Interpreter fees and antitrust legislation and policy worldwide.
February 5, 2018 § 10 Comments
Dear friends and colleagues:
I am about to deal with a very touchy, delicate, dangerous, and polarizing issue. For this reason, I want to begin this post by clarifying that I have always observed all antitrust legislation, domestic, foreign, and international, everywhere I have worked, spoken, and in any other way practiced any professional activity. In no way I intend to encourage, suggest, hint, or in any other way provoke the desire to break any antitrust legislation anywhere in the world; and even though I may intellectually and philosophically disagree with part of the antitrust policy and legislation, I am firmly committed to fully obey the law if it remains as is.
Once the above is very clear, I would like to revisit this issue that most colleagues usually dodge, and perhaps for good reason. My intention here is to inform my colleagues about the legislation and policy about agreeing as professional service providers to set professional fees. There is a lot of misinformation, and urban legends around. I hope this piece contributes to dissipate some, and to raise awareness on the situation we have and what can be legally done to enact change, if you really want that.
My motivation to write about this issue came from some news I got about certain events in the Czech Republic, where apparently UOHS, the local Czech antitrust authority initiated proceedings against Jednota tlumocniku a prekladatelu (JTP) the main professional association of interpreters and translators in that country, because of the publication of recommended minimum rates for translation and interpreting professional services on their internal journal (reaching about 500 members) arguing there could be a potential violation of Czech antitrust legislation. Shortly after this happened, JTP settled with the authorities and withdrew said recommended rates with an agreement to abstain from publishing them again.
Czech legislation is very similar to prevailing legislation in the European Union, the United States and elsewhere, prohibiting “…agreements (including decisions of associations) containing provisions on direct or indirect price fixing or other business terms and conditions…” This legislation takes generally adopted terminology when it states on a later paragraph that: “… The prohibition… shall not apply to agreements (that) do not afford… the possibility of eliminating competition in respect to a substantial part of the market…”
I sympathize with all my interpreter and translator colleagues in the Czech Republic. I have often questioned the moral justification and ultimate purpose of all antitrust legislation. It comes to us as a gift from the past when legislation such as this was needed to protect regular citizens from colluded corporations and tolerant governments. We could argue those days are gone; that antitrust legislation is necessary in certain cases, but rarely when it comes to a regular individual trying to earn a living selling goods or providing a service as a freelancer.
Unfortunately, moral considerations also encompass our duty to respect and obey the law, in the understanding that if we dislike it, or disagree with it, we must pursue change by legal means such as lobbying for (in this case) more realistic legislation that reflects the reality of life in the 21st century. Disregarding the law, even if we deem it wrong is not the best answer to solve a problem.
Let’s look at the pieces of legislation widely applied throughout the world, that serve as a model for practically all antitrust legislation.
First, a very important concept difficult to understand (and accept):
Long arm of the law:
In the United States, a Long Arm Statute is a statute allowing a state to exercise personal jurisdiction over a non-resident defendant with certain contacts with the state.
Black’s Law Dictionary: It is a term where a law of a state gives its courts jurisdiction over people and property outside the state.
The United States subscribes to this legal theory and constantly exercises it, and applies to acts and individuals throughout the world. To properly exercise long-arm jurisdiction over a non-resident defendant, the plaintiff’s cause of action must also arise out of one (or more) of the enumerated bases for jurisdiction set out by the state’s long-arm statute. Some of the most common instances include buying, selling, producing, or transporting goods to, from, or through U.S. territory; dealing with people or corporations with some contact with the United States (even if minimum). If country “A” sells a product to country “B”, and the product is transported on a plane or vessel in possession of a registration under country “C”, but the vessel uses American fuel to transport the goods, all parties from countries “A”, “B”, and “C” are under U.S. jurisdiction because of “the long arm of the law” theory. The same happens when a translator from the Czech Republic or elsewhere translates a document used in the United States, even if the direct client is from a third country, and according to more recent tendencies, even if the only contact with the U.S. was that said product was advertised on line using an American internet provider or a platform such as Google, Microsoft or Apple.
Even if a non-resident defendant is subject to personal jurisdiction under a state’s long arm statute, a court within the forum state may not exercise jurisdiction over that defendant if doing so would violate the Due Process Clause of the US Constitution. To satisfy the Due Process Clause, the defendant’s contacts with the state must be so it would “not offend traditional notions of fair play and substantial justice” to require the defendant to litigate in the forum. Courts in the U.S., the European Union and elsewhere have determined that satisfying the requirements on the examples above, and affording the defendant a court hearing will comply with such legal requirements.
The Sherman Act
The main antitrust legislation in the United States, and the oldest (still current) antitrust legislation worldwide is the Sherman Act from the United States. It describes what conduct “Involves” import commerce, and gives the FTAIA and Justice Department main authority to deal with antitrust investigations and prosecution. It does not bar Sherman Act claims that “involve import commerce.” Several courts have recently been asked to consider what sort of “involvement” with import commerce is sufficient. The Third Circuit in Animal Science Products rejected the notion that the “import commerce” exception is limited to physical importers of goods, thus, it applies to service providers like interpreters and translators. The court defined conduct “involving import commerce” as conduct “directed at” or “targeted at” the U.S. import market. Although the original Minn-Chem Seventh Circuit panel agreed with this approach, neither court gave clear guidance on how to apply this standard.
Is a subjective intent to harm the U.S. import market required? Or is it sufficient to allege a global conspiracy to fix prices or set production limits that had as a consequence (as opposed to its focus or target) higher U.S. import prices? The DOJ’s view is that the FTAIA requires no subjective intent to harm U.S. import commerce and that a price-fixing conspiracy involves U.S. import commerce even “if the conspirators set prices for products sold around the world (so long as the agreement includes products sold into the United States) and even if only a relatively small proportion or dollar amount of the price fixed goods were sold into the United States.” [Minn-Chem Inc. v. Agrium Inc., No. 10-1712, Brief for the United States and the Federal Trade Commission as amici curiae in support of neither party on rehearing en banc (Jan. 12, 2012), at pp. 19] Remember the example of the vessel above.
We can conclude that in the current environment, foreign companies involved in the manufacture or distribution of products (goods and services) outside the United States can no longer assume that the U.S. antitrust laws do not apply to their activities. This is an evolving area of the law with substantial uncertainty. It will take time for these issues to be sorted out in the courts and for clarity to emerge regarding the extraterritorial reach of the U.S. antitrust laws. Until then, a case-by-case analysis will be required to properly assess foreign companies’ potential exposure to criminal penalties (significant fines and jail sentences) and civil damages for violations of the U.S. antitrust laws. Because litigation before American courts is very costly, and the losing party is not required, as a matter of law, to pay for the legal expenses of the prevailing party, defendants often settle their cases and abstain from violating antitrust legislation before reaching a final resolution. This was the case of the American Translators Association (ATA) an association incorporated in the United States. ATA had a “Rate Guidelines Committee” (RGC) that once a year published a list of fees it recommended translators consider. It is possible that said rates (or fees) were reprinted by other professional associations of translators. In 1990 some interpreter and translator professional associations in the United States became the target of antitrust investigation by the Federal Trade Commission (FTC). By 1994 at least two of the organizations: “The American Association of Language Specialists” (TAALS) and the “American Society of Interpreters” (ASI) had signed consent decrees in which the press reported they agreed, among other points, to halt any meetings at which two of those present mentioned rates or fees. After two years of investigation, and significant money spent in defending the association, ATA was notified by the FTC in March 1994 that the investigation had been closed. ATA had approved an strict antitrust policy seven months before the FTC investigation, and this probably contributed to the decision to close the inquiry. In closing the case, the FTC issued a statement indicating that the closure did not mean that a violation had not occurred. The Commission also reserved the right to “…take such further action as the public interest may require…” Three years later, the FTC issued a cease-and-desist order to the International Association of Conference Interpreters (AIIC) after finding AIIC in violation of U.S. antitrust law. The association also chose a settlement obligating them to abstain from discussing fees (or rates) in public.
US versus EU Antitrust Law
Regarding Antitrust Law, the similarities on both sides of the Atlantic outweigh the remaining differences by far. This holds true, at any rate, today, after more than 100 years of legal development.
The central difference was initially that the relevant U.S.-American law is much older. The Sherman Act dates from 1890, the Clayton Act, which introduced merger control, from 1914 (with a significant improvement by the Celler-Kefauver Act in 1950). These laws were not only existent on paper. They were rigorously enforced in practice. National competition laws in Europe developed mainly after the Second World War. Their development was triggered by introducing the rules on competition in the European Community in 1958. The latter induced many of the Member States, e.g. Italy, to introduce laws against restraints of competition for the first time.
A difference between the legal systems lies in the role of the state. In the USA, antitrust is a matter for private actors. In Europe, the role of the state was inevitably involved. This was due to the extensive involvement of the state in the economy
A common feature of the competition law regimes on both sides of the Atlantic is that they claim for themselves a wide international reach (long arm of the law). It suffices that a restraint of competition has effects within their own territory, regardless of where and by what enterprise it is effected (“effects doctrine” or “extraterritorial application of competition law”). A difference lies in the U.S. Antitrust Law’s better ability to assert itself: Uncle Sam has a very long arm. This is due to the USA usually making up half of the “world-wide market”. No globally acting enterprise can afford not to be present on the U.S.-American market. This inexorably leads to the result it can be caught by the American jurisdiction with no strain. Translators, interpreters, and professional interpreter and translator associations must know of this before taking any action.
Regarding the procedure, both legal systems build upon a rule of law, which is more pronounced in the United States than in Europe. A remarkable difference consists in the fact that in the USA, approximately 75% of all antitrust cases are brought by way of private enforcement
Under American civil procedure law, the American rule prevails. I.e., a defendant wrongly sued has to bear his own legal costs. The unsuccessful plaintiff need not reimburse them. This creates a significant potential for threat in the hands of an economically strong plaintiff. The civil procedure can mutate into an instrument for restraining competition. Just imagine a case between IAPTI and the U.S. Department of Justice. The deepest pockets will prevail.
Czech Republic and all members of the EU must comply with EU antitrust policy and legislation.
European antitrust policy is developed from two central rules set out in the Treaty on the Functioning of the European Union:
First, Article 101 of the Treaty prohibits agreements between two or more independent market operators which restrict competition. This provision covers both horizontal agreements (between actual or potential competitors operating at the same level of the supply chain) and vertical agreements (between firms operating at different levels, i.e. agreement between a manufacturer and its distributor). Only limited exceptions are provided for in the general prohibition. The most flagrant example of illegal conduct infringing Article 101 is the creation of a cartel between competitors, which may involve price-fixing and/or market sharing.
Second, Article 102 of the Treaty prohibits firms that hold a dominant position on a given market to abuse that position, for example by charging unfair prices, by limiting production, or by refusing to innovate to the prejudice of consumers.
The Commission is empowered by the Treaty to apply these rules and has several investigative powers (e.g. inspection at business and non-business premises, written requests for information, etc.). The Commission may impose fines on undertakings which violate the EU antitrust rules.
National Competition Authorities (NCAs) are empowered to apply Articles 101 and 102 of the Treaty fully, to ensure that competition is not distorted or restricted. National courts may also apply these provisions to protect the individual rights conferred on citizens by the Treaty. Building on these achievements, the communication on ten years of antitrust enforcement identified further areas to create a common competition enforcement area in the EU.
As part of the overall enforcement of EU competition law, the Commission has also developed and implemented a policy on applying EU competition law to actions for damages before national courts. It also cooperates with national courts to ensure that EU competition rules are applied coherently throughout the EU.
Best Practices on Cooperation in Merger Investigations
The revised Best Practices include an expanded section on remedies and settlements that details cooperation throughout the remedial process, emphasizing that early and frequent cooperation in this phase is important to avoid inconsistent or conflicting remedies, especially when remedies may include an up-front buyer and/or Phase I remedy in the EU. The revised Best Practices also underscore the critical role that the parties play in ensuring effective cooperation in this phase, including timely coordination of their remedy proposals with the reviewing agencies to allow for meaningful cooperation before either agency decides. Besides avoiding the risk of inconsistent or conflicting remedies, such meaningful cooperation in the remedial phase can cause the acceptance of common remedy proposals or even the appointment of common trustees or monitors, which is in both the agencies’ and the parties’ interest.
Recognizing that legal professional privileges differ between the U.S. and the EU, how are in-house counsel communications protections maintained once waivers of confidentiality are granted? The Best Practices note that the agencies will accept a stipulation in parties’ waivers given to DG Competition that excludes from the scope of the waiver evidence properly identified by the parties as and qualifies for the in-house counsel privilege under U.S. law. This is only an example of the European Union accommodating U.S. legislation in antitrust matters. There are other instances.
Antitrust legislation in Latin America
There has been antitrust law in some of the Latin American countries for many years. Brazil was the first to have such a law, but for many years enforcement was desultory. Then in the 1980s and 1990s scores of other countries around the world enacted or strengthened their antitrust laws, and this included Latin American jurisdictions such as Argentina, Chile, Colombia, Costa Rica, Mexico and others.
A few jurisdictions had become fairly consistent in enforcing their antitrust laws, including Brazil and Mexico.
Continuing with the reforms, the new authorities of the Argentine Antitrust Commission (the “Antitrust Commission“) released a draft of the new Antitrust Law, which seeks to bring Argentina into line with the international experience in this matter: The Ley de Defensa de la Competencia (As far as I know) passed in the lower chamber when the diputados voted for it, and it is pending approval by the Senate. Among the reforms envisaged are:
Tougher sanctions, increasing fines up to 30% of turnover associated with products or services involved in the anti-competitive act; The creation of a National Antitrust Authority as a decentralized and self-governing body within the national executive branch, in replacement of the Antitrust Commission and of the Secretary of Commerce; The facilitation of private actions for damages against violators of the law; and the creation of a National Antitrust Court of Appeals to replace the uncertainty on which Court of Appeals is competent regarding antitrust matters.
The long arm of the law theory, and current practices and cooperation of all major international players, including the United States, European Union, and others will make it almost impossible to go against current policy and legislation. There is a great likelihood that many complaints will go to the U.S. courts because of the high cost of litigation and the absence of any legal basis for the losing party to pay for prevailing party’s legal fees and costs.
A Private Citizen’s Freedom of Speech.
Individuals may exercise their freedom of speech and speak, write, publish, and in any other way disseminate their opposition to legislation and policy. It will take a change of heart by the authorities, and current cultural values, to change this legislation and bring it to the reality of solo practitioners trying to make a living in the 21st. century. I now invite you to share your thoughts on this issue, remembering that no comment suggesting fees or rates will be included in this blog.
Will my clients find me in this association’s directory?
April 17, 2017 § 10 Comments
I am tired of getting this call repeatedly: “Hi, I got your name from the ATA directory and I was wondering if you would be available for a medical evaluation (or a worker’s compensation hearing) this Friday…”
Maybe those providing the service would be happy with these calls, but I am not. Every time I must answer the phone to tell somebody I don’t do that work, and that I refuse to work for peanuts, is a waste of my time. I do conference interpreting and I don’t like to explain two or three times a week I do not work for fifty dollars an hour.
For years I have almost exclusively worked as a conference interpreter, doing some court or legal interpreting for established Law Firms I regularly work with, generally in civil cases or some federal criminal matters. Motivated by ATA’s outreach campaign regarding the credentialed interpreter designation and database, I thought that maybe, if I clarified it on the ATA directory that my credentials are United States Department of State Conference-level, and Federal court certification, all these people would stop calling asking me to do work that I do not provide.
I have been an ATA member for many years, and even though the association does many things I am very much against, I also get many benefits from my membership: a monthly publication with some very good articles, a discount on my errors and omissions insurance, good divisional activities, valuable webinars, and a well-known directory.
I logged in to the members section of the website to update my information and take advantage of the new credentialed interpreters’ database in their directory. This happened:
I must start by confessing that I rarely access ATA’s website, so I found it a little bit too crowded; maybe appealing to translators, but I believe it could be a little intimidating for clients looking for an interpreter or translator. After I accessed the “members” section, I looked for a section called “Interpreters’ credentials”, or something similar, but I found nothing. I clicked on the menu where it says “update your contact information” and “update your online directory profile”.
As I got to the profile section, all my information was already there (so I had entered it before). I did not need to change anything. Since I was already inside the program, I reviewed it anyway to see if I needed to make any changes. When I got to the “Interpreting Services” section, I saw that I had previously highlighted “consecutive”, “court”, “escort”, and “simultaneous”. Since I saw a “court” category, I scrolled down to see if I could also highlight “conference”, but the only category left for me to highlight was “sign language”. I thought it was odd. On one hand, if all you are listing are the interpreting you do, then “court” does not belong in here. If they added “court” to make the search easier for the clients, then I would like to see “conference” as an option. I suppose that healthcare interpreters would argue the same for their specialization.
Under the “Certifications” section, I entered my federal court interpreter and my two state-level court interpreter certifications from the drop down menu. I saw nothing for other credentials that are not certifications, but equally important, such as AIIC, U.S. Department of State, European Union, etc. The menu had another category: “other” where I entered my conference interpreting credentials, constantly wondering why I could not find the so much talked about “credentialed interpreter” menu for the new database ATA has been advertising so much. I thought the reason the place to enter that information was somewhere else, perhaps later on the form, was because these other credentials are not certifications and ATA had included them separately.
I kept looking, and my search only found a different category towards the end of the page called: “Additional Information”. That was it. No other place to enter conference interpreter credentials. Knowing I would not get what I wanted, I tested the directory, so I looked myself up. On a simple search I found my information, not as advertised with the credentialed interpreter information, but as I had entered it earlier. I immediately thought of the unwanted agency phone calls that would keep on coming as before.
I ran an advanced search just for English<>Spanish interpreters in Illinois, where I live, asking for State Department conference-level credentials, and the result was “we found none”. I found this interesting, so I dug deeper to see if there was a problem with the directory search engine. The first thing I tried was a search for interpreters with that same language combination and credentials in the largest state: California. I know several colleagues there with the credentials and are members of ATA. The result was: “we found none”.
At this time I decided that maybe it was a glitch on the search engine, but before concluding that, I wanted to see if I had missed the section where you enter these credentials. I went over the form two more times and I found nothing. At this point I am thinking that maybe I needed to submit my credentials for a verification before the information was displayed, so I went back to the form once again. I read it carefully looking for some instructions or description of such process. I found nothing.
I did the only thing left: I went to the search menu at the top of the page and I typed: “credentialed interpreter process”. The search took me to a page with all the results. At the top I saw one that looked like the information I was looking for, so I clicked on it.
I finally found the explanations and instructions, with a link to a form to start the process. The first thing the program asks you to do is to reenter your ATA membership information. Once you are in the form, you are greeted by a message in red that tells you to submit a separate form for each credential and that you must pay $35.00 USD. As an attorney I must confess that although the red-inked message clarifies that one fee covers all requests, it is ambiguous on a second matter: it reads: “A $35-administrative fee covers all requests for one year.” I did not understand if this means that for your information to continue to be available indefinitely you must pay $35.00 USD every year, or that any request filed after twelve months is no longer covered by the initial $35.00 USD fee and therefore you must pay again for the new credential. Finally, I also learned that the process could take up to something like forty days.
After reading this, I stopped for a minute and reflected on what I was about to do: I was ready to send $35.00 USD to ATA (with my documentation) to be a part of this new database, but so far I had had a miserable time looking for, and finding any colleagues with the desired credentials; so far I had found zero conference interpreters. I even had a difficult time finding the instructions to get my credentials reviewed. My friends, I am pretty active on social media, and even though I am not a computer genius, I am resourceful. Can you imagine how tough it would be for a regular individual looking for an interpreter to navigate through these? Even if I do this, send the documents, pay the fee, and wait the forty days, will my clients find me?
I concluded that I had to do more research first, so I did.
I went back to the directory and tested it:
I did this trying to think like a client and not like an interpreter or an ATA member. The first thing I noticed was that to look for an interpreter, the person doing the search must go through the translators’ section of the advanced search; they must scroll down passing through a section with very confusing questions for somebody who, let’s say, wants to hire an interpreter for a marketing conference at the Marriott downtown. Without being an interpreter, I would not know what to do when asked to indicate if I want an ATA certified or non-certified translator, or what translation tools I will need. As a client, even before reaching the interpreter questions, I would probably close the page and look for a conference interpreter in Google or somewhere else.
Since I had already tried Illinois and California with a result of zero interpreters, I looked first for any conference interpreters with an English<>Spanish combination, with a U.S. Department of State Conference-Level credential in New York State. The result was: none. Then I did the same thing for Washington, D.C. (where most conference interpreters live) Again there were zero. I got the same result in Florida and Texas. Next, I searched the same states for any interpreters with the same combination, but with the AIIC membership credential. The result was: nobody. I considered doing the same for every state in the Union, but (fortunately) I decided against it. Instead, I looked for any conference interpreters with any credential and living anywhere in the world. The result was: 2 interpreters. One U.S. Department of State Seminary-Level colleague in the United States, and one AIIC member in Argentina!
Based on these results, I looked for interpreters in all listed categories. I found this: Under certified court interpreters I found 10 colleagues. Under Healthcare certified I found 4 (2 were also listed as part of the 10 court certified). Under conference credentials I found 2 (one of them is also one of the 11 under court certified). I found 1 telephonic interpreter (also found under another category), and I found zero sign language interpreters. Looking for simultaneous interpreters I found 10, under escort interpreters I saw there are 9, and as consecutive interpreters they have 14. As expected, all interpreters under the modes of interpretation categories are the same ones listed by specialization. I also noticed that some interpreters I found in this group are ATA Board members.
The page also asks the person doing the search to state if they are looking for a “consecutive, court, escort, sign language, simultaneous, or telephonic” interpreter. My relevant question was stated before in this post, but it is worth repeating for another reason: If I am a client looking for a conference interpreter, how can I find one under this criteria? Ordinary people do not know that conference interpreters do simultaneous interpreting. Even worse, they also do consecutive interpreting in many events such as press conferences for example.
If people we deal with regularly have a hard time referring to consecutive or simultaneous interpreting by their correct name, why would everyday people looking for a conference interpreter know who they need based on this question? If ATA included “court”, and even “telephonic”, they should include conference. Once again, I am sure my healthcare interpreter colleagues want to be heard here as well.
After reviewing the directory my decision was simple. Why would I want to pay $35.00 USD, and perhaps wait up to forty days, to be part of a directory listing a microscopic portion of the interpreting community? Should I encourage my clients to look for a credentialed conference interpreter in a directory that does not even list us as an option, and flatly ignores conference interpreting in their most common questions section, where all explanations and examples are geared to court and telephonic interpreting? And why as interpreters should we reward the work of an association that continues to treat us as second-class professionals by including the interpreter search criteria after the translator search options, instead of having two separate search pages: one for interpreters and one for translators to make it easier for our clients, and to give some respect to the many interpreters who are ATA members? There is no excuse or justification for this.
I know there are plenty of capable people at the helm of the American Translators Association whom I know and respect as friends and colleagues. I also appreciate many of the good things they do for the profession, but at this time, for all these reasons, until we interpreters get from ATA what we deserve as a profession: Unless the search criteria and credentialed interpreter designation process is as prominently displayed on the website as is the translators’ certification; and only when the search criteria addresses the conference interpreter community on a client-oriented, user-friendly platform, I will stay away from the “advanced-options” directory. I hope this post is welcomed as constructive criticism, and as the voice of many interpreters all over the world. It is not meant as an attack on anybody; it is just an honest opinion and a professional suggestion from the interpreters’ perspective. I now invite you to share with the rest of us your thoughts about such an important issue for all interpreters and for the image of ATA.
Questions of a court interpreting student. Part 2.
June 3, 2014 § 4 Comments
I received a message from one of my students of court interpreting in Mexico City. With the new oral trial system that is now being implemented in Mexico there will be many opportunities for interpreters to find assignments in court settings, so she is considering becoming a court interpreter when she graduates from college. She researched the matter, and as she was getting deeper into the world of court interpreting she decided to contact me with some of her doubts. Her questions were very good, so I thought about responding through the blog so that others, in Mexico and elsewhere, with the same or similar concerns could learn a little more about this area of the profession. I asked her if this was an acceptable way to answer her questions, she said yes, so I wrote down my answers. As I was responding to the questions I realized that this would be a lengthy post so I decided to divide it in two parts. Part 1 was posted two weeks ago. I now invite you to read the rest of my answers to her questions.
- What do you do as a court interpreter when a legal concept in the target language is similar, but not equivalent, to a legal concept in the source language or vice versa? Do you explain it? How do you get the knowledge to identify equivalences or similarities if you studied law?
There are many times when the interpreter faces a situation where there are similar legal concepts but the exact legal term or figure does not exist in the other language. This happens more often between languages from countries that have different legal systems: written Roman Law versus oral Common Law. The general rule for the interpreter is that she does not have to explain or define anything. It is the attorneys’ job and duty to explain the law not only to their client, but if needed, to the court interpreter so she can do her job. In a situation where a competent interpreter who has done her homework runs into a legal concept that she does not understand, she must research it and study it as part of her preparation for the case, and if there is no time for that, she has to inform it to the judge or attorney, depending on the interpreters function in the particular proceeding, so the legal term can be explained to her. Many times the explanation will allow the interpreter to find the correct term in the target language. Interpreters, who have studied Law as your question says, have the advantage of knowing and understanding legal figures and terms without any explanation. If this is the case, and the interpreter is ambitious, she can study the legal figure from the country where she did not study law and this way find a better solution to her problem. This is one of the reasons why most legal systems require interpreters to comply with continuing education requirements. Fortunately for you, with the new legal system being implemented nationwide, Mexican court interpreters will not find this situation very often anymore.
- What happens when someone, the judge, prosecutor, or defense, realize that the interpretation is wrong or misleading? Is the interpreter penalized, and if so, what sanctions does he face?
Interpreters are human and they perform one of the most difficult tasks in the world. Court interpreting is so complex, that most court systems in the world are now requiring team interpreting for all hearings lasting over an hour. Any interpreter can unintentionally make a mistake and we all do at some point. It is what the interpreter does after the mistake that makes the situation irrelevant or serious. In most countries, mistakes due to bad acoustics, poor delivery by the speaker, interpreter fatigue, etc., can be easily corrected by an observation on the record amending the mistake. Other more serious mistakes due to a complex legal concept or a lack of context may be more relevant but they can also be cured by a correction as previously stated or by an admonition by the judge. Mistakes due to the interpreter’s ignorance can be corrected by the other member of the team who will discuss the discrepancy with the interpreter who made the mistake, and then together the team informs the court, outside the presence of the jury, that there was a mistake, the circumstances are explained, and if necessary, the judge will admonish the jury, and the attorneys will draft a special instruction for the jury that the judge will read at the end of the trial. On rare occasion the error could be so serious that there needs to be a mistrial. I can only recall one case but that particular case was really a judge’s error and not an interpreter’s. The interpreter who made the mistake can be sanctioned depending on the seriousness of the mistake and the applicable law. In general, sanctions could range from an informal reprimand to a temporary suspension followed by a probation period, to permanent revocation of the certification, patent or license. There is usually a formal procedure that includes notice and hearing, and the interpreter is allowed to retain the services of an attorney. Depending on the magnitude of the mistake there could be civil responsibility and the interpreter may be required to pay a fine and damages. This can only happen when ordered by a judge or jury after a civil lawsuit where the interpreter will be allowed to present witnesses and legal arguments through an attorney if he wishes to do so. Like all professionals, interpreters are encouraged to carry civil liability insurance (errors and omissions). If covered, the interpreter will be represented by the insurance attorneys and in most cases all he needs to do is to pay his deductible.
When the mistake is really an intentional act by the interpreter to defraud or mislead another individual, he could face criminal charges, and if convicted, he could go to prison.
- Are there laws or regulations that state the requirements that need to be met to perform as a court interpreter, and are there any written duties and rights?
All countries that employ the services of court interpreters as part of their judicial process have legislation that sets the minimum requirements to qualify as a court interpreter and to maintain that status. There are also authorities that regulate the profession setting procedures, protocols, responsibilities and rights. There are also ethical canons, and professional responsibility norms that control the way the services are provided. Some countries, like Mexico, are currently in the process of developing these legislation and regulations where all of the interpreter’s duties, responsibilities, work conditions and rights will be included. In the United States there are two levels of legislation and regulatory agencies: the federal level with the United States Constitution, Title VI of the Civil Rights Act, and the Federal Court Interpreter Act as the legal basis, and the Administrative Office of the United States Courts (AO) as the implementing federal agency. All states either have or are in the process of developing court interpreter legislation, and they all have a state-level Administrative Office of the Courts (AOC) as their implementing agency. In Europe the legal foundation is twofold: it comes from the Directive of the European Parliament and of the Council on the Rights to Interpretation and to Translation in Criminal Proceedings, and from the county-by-country legislation. Court interpreters in Europe have joined forces to ensure access to justice by the founding of the European Legal Interpreters and Translators Association (EULITA). In Canada it is the provincial regulatory bodies that grant the certifications and the Canadian Translators, Terminologists and Interpreters Council (CTTIC) applies uniform standards across Canada. Most regulations and rules set minimum fees for court interpreters and basic work conditions.
- Some government court interpreting websites talk about working with certified and non-certified interpreters; why is that, and what advantages and disadvantages does that bring to the defense, prosecution/plaintiff, or judges?
The only acceptable option is that of a certified interpreter who has studied, tested, and proven to be able to provide the service. This however, is easier to do in smaller countries where there is not a wide variety of languages as there are in a country the size of the United States. In other words, the reason why you see non-certified interpreters even mentioned in these websites is because of the lack of interpreters. It is important to separate non-certified interpreters who work in languages where there is a certification program from those interpreters who work with languages with no certification program. For example, the United States has certification exams for three languages: Spanish, Haitian-Creole, and Navajo; at this time it only offers federal certification for Spanish interpreters, so it is understandable why a very good Russian interpreter is not federally certified. You cannot call them federally certified, but you cannot group them with the Spanish interpreters who failed the federal certification test and by that fact have demonstrated a lack of the minimum requirements to work in federal court in the United States. Depending on their own realities, some states offer certification in certain language combinations and other states do not. There are also administrative law courts in the United States, and remote courthouses in very little towns where there are no certified Spanish interpreters but there are many Spanish speaking litigants because it may be an agricultural center where many immigrants live. The dilemma appears when the system is confronted by a Constitutional mandate to provide interpreter services and a reality that says there aren’t any. It is for these cases that non-certified interpreters are used. In the United States this is happening less at the federal level in Spanish language cases because of new technology that allows a certified interpreter to provide her services remotely from a big city. Certified court interpreters are physically transported to the small towns if the case goes to trial or a long complex hearing is held. Speaking of Spanish court interpreters, the advantage this “compromise” brings to the parties, and in my opinion it is a very questionable one, is that they have an interpreter, they will at least have the best that was found, and the court can always stop the proceeding and demand a certified interpreter be provided either remotely or in person. The disadvantages are obvious: The court and parties will not have an interpreter that at least meets the basic requirements to work in federal court (a certification) The situation worsens when you see courts and attorneys hiring these marginal para-professionals when real certified court interpreters are available solely to save money as these individuals will usually (although not always) be cheaper than a certified court interpreter. There is also another problem in the United States and other countries that will hopefully be avoided in Mexico through legislation: Because the U.S. is a free society, there are plenty of language agencies, language “academies”, and “professional” associations who offer their own self-serving certification so that their lower-level “interpreters” can present themselves as “certified” or “licensed” and make the client believe that they are hiring somebody with professional credentials. There are those who justify this practice for what they call “lesser court cases” such as administrative court proceedings. I completely oppose this practice and I have written and spoken extensively against it.
- There are some suggested self-study techniques to become a good court interpreter, such as expanding your vocabulary, developing your own glossaries, developing your own interpreter techniques, and others. Do you have any tips or advice on how to do it?
I already addressed part of this question in Part 1 of this post when I discussed some of the things that a student can do to become a better court interpreter. I would add that you can expand your vocabulary by picking ten new words from the dictionary every weekday. At the end of a week you will know fifty new words; you will probably remember 15 to 20 and that will be a net increase of 20 words per week. Not bad. I would do the same with legal terminology. Pick a topic and learn the terms. By week’s end you will remember about twenty percent of what you studied and you will have a much better understanding of that legal figure: a contract, court proceeding, corporate document, etc. You can also develop your thematic glossaries; I would do a different one every month and I would use an application for that. I personally use Interplex because I have been using it for many years so I am used to it; I also like the fact that it is compatible with your telephone and tablet so you can have the glossaries with you anywhere you go. Finally, I suggest that when you watch a real court proceeding or when you go to a courthouse to watch a trial in person, you practice your rendition (in court under your breath of course) and when you do so, pay attention to those things that work for you, and develop them; this could be the way you come up with your own personalized note-taking system. When doing this, many years ago, I realized that it was easier for me to remember numbers and figures if I could associate them to the numbers of the jerseys of professional athletes. I am a big sports fan and I have always naturally remembered the players’ numbers, so for me it is very easy to remember an address let’s say on 3272 Main Street, if all I have to do is to remember Franco Harris (32) Mickey Mantle (7) Derek Jeter (2) Main Street. I know this system only works for me, but it works very well, and I came up with it by developing my own personalized technique.
I hope these answers helped you on your quest to become a court interpreter, and I hope they helped others in Mexico and elsewhere, including the United States, who are considering this profession. I also invite all of you to share with the rest of us any other suggestions or input you may have on any of the ten questions. I would love to hear from students, new interpreters, veterans of the profession; anybody who may be interested in helping the next generation to get there.