particular judge. For the rest, an orientation by the Bar, the court administration, or the local interpreters’ association may prove to be valuable.

8.       “Do not interpret consecutively. We need to get going and you just got new equipment.”   This usually happens during testimony. A way to overcome this obstacle is to explain how the jury needs to hear and understand the answers, and it will be quite difficult for them to hear an answer if both, interpreter and witness are speaking at the same time from the stand. Of course, despite of what some colleagues think, some simultaneous interpretation equipment for the members of the jury would cure this problem,

9.       What do you need the file and jury instructions for? It is a waste of paper”.  I know thie second part of the quote is unthinkable in some states, but trust me, it happened to me some years ago.  To overcome the ruling of this “ecologist” judge, you should ask the court administration or chief interpreter  to get you those materials in advance.  AS a back-up plan, try to get the prosecution and/or defense to understand the need for these documents. However, no matter how difficult or scary, never give up. Do not settle for a trial without a file and jury instructions. You would be setting the profession back!

10.   “I think you can settle parts of this claim, so use the interpreters during lunch.”  This awful judge just put you on a tough spot. You are an officer of the court so you need to perform, however, nobody can work without a break, even if we are “just talking.” Solve this situation by asking for the chief interpreter’s help. He or she should be the one solving this problem. Maybe a second team can work the conference room while you rest, have lunch and get ready to come back for the formal hearing in the afternoon.

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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