Court interpreters’ priorities: Their health and to interpret.

August 12, 2020 § 16 Comments

Dear Colleagues:

Although we are still in the middle of a world-wide pandemic, I have heard from several colleagues that some courts in the United States, and elsewhere, are back in session and they are asking court interpreters to attend in-person hearings. Courts may have their reasons to reopen, but I think is a bad idea for interpreters to answer the call at this time. Covid-19 is very contagious and continues to spread all over the United States and many other countries. This is not the time to risk our health, and perhaps our future, to make the not-so-good court interpreter fees. Technology is such that courthouses can hold virtual hearings, or distance interpreting if they want to have in-person sessions. There are solutions for all judicial district budgets, from fancy distance interpreting platforms, to Zoom, to a simple over-the-phone interpretation with 3-way calling and a speaker phone. Federal courts have provided over the phone interpretation in certain court appearances for many years.  Most hearings are short appearances that do not justify risking the interpreter. As for more complex evidentiary hearings and trials, just as conferences have temporarily migrated to this modality, distance interpreting can happen with a few adjustments. If in-person court interpreting is a bad idea right now, in-person interpreting at a detention center, jail or prison, is out of the question. At least in the United States, detention facilities are at the top of places where more Covid-19 cases have been detected.

Court interpreters provide services in accordance to the law and a code of ethics. Neither of them compels interpreters to put their lives at risk just to interpret for a hearing that could happen virtually. I urge you all to refuse in-person interpreting at courthouses and detention centers at this time. Advise judges, attorneys, and court administrators on the available options during the emergency. If after your explanation they insist on having interpreters appearing in person during the Covid-19 pandemic, please decline the assignment. It is obvious your life and health are not a priority for that organization; why should you put them at the top of your clients’ list?

Do not worry about the parties needing interpreting services. That is the attorney’s responsibility. Not yours.

Unfortunately, some of you will sadly agree to physically appear in court to interpret for defendants, plaintiffs, witnesses, and victims. If so, at least demand the following from the courts:

All in-person interpreting must be done with portable cordless equipment. Many courthouses already use it, and for those who do not, explain to judges and administrators this is the same equipment tour guides use. Courts should provide personal transmitters to all staff and regular independent contractor interpreters, and interpreters should take care of the transmitter and take it with them at the end of the day. If this is impossible (although these devises are very affordable) then ask the courthouse to keep them clean and safe, and separate from the receivers the parties will use. Interpreters should always have their own personal microphone (whether it is provided by the court or they purchase it on their own). Ask the receivers be kept in individual plastic baggies, and have the individual using the receiver open the bag and put the devise back in the baggie after the hearing. Never handle the receiver. Ask the court to notify all parties needing interpreting services to bring their own earphones (they can use their mobile phone’s if they are wired). The courthouse should have disposable earphones in stock for those who forgot to bring their own. Earphones are inexpensive and can be thrown away after each hearing.

Finally, interpreters should never disinfect the portable equipment. This is a dangerous chore, you do not get paid to do it, and it is not your job. Disinfecting the equipment goes against all federal and state court interpreter rules of ethics:

“Canon 7: Scope of Practice. An interpreter for a LEP participant in any legal proceeding, or for an LEP party in a court-ordered program, must provide only interpreting or translating services. The interpreter must not give legal advice, express personal opinions to individuals for whom interpreting services are being provided, or engage in other activities that may be construed to constitute a service other than interpreting or translating.”  All states include this canon in their code of ethics (sometimes the number is different). Interpreting equipment should be cleaned and disinfected by the same people who clean and disinfect everything else in the courtroom.

If you are interpreting in person for an agency or for a direct private client, you must follow the same practices. The agency should assume the courthouse duties. As for your preferred direct clients who you could not talk out of an in-person appearance, use your own personal equipment. If you don’t have it, buy it. Do not borrow the courthouse’s. You do not know how clean it is. I would also add the following when dealing with direct clients using my own equipment: Have disposable latex gloves available for you and the person using the equipment. That way you may assist your direct client with the receiver unit if needed. Have spare disposable earphones available if your clients forgot to bring their own. I suggest you use the earphones you get on the plane for free and you never use because you have your own. The protocol for jail visits is: No jail visits under any circumstance. Period.

Even with equipment, maintain a safe distance between you and the person you are interpreting for. No sitting next to the client. Always use and demand others use facemasks. The sound quality is not the best, but removing the mask to interpret is too dangerous. I suggest you wear a mask that ties or has an elastic that goes around your head instead of the ones you wear on your ears. They are more comfortable and stay in place even if you are speaking,

Most judges are rational people of good moral character, but I have heard of some cases when a judge has ordered the interpreter to remove the mask, get closer to the person who needs an interpreter, and other dangerous actions. If so, try to persuade the judge, if that fails, ask for a recess and try to get the court administrator to see the situation from your viewpoint. If this does not work, or if the judge does not let you speak, or you cannot access the administrator, excuse yourself.

State you cannot fulfill your duty as a court interpreter to interpret the totality of what is being said in court because you cannot concentrate on the hearing when you know the judge is putting you in a dangerous situation. Put it on the record, and leave. If the judge does not allow you to leave the courtroom, or threatens you with a contempt order, then clearly put on the record for a second time the same explanation you already gave, and clearly state you are being ordered to interpret even though the rendition will be incomplete, that you are being held against your will, and that you are respectfully giving notice to the judge that if because of his order you get infected, you will bring legal action against the court and personally against the judge. Do not be afraid. You are not doing anything wrong.

On top of all that, I would never interpret in that Judge’s court again.

There are other things we can do as interpreters to protect ourselves in the rare case we end up in front of a judge that forces you to interpret and do things that risk your health and maybe your life.

You can file a complaint with the circuit court (if a federal case) or the court of appeals with jurisdiction over the judge. In federal cases, this is done according to the Judicial Conduct and Disability Act of 1980 (28 USC §351-364) and the Rules for Judicial Conduct and Judicial Disability Proceedings.

If federal, you can send a letter describing the judge’s conduct to the Federal Judges Association (FJA) (https://www.federaljudgesassoc.org) or to the State’s judges association in local matters.

Send a letter for publication on the American Bar Association (ABA) Journal Magazine, or to the State Bar Bulletin so attorneys and others learn of the incident and apply pressure on this individual.

Contact your local non-English radio and TV stations (for Spanish speakers Telemundo, Univision and Azteca America) and suggest an investigative report on how this judge is putting those who appear before him or her, and need interpreting services, at risk during the pandemic.

You can also talk to an attorney and explore the possibility of a lawsuit against the judge and courthouse for negligence.

Finally, write a letter to that courthouse’s chief judge and court administrator informing them that, regardless of the outcome, you will never work in that courtroom again. The letter should detail everything the judge said and did, including past episodes witnessed by you. A person with such a bad attitude did other bad things before.

Court interpreters perform an essential job for the administration of justice, everyone who needs an interpreter should get one, but certain things are above the job; one of them that should always come first is our health. I now ask you to share with us your in-person court experiences, in the United States or elsewhere, during the pandemic.

This road to hell is paved with good intentions.

March 7, 2019 § 1 Comment

Dear Colleagues:

Those who want to help us sometimes hurt us the most.  Court interpreters in Oregon face a situation faced by many colleagues elsewhere in the United States and abroad.

Often, while interpreting in a trial or evidentiary hearing, Oregon court interpreters are asked to sight translate lengthy documents they never saw before, or even worse, they are expected to transcribe and translate audio or video recordings during court breaks. Because the judiciary only covers the cost of interpreting services in courthouses and detention centers, as in many other jurisdictions, attorneys trying to save money use the services of interpreters paid by the court to translate and transcribe evidence otherwise having to be translated before trial by interpreters and translators paid by attorneys and their clients.

A well-intentioned effort to correct this practice, led by the Oregon Judicial Department Court Language Access Services (CLAS) filed a proposed charge to the Uniform Trial Court Rules (UTCR) on November 7, 2017.  Motivated by the desire to protect court interpreters, the quality of a rendition, and no doubt its own budget, CLAS proposed a change to UTCR Rule 2.010(9)(e)

Unfortunately, the proposed change was drafted with budgetary considerations as a priority, and without real knowledge of the role of the interpreter in court. The result, if it goes into effect as written on August 1, will hurt court interpreters in Oregon, the profession, and equal access to justice in that state.

Reading the explanation of the proposed amendment correctly states the abusive, incorrect use of court-sponsored interpreter services by attorneys as described above; it also recognizes the complexity of transcription and translation, and how difficult it is to hear and understand poor quality recordings:

“…• Transcription often requires additional resources that are not available during a court proceeding due to lack of time, the prevalence of slang and abbreviations in offered documents, and the inability of the interpreter to ask for clarification from the maker of the document;

The explanation also addresses potential ethical issues:

“…When an interpreter is asked to provide a transcription for one party, the interpreter loses the appearance of neutrality, which conflicts with the interpreter’s ethical obligations and makes them a potential witness…”

Unfortunately, and most likely unwillingly, the explanation begins with a very dangerous statement: “…Interpreters are trained to interpret spoken word, not written word…”  By saying that, and inserting it as the main argument to amend the Rule, CLAS is not only contradicting the Oregon Code of Professional Responsibility for Interpreters in the Courts, it is making an incorrect statement that erases one-third of the court interpreter practice, and negates our profession.

The Code of Professional Responsibility for Interpreters in the Oregon Courts reads:

“1. Accuracy and Completeness. The interpreter shall render a complete and accurate interpretation, or sight translation, without altering, omitting anything from, or adding anything to what is stated or written, and without explanation…”  (https://www.courts.oregon.gov/programs/interpreters/i-am/Documents/codeofprofresponsibility.pdf)

The State of Oregon correctly recognizes that court interpreting includes not just simultaneous and consecutive interpretation, but sight translation. Stating that “…Interpreters are trained to interpret spoken word, not written word…” contradicts the Code and diminishes the profession. This is a serious matter because in a world where people are just beginning to recognize, understand, and appreciate our profession, we cannot sit on our hands while a State Agency redefines what interpreters are and do. Even when well-intentioned, these comments motivated by ignorance must be challenged and discredit. The last thing we need as a profession is a “savior” to protect us from sight interpreting. Interpreters, not translators, are the only professionals equipped to sight translate a document and render it as if it was written in the target language. We must educate our clients, and government officials, to distinguish from a document that can be sight translated in a court hearing from a lengthy document that must be translated by a translator, or a video or audio recording that needs to be transcribed and translated by an interpreter who specializes in transcriptions.

Because of this false assumption that interpreters cannot sight translate, and undoubtably motivated by the Judiciary’s desire to save interpreter fee money by banning the use of interpreters on the Court’s dime for sight translating lengthy documents that should go to a translator, or recordings that must go to a transcriber (services that must be paid by attorneys and litigants, not the Court), those proposing the amendment to the rule drafted a disastrous text:

“…{(e) A court interpreter shall not translate or interpret an exhibit during the course of a proceeding. An interpreter may interpret oral testimony regarding the content of an exhibit. A person submitting an exhibit, including a non-documentary exhibit or electronic recording, that is in a language other than English must submit at the same time an English translation and a declaration under penalty of perjury from the translator: (i) certifying that the translation is accurate and true; and (ii) describing the translator’s qualifications.}”  (https://www.courts.oregon.gov/programs/utcr/Documents/18eBCM029jm_Notice-Seeking-Public-Comment-2019-Proposed-UTCR-Changes.pdf)

By saying: “A court interpreter shall not translate or interpret an exhibit during the course of a proceeding” the rules are restricting the scope of an interpreter’s practice. It is making sight translation illegal in Oregon. But the proposed Rule is so poorly written, that it bans sight translation in hearings, but opens the door to more difficult and prone to error interpretations of “oral testimony regarding the content of an exhibit”. Instead of handing a lengthy document to the interpreter for a sight translation, under the proposed rule, an attorney can ask the interpreter to interpret the contents of a lengthy exhibit while the witness is reading it in the source language at the speed of light; without the benefit of first examining the document, if briefly, interpreters have during sight translation.

The proposed Rule will deny equal access to justice to those litigants who appear pro-se because they cannot afford the services of an attorney. Poor people benefit of court-sponsored interpreter services every day. These interpreters sight translate birth certificates in family court, bills of sale in small claims court, medical reports in worker’s compensation court, restraining orders in domestic relations court. These litigants do not have the means to pay for translation or transcription services of these documents; they will not comply with the rule because they will not even know or understand that they now need a certified written translation. Unless the Rule is modified before its adoption, in the words of my Oregon Court Interpreter friend and colleague Adrian Arias, many pro-se litigants in Oregon will face the following message: “As to sight translating your exhibit during the proceeding, due to an access to justice issue, you cannot have access to justice.”

The Rule must be amended to accurately reflect what is really needed for protecting the interpreter, accuracy of the rendition, curtailing abusive attorney practices, and equal access to justice. It should clearly state that lengthy complex documents must be translated and certified by a professional translator before a hearing; that all transcription and translation of recorded evidence shall be done by professional interpreters specializing in transcriptions prior to all hearings; and court interpreters will provide sight translation of documents in a hearing when, in the opinion of the interpreter in the hearing the length of the document is appropriate for a sight translation, and its complexity is so it can be sight translated with no more in depth research process needed for written translations. It should be the interpreter who examines and assesses the document to be sight translated. The Code of Professional Responsibility for Interpreters in the Oregon Courts imposes a duty to assess at all times (their) ability to deliver interpretation services, indicating that when the interpreter has any reservation about his or her ability to satisfy an assignment competently, this should be immediately conveyed to the court. (See Rule 9. https://www.courts.oregon.gov/programs/interpreters/i-am/Documents/codeofprofresponsibility.pdf)

Dear friends and colleagues, we must remain vigilant, and see the final Rule due for recommendation by the Committee on March 8. This is a reminder we need to continue to defend our profession, because even when people propose changes meaning no harm, ignorance of the profession can create terrible consequences. I now invite you to comment on this issue in Oregon, or any other place where you live or practice.

Interpreting CJA cases is a bad business decision.

March 26, 2018 § 25 Comments

Dear colleagues:

A recurring theme among my court interpreter colleagues in the United States is the extreme difficulties they must endure when working under the Criminal Justice Act program (CJA). There are complaints about absurd paperwork procedures and unimaginable payment delays. Some colleagues’ invoices for professional services rendered under this program have been outstanding for over a year!

I worked with attorneys under the CJA program, but when the system changed about 18 months ago, and interpreters’ invoices had to go through the defense attorneys to get paid, and I heard some of the delayed payment stories from colleagues nationwide, I decided not to take CJA cases anymore.

For those of you who do not do federal court interpreting work in the United States, in 1964 the United States Congress enacted the Criminal Justice Act (18 U.S.C. § 3006A) to provide a system for appointing and compensating lawyers to represent defendants financially unable to retain counsel; and providing for payment of experts, investigators, or other needed defense services in federal criminal proceedings, including interpreters. Today, the Office of the Federal Public Defender, with the over 10,000 private “panel attorneys” who accept CJA assignments annually, represent the vast majority of individuals prosecuted in U.S. federal courts.

CJA panel attorneys are paid an hourly rate of $132 in non-capital cases, and, in capital cases, a maximum hourly rate of $185. These rates include both attorney compensation and office overhead. In addition, there are case maximums that limit total panel attorney compensation for categories of representation (for example, $10,000 for felonies, $2,900 for misdemeanors, and $7,200 for appeals). These maximums may be exceeded when higher amounts are certified by the district judge, or circuit judge if the representation is at the court of appeals, as necessary to provide fair compensation and the chief judge of the circuit approves.  CJA attorney appointments are made by the Court on a rotating basis among members of the panel. Freelance federal court interpreters are paid with the same system, but with an additional step: Before their invoice goes to the judiciary, it must be reviewed and approved by the CJA panel attorney who requested the interpreter’s services. I guess interpreters are officers of the court of a lower tier, so they must be policed by the CJA panel attorney, apparently an officer of the court of a tier higher than the interpreter.

This process, not required when interpreters work directly for the federal courts interpreting court hearings or out-of-court interviews for public defenders or probation officers, created a burden on freelance interpreters who now devote a considerable, uncompensated time to the paperwork and its unavoidable eternal follow up process, that often takes many months and even years. Interpreters are billing for the time they worked as interpreters in a case, but that time represents but a fraction of the hours interpreters spend on paperwork, and follow up telephone calls, emails, and in-person visits to the courthouse, trying to discover the status of a payment for a service provided long before. This time goes uncompensated, and interpreters cannot work somewhere else, and generate income, while they are tied up in bureaucratic nonsense and begging for payment of rightfully earned professional fees.  For all these reasons, and to keep my health, sanity, and dignity, as soon as the system started I decided not to take any CJA panel cases, and I have taken none.

I suggest you do the same. Once you do it, you will be surprised at the money you will save just by rejecting these cases. Those of you who know me, or have read this blog for years, know that I am always suggesting diversification in the profession among freelancers so you can keep steady income, and a stream of interesting assignments instead of a boring monotonous routine. Dear colleagues, there are plenty of options even if court and legal interpreting is your thing and you do not want to step outside your field.

The most desirable practice would be civil cases with well-established high-profile law firms. They generally handle interesting cases, have clients who understand and appreciate your work as interpreter, and pay excellent, professional fees when you negotiate correctly. Smaller civil law firms and solo practitioners are also a good alternative.

Next, you have the criminal defense private attorneys. They have time to handle their cases and they usually retain you for the entire case. Here your interpreting services are well paid, and you are exposed to challenging, but interesting cases. It is rare to work in a case involving white collar crimes when you spend your time providing services to public defenders and CJA panel attorneys.

Foreign law firms are also a very good choice. Globalization has generated a big multinational litigation practice, and those top-notch attorneys coming from countries where they do not speak English may need the services of a local court interpreter team. Fascinating topics, including intellectual property, foreign trade, mining, hazardous materials, are common with these clients. Family Law practitioners from these countries are also looking for interpreting services in cases of divorce, child support, international child abduction, and others.

If you want to fill in the rest of your agenda with more court/legal work, you can also provide interpreting services to the Office of the United States Attorney in your jurisdiction. Witness preparation, proffers, transcriptions, and other services are required by the AUSA. An added benefit: They are not bound by the (every-day lower) federal fees, so you can negotiate a much better compensation for your professional services.

If you like working with the federal prosecutors, then you must offer your services to the United States Trustee Program (USTP) for their exams and interviews in federal bankruptcy court cases. This is another source of legal/court interpreter income that pays well when you negotiate your fee correctly.

Finally, you can still work with the federal public defender and, if you want to interpret hearings instead of interviews, negotiations, and depositions, you can interpret for the federal courts. You will only make the set half –a-day or full-day fee, and you will usually get the same type of cases, but you will stay away from the long, demeaning, and never-ending invoice procedures associated with CJA panel attorney cases. As a less desirable option, but in many ways better than dealing with the CJA system, you could always work at the state-court level.

Dear friends and colleagues, there are plenty of alternatives to CJA assignments, even within the court/legal field. I believe that if you all were to do what I did from the beginning, the CJA system would have no choice but to change and become more interpreter-friendly. I do not believe on “fantasyland solutions” such as talking to chief judges and court clerks; it was tried in some districts and they accomplished nothing. We cannot continue to lose income, health, and dignity backing up a system that proved ineffective. I now ask you to share your comments with the rest of us.

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