Interpreter checker in a hearing or deposition.

October 1, 2018 § 1 Comment

Dear colleagues:

Occasionally interpreters ask me what to do when retained to assess the rendition of other colleagues in a court hearing or civil deposition. This is a delicate issue for several reasons: As interpreters, we do not like another colleague carefully reviewing every single phrase we interpret; we feel it is invasive and even disrespectful. Sometimes the added pressure of having somebody else, most of the time with more experience than us, ready to jump at the first error or omission will turn a good rendition into a poor interpretation because of the intense scrutiny. We feel uncomfortable doing the same to another colleague when we are the “checker”. We do not want to offend a colleague, even a friend, but we find ourselves between a rock and a hard place when one of our best clients requests we render this service.

The first thing we need to understand is this is a professional service we were hired for. It is business. Also, we must remember what we were retained for: To check the accuracy of another interpreters’ rendition. We were not hired to destroy the interpretation; we were not asked to dispute and question every word interpreted or every term rendered by our colleagues. A professional opinion informing our client that the interpretation was fine will be welcomed by our client. They do not want us there to turn the other interpreters’ work to shreds; we are there because our client wants to make sure that the rendition was complete and accurate. This is important as it lifts an enormous weight off our shoulders. It gets rid of the feelings of disloyalty and guilt.

When I am hired to check on other colleagues during a court hearing (trial, motions hearing, expert testimony, etc.) or a civil deposition, the first thing I ask for is the names of the interpreters to interpret the proceeding. Sometimes I know the interpreters and from that moment I know if my job will be a walk in the park, because the interpreters are exceptional, or if it could turn ugly. Most of the time, I do not know the colleagues. In that case, my first task is to learn as much as I can about that interpreter: Where do they practice; how long have they been interpreting professionally; what experience they have with the type of proceeding and the subject of the rendition; their first language, professional studies, who are their clients, and so on.

I can get most of this online by visiting their website, looking over their resume, and checking their LinkedIn page. I also look for photos online. Sometimes I do not know a colleague by name, but once I see the picture I realize I know who they are, and sometimes I am even familiar with their work. Another important source is those interpreters they usually work with. I may have never worked with the interpreter I am about to check, but I may have worked with some of their partners or boothmates before. Sometimes I may contact these interpreters (when I could find no information on the interpreter for example) but most of the time just knowing who they work with helps me understand the level of the interpreter. Finally, I look for what professional associations they belong to. I know it is not a very good indicator of the level of a colleague, but it helps me understand better if the person cares for the profession and their continuing education. If the interpreters are great, I let my client know right away. This helps me to prepare them for an “everything was fine” report after the rendition. I say nothing detrimental to a colleague a priori. If I have nothing great to tell to my client, I reserve judgement until after the hearing or deposition.

On the day of the interpretation I arrive early, and the first thing I do is say hi to the interpreters. I introduce myself and put them at ease by telling them this is not personal, but I never look nervous or afraid. I also communicate that I know of the fact there is more than one way to skin a cat and their choice of words may not be the same as mine. I assure them that, as long as the rendition is correct, even when their style my differ from mine, I will not make a fuss of the interpretation.

If I hear something I disagree with during the rendition, I am always very careful and rarely interrupt (only in very evident mistakes). There are synonyms and regional expressions that do not make a rendition wrong unless they are essential to the case. If this happens, I wait for the break and explain it to my client, emphasizing that the rendition was correct, but I would have said it differently.

When I hear something and I know it is wrong and relevant, I respectfully interrupt for the record. State my objection to the rendition and why I object. If the other interpreters agree: Great; if they disagree, let them explain and accept your mistake, if any, or be firm if you are right. It is always necessary to have the basis for your dispute: a grammar rule, applicable dictionary, section of the law. Otherwise your objections will seem frivolous, irrelevant, and you will undermine your credibility.

After the hearing, I am professional and courteous with the other interpreters, judge, and attorneys. It is important they know it is a job. Nothing personal.

Finally, I prepare my report in writing, including my expert qualifications and explaining to my client who I monitored, including the results of my research on the interpreters, I describe the room, and do a narrative of the hearing or deposition, indicating all questionable interpretations, mistakes made by the interpreters, and correct renditions I would have interpreted differently due to my personal style (synonyms, regional expressions, etc.). Finally, I type my conclusions. Usually indicating there was nothing of importance omitted or misinterpreted at the hearing or deposition. Occasionally, indicating the interpreting mistakes and the reasons to back up my opinion.  I now ask you to share with us your experiences as “check-interpreter” or about being “checked” by other. I would also like to hear what other strategies you follow when asked to be a check-interpreter, and what you include in your report.

Effective depositions require team interpreting.

August 8, 2018 § 10 Comments

Dear colleagues:

I was recently part of a two-interpreter team that interpreted for 2 depositions. They each took a full day; they were complicated because of the subject; they were difficult because of the deponents; they were important because of their crucial part in the litigation process; they were stressful because of the financial impact the outcome of the case will have once it is decided in court or settled by the parties; and they were exhausting even for two interpreters.

As I was rendering this service, I remembered the many times I have heard colleagues say that depositions can be interpreted solo because they are interpreted consecutively. Honestly, I do not know how this could be possible without compromising the flow of the testimony, the timing of the questions, or the quality of the rendition.

I rarely interpret depositions, but the two or three times a year I am asked to do it, it is always as part of a team of two experienced legal interpreters directly hired by one of the law firms I work with. I know the fact that many agencies contact interpreters for these assignments and ask them to interpret solo. It is clear they follow this practice not because they believe depositions are simple enough to be interpreted by one interpreter, but because they are putting money before quality. Many attorneys, who do not know better, buy into this idea, and by accepting this practice, they contribute to the perpetuation of the idea that consecutive interpreting in a deposition setting does not require team interpreting.

Before the actual deposition, like in any assignment, my partner and I had to study all materials relevant to the case, we had to travel to another state the day before these depositions, check into a hotel, get to the venue the following morning (in a different time zone) early enough to assess the place and determine where we would sit during the sessions, and set up our iPad and other materials at the boardroom table where the deposition was to take place.

The depositions were complicated because of the technical matters discussed, the many dates, places, names, etcetera. They were also difficult because of the deponents’ reluctance to answer the questions. Both deponents spoke Spanish, but they were from different countries, different gender, they had a different background, and conflicting interests regarding the outcome of the case.

Because the attorneys and interpreters were from out of town, the Law Firm was interested in finishing the matter in two days. This meant long hours with short breaks.

Even though we prepared for the assignment, and we were flooded with many documents, there were certain technical terms, types of software, and other concepts not in the package. We had to research on the run by going online and looking up concepts and products. This can only happen when you have two interpreters working as a team where one interprets (active) while the other one (passive or supporting) does the research and passes on the information found to his or her colleague.

I do not see how this could happen when working alone. The interpreter would have to request a break to research what is needed. This would bring at least four unwanted consequences: (1) The deposition would take longer, generating additional costs when held out of town; (2) It would break the rhythm of the dialogue between attorney and deponent, causing attorneys to lose their train of thought; (3) It would cut the flow of an answer by interrupting the way the deponent is describing or telling something, or in another scenario, it would give a deponent time to think an answer eliminating the effect intended by the attorney asking the questions; and (4) The interpreter’s rendition could be compromised because on top of the complex and exhausting task of interpreting everything alone, he or she would now undertake another tiring task: research in a hurry because you are holding up the deposition. To compensate, attorneys would shorten the breaks and the interpreter would have to work more than originally expected with less time to rest.

On both days, we shortened our active interpreter shifts towards the end of the day so we could maintain the quality level of the interpretation. On both days the passive, supporting interpreter, had to research during the sessions; and as always, when you work as a team, we both consulted with each other when needed (doubts about a term, a number, a regional or technical expression) by simply exchanging notes without interrupting the deposition. I will not even mention the impromptu “saves” during a coughing attack or a bathroom emergency.

Depositions happen in civil cases where there is often a lot of money on the line. My experience is that attorneys who do this work are very receptive to the advantages of having the interpreting service provided by a team. They get the importance of a smooth deposition, and they understand the costs saved by avoiding prolonged sessions because of continuous interpreter breaks. As experienced attorneys, they know the difference between a fresh interpreter and an exhausted one. They are aware of how difficult our work is, and they trust our professional advice. For this reason, they will go for a team of interpreters instead of a solo. I would say to those of you who claim this is impossible because the agencies will not go for it: Talk directly to the law office. Do not wait for an agency to find you for a deposition. Go out there and find your attorney clients yourselves. It has worked for me. I now ask you to comment, and I would like to hear what you do when you are unfortunately interpreting a deposition by yourself and you need time to research something where attorneys are working under time constraints because of financial considerations or due to their professional agendas or the availability of the deponents.

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 interpreter thinks the attorney did something sleazy.

July 14, 2014 § 4 Comments

Dear colleagues:

I was contacted by a colleague who wanted my opinion about a professional situation that was making her life miserable. Her problem was that she had been part of a court assignment where an attorney did something she disliked. At the time she contacted me she was debating about letting it go, or reporting the situation to the judge of the case. I listened to the facts, and I immediately remembered other events where an attorney’s conduct had been questioned by other interpreters. This is her story:

An interpreter was hired to work during a deposition at a law office. While waiting for the assignment to start, she had a conversation with other individuals in the waiting room. One of the others was also a court interpreter. Finally, after a long wait, a secretary came to the waiting room and announced that the deposition had been cancelled. The interpreter went home, she got paid on time for this assignment, and she forgot about this incident.

Several months later, she was contacted by another agency that offered her a transcription/translation assignment. She agreed, and a few days later she received a CD with the audio recording. She began the transcription, and about an hour into the transcription, she concluded that she knew at least one of the voices in the recording; it was the voice of another interpreter, in fact, it was the voice of the interpreter she had been talking to, months earlier at the law office, while she waited for the deposition to start. She immediately knew that she had to stop the transcription and report this circumstance to the agency. A decision had to be made about her involvement in the transcription job. Before contacting the agency, the interpreter decided to see if the other interpreter’s voice was all over the recording or just at the beginning. She had just been working on the transcription for about an hour, so she wanted to find out. She fast-forwarded the recording, and to her surprise, she now recognized a second voice: It was her own voice! She was part of the recording the agency sent her, and the recorded conversation was the one they had at the attorney’s office on the day the deposition had been cancelled months earlier. This obviously changed everything, and the possibility of continuing on the job if the parties consented to it after a full disclosure was now gone. She knew she could not continue transcribing the recording. She immediately contacted the agency and told them what happened. The agency retrieved the recording and sent it to another transcriber. The interpreter was paid for the work done even though the agency knew that they would never use the transcription. The real problem for the interpreter was that she did not know that she had been recorded and she wondered why this had happened, what they were going to use the tape for, and what she should do about the whole situation. She did not even know if the recording was legal or not.

The recording was related to the case where she had been hired to do the cancelled deposition; she knew the attorneys involved, and she had heard that they both practice law very aggressively. She felt bad and she felt cheated. The interpreter thought that this strategy had been sleazy and perhaps illegal. Her first impulse was to contact the judge in the case and let him know that she had been recorded without her consent. Something had to be done.

Fortunately, she waited and thought it over. Without revealing any names or details of the case, she consulted an attorney and learned that in her state, as long as one of the parties to a conversation is aware of the recording, and she consents to it, the rest need not know or consent for the recording to be legal and even admissible in court. Based on this, the interpreter did not go to the judge or anybody else. She had no legal standing and no law had been broken by the attorney who ordered the recording. In fact, she realized that she could not even disclose any of these facts to anybody else because of the interpreter duty of confidentiality, which cannot be broken unless a crime was committed or may be committed unless the interpreter speaks. Going to the judge would have been the wrong thing to do because she really had nothing to report. She learned a valuable lesson after this case because she understood that in an adversarial legal system, the attorneys may do things that we dislike, but as long as they are legal, they are allowed to do them, and we should not get involved or judge the legal strategy.

On the second case I will now share with you, I was interpreting in a plea hearing many moons ago. The defendant was going to enter a plea of guilty to a federal offense. I was working for the court. I arrived to the courtroom about fifteen minutes before the hearing, which was customary at that courthouse, I let the clerk know that I was there, and I sat down to wait for my case. The defense attorney arrived about five minutes later and asked me to help him with his client. He told me that the defendant, who was in detention, was already in the holding cell, and that he needed to talk to him for a few minutes before the judge came out for the hearing. As many of you know, this happens all the time in federal court in the United States, so I agreed and off we went next door to the holding cell. The moment we arrived I realized that the defendant spoke some English and understood many things; however, he was far from being fluent, and definitely needed an interpreter for the most complex legal concepts. As soon as we greeted the defendant the attorney started this, in my opinion, self- serving speech telling his client (the defendant) how hard it was to get him the deal with the prosecution, and that this was his chance to bring the case to an end by just pleading guilty to the charge in the plea agreement. Then the attorney “asked him” but in reality told him “the agreement is almost identical to the version you already saw before when I went to see you with the other interpreter, remember?” and “…the judge is going to ask you if you were interpreted the new version by a certified interpreter and you are going to say yes because if you don’t, then the judge will continue your case for another day, maybe in a month or two, and you will have to sit in jail all that time waiting to come back in here. All of it for a document that practically says the same that the one that was interpreted to you before. Do you understand?” Of course I interpreted all of this to the defendant and he said yes. Next, the attorney told his client that “… when the judge asks you if you have any questions you need to say no, unless you have any questions, and if that is the case we will have to come back before the judge in the future, and he is going to ask you if everything was interpreted to you into Spanish and you will say yes because as you remember we went to the jail and the interpreter interpreted everything, including your questions, right?” The defendant said “yes.” The attorney continued: “…Well then, let me ask you right now: has the plea agreement been explained and interpreted to you in Spanish?” The defendant answered: “yes.” The lawyer continued: “…Has your attorney answered all of your questions with the assistance of an interpreter” The defendant: “yes.” Finally the attorney added: “…Do you have any questions at this time for the judge, for me, or for anybody else about your case, charges and plea you are about to enter?” Once again the defendant said “no.” “…Great” said the lawyer; and added: “… So you know why you are answering the way you are right?” The defendant: “Yes, so I can go to prison sooner.” Attorney: “…and, even though we didn’t interpret the latest version of the agreement, since we went over another version that was practically identical, you will tell the judge that we did right?” Defendant: “Yes, I will tell him that you explained everything to me through the interpreter, and in my mind you did, and I really believe so, and I have no more questions. I know what I am doing and I just want for all of this to be over.”

We went in front of the judge who asked the very same questions. Both, the attorney and his client answered almost with the same words as they had used in the holding cell. The judge entered the conviction and the defendant left very happy with the outcome of the hearing, on his way out he told his attorney: “…thank you very much. You are a great attorney. You know what you need to do for the benefit of your client. I will send you clients…”

Although the attorney and the defendant did not lie to the judge because they phrased everything very carefully, thus avoiding breaking the law, and despite the fact that the attorney had fought for, and vigorously defended his client’s best interest, which was to go to prison as soon as possible so he could start some treatment not offered by the jail, I left the courtroom feeling a little strange. I knew there was nothing for me to do since no laws were broken, and everything had been legal strategy between client and attorney discussed in confidence and under the protection of the client-attorney privilege, but it took me a couple of hours to get over it; you could even argue that I did not get over this case since I am still telling the story so many years later, but the truth is that yes I got over the case, and the reason why I am sharing the story with all of you now is because both the defendant and the attorney have since passed away, so there is no privilege anymore.

I would like to invite you to share similar stories or comments about things you have done or were tempted to do when in your opinion an attorney did something sleazy.

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