June 4, 2018 § 8 Comments
I get goosebumps every time I hear freelance interpreters talk about their “boss”. I am constantly surprised at the huge number of independent contractor colleagues who refer to the authorities at the agencies, hospitals and courthouses they provide interpreter services for as their bosses.
This is an abomination when used to describe the other party to a professional services contractual relationship, now exacerbated by the very dangerous ruling by the United States National Labor Relations Board (NLRB) in SOSi where it ordered this interpreting agency to reclassify its interpreters working as independent contractors as employees. SOSi is appealing the decision, and we will discuss it in depth on a future post.
Our concern today is the conscious or subconscious lack of understanding of the professional services relationship derived from a contract where an independent interpreter is the service provider.
Freelance interpreters are independent professionals who provide their services for a fee. The terms of such services and fees are agreed upon by the interpreter providing the service and the individual or corporation recipient of the interpreting services in a contract. The parties to this contract are: The professional (who provides the interpretation, in other words, the interpreter) and the recipient of the professional service, called the client.
Yes, dear friends and colleagues, as freelance professional interpreters we provide our services to a counterpart called the client. Our main contractual duty is to render the interpreting services as agreed with the client, and the client’s main obligation is to pay the agreed fee in exchange for those services. The contract is called: Professional services contract.
Freelance interpreters are independent professionals free to choose the clients they want, under the terms they see fit, and for the service they picked. There is no authority figure over the freelance interpreter. All duties, responsibilities and obligations are contained in a voluntary contract (oral or written), a professional code of ethics, and the legislation governing the profession in a particular jurisdiction. Client and interpreter are equals. There is no boss.
Bosses exist in labor relations where a part: the employee, is in a subordinate position to the other: the employer or boss, who gives directions, orders, and instructions to the subordinate who must comply with these commands during working hours, in exchange for a fixed wage. Employer and employee are not equals in this relationship. An employee cannot choose what she does. If she does not comply she will be sanctioned and even fired.
Webster states that: a client is “… a person who engages the professional advice or services of another…” Oxford tells us that a client is “…a person or organization using the services of a lawyer or other professional person or company…”
Interpreting is a profession. Interpreters perform a professional service. Interpreters, like all professional service providers, have clients.
Here we see then that we must not call a client a boss because it is inaccurate, and it immediately puts the interpreter at a disadvantage. Calling your client “boss” creates a subservient relationship in your mind that will quickly translate into an attitude and lifestyle. It paralyzes the interpreter as she or he will no longer feel capable or worthy of arguing work conditions, professional fees, or assignments.
For those of you who see judges, doctors, court and hospital administrators, and language service agencies: Eliminate that thought. It is wrong. They are your clients, and you can negotiate and refuse assignments when you consider it appropriate. Your duties and responsibilities to do a professional top-notch job come from the contract, the legislation, and from your professionalism. You do a good job because you are a professional who wants to provide a good service because you want to keep the client, or you just want to do the right thing. You don’t do it because you have somebody breathing on your neck looking over your shoulder micromanaging everything you do. You do not need someone telling you how to dress for an assignment, or reminding you to get there on time. However, as long as you see the client as your boss, they will act as your employer.
Professional interpreters have clients and charge professional fees. They do not charge rates. A commercial product vendor or a non-professional service supplier do not have clients. They have customers. A customer buys goods or non-professional services from a business. Webster defines them as: “…one that purchases a commodity or service…” Oxford gives more details when it tells us that a customer is “…a person who buys goods or services from a shop or business…” Unlike professionals, these merchants get a rate or a price in exchange for the goods or non-professional services purchased.
Physicians and dentists are professional service providers, so they technically have clients, but for historical reasons, and due to the nature of their services, these service recipients are called patients. According to the American Medical Association’s Code of Ethics (AMA), physicians must be “…dedicated to providing competent medical care, with compassion and respect for human dignity and right.” It also considers that people with an illness must wait to see a doctor or to be treated, and that requires patience. Webster indicates that a patient is “…an individual awaiting or under medical care and treatment…” To Oxford it is “…a person receiving or registered to receive medical treatment…”
I have observed how many freelance interpreters have a hard time separating their client from others who may participate in the process like vendors and providers. The convention center or hotel events center are not the interpreter clients, they are vendors who provided the facility so there can be a conference. Unless the interpreter hired them directly, they have no contractual relation with the interpreter. They are the interpreters’ clients’ problem. The same can be said for the technical support: booths, interpreting equipment, sound system, etc. Unless they were hired directly by the interpreters, these are also suppliers who have a contract with the interpreters’ client, not with the interpreters. They are not your problem either.
Another common mistake is to confuse the direct beneficiary of the interpretation with the interpreter’s client. Usually, they are not your client. The five hundred people in the auditorium listening to your rendition are the direct beneficiaries of your professional rendition. Without you they could not attend the event; however, they are not your clients. They are your client’s clients. As professionals we must accommodate all reasonable requests by the audience and the speakers, but they are not the ones paying your fee. They are paying your client because they are your client’s clients. For this reason if a person in the auditorium asks you to speak louder, you may consider the request, and even honor it when reasonable; but if somebody attending the conference asks you to take a recorder to the booth and record the rendition for him, you will decline, and direct him to your client (please read my blog post on what to do in this situation).
Dear friends and colleagues, as professional interpreters who provide our services as freelancers we have many clients we choose. We decide who we want as our client, and who we do not. We have the last word on whether we do an assignment, and when a professional relationship with a client must end. We set and negotiate the terms of our work, our pay, and out booth mates. Employees do not get to do this because they have a boss: the employer. We do not. We practice in a world where we are equals with our counterparts in a professional contractual relationship. We do a magnificent job, we accommodate all reasonable requests of our clients’ clients, and we cooperate and support other providers and suppliers such as facility workers and technical support staff, but we do it because we are professionals and we have made a business decision to keep the client we want to keep, not because we are told to do so. Please stop referring to your client as your “boss”, and the next time a project manager tells you what to wear to an assignment, to be on time; or the next time a hotel waiter tells you not to have a cup of coffee, please stand up for your dignity and that of the profession. I now invite you to share your thoughts on this issue.
January 15, 2018 § 4 Comments
Most professional, dedicated, court interpreters in Europe and the United States are constantly fighting against the establishment: government authorities who want to dodge the responsibility of administering justice to all, regardless of the language they speak, by procuring a warm body next to the litigant in the courtroom regardless of the skill and knowledge of the individual; ignorant and egotistical judges who believe they know everything about language access and interpreting, and make absurd decisions, when they know less about our profession than anyone else in the room; bilingual lawyers who cannot tell the difference between being a professional interpreter and speaking a second language with limited proficiency; monolingual attorneys who believe interpreting is easy and interpreters are only an intransigent bunch demanding nonsensical work conditions (like team interpreting) and get paid for what they do more than they deserve; and of course, greedy unscrupulous agencies who spend most of their time trying to figure out two things: How to pay interpreters less, and how to sell a mediocre paraprofessional low fee foreign-language speaker to their clients.
There are exceptions everywhere and in some latitudes court interpreting can be performed at a high quality level (even though, in my opinion, most court interpreters are still getting paid very little compared to the other actors in a court proceeding such as attorneys, expert witnesses, and judges), but there are no places, that I know of, at least in the United States, where you can find the support, understanding, and respect I found in Mexico during their transition from written court proceedings to oral trials where interpreters play a more relevant role they ever did under the old system.
During the last two years I have attended many conferences, meetings, one-on-one interviews, where I have talked to the parties invested in the system about the work court interpreters do, the need for some quality control process such as an accreditation or certification of the professional court interpreter, the non-negotiable principle that interpreters must make a professional fee that will let them have the lifestyle they may choose and will retain them as practitioners of the interpreting profession, and the work conditions for the professional court interpreter to provide the expected service. I have had many memorable experiences, and I will share with you those that I consider essential turning points in the design of the court interpreting profession in Mexico.
For the past two years I have attended the “Taller de profesionalización de los servicios de interpretación de Lengua de Señas Mexicana en el ámbito jurídico” (Professionalization of Mexican Sign Language legal interpreting services workshop), the brain child of Mexico’s federal judge Honorable María del Carmen Carreón, who has done more for the court interpreting profession than any person I know who is not an interpreter. Judge Carreón and her team organized these workshops that bring together Mexican Sign Language interpreters from all over the Mexican Republic, the most influential Sign Language Interpreter professional associations in the country, legal and language scholars, attorneys from all fields, and judges from all levels and jurisdictions: from Federal Supreme Court Justices and State Supreme Court Justices, to federal and state criminal, civil, family, administrative, and electoral judges.
These participants meet for three days at different locations: courthouses and universities, to learn from each other, and exchange ideas on how to make it easier for court interpreters so they can fulfill their role in the administration of justice to all individuals, regardless of the language they speak. The new court interpreting manual I recently published results from this extraordinary professional relationship that has developed among my co-authors: Judge Carreón and Daniel Maya, president of the largest professional association of Sign Language interpreters in Mexico, and me (Manual del Intérprete Judicial en México, Carreón, Rosado, Maya. Editorial Tirant Lo Blanch).
During these trips, I have witnessed the willingness of all parties to learn the new system together, I heard often about the commitment to a good professional fee for those interpreters who get a court interpreter patent as a “perito” (equivalent to a certification or accreditation in other countries), and I saw a system with a new culture of cooperation where interpreters getting materials and full access to a case will be the rule and not the exception. I saw how all actors understand the need for team interpreting without even questioning the reasons behind this universally accepted policy. I heard judges telling interpreters to come to them with their suggestions and requests, and lawyers who want to learn how to work with the interpreter. Our manual has been presented before many institutions, including courthouses and attorneys’ forums to standing room only.
It was at one workshop, and through Judge Carreón, that I met Mexico City Civil Court Judge Eliseo Juan Hernández Villaverde and Mexico City Family Court Judge Teófilo Abdo Kuri. Both judges graciously invited me to their courtrooms so I could observe how the oral proceedings are being carried under the new legislation, and to have a dialogue on court interpreters’ best practices so our Mexican colleagues can provide their service under close to ideal conditions.
At their respective courtrooms I met their staff and I saw how everyone was treated with dignity and respect. After fruitful talks with both judges, I observed the proceedings, and afterwards met with the judges to physically suggest changes to the courtroom to make it more “interpreter-friendly” to both: sign and spoken language interpreters. To my surprise, these suggestions were welcomed immediately, and Judge Hernández Villaverde rearranged the courtroom right on the spot, in my presence, to make sure that everything was as suggested. Finally, it was agreed that court interpreters and those studying interpreting will have regular visits to their courtrooms where they will observe proceedings and after the hearing can ask questions to the judges.
A major factor in the success that Mexico is enjoying, is due to the absence of irresponsible interpreting agencies that hire a high school level “coordinator” to recruit paraprofessionals and convince them to work for a fee (they call rate) that will seem good to them (compared to their minimum wage job prior to becoming an “interpreter”) but would be insulting and disrespectful to any professional interpreter charging the professional fees that their service commands.
There are some in Mexico, judges, attorneys, and interpreters, who are not fully on board, but they are not stopping the new culture. They are not killing the excitement and willingness of all parties to grow professionally in the new legal system the country has adopted. There are many things to do, but an environment fosters the achievement of those goals.
I hope that me sharing the situation of the court interpreting profession in Mexico can inspire many of us in other countries and legal systems, and teach us to keep fighting for what is right without ever giving up in our dealings with the judiciary, and to never give in to the insulting conditions offered by those who want to see us as an “industry” instead of a profession. I now invite you to share with the rest of us your goals and achievements within your courthouses or hospitals (for healthcare interpreters).
February 22, 2017 § 1 Comment
For years, and especially during the past few months, there has been a lot of talk about the communities of foreign-born individuals who are physically present in the United States. All aspects of their lives have been debated and scrutinized: from their immigration status to their religion, from their ethnic origin, to the language they speak at home. Many articles have been written, and many discussions have been held about their right to stay in the country, the impact they have on the economy, and the actions of the federal government regarding their admission to the United States and the exclusion proceedings instituted against them. The policy the federal government has adopted towards foreign-born individuals in the United States has been rightfully questioned, criticized and denounced.
As interpreters, we deal with foreign-born people on a daily basis. We see what happens at the immigration courts (EOIR), the United States Immigration and Citizen Services’ (USCIS) interviews, Equal Employment Opportunity Commission (EEOC) hearings, and the federal judicial system. The news are not always good, but at least they are on the spotlight. Scandals such as SOSi’s abhorrent practices towards immigration court interpreters, the White House’s six-country travel ban, and the talk about the wall between Mexico and the U.S. are forcing the issue, and eventually things will have to change.
Unfortunately, foreign-born individuals physically present in the United States as immigrants, non-immigrants, and undocumented, face another terrible injustice that is turning into a reality, and eventually it could become an everyday threat: I am referring to a practice followed by state courts in many places that is gaining popularity and acceptance by the establishment, sometimes due to ignorance or indifference, and many times because of incompetence and greed.
This modern form of potential discrimination by state-level Administrative Offices of the Courts against people whose first language is not English has to do with access to justice: It is evident to me that state governments could be systematically discriminating against people who lack fluency, or do not speak English, by denying them the services of certified court interpreters in languages with a certification program, just because state government officials want to save money.
It is undeniable that those states where the language access program is not managed by a professional interpreter are at a tremendous disadvantage because there is a person with neither knowledge nor interpreting background at the helm; but the problem is even worse. Some states where the head of the program is an interpreter, and many state-level courthouses with full and part-time staff interpreters are just passively allowing for this to happen without moving a finger for fear to lose their jobs.
The potentially discriminatory practice goes like this:
During the Obama administration, state-level courts were made aware of the fact that the federal government was going finally to enforce, after almost forty years, Title VI of the Civil Rights Act which allows the withholding of federal funds dedicated to the states when the latter do not provide universal access to all the services offered, even if some accommodations need to be made in order to avoid discrimination based on many categories, among them not being able to speak, or fluently speak English. This included all state-level courts.
Before this development many states were running court interpreter certification programs. California had its own program, and in July 1995 Minnesota, New Jersey, Oregon and Washington State founded a consortium. Other states joined the consortium, and many states began to offer the services of certified court interpreters for criminal cases. A handful of states even provided certified court interpreters for certain litigants in civil cases. Unfortunately, lack of vision by the Administrative Offices of State Courts and by State Legislatures made the profession’s growth difficult because they refused to pay certified court interpreters a professional fee commensurate to the difficult, and sometimes dangerous, services provided.
This reality, coupled with judges’ ignorance that permitted non-certified court interpreters to appear in court, even though the needed language pair has a certification program, and certified interpreters were available, created an exodus of many of the best interpreters who migrated to more profitable interpreting fields, and made the profession less than attractive to new generations.
When the notice of enforcement of Title VI of the Civil Rights Act arrived, the states were faced with the possibility of losing huge amounts of money from the federal government. They knew that to save “their” money, they would need to provide access to justice to all individuals who did not speak English.
They finally realized what they had done (although they did not recognized it, or refused to acknowledge their fault). There were not enough interpreters to fulfill the federal mandate, and they did not want to lose their subsidies!
The best thoughtful solution to this problem would have been to boost the popularity of court interpreting as a profession by actively promoting the career and by making it more appealing. Responsible States would have developed a plan to encourage teaching of court interpreting at universities, colleges and community colleges. They needed to launch a campaign among high school students informing them of the potential opportunities as certified court interpreters. They needed to increase the times they offered their certification examinations, and they needed to pay an attractive professional fee, with cost of living adjustments, to all certified court interpreters. They needed to do this by lobbying State Legislatures for more funds, and if unsuccessful, by cutting or reducing other non-essential services and devoting those resources to the certified interpreter program. It was a matter of priorities and doing the right thing.
This did not happen. Instead of doing these things, state officials got together to see how they could keep the federal money coming their way. This is how the states came up with the Language Access Services Section (LASS), the Language Access Advisory Committee (LAAC) and the Council of Language Access Coordinators (CLAC). A system designed to protect their federal funds while giving the appearance of granting language access to all foreign-language speakers in State-court systems.
As a result of these developments, states opted for the easiest and cheapest solution, which basically follows three major principles: (1) Use video remote interpreting (VRI) as much as possible to reduce costs of an in-person interpreting service, and pay less to the interpreter as they would get paid by the minute, or in more “generous” states by the hour at a much reduced fee; (2) Use all those who demonstrated that they are not fit to become certified court interpreters, by creating a “new classification” of “credentialed interpreters” (Nevada) or “Justice System interpreters” (New Mexico) so that individuals who failed the court interpreter certification exam can work interpreting court proceedings; and (3) Use certified court interpreters as little as possible, while giving the appearance that these questionable new classifications had to be retained because no certified court interpreter was “reasonably available” to do the job.
This is happening in many states, and I ask you to please include in the comment section a report of what is going on in your own states. Because what is currently taking place in Nevada and New Mexico has come to my attention, I will share the main points with all of you.
The Nevada Administrative Office of the Courts is considering implementing this new category of paraprofessionals by rewarding those who fail the court interpreter certification test with access to work in court as interpreters. These decisions are being considered by the Nevada Court Interpreter Advisory Committee which is integrated by judges and administrators, and no independent certified court interpreter is part of the committee. Interpreters do not get notice of the Committee meetings, and so far, the person in charge of the interpreter program at the Nevada Administrative Office of the Courts apparently has shown no desire to inform interpreters ahead of time so they can at least attend the meetings.
Nevada courts use the services of way cheaper paraprofessional non-certified court interpreters even when certified ones are available, and currently, this state’s certified court interpreters are among the lowest paid interpreters in the country, despite the fact that judges and administrators make six figure salaries in Nevada. It is clear that there is a problem with the state judiciary’s priorities.
The New Mexico Administrative Office of the Courts is already rewarding those who fail the court interpreter exam by using the services of these much cheaper paraprofessional “justice System interpreters” (JSI) even when certified court interpreters are available. Under the excuse of unsuccessfully attempting to find a certified court interpreter, they are retaining the services of these individuals even when certified court interpreters were ready and willing to do the job. The State is also resorting to the way cheaper video remote interpreting (VRI) even when interpreters appear from other states and are not familiar with New Mexico law and procedure. It is very concerning that they are using this system and these interpreters for hearings of such importance as sentencing hearings.
The New Mexico Language Access Advisory Committee does include a disproportionate minority of independent interpreters; however, it is said that its meetings are sometimes hostile towards independent interpreters who raise objections to the dismantling of the certified court interpreter program, and that some interpreters have been refused work in the state court system even after all possible grounds for denial have been dissipated and proved unfounded.
Despite the fact that judges and the Director of the Administrative Office of the Courts make six figure salaries, New Mexico certified court interpreters have not seen a fee adjustment in a number of years, their expense reimbursements have been significantly reduced, and instead of having a professional relationship with a judiciary that makes an effort to prioritize access to justice and find funds to do it, they have been warned by the AOC that there is no money. They face an administration with an attitude that could be interpreted as contempt towards foreign language litigants, moved by a philosophy at the top that apparently believes that the AOC only has a legal obligation to provide “an interpreter”, not a certified court interpreter. To me, this is the pull the rabbit out of the hat principle where you create an “interpreter” category in order to get federal money. It is not about having a warm body next to the non-English litigant. It is about quality. The federal law requirement had in mind a professional service.
I do not believe that this is the time for interpreters to take it on the chin. There is a lot of turmoil in the country at this time, but the rights of foreigners are center-stage. Let’s seize the moment to protect the profession and make sure that states do not get away with this plan which could potentially discriminate against speakers of a foreign language by treating them as second-class litigants.
I suggest you educate your communities, talk to your state legislators, and speak to your local media. All of it is necessary, but I also propose you do two additional things that could make the difference:
First, I wonder how many litigants are aware of the fact that the individual provided by the court to “interpret” for them is not a certified court interpreter; that in fact, they will be dealing with somebody who has already demonstrated that he or she is not fit to be a certified court interpreter because he or she failed the exam. I would approach people in the courthouse and make them aware of this circumstance; I would even print a flyer explaining to them that this “interpreter” categories are as good as a three dollar bill, regardless of what the government tells them. Ask them how they would feel if instead of a licensed physician, their outpatient surgery was going to be done by somebody who failed to become a licensed doctor. Ask the foreign language speaker’s attorney what she or he would do if the court were to appoint a person who failed the state bar as the litigant in a divorce proceeding because there were no children to the marriage. You will see how fast they demand a real certified court interpreter for their case.
Second, organize yourselves either through your local professional interpreter association, or independently, and volunteer to attend court hearings where this paraprofessionals are “interpreting” (after all court is open to the public) and keep score. Write down every time one of these individuals is late for court, acts unethically, does something unprofessional, and makes an interpreting mistake. Write down how they enter their appearance in court, see if they claim to be certified court interpreters. After a few months, or during election time, send this information to the State Bar, to the publishers of voters’ guides, to the political parties, to non-for-profit organizations with tremendous weight in court elections such as Mothers Against Drunk Drivers (MADD) and to the local media. This way people will know who are the judges who care about access to justice, and who are the judges who only care about getting federal money.
I do not believe that these actions will solve all problems, but they will help to expose these programs for what they really are. If you do not do it, nobody will; not because they do not care, but because they do not know. I now invite you to share with the rest of us the current situation in your own state administrative office of the courts.
April 27, 2015 § 6 Comments
I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand. This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.
Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service. When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population. The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.
In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state. These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.
When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job. Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else. This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate. It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.
Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended. They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:
Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator. This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born. The spirit of the law was ignored.
There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.
Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program. This was the origin of the next step backwards: Fee reduction.
Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.
Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators. What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?
These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.
I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness. I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator. As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.
They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals. All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.
March 13, 2015 § 6 Comments
Every time I read an article about court interpreting, look at your social media posts, or have a face to face conversation with a court interpreter, I cannot help but notice how the working conditions constantly deteriorate. For some time we have witnessed how the court interpreting system of the United Kingdom was completely destroyed and our colleagues had to courageously fight back so the rest of the world knew what had happened in their country. Time continues to run, and nothing has been done to improve that system now run by an entity whose greatest achievement was to sink the quality of interpreting services to an unimaginable low. We have witnessed the difficult times that our colleagues who want to do court interpreting face in Spain. We have heard many stories of court interpreters around the world having to fight for a professional fee, a professional work environment, and respect to the profession.
The situation in the United States is also very sad. It is true that the enforcement of Title VI of the Civil Rights Act has left little choice to the states. Now, state-level courts that want to continue to receive federal funds must provide interpreting services to all non-English speakers who need to have access to the justice system. The new demand for court interpreters beyond criminal cases has “inspired” many court administrators and chief judges to act in new and more creative ways to satisfy the requirement of having an interpreter next to the non-English speaker, even when the quality of this professional service is at best doubtful. To this day, there are jurisdictions where the question is: Does a warm body fulfill the legal requirement of providing interpreter services? Sadly, in some cases the answer seems to be “maybe”.
But the state courts want to comply with the federal mandate, and it seems that some of them will stop at nothing in order to achieve their goal. A popular formula was born: “Get an interpreter for that hearing and try to spend as little as possible”. The origin of this strategy is not clear, but it is obvious that this solution was not conceived by an interpreter. This is not even the brainchild of an administrator who at least has a basic knowledge of the interpreting profession; moreover, this doctrine has been embraced by some federal level courts as well. Let me explain.
Some court administrators have implemented a fee reduction. Today, some interpreters get paid less for their travel time to and from the place where they will render professional services; they get a lower fee, less compensation per traveled mile (kilometer elsewhere in the world) no reimbursement for tolls and bridges, and other very crafty ways that some courts have devised to pay less for interpreting services.
Other courts have increased the level of “scrutiny” and now watch over the court interpreters’ shoulder while they are doing their job; not the way a client observes the work of a doctor, a lawyer, or any professional individual, but the way a person watches over the performance of the guys who dry your car when you take it to the car wash. Many times this breathing on your neck type of scrutiny is enforced by adding paperwork and bureaucratic requirements to the fee payment process. To the interpreters, this means more time spent in the payment process, while making the same money than before the new requirements were in place. They are effectively making less money than before.
Of course there are also courts that now pay a lower fee during the contracted time if the interpreter’s lips are not moving: They pay a partial fee for the break time and travel time, even though the interpreters, who sell their time, have allocated those hours, or minutes, to that court as a client. Now some courts are tossing high fives at each other because they paid the interpreter a full fee for 45 minutes of work and a reduced fee for the 15 minutes in between cases when the interpreter did not interpret because the judge had to go to the bathroom.
And there is more: some jurisdictions have removed themselves from the payment process in those cases when, due to a possible conflict of interest, the court assigns a particular case to a private independent defense attorney, who is a member of a panel of lawyers, who can be appointed to these cases in exchange for a fee that is paid by the judiciary. This jurisdictions do not accept the interpreters’ invoices anymore; they now require the panel attorney to process the interpreter’s invoice and payment, generating two very sad effects: (1) Sometimes, the interpreter will have to wait a long time to get paid because their payment processing is not a top priority to the lawyer, and (2) It will help to keep alive the idea that interpreters are second-class officers of the court who do not deserve the court’s trust, because it is clear that these jurisdictions opted for a system where the attorney will need to access the court’s computer system to process interpreters’ payments, which is “preferable” over a system where interpreters would have to be granted that same access to the system. Why? Because it is too much of a risk to take? You can arrive to your own conclusions, but the fact is that this policy is very demeaning.
My friends, when you see and hear about all these policy changes you have to wonder: As these new strategies were discussed and adopted, where were the court staff interpreters, and the judges, and the administrators who know what interpreting is about? And once they were implemented, why did the freelancers continue to work under these terrible conditions? I now invite you to comment on this policy changes, other rules you may have noticed somewhere else, and the reason why these changes are being implemented with so little opposition.
February 26, 2015 § 10 Comments
In the United States and other jurisdictions interpreters are officers of the court. From the moment interpreters begin to work in court, they hear the term thrown around all the time. They are told that much is expected from them as officers of the court, and at the same time they see how annoyed some court employees get when an interpreter is part of a hearing.
One of the least pleasurable things about court interpreting is the need to endure uncomfortable attitudes, and absurd policies, by many clerks, support staff, attorneys, court administrators, and even judges. This environment has turned off many excellent interpreters, and deprived non-native speakers of the benefit of some of the most capable and professional individuals.
Court interpreting presents many unavoidable challenges to the professional interpreter, and they have to be dealt with in order to reach the goal of equal access to justice: lay and legal terminology, evasive speakers who at best reluctantly tell the truth, poor acoustics, obsolete interpreting equipment or the lack of it, long hours, and low pay, are some of the realities that court interpreters face every day at work. Most of them cannot be fixed by a bigger budget or more competent court administrators; they are part of the “nature of the beast.” Let’s face it: many people do not go to court voluntarily, some appear before a judge or jury when they are angry, scared, embarrassed, and a good number of them have trouble with telling the truth. Court interpreting is very hard; but not all of its difficulties are due to bad acoustics, a whispering attorney, or a fast-speaking witness. Some of them are generated artificially, they do not belong in the courthouse; they are the result of ignorance and lack of understanding.
When the spirit of justice and the passion for the law are no longer there, many of the top interpreters abandon the field. Being ignored by the clerk, patronized by the judge, criticized by the attorney, and to constantly walk into an environment where the interpreter often feels like he is more of an obstacle to the process than an essential part of the administration of justice, seems to outweigh the low and rarely timely pay. We all know, and have accepted or rejected these circumstances; many are trying to change them through education or negotiating their labor conditions, and many freelance interpreters have relocated their court work from the top of their priority list to the middle and even to the bottom.
The question is my friends: Are we really officers of the court? The legislation says we are, but, what does it mean to be an officer of the court? According to Black’s: an officer of the court is “a person who is charged with upholding the law and administering the judicial system. Typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like…” it adds that an officer of the court “…is obliged to obey court rules and… owes a duty of candor to the court…” Interpreters fall into this category as one of “the like”. This has been widely recognized by most state legislations, and it is explained by the United States’ National Association of Judiciary Interpreters and Translators (NAJIT) position paper on the interpreter’s scope of practice: “…By virtue of the role we play in the administration of justice, many courts have stated outright that the interpreter is an officer of the court…” To put it in lay terms: court interpreters are officers of the court because they are part of the judicial system to administer justice, and as such, they are subject to strict professional and ethical rules, and to specific legislation. There is no doubt that especially, certified court interpreters are strictly regulated as professionals: they need to go through a certification or licensing process that culminates with passing a rigorous exam, in most cases (sadly, not the federal program) they must meet continuing education requirements to keep said certification or license, and they have to abide by a code of ethics and professional responsibility. It could be argued that noncertified court interpreters may not fit the description as they do not have to meet all the requirements above. However, even noncertified court interpreters must observe the rules of ethics when working in a court-related case.
So, where is the demeaning practice I mentioned at the top of this post? It is at the time that certified court interpreters are placed under oath over and over again, every day, all over the United States.
To practice their profession, all officers of the court are subject to eligibility requirements: judges, attorneys, and certified court interpreters have to meet them to work in the system. All officers of the court have the duty to obey the law, and the responsibility to act ethically and professionally. For this reason, all of them are required to take an oath: judges take the oath when they are appointed or elected to the bench, attorneys are administered an oath after they pass the bar exam, court clerks take an oath when they are hired by the judiciary. They all take the oath once!
In some states, and in some United States judicial districts, certified court interpreters are only required to take their oath once (for that jurisdiction) and a record is kept in file for future reference. This is a great practice not only because it saves taxpayers money by shortening the hearings, and the savings can be a significant in cases when the same certified court interpreter is administered the oath, in the same courtroom, over ten times in one day. Equally important, from the certified court interpreters’ perspective, is the recognition of their status as officers of the court, and the very important message by the system that certified court interpreters are going to be treated as the professionals that they are.
Unfortunately, to eradicate this demeaning practice that places certified court interpreters as second class officers of the court, we will need more than just educating judges and attorneys, convincing court administrators, and pushing interpreter coordinators who work for the courts so they stand up and support the freelance certified court interpreters on this one. It will require a legislative change in many cases. Believe it or not, there is legislation in some states requiring that interpreters be placed under oath before each court proceeding.
A 2012 decision by the United States Court of Appeals for the Ninth Circuit (U.S. v. Solorio) held interpreters who translate the testimony of witnesses on the stand are covered by Federal Rule of Evidence 604 and that they are subject to “…the administration of an oath or affirmation to make a true translation…” However, the Appeals Court ruled that “…Rule 604 does not…indicate whether such an oath must be administered in any particular manner or at any specified time, including whether the oath must be administered for each trial. The Administrative Office of the United States Courts (AO) has published guidelines on the administration of oath to interpreters, observing that policies in regard to the oath of interpreters vary from district to district and from judge to judge [Guide to Judiciary Policy §350(b)] Although some courts administer oaths to interpreters each day, or once for an entire case, others administer the oath to staff and contract interpreters once, and keep it on file…”
The legal argument above can be used by certified court interpreters to advance their efforts to get rid of this “second-class treatment” by some courts, but the road will not be easy, and in some cases, the biggest obstacle will be bilingual judges in positions of authority who do not quite understand the role of the interpreter as that of an officer of the court. Judge Ruben Castillo, as co-chair of the American Bar Association (ABA) Section of Litigation’s Trial Practice Committee, and presently the Chief Judge for the United States Northern District of Illinois, favors administering the oath for each case, stating that: “…I happen to be a Spanish speaker, and I’ve seen misrepresentations occur…under the pressure of instantaneous interpretation, especially in cases involving a lot of slang…mistakes can occur. When under oath, most people take the job more seriously…” As you can see, devaluating the certified court interpreter’s professionalism is also used to continue this demeaning practice. It is obvious that judges need to be educated to the professional status of the certified court interpreter. The oath does nothing to improve an interpreter’s skills, but it does a lot to show us that there is a long way to go before we can sit at the table as equals in many jurisdictions. I can see a need to place under oath noncertified or occasional interpreters (not all languages have enough demand to generate a professional practice) but certified court interpreters should be treated as all other officers of the court whose professional scope of practice goes beyond that of a witness.
I now invite you to share your thoughts on this matter.
April 21, 2014 § 7 Comments
A few days ago a colleague contacted me to ask if I had seen the updated United States Federal Court Interpreter Orientation Manual and Glossary. Although I do not exactly know how long ago this version came to be, my answer was that I had not. She asked me to take a look and then tell her my opinion. I read the publication from beginning to end. The first thing I noticed was that some extremely qualified colleagues had been involved in this updating process. Then I read the publication. Most of the manual seemed to be well written and it looked like it covered most of the relevant points and situations that happen in federal cases. That is, until I got to Chapter 3(VII)(C) For your benefit as readers, I transcribe the applicable portion of the manual next:
“Federal Court Interpreter Orientation Manual and Glossary.
Chapter 3: Overview of Court Interpreting.
VII Interpreters in the Courtroom…
C. Number of Interpreters per Proceeding: Team/Tandem Interpreting.
The number of interpreters may vary according to the type of proceeding and the number of defendants that require interpreter services. To mitigate the effects of interpreter fatigue, proceedings estimated to exceed four hours are often covered by two interpreters through team, or tandem interpreting. The passive interpreter should remain seated in close proximity to the active interpreter and refrain from leaving the courtroom for any significant length of time without good reason…”
Yes dear colleagues, it reads four hours.
For the past eighteen months or so, I have devoted a good part of my time to help and assist in the development of interpreting rules and policy for interpreters in different parts of the world. I have held talks, workshops, presentations and one-on-ones with many interested parties that are developing or restructuring interpreter working conditions and rules of professional performance; and I have done it driven by two priorities: (1) To provide an excellent service and (2) To protect interpreters so they are able to fulfill priority number one.
I have sat in meetings and presentations where I heard of countries where government offices and private agencies require interpreters to work alone when interpreting consecutively regardless of the duration of the assignment; I have heard how individuals in decision-making positions question the need for team interpreting in small conferences or in legal settings. I heard it all and I heard it over and over again. You must know then, that one of the things that kept me going, and gave me the moral authority to dispute the rules or policy with real scientific arguments and data, was the knowledge that in the United States all reputable conferences, the federal judicial system, and many state-level courthouses, were honoring and following the principles of team interpreting and interpreters switching roles from active to support (passive) every 30 minutes or so. Now you can imagine my reaction when I read Chapter 3(VII)(C) above.
Dear friends and colleagues, as many of you know, scientific studies have demonstrated that mental fatigue sets in after approximately 30 minutes of interpreting. These studies show how the quality of the rendition is compromised when an interpreter, regardless of his capacity and skill, continues to interpret beyond this 30 minute marker. Even when the interpreter who has been working for a long period of time thinks that his rendition is accurate, it is not, according to a study by the University of Geneva’s Translation and Interpretation School (“Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” Moser-Mercer, B. Kunzli, B. & Korac, M. University of Geneva, École de Traduction et d’Interprétation. Interpreting Volume 3(1) p. 47-63. John Benjamins Publishing Co.) Jesús Baigorri Jalón tells us that “…an average of 30 minutes of consecutive work was the maximum time during which a satisfactory (interpretation) could be done; after this time, one runs the risk of deteriorating results due to fatigue…” (“La Interpretación de conferencias: el nacimiento de una profesión. De París a Nuremberg”. Editorial Comares, Granada. P.188)
Recognizing this well-documented issue, and as part of its tradition of excellence and professionalism, the International Association of Conference Interpreters (AIIC) clearly indicates in article six of its Professional Standards:
- *An interpreter shall not, as a general rule, work alone in a simultaneous interpretation booth, without the availability of a colleague to relieve her or him should the need arise.
- **One of whom must be able to relieve each of the other two. In certain circumstances this number may be reduced to two (particularly for short meetings or meetings of a general nature, provided that each of the two interpreters can work into both languages)…”
This is also contemplated within the Sign Language interpreter community. The ASL Team Interpreting Guidelines state the following:
“…Interpreting assignments one hour or longer in length with continuous interpreting, will require the use of a team of two interpreters. The teaming allows the interpreters to switch roles every 15-20 minutes. Teaming will reduce physical strain, prevent repetitive strain injury, and prevent mental fatigue which can cause the quality of the interpreting to deteriorate…”
The National Association of Judiciary Interpreters and Translators (NAJIT) issued a position paper on this particular issue, and their study concludes that:
“…Due process rights are best preserved with faithful simultaneous interpretation of legal proceedings… In a controlled study it was shown that interpreters’ work quality decreases after 30 minutes. In the challenging courtroom environment, team interpreting ensures that the comprehension effort required to provide accurate interpretation is not compromised. To deliver unassailably accurate language service, court interpreters work in teams…” (NAJIT Position Paper. Team Interpreting in the Courtroom. March 1, 2007)
Even Wikipedia is aware of the complexities of interpreting and the need for team interpreting when it says:
“…Because of the intense concentration needed by interpreters to hear every word spoken and provide an accurate rendition in the target language, professional interpreters work in pairs or in teams of three, so that after interpreting for twenty minutes, the interpreters switch…” (Wikipedia)
As we can clearly see, the fact that team interpreting is required to do this job, and that those in the team need to switch roles every 30 minutes or so is undisputed. This is why several countries that due to globalization are just starting to use interpreting services more often than before, are adopting the team interpreting principle; most of them agreeing to a 20-30 minute policy for interpreters to switch roles. It cannot be possible that the United States federal judiciary got it wrong. There is no way that these updated rules are telling the professional community (interpreters, judges and attorneys) and society at large (litigants, victims, experts, etc.) that the policy will take us backwards. I just do not believe that is what our government wanted to do.
This all leaves us with two possibilities then: Either the rules are poorly written, and that is why we got this confusion, of the rules committee made a mistake. If it was a mistake, it should be corrected immediately. If the rule refers to something else, it should be re-written to make it clear. As part of my research for this article, I heard that the rules were updated because of the arrival of telephonic interpreting. If that is the case, the language must be amended to show that this rule is meant to apply to telephonic hearings. Then, after they do that, we will have to argue that telephonic hearing also needs team interpreting, but that would be another battle for another day.
Dear colleagues, I know that each judicial district sets its own rules, in fact, I am privileged to work in districts where the team interpreter rule is honored and enforced. I am aware of the fact that these rules will probably not change the way most districts operate; however, they are there, and someone can use them in the future to damage the service and hurt the profession. The rule needs to be amended immediately. Many of us will never work alone. Many of us will demand a team, but there could be new colleagues, greedy ignorant language service agencies, and inept court administrators who may be tempted to use them as an excuse to try to change policy. They would fail. They would lose. They would disappear, but I ask you: Why do we have to fight that battle (again) when all that needs to be done is to amend the manual. Please share your thoughts on this issue with the rest of us.
December 9, 2013 § 6 Comments
Unfortunately this topic is not new to anyone. It seems like we have been listening to the same complaint for many years, but during the past few months I have heard and read enough disturbing stories to decide that it was my time to contribute my two cents to the defense of our colleagues: the real professional court interpreters. Before I continue, I must clarify that this posting refers to Spanish language court interpreters. I recognize that interpreters in other languages are in a different situation as they do not have a federal certification program in the United States. That is an issue for a separate blog post.
I learned that there are federal district courts in the Southern and Midwestern States where the federal court interpreter certification is not “required” to interpret a hearing or even a trial. I was told that there may be other federal courts elsewhere in the United States where they also follow this practice. I have to confess that I have been very lucky to live and work in places where this has never been an issue. In fact, I live in a city where I have never even met non-certified court interpreters. The Federal Court for the Northern District of Illinois provides federally certified court interpreters for all of its cases.
The most common complaints that I have heard from certified interpreters is that these courthouses have clerks, administrators, and judges who don’t see the need to hire federally certified interpreters because they think they are too expensive, it is too difficult to get them, or because they are happy with the services provided by non-certified individuals who have been providing their “services” to these judges. There is a federal district courthouse in the Midwest that hires one certified and one non-certified interpreter to work their trials. Fortunately, most certified interpreters refuse to work under these circumstances. Unfortunately, this courthouse then hires two non-certified individuals. Their argument is that it is cheaper and the non-certified individual has a state court interpreter certification. Another courthouse in the South routinely hires non-certified interpreters under the explanation that their judges like these non-certified individuals who have been doing “a good job” for many years. There is a federal district court judge who states on the record at the beginning of a hearing that the Spanish speaker is being assisted by a certified interpreter, without giving opportunity to the federally certified court interpreter to enter her appearance on the record by clearly stating that she is federally certified. This way the judge, intentionally or unintentionally (we don’t know) makes it impossible for the certified interpreter to separate herself from the non-certified individual. In fact, because of this maneuver, I heard that some attorneys that have appeared before this judge for many years are shocked when they learn out of court that the “other” individuals appearing in court are non-certified.
I would like to think that most of these situations arise from the lack of knowledge among judges and court staff. Many of them do not know the difference between a federally certified court interpreter (the ones who can appear in court) a state certified court interpreter, and non-certified individuals who just happen to accept assignments knowing that they are not supposed to.
For the benefit of some of you who might be reading this article, and with the hope that some of my colleagues may share the following information with judges, clerks, attorneys and others, I will touch upon some of the basic differences between a federally certified court interpreter and a state certified interpreter.
According to the Court Interpreter Act, the Administrative Office of the United States Courts shall establish a program to facilitate the use of certified interpreters in judicial proceedings instituted by the United States (28 USC § 1827) To fulfill this mandate, the United States AOC has developed a certification program that all Spanish interpreter candidates must pass to be certified. The certification program is administered in two parts: a written exam to test the true bilingualism of the applicant who has to pass (with a minimum score of 80) each of the two sections: English and Spanish. Those who pass this first stage must wait for a full year and then take the oral exam that consists of difficult exercises to test the examinee’s interpretation skills, legal terminology and comprehension, and language proficiency. To pass this test a candidate must score a minimum of 80 on each of its 5 sections: sight translations from English into Spanish and Spanish into English, two simultaneous interpretations at very high speeds: one a monologue and one a dialog, and a lengthy and complicated consecutive interpretation. Passing rates for this very difficult exam are among the lowest in any professional field.
A person can become state certified after meeting the requirements of that particular state. The format and minimum scores vary depending on the state. Some require a written test, others do not. Some offer a written test on the basics of the legal process, others require prove of bilingualism. The oral test can be the same in different states as they all use the services of the National Center for State Courts (NCSC) but the way the test is administered and graded is different from state to state. Some states let the applicant take the oral exam by parts (first the simultaneous exam and maybe months later the consecutive and sight)
Of the many differences between the federal certification program and the states’ programs, perhaps the most important are the content of the exam and the minimum scores required to pass it. State exams have fewer sections than the federal test. They do not have a simultaneous interpretation dialogue, the simultaneous interpretation exercise is offered at a lower speed, the sight translation documents are not legal, but paralegal documents, and the subject matter of the exercises is based on topics that are under the jurisdiction of a state court. The minimum score to pass a state certification exam is 70. Some states allow that examinees retest only on those sections where they got a failing score. The passing rate for the state court interpreter examination is far higher than the federal rate. In fact, there are many state certified court interpreters who have repeatedly failed the written and oral federal certification examination. As you can see, there is a significant difference between these certifications. It is important to mention that for federal court purposes a state certified interpreter is a non-certified interpreter.
The federal court interpreter program exists because of a constitutional mandate. The VI Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right to… be informed of the nature and cause of the accusation; to be confronted with the witnesses against him… and to have the Assistance of Counsel for his defense…” (Amendment VI. 1791)
The Court Interpreter Act clearly states that: “…Only in a case in which no certified interpreter is reasonably available as provided in subsection (d) of this section, including a case in which certification of interpreters is not provided under paragraph (1) in a particular language, may the services of otherwise qualified interpreters be used…” [28 USC § 1827(b)(2)]
Looking at the statute you can easily conclude that the courts are obligated to seek the services of federally certified interpreters. There were certified interpreters ready and able to work in all the cases I have mentioned in this article. It was the clerk or the judge who preferred to use the non-certified individuals.
Even smaller federal district courts now have access to federally certified court interpreters through the federal judiciary’s Telephone Interpreting Program (TIP) The TIP, available nationwide, allows an interpreter at a remote location to deliver simultaneous interpretation of court proceedings for defendants and consecutive interpreting for the court record by means of a two-line telephone connection. This program has been very successful and has kept the highest quality of interpretation in the courtroom.
It seems to me that after reading this posting, all federally certified court interpreters who are ignored or passed over by a courthouse, and later find out that a non-certified individual has been hired to “interpret,” should be able to explain the legal reasons not to do so. Unfortunately, sometimes this may not be enough. All federal judicial districts are independent. They make their own decisions. All federal district court judges are appointed for life. When an explanation is not enough to change a bad habit, there are other means to achieve the desired results.
When faced with the situation above, the interpreter should talk to the defense attorney and express his concerns about the defendant’s constitutional rights being violated. The V amendment indicates that: “No person shall… be deprived of life, liberty, or property, without due process of law…” (Amendment V. 1791) For a person to have due process there has to be legal representation. A defendant cannot participate in his defense unless he understands the charges against him and confronts his accusers. This is impossible if he cannot communicate with his attorney (See Amendment VI 1791 above) It is important to make it clear to the defense attorney that because of this violation of the defendant’s constitutional right to a due process, there are grounds for a dismissal, or at the least for an appeal, even before the trial takes place.
As far as the non-certified individual who is working at the courthouse, even with the blessing of a judge, there are several things that can be done: When the individual states that he is certified, or when the judge states on the record that this person is certified and the “interpreter” does not correct the record, there can be consequences if this person has a state certification. This should be brought to the attention of the state agency that oversees the performance of state certified interpreters. This lack of moral character could be grounds for a suspension or even a revocation of the state certification. Remember, state certified court interpreters are (state level) officers of the court.
There are also certain things to be done when the individual does not have a state certification. If at the beginning of the hearing, or at any time during the process, this person was placed under oath or affirmation and indicated that he was certified, or even if he remained silent when the judge or the clerk put him under oath as a certified interpreter, he may have committed perjury or at least misrepresentation and therefore he could be prosecuted for this crime. This individual could also be subject to other sanctions depending on the state where the act was perpetrated. Practicing a profession without a license or certification could be a misdemeanor in some states. The person may be subject to jail time or at the least to a fine.
Finally, the non-English speaker defendant or his dependants may be able to sue the “interpreter” for damages caused by him as an individual who provided a service without having the certification to do so, and perhaps committing fraud or inducing the error at the time of celebration of the professional services contract. If the non-English speaker thought that this individual was certified, there was no “meeting of the minds” and therefore the contract wasn’t valid; this means that he can sue the “interpreter” for damages and he may not have to pay him for what he did. This is a good remedy for those who appear in court pro-se.
There are many resources to right a wrong. The first step should be to try to educate the bench and bar. I encourage you to speak before the defense bar and the assistant U.S. attorneys. Make sure the court knows that all these resources exist; that they can use TIP. Always remember: you need to make sure they are aware that you know what is required, and that they know that you are willing to campaign for the use of certified interpreters in your district. Please share with the rest of us your experiences with non-certified interpreters and what you did to fix the situation in your federal district court.
July 17, 2012 § 6 Comments
Not long ago I had dinner with some colleagues that work in the federal court system. As it always happens with interpreters, we ended up talking shop. Of course, as you all know, this is pretty standard in our profession; however, I was shocked by some of the comments I heard. I learned that despite the fact that the state has over 20 court certified interpreters, the federal courts in Colorado are now hiring non-certified interpreters for all services with the exception of court hearings; and that is not all, I also heard that the CJA attorneys are only approving vouchers for the time “actually worked” by the interpreter. Forget about the full day and half a day rates. I also found out that, ignoring the fact that Chicago has around 15 certified court interpreters, the state of Indiana is hiring non-certified interpreters for hearings, and they are even pairing them with certified interpreters. We all know that each district is its own world, and they set their own policy, but somebody told me that this is happening with the blessing of higher authorities. This is worrisome. I support the idea that if you want to like our profession for a long time, and if you want to make a good living, you need to diversify and interpret conferences, legal, medical, and everything else you can think of.
I oppose the position of some independent contractor colleagues who only see themselves as court interpreters and refuse to step outside the box; however, I am very fortunate to live in a place where the court only allows certified court interpreters, but if what I heard is true, I am saddened and frustrated by this information because the certification exam is not easy, because there is a huge quality gap between the interpretation level of certified and non-certified court interpreters, and because the attorneys and judges are going along with the budget guys, giving up the quality of a certified court interpreter in order to save a few bucks. I ask you to tell me if this is what is happening in your area, and if so, what in your opinion can be done to educate the defense bar, the federal bench, and the U.S. Department of Justice so they stop calling all these non-certified interpreters, and let me be very clear that when I say non-certified I am including the consortium certified interpreters because there is no distinction between them and those with another certification or without any certification, they are not certified to work in the federal system. It is that simple.