Interpreters’ rights under siege in California and other places.

Dear Colleagues:

Quite a few colleagues from California and other states, even foreign countries, have contacted me to complain about certain practices, and even legislation, that directly deprives them from their right to make a living by practicing as freelance court interpreters.

In California, the full implementation of the so-called “Language Access Plan” (LAP) goes into effect full blast by 2020. This is a strategy adopted by the State to meet the requirements of Title VI of the Civil Rights Act and keep California as beneficiary of federal funds attached to this legislation (http://www.courts.ca.gov/documents/LAP-Fact-Sheet.pdf).

The State had already partially complied with the federal mandate when it was sued by a non-for-profit organization, now a member of the State’s Advisory Committee on this Plan. As a result, California decided to provide, free, interpreting services to anyone who requests an interpreter in Civil matters. This is a universal rule, not limited by income-based eligibility requirements, and it applies to both: low income litigants with no ability to pay for an interpreter, who benefit greatly from this service, and Fortune 500 corporations that appear in court represented by high-price attorneys and rely on the expert testimony of expensive witnesses.

This decision by the State has nothing to do with the preposterous practice, followed by many States, to dodge Title VI of the Civil Rights Act’s mandate by creating de dubious “Justice System Interpreters” program (it goes by different names in various States) and save money, instead of fostering the development of real certified court interpreters and paying them a professional fee for their expert services. This mandatory policy California will fully implement by 2020 (unless the rule of law prevails and it is amended) impacts professional certified and registered (depending on the language combination) court interpreters.

California adopted a sweeping, populist demagogic policy that mandates free interpreting services for anybody in any court proceeding. At first, this looks like a fair and wise decision by a progressive State that wants to level the legal field for all its citizens, but if you just peel off the top layer, you discover the policy is wrong, expensive, incoherent, and illegal.

It is wrong because it treats all litigants the same way in non-criminal matters, going beyond Federal and State constitutional protections limited to criminal proceedings, and creating an even greater uneven field by rightly providing free interpreters to those civil litigants who cannot afford a private interpreter, and wrongly gifting the same option to those individuals and corporations with the means to pay for these services. A well-intentioned solution resulted in a policy that makes no sense.

It is expensive because the interpreters providing this service will be paid by the State of California through a judicial fund, wasting valuable taxpayer money in interpreter fees that should be paid by those civil matters’ litigants who can afford them. Court interpreter programs need more financial resources in California and elsewhere, and a State willing to invest money in language access programs should allocate those funds to professional development and better pay for those freelance interpreters serving criminal courts and interpreting civil matters for indigent litigants, not big business and wealthy individuals.

It is incoherent because Congress’ intent, in advancing these constitutional protections, was to give all individuals, regardless of their financial situation, the same access to the administration of justice even where they speak a language other than English. The legislator never envisioned a situation where taxpayers’ money would cover expenses derived of civil litigation, where life and liberty are not at stake, to favor those who do not need financial assistance. Under a rational basis criterion, taxpayers’ interest to judiciously spend their money substantially outweighs the needs of Fortune 500 businesses and millionaires to get an interpreter free of charge in civil matters.

It is illegal, because implementing this policy mandates all court administrators, managing interpreters, chief judges, and others in charge of court interpreting services at the courthouse level, to provide free interpreters in all civil cases, and, as it has been (almost) unanimously interpreted by these government agents, this means that freelance court interpreters should be banned and excluded from all civil court proceedings when their services are not paid by the judiciary, even when litigants prefer the services of independent court interpreters and they will pay for their services. California legislation establishes the requirements to practice court interpreting in the State as a certified or registered court interpreter (depending on the language combination). Perhaps these certification and registration requirements are meant to qualify as a court interpreter contracted by the court, but for the sake of argument, and because having certified and registered interpreters serve courts and litigants better, let’s assume however, requirements are necessary to practice as a court interpreter. Conclusion: As long interpreters meet the requirements, and until these credentials are suspended or revoked, they should be admitted to practice in any proceeding when the parties retain their services.

The other professional in a civil proceeding is the attorney. All parties may retain the attorney of their choice to represent them in any court matters; those who cannot pay for legal representation can seek assistance by non-for-profit organizations that provide attorneys for free or on a sliding scale. Attorneys are not excluded from a proceeding when paid by one party. I understand that, if you only see this situation from the litigants’ perspective, the issue is not exactly the same. Indigent litigants can appear in court pro-se if they cannot afford a lawyer, but non-English speakers cannot represent themselves, and their access to the administration of justice must be guaranteed by providing a court interpreter; however, in civil cases, said right should be tempered by the individuals ability to pay for an interpreter, so indigent litigants enjoy an even field with English speakers, taxpayers money is not wasted on paying for the services of an interpreter they can easily afford on their own, and freelance civil court interpreters can exercise their right to practice in the courts of California when their client will pay for their services.

Please remember that I am referring to those cases where litigants can pick their interpreters, just as wealthy people choose their doctors, lawyers, and accountants. I am not including in this category services provided by freelance court interpreters to indigent plaintiffs and defendants who cannot pay such fees but retain the interpreting services because they ignore a program would furnish an interpreter at no cost if they financially qualify for it.

The cases that concern my colleagues, and worry me as a member of the profession, are those controversies so complex, they need expert attorneys, witnesses and interpreters. These require of months of preparation, where interpreters are a crucial part of the legal team and often travel overseas with lawyers and investigators for interviews, inspections, and depositions. I am also talking about civil trials dealing with topics so sophisticated that attorneys, sometimes by agreement of the parties, hire freelance interpreters, not to be part of the plaintiff’s or defense’s team, but to interpret all court proceedings for the judge and jury. These interpreters are selected because of their experience on a particular subject, or because of their known skill and diligence, needed to prepare for a difficult, long trial, where branding, reputation, and a lot of money are at stake.

Some of our colleagues have told me that interpreters’ professional associations, interpreters’ labor unions (where they exist) and even staff interpreters oppose an amendment that will allow independent contractor civil court interpreters back in the courtroom.

This should not be the case. Staff interpreters should be glad to have one less issue to worry about. Civil Law and proceedings are very complex. Inexperienced civil court interpreters, even when they may have many years of criminal court practice, which encompasses most of those working as independent contractors with the courts, are prone to make mistakes when dealing with unfamiliar subjects and little time to prepare for a case. Professional associations, labor unions, and interpreters’ guilds are about advancing and protecting the profession. Excluding civil court interpreters from State courtrooms benefits no one. Even when the excluded professional is a non-unionized independent contractor, or these colleagues are not members of the professional association or guild, any policy that irrationally limits the livelihood of a group of interpreters eligible to perform a service hurts the profession and damages all, unionized, independent, and staffers. All agencies devoted to the advancement and protection of the profession must understand that independents, staffers, or members of a different association are not the enemy, we all play for the same team. We must channel our energy and resources to change legislation, regulations, and government policy like this one. We must remember: Those driving professional fees down, lowering professional standards, and destroying decent working conditions are the greedy agencies, not our fellow interpreters. In places like California where a professional association specifically deals with the interests of independent contractor court interpreters, such as AIJIC (http://www.aijic.org/), ask them to lead the campaign and support them in these efforts. States where there is not a professional association of independent or in general judiciary interpreters, local and State-wide professional associations must protect the profession by assuming leadership in this and other matters that affect professional interpreters in their State or region.

I have heard that government officials are unwilling to rectify because they do not want to lose face; that they worry about not getting federal funds if found noncompliant with Title VI of the Civil Rights Act; that they problem is stubbornness or ignorance of the interpreter profession or disregard for what interpreters do in a court proceeding.

Government officials must put constituents first and sometimes this means that a law, regulations, or public policy need to be amended. Can you imagine our country without the Twenty-first Constitutional Amendment repealing prohibition because legislators wanted to save face? Federal authorities over at the Justice Department would never retain federal funds from a State unless there was a violation of the Civil Rights Act. As long as there is equal access to the administration of justice, and the access is guaranteed to those who speak a language other than English by providing a free interpreter to those who cannot afford to hire one on their own.

The situation may be more difficult when dealing with stubborn or ignorant public servants. Here, after reasoning and dialogue takes you nowhere, and there is no other option, interpreters’ professional associations, such as AIJIC, supported by other national and local associations, including interpreter labor unions and guilds,  should stop wasting their time with government officials who do not want to listen, and take their concerns to the interested parties: Attorney State Bars, local Bars, ethnic and gender-based Bars, Law Schools, Judicial Colleges and Associations, carefully targeted judges and legislators (not bureaucratic committees ruled by the same rigid individuals they could not convince before), and social media. Make the case that quality suffers when unprepared interpreters work in a case; clarify that certified and registered court interpreters cannot be denied access to the place where they find their livelihood. Help them see this situation your way; they have an interest on this policy, but it does not impact the way they make a living if left unchanged.

Civil court interpreting is a niche. Most certified and registered court interpreters are not familiar with civil law and procedure; court interpreter certification exams cover criminal law and procedure, not civil law. Since the implementation of Title VI of the Civil Rights Act nationwide during the Obama years, I have talked to many court interpreters scheduled by the courts to interpret civil matters who feel apprehensive and not-prepared. Even though the purpose of this post, and all my posts really, is to protect our profession and show all issues from the often-ignored interpreter’s perspective, often, the quality of the rendition and the administration of justice, would greatly improve if freelance civil court interpreters are welcomed back to the courtrooms in California and elsewhere. I now invite you share with the rest of us the situation of these civil court interpreters in your State, given the implementation of Title VI of the Civil Rights Act. I would also like to hear from those colleagues in other countries who may be facing a similar situation. Finally, please share your ideas to right this wrong.

Ignoring court certifications is turning fashionable.

Dear colleagues:

Legal certainty is the foundation of any system of justice administration. Modern society cannot function in an environment where people are afraid to act because they ignore the outcome of their efforts. Human creativity and progress need a certainty that a set of actions will produce a desired outcome, and the peace of mind fostered by an absolute trust in an honest, capable and independent judge who will clarify what is confusing and decide what is contested according to law and equity.

All civilized nations enshrine these principles in their national constitution and create international courts of justice to address controversies that go beyond their own jurisdiction. To work, this system requires of honest, independent, capable, skilled, and knowledgeable professionals who serve as judges, attorneys and other officers of the court, including court interpreters.

No legal system can be fair when some are denied access to justice because of the language they speak, and no access to the administration of justice can be effective unless its services are provided by skilled professionals who have met rigorous standards set by the authority under the principles of equal justice uncompromised by expediency or convenience.

Every day we see how more nations adopt these principles, sometimes because of the realization of the truths above, and sometimes because the change is imposed by the unstoppable waive of globalization. Countries have changed their legal systems to incorporate these values, and as part of these changes, they have adopted legislation requiring court interpreters to be professional, ethical, skilled and knowledgeable. Some have called this process certification, others licensing, concession of patent, accreditation, etcetera.

Countries like the United States have developed a solid and reputable system of certification at both levels of government: federal and state.  Because the overwhelming majority of non-English speakers in the U.S. speak Spanish, all states and federal government have developed a certification process (licensing process in Texas) for Spanish language court interpreters. The federal government has issued federal court interpreter certifications in Navajo and Haitian Creole as well. To satisfy their local needs, states have adopted certifications for the most widely spoken languages, other than Spanish, in their jurisdiction; these certifications vary depending on the demographics of each state. Both, the federal and state judiciaries have adopted a system to classify court interpreters of languages without certification program as accredited or qualified.

Court interpreter certifications guarantee litigants and judges those officers of the court who provide interpreting services in a court procedure have demonstrated, through a rigorous scientific testing process, to have the minimum required skills, knowledge, and ethics to practice as professional certified court interpreters. Accredited and qualified court interpreters give litigants and judges an assurance that the federal or state system in charge of language access services was convinced of the skill, moral character and professionalism of these interpreters by alternate means to the certification process non-existent for that language combination.  It all boils down to the basic principle of legal certainty.

Many countries have a dual system of administration of justice: There is a judiciary as an independent branch of government that decides controversies between individuals, government entities, and in criminal cases. There is also a sui-generis administrative court system that exists not as a part of the judiciary or as an independent branch of government, but as an independent entity within the executive branch at both: federal and state levels. These administrative courts deal with civil law controversies of the administrative type where individuals dispute certain actions, benefits, entitlements, and rights that must be protected, conferred, or denied by an agency of the executive branch of government. The best known administrative courts in the United States are Immigration, Social Security and Workers’ Compensation.

Because these administrative courts are not part of the judicial branch of government, rules, policies and requirements pervasive in the judiciary do not extend to these so-called Article 1 Courts (because they are created by legislation, not the constitution) as opposed to Article 3 Courts (created by Article 3 of the U.S. Constitution). Rigorous criteria for court interpreter certification, created for legal certainty, are not applied or followed by most administrative courts, leaving the door open to those seeking shortcuts, opportunity, and financial gain with absolute disregard for judicial certainty and the best interests of the parties to a controversy.

A few weeks ago the Immigration Courts in the United States (Executive Office for Immigration Review, or EOIR) publicly announced they were hiring Spanish language interpreters nationwide to work in the immigration courts. Although this would place these interpreters directly under the supervision and control of the court, a big improvement over having people providing interpreting services in immigration court under the supervision of SOSi, the well-known language services provider that earned the contract by bidding lower than the rest, it is still bad policy that will eventually harm those who go to immigration court seeking relief.

EOIR’s announcement requires no reputable universally accepted court interpreter certification (federal or state level). It only requires candidates to pass a test with no scientific validation offered online.

This tendency to retain lesser qualified individuals for matters that could eventually affect someone’s life forever, such as a removal or an asylum case, is echoed by those who also settle for less interpreting quality in exchange for more money and argue that non-certified court interpreters, even if healthcare certified, or those who take cover under the unrecognized so-called “community interpreter” credential, are qualified to interpret depositions!

Depositions are a very delicate legal proceeding because they take place outside the presence of a judge. This means they require of an even more experienced certified court interpreter, not a lesser qualified paraprofessional. The most complex litigation, the ones involving enormous amounts of money, the ones often dealing with conflict of jurisdictions and legal systems, those governed by international conventions, and for those very reasons, the ones where interpreters earn the highest fees, always start with depositions very difficult even for many seasoned court interpreters.

Multi-million dollar lawsuits, intellectual property infringements, trade wars between nations, the livelihood of an injured worker who will never work again, removal proceedings that will keep a person outside the country for the rest of her/his life, asylum hearings, often an applicant’s last hope to protect her/his life, liberty and family unity are not less complicated cases. We cannot leave the administration of justice for those who do not speak the language of the court, judicial or administrative, in the hands of greedy agencies, ignorant unscrupulous authorities, and opportunists and incompetent paraprofessionals. I now invite you to share your thoughts on this topic and the disturbing tendencies we see.

Do some state courts treat foreigners as second-class litigants?

Dear Colleagues:

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.

Are court interpreters talking to the wrong client?

Dear Colleagues:

As I was having dinner with a colleague several weeks ago in New York City, the conversation turned to the deplorable state of court interpreting at the State level in many parts of the United States and even at some federal district courts. She shared some frustrating stories about court staff choosing less qualified and even non-certified interpreters over solid and skilled certified colleagues just to save money by paying less for court interpreting services.

Her story was not different from the many tales I have learned from interpreters around the country complaining about poorly-run Administrative Offices of the Courts in several States, courthouses led by unreasonable interpreter coordinators, and ignorant government officials who have never bothered to learn anything about interpreting but are too willing to issue directives diminishing the quality of interpreting services and undercutting the fees and contractual guarantees that court interpreters fought so hard to get.

Time and again, there seems to be a common denominator to all this nonsense: These government officials, court administrators, and even short-sighted staff interpreters turned court policy backers, simply ignore interpreters’ arguments and explanations of all the reasons why justice would be better served, Constitutional requirements would actually be met, and interpreters would move the courts to the top of their client lists, if the State courts, and some federal districts, were to treat the profession and those who practice it with the dignity they deserve.

I often wonder how many times interpreters will meet with judges, staff interpreters, and court administrators, to explain that a professional fee, a fair cancellation policy, and appropriate interpreting conditions are needed, before we all realize that we are just wasting our time and energy.

I believe that the moment has arrived.  In the past, whenever I felt that I was getting nowhere with a stubborn judge or an incompetent court administrator, I took my case to the officer of the court who will truly understand and appreciate our services: The private attorney.

I have found it very productive to talk to civil litigants and private defense attorneys one on one. I have seen the impact of a good presentation by an interpreter at a State Bar conference, in front of hundreds of lawyers.  I believe that it is the attorneys who need to hear about the profession. They are the ones who need to know how interpreters are really treated by state officials, and they need to hear some of the horror stories that unfortunately have occurred all over the country when a bad interpretation has been part of a court proceeding.

Court interpreters need to address these lawyers for two reasons: First, since they are not under the authority and policy of court administrators because they are financially independent, they will be able to fight for quality interpreters. They will see it our way because they are also in the business of delivering results to their clients. In other words: no result equals no clients. Moreover, many of their clients are financially capable of paying the interpreter’s professional fees and expenses, and like everything else in the private sector, they know that good things are not cheap.

The second reason for approaching these attorneys is evident: Our work will speak louder than our words. The attorneys and their clients will see how professional interpreters work, they will see the benefits of having a great interpreter at all stages of a case: from the time the client retains the attorney to the end of a case, including strategy meetings, witness preparation sessions, jailhouse visits, and having an interpreter at the plaintiff’s or defense’s table during the trial.  They will see the difference and their client will tell them how the work of the privately retained professional interpreter is infinitely better than the rendition the client will hear from the less expensive interpreters provided by the court at the hearings.  You see, instead of wasting your time talking to the wall, you will invest your time at cultivating professional relationships with these private attorneys who will appreciate your work, treat you like the professional you are, and pay you a much better fee. You will be able to make more money and work less. Who knows? Maybe after all good interpreters leave the courts and cases are overturned on appeal the people who have ignored us will decide to approach us in our terms.

I decided to work with the private bar and I do not regret it at all. In fact, I enjoy being a part of a case from beginning to end instead of just being thrown in there in the middle of a trial without knowing what the case is about. In fact, just a couple of weeks ago one of my attorney clients commented to me that she was so glad to have me as her interpreter because she felt that because I was not in court working with the same judges and attorneys all the time, she could trust me more than “those interpreters who are at the courthouse all the time”.

I suggest that if you are sick and tired of being mistreated and ignored by the courts, you switch gears and give the private bar a try. All you will need is four or five good cases a year to live and feel like the true professional you are. I now ask you to tell us what you think about the way that so many courts treat professional interpreters and what you plan to do about it.

Not everybody else’s needs; the interpreter’s interests.

Dear colleagues:

I attended a professional conference not long ago, and during one of my presentations, I asked the audience what was their opinion regarding the fairly new requirement that state-level civil courts in the United States, that get federal funding, must provide free interpreter services in all civil cases or lose that federal assistance. I was shocked by the answer given by several colleagues: They thought it was a great idea and it was good for the profession. I can understand the principle of making sure that all litigants be guaranteed equal access to justice by eliminating the uneven situation encountered by those who do not speak English during a non-criminal court procedure. I applaud the existence of the Civil Rights Act.

This does not mean that the way to accomplish such a high goal is by eliminating a work source for an entire segment of the professional population. The right thing to do was to provide court interpreting services for free in all civil matters to those who could not afford to pay for the services when provided by a private interpreter. In other words, there should be a system that mirrors that of the attorneys in criminal matters where individuals have a choice to retain the attorney of their choosing and if they cannot afford one the state provides a public defender for free.

The current situation, which has been supported and celebrated by many interpreters and professional associations, is flawed. Courts at the state level are covering civil hearings with interpreters that they label as “certified” although in reality these colleagues have only been certified as criminal court interpreters. To my knowledge there is no court interpreter certification exam in the United States that tests the interpreter’s knowledge in Civil Law, civil procedure, or terminology. In fact, many certified court interpreters who had never worked in Civil Law hearings are now providing the service; some of them reluctantly and out of fear of not being hired by the particular state court system if they refuse to do civil cases. This specialty work, that until now was provided by a group of very capable Civil Law court interpreters, is now being performed by a mix of good interpreters, good interpreters who do not know civil law and procedure, and mediocre individuals who are hired by the state level courts in order to comply with the federal mandate even if it is by just having a warm body next to the non-English speaker litigant.

Unfortunately, the current system is causing that all cases be covered by court interpreters provided by, and paid for, by the states. Some of us are fortunate enough to have a portfolio of attorney clients who are used to our professional services, and will continue to use the services of private interpreters, at least in out-of-court settings such as law offices and boardrooms; The problem is that it is now more difficult to convince prospective new attorney clients, who do not fully understand the value of retaining your own competent professional court interpreter, and pay for the service, instead of using the court appointed interpreter. Ant it gets worse, some of my colleagues who are good interpreters and used to have a decent amount of work through private Civil Law attorneys have bought into the system and are now providing their same upper-end quality services for a very low fee paid by the states. As you all know, criminal court interpreting is not a very well remunerated practice in the United States, and when it comes to the state level it is frankly appalling in some states. Historically, the best way to make a decent living working as a court interpreter in the United States has been to work as a civil court interpreter. Now we are at risk of losing this important part of our practice. At the state level it is disappearing as far as in-court work, leaving civil court interpreters with only two options (for now): out-of-court work at the state level such as office interviews, depositions, and witness preparation, and federal court practice where private interpreters can still provide their services.

To me it is crystal clear that it is impossible to celebrate anything as a victory when the outcome of that change results on a direct elimination of the source of income of another innocent group, in this case the court interpreters. The sad part is that, as I explained, the same universal access to civil courts could have been accomplished by inserting a provision indicating that free court interpreter services would only be provided to those who could not afford to pay for the services of an interpreter according to a certain income level and cost of living criteria.

As bad as this is, it is more frustrating and even discouraging to see how so many of our colleagues just go about their lives accepting all of these changes and even applauding them without ever thinking of the consequences to our practice in general and to them as individuals. I cannot find a good explanation as to why professional interpreter associations have voiced their opinion in favor of this policy without even thinking of the harm to the profession, to their fellow colleagues. Dear colleagues: Nobody spoke for the court interpreters when these changes happened! I know I will continue to educate my clients so they continue to retain my services regardless of policy changes; I know I will continue to talk to all those colleagues who ask for my opinion when these type of unfair situations happen, whether it is state-sponsored civil court interpreters, agencies who want to force court interpreters to work depositions alone totally disregarding universal principles about quality of interpreting, systems that want to unilaterally impose low cost, and lower quality, interpreting services by using new technology even when the quality of the service suffers, or any other issue that could impact our work as professionals. I will also look for professional associations that may share this same philosophy and are willing to raise their voice to bring the attention of the professional community to unprofessional practices and policies that hurt the profession or those who practice it. I now ask you to please voice your opinion on this issue, especially on civil court interpreting and how state-sponsored civil court interpreting brings down our professional income.

Are the interpreters working conditions in danger?

Dear colleagues:

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:

“Article 6…

• *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.

Can the interpreter’s simultaneous rendition be distracting?

Dear colleagues:

I have been very fortunate in my career. I have worked with some of the very best in the profession, and yes, sometimes I have worked with some colleagues, thankfully very few, who would fall short from that rating. As many of you know, I have worked all over the world and I have worked conference, diplomatic, court, and escort interpreting for many years. During those years I have observed and learned many things from this spectacular interpreters and I have also seen so many different styles.

One of the things that many colleagues do when simultaneously interpreting is that they close their eyes and gesticulate a lot. They use their hands to express what they are saying and to understand the concepts they are absorbing from the speaker. This works fine for them. Their renditions are impeccable. After years of working in a booth next to some of them I have become used to their style. I interpret differently. I do not use my hands or head to express what I am saying. I just sit there without any gesticulation. This works for me just as well as the opposite works for many great colleagues. I have no problem with either style when you are working in the booth and you are out of sight; in fact, I applaud those who have found this to be a tool to improve their interpreting skills. The important thing is to provide a good service and bridge the communication gap between the speaker and his audience.

Unfortunately, I am not so convinced that this effusive style is as effective in court as it is in the booth. Interpreters who work in the courtroom are not shield by the booth. Even if they work with equipment they are not out of sight. The equipment is usually of the portable kind, and even though many courts use wireless transmitters and receivers, the interpreter sits at the table next to the defendant or somewhere else in the courtroom in plain view of all participants: judge, jury, attorneys, witnesses, and defendant.

As part of their work, court interpreters can interpret difficult complex concepts and very detailed information. One of the reasons to have a court hearing is to assess the credibility of witnesses and litigants. The jury’s attention has to be focused on those testifying or arguing the law. The non-English speaker needs to understand what is going on in the courtroom and for that he often has to concentrate. Because of some of my professional interests, I often attend court hearings in different parts of the world and as an observer who is not involved in the process, I have noticed that gesticulating interpreters can be distracting. I have noticed how members of the jury are sometimes more interested and amused by the interpreters hand movements than by the witness’ testimony. I have seen how defendants pay more attention to what the interpreter does than to what the interpreter says. I do not think this is appropriate. I believe that the interpreter who is working in the courtroom has to be aware of the fact that he cannot be the center of attention; that unlike conference interpreters, court interpreters are visible to all. I understand that this may be their natural way to communicate, that they may need to do this to understand the message they are about to interpret. Unfortunately, I do not think that most jurors, attorneys, and litigants can just ignore their gesticulation and focus on the testimony. I think court interpreters should learn to control these movements and concentrate on accurate interpreting while being inconspicuous.

I find this to be a fascinating, delicate, and frankly touchy subject that is not easy to discuss with our colleagues. For a long time I hesitated to write this blog, but I finally did it because I want to hear what you all have to say about it. I ask you to please avoid personal attacks and comments about how gesticulating helps the interpreter. Instead, I invite you to share with the rest of us your thoughts on this issue: Is this interpreting style distracting to those participating in a court procedure?

Is interpreting a lesser profession?

Dear colleagues:

I recently posted a story about a judge near the border who questions the interpreter’s ability to do his or her job. I described how this judge asks Spanish-speaking jurors to correct the interpreter’s rendition during the trial, and tells them that in cases when none of the Spanish-speaking members of the jury are sure about a certain word or term, she would ask for an expert to render an opinion.  As expected, many of you were outraged, some of you offered solutions to this problem, and others shared similar stories showing that this practice of not recognizing the interpreter as a professional expert, and putting him or her down, happens all over the world.

All these reactions were natural and expected; however, there were quite a few participants, many of them identifying themselves as court interpreters, who made statements that seemed to accept this practice and even endorse the system. Comments such as: “…Interpreters should be more professional and less sensitive…(they) should just interpret and get used to it…” “…It happens all the time…(and) we need to act more like interpreters and do the job they are paying us to do…” and even: “…I think (Asking the jurors) is a good idea. They may know how to say something we don’t…”

Dear friends; those of you who know me personally, and all regular blog readers, know that I have always fought to get our profession acknowledged as a real profession. We are professionals!  The work we do requires of knowledge, skill, preparation, formal education, cultural awareness, social skills, and many more… Our function is essential for the communication of people who don’t speak the same language.  As long as there are two languages in the universe there will be interpreters.  I understand that many colleagues, and with reason, argue that we are not a regular traditional “profession,” that we are stuck in between being a profession and being an art.

It is essential that all interpreters, regardless of their area of expertise and place of services, present themselves as professionals. My colleagues, in order to do this we need to believe it first, we need to feel it.  My court interpreter colleagues must enter a courthouse feeling, believing, knowing, and projecting that they are part of the professional service providers who work in the justice system. They need to group themselves in the same category with the judges, expert witnesses and attorneys; that is where they belong.  Sadly, many court interpreters see themselves more like a clerk, and identify themselves with support staff such as clerks, bailiffs and deputies; In fact, some of them act as if they can relate more to the parties: victims, witnesses, and even defendants.

What do you think an attorney would say if the judge were to ask those jurors who may be attorneys or paralegals to please correct the litigants during the trial if they are quoting the wrong case law?  We cannot even imagine that scenario. It is exactly the same with our profession.

Court interpreters in this case, and all interpreters in general, need to act as professionals and educate everybody they interact with about their profession. Go out there and explain judges, attorneys, agencies, hospital administrators, and clients who we really are. If you do, you will soon notice that they treat you differently, that you feel better about yourself, and you will notice that your income will increase because once you feel like a professional, you will act as one, and professionals charge accordingly for their professional services.  I would like to hear from you. Please share with all of us your thoughts and ideas about who we are as interpreters, and how we should act when providing our services.