Lack of understanding, common sense = constitutional conflict in court?

November 12, 2018 § 1 Comment

Dear colleagues:

I recently learned that some federal district courts got involved in the way federal prosecutors pick their interpreters for hearings. I have practiced in federal court for many years, and the decision on who will interpret for the office of the United States Attorney has always been left to the prosecutors who know the case better than anybody else. This means they, and their prosecutorial team of paralegals, investigators, detectives, and law enforcement agents, know the language complexities of a particular case, and therefore, better equipped to decide who they need for that interpreting assignment.

I do not dispute that some districts, because of a lack of federally certified court interpreters, or out of plain ignorance, have never tried a case where the assistant U.S. attorneys (AUSA) have their own interpreters for a trial. Some districts are so small, the AUSA office does not even have a staff interpreter. Some districts are so remote, that even the court tries cases with unqualified court interpreters (usually certified or accredited at the state level) because it is next to impossible to get somebody to the courthouse. Evidentiary hearings and trials require that an interpreter be physically present at the hearing. Remote interpreting is not a viable option for these proceedings.

That some have always followed this practice does not make it right, and courts in districts in urban centers where federally certified court interpreters are available have no reason to inject themselves in what should be an internal process of the Department of Justice. Let me elaborate:

The American legal system, and all legitimate legal systems in the world, are based on an independent judiciary free to decide with no pressures or fear of retaliation. The United States Constitution recognizes and enshrines this principle through the separation of powers. The Executive Branch of the federal government originates from Article 2. The Judicial Branch stems from Article 3.

With administration of justice in a criminal case, all individuals in the United States have the rights and protections established by the Constitution and secondary legislation; mainly, the right to a public and fair trial by their peers, starting with a presumption of innocence, charging the Executive Branch of government, through the United States Department of Justice, with the burden of proof, beyond reasonable doubt, in an orderly regulated process, presided by and controlled by the Judicial Branch of government. To put it simply: Because the government cannot be judge and party, it is an agency from outside the Judicial Branch, in this case the Justice Department, who prosecutes the case on behalf of the U.S. government, including the citizens that the government must protect from the bad guys.

We can see that having the burden of proof is no small task. Federal prosecutors must investigate de facts, test and evaluate the evidence found, and prepare a case that will persuade the jury and judge of an individuals’ guilt beyond reasonable doubt. If successful, the Justice Department will meet its duty to protect society. This is no easy task; it also means that individuals will lose their assets, their freedom, and even their life.  A prosecutorial team must have the best team available to fulfill its function, and that is extremely difficult.

Federal prosecutors must call witnesses to testify in the trial. When these witnesses do not speak English, their testimony must be interpreted into English to benefit the defendant, the defense attorneys, the judge, and the jury. It is only then, after the rendition of the interpretation, that the defendant will have exercised his constitutional right to confront the witness or accuser. It only after the rendition that a judge or jury can assess the credibility of the witness. It is this time they will decide if they believe all, part, or nothing of the witness’ statement.

But most of the work is done before the witness steps in the courtroom and takes the stand. Prosecutors and their teams test, evaluate, and prepare their witnesses before a trial. Questions are asked many times, in many ways; adjustments are made. Not to influence testimony, but to present the truth clearly to the trier of fact (judge or jury). Usually the testimony of the witnesses for the prosecution is very complex, specialized, scientific. Dense concepts and sophisticated terminology must be interpreted into English during the trial; cultural concepts must be clarified before the final rendition (many expert witnesses come from abroad just for the trial); legal systems compared so the accurate term in the target language is rendered by the interpreter. Leaving loose ends is not an option: The prosecution must prove, and the standard could not be any higher: beyond reasonable doubt. Prosecutors and their teams, assisted by the interpreters, go over the testimony with every witness as many times as needed. These interpreters must research, study, practice, develop a common glossary for each testimony. The witness gets used to that team of interpreters and the interpreters get used to the witness.

The interpreters for the prosecution know the case, they are familiar with names, dates, places, and other key information that must be interpreted with accuracy. From gang slang, to amounts of drugs, to family relationships. It all needs to be well-understood so the interpretation heard in trial is accurate, pristine, and truthful.

Confidentiality is essential to our justice system. It lets the parties tell the truth to their attorneys so they can represent, in a criminal case, a defendant or society with full knowledge of the facts. Confidentiality is also very important when it comes to the lawyers’ strategy. Prosecutors and defense attorneys develop a strategy to win a case. The interpreters for the prosecution know the strategy and facts, and they are covered by the veil of secrecy. Using a court appointed interpreter to interpret for the prosecution generates a conflict of interest. You cannot be judge and party simultaneously. Even the most professional, trustworthy interpreters should never be placed in such situation. The sole appearance of conflict is enough to cast a shadow on the proceedings. Client-attorney privilege only exists when there is an expectation of privacy. How could this be argued when the same interpreter hears all confidential details?

The independence of the prosecutorial interpreters is so important, that even their payment differs from that court appointed, public defender, and Criminal Justice Act (CJA) attorney interpreters receive.  I am not referring to staff interpreters, I am talking about independent contractors retained to work in a case. While interpreters for the court, public defender, and CJA attorneys are paid through the judicial system (Judicial Branch of government) interpreters for the prosecution are paid by the United States Department of Justice (Executive Branch). The funds come from different budgets to assure independence, absence of conflict of interests, and separation of powers. The Office of the United States Attorney pays better that the courts, and unlike the latter, fees are negotiable between the parties (interpreters and AUSAs). This can also be relevant if you think that most more experienced, better trained interpreters would rather work for the prosecution, leaving a smaller pool of top-level interpreters to work for the courts, and increasing the risk of an inaccurate rendition of a prosecutorial witness’ complex testimony during the trial.

The widely, and constitutionally backed, practice of having a separate interpreter team for the prosecution in federal cases must continue as long as we have separation of powers, and a system where one party has the burden of proof. There is no rational justification for this practice by the executive branch of government, to be changed by court staff, from a different branch. Such decisions are being made in courthouses where none of the issues above were given any thought, where prosecutors did not reflect on the implications of such changes, and a decision was unilaterally made, perhaps due to a lack of understanding that lead to this policy deprived of common sense. If the decision at these district courts was made unilaterally, we have a separation of powers issue; if it was decided for monetary reasons, remember that interpreter fees are paid from two budgets (executive and judiciary); if it was decided to avoid comparisons between experienced prosecutorial interpreters, and perhaps less qualified court appointed ones, it was motivated by unethical reasons and it shows a disappointing level of professionalism; and if this was a joint decision by the courts and AUSAs in some districts, they must address the conflict of interest and at the least the appearance of conflict.

Our legal system has been around for 250 years. It has organically adjusted its parts to observe the fundamental democratic principles, starting with an independent judiciary, a separation of powers, and the rights and protections to the individual and society. In today’s world where many things that were, are no longer, let’s hope this is not changed by the capricious decision of a few. I invite you to share your thoughts on this issue.

Interpreting CJA cases is a bad business decision.

March 26, 2018 § 24 Comments

Dear colleagues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 18, 2014 § 4 Comments

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.

Procrastinating federal judges hurt justice and interpreters.

March 4, 2014 § Leave a comment

Dear colleagues:

If you are a federally certified court interpreter in the United States you have surely provided interpretation services at the request of private attorneys, who are part of a panel kept by that district, according to the United States Criminal Justice Act, commonly referred to as the CJA (18 U.S. Code § 3006A)  These attorneys, and I will refer to them as CJAs in this posting, are private lawyers appointed by a federal district court judge, or a federal magistrate, to represent a party who cannot afford his own private attorney in cases where representation by the Office of the Public Defender is not possible because of the physical location of the defendant or due to a conflict of interest.  In other words, when there are codefendants and one is represented by the federal public defender, all others must be represented by private counsel or by a CJA panel attorney.  CJA attorneys are known to most court interpreters because they are always at the courthouse, just like the public defenders. They have a big caseload, and many of their clients do not speak English.  Because of defendants’ constitutional rights and the Civil Rights Act of 1964 these non-English speakers have the right to an interpreter that is also furnished under the same Criminal Justice Act: “…Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation…” (18 U.S. Code § 3006A) Federally certified court interpreters are asked to interpret during client-attorney office interviews, trial preparation, jail visits, and similar services requested by the CJA attorney.  After the service is performed, the interpreter must prepare and submit to the District Court a CJA invoice form that the panel attorney signs.  Once the form is submitted and verified for accuracy and completeness by the court’s financial department, it is sent to the federal district court judge or magistrate who has been assigned to that case for approval and signature.  It is only after the judge signs the form and returns it to the court’s financial department that the interpreter gets paid.  This process can take, depending on the district court, from one week to a month in average.   All interpreters know this and accept it as part of the life of a freelancer.  I should mention that this seemingly bureaucratic process is attractive to the freelance interpreter because of volume.  In fact, in districts where there are several staff certified court interpreters this may be the bulk of the freelancers work for the courts.

Unfortunately, there are certain cases where this simple and straight forward payment process is unconscionably delayed.  There are federal district court judges in the United States who hold back payment for incredibly long periods of time and there is no apparent reason or justification for this delay.

Dear colleagues, I am not talking about late filings or incomplete voucher forms; I am talking about withholding of invoices for no cause.  I am afraid that there may be more that one judge following this practice; there is one among them, who shall remain anonymous in this blog, who has generated comments from colleague interpreters such as: “…Oh, that judge! One time it took well over a year to get paid for a half a day interpretation…he just didn’t approve the form any sooner…”  And this one depicting the interpreter’s feeling of impotence: “…it always takes many months to get paid, but nobody dares to say anything because…well judges are appointed for life…”  Finally, an interpreter summarized it very graphically in these words: “…the judge doesn’t care. There may be other priorities, but unlike federal judges, we cannot afford to go months without payment. We have to put food on the table for our families…”   This particular judge has been on the bench for many years, by all accounts seems to have a good grasp of the law, but when it comes to other judicial skills, this judge has received poor reviews from a judicial evaluation commission such as: “…(the judge has exhibited) slowness when it comes to ruling on motions…” or:  “…lack of punctuality to convene proceedings…” and even “…(having) poor judicial temperament while on the bench…” The judge was described as: “impatient,” “a yeller from the bench,” “mean spirited,” and “angry.”

I want to make it very clear that most judges and court clerical staff do a very good job at processing invoices and making sure interpreters are paid on a timely manner.  Judges like the ones described above are the exception to the rule; but they exist and will continue on the bench.

Faced with this reality what can interpreters do to get paid on time?  First the interpreter needs to make a distinction between those cases where the interpretation services have been rendered and the judge is procrastinating, and the cases where no service has been rendered yet.

For the first scenario there are the usual remedies that we all know:  Talk to the chief staff interpreter once again, write to the clerk of the court, file a duplicate form with the court’s financial department; even talk to the judge’s clerk and explain your situation.  This may accomplish the objective in some cases, but unfortunately it will fail most of the time because the approval of the form is not being delayed by any of these people. It is the judge who created the problem.  So what is there left to do?  Well, there may be a legal answer:  The American legal system contemplates situations when the authority does not comply with its duty of doing or abstaining from doing something: The Writ of Mandamus.  This may be an option available to the interpreter. The request for a Writ of Mandamus can be filed with the Court of Appeals having jurisdiction over the procrastinating district court judge asking the higher court to order the approval or denial of the interpreter’s invoice. “…(Courts) may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law…” [28 U.S. Code §1651(a)]  Of course, before the interpreter decides to take this step, he must consider the consequences: (1) Because this blog is not giving any legal advice to anybody, the interpreter must consult with an attorney to see if a writ of mandamus is possible in that specific case; (2) The district court judge may simply deny the invoice.  The writ can order that the authority take action but not the outcome of this action.  Of course this may open other channels to the interpreter to appeal the judge’s decision on the invoice and that way get paid; and (3) The practical consequences of filing the petition including the possibility of being branded as a “troublemaker” by others, which could result in the loss of business and therefore the loss of income.

When the interpreter has not provided any interpretation services yet, that is, when interpreters are first contacted by the CJA attorney (or by the district court depending on the district) to request the interpretation services, the interpreter should always ask who is the judge in that particular case, and if it turns out to be a procrastinating judge’s case, the interpreter should refuse the assignment.  Remember, you are a freelancer. Freelancing means that sometimes you may have to wait forever to get paid on a CJA voucher, but it also means that you are free to ban all procrastinating judges if you want to.  The best way to avoid late payments is to avoid those clients who are always late.  In fact, the interpreter should explain to the CJA attorney the reason for declining the assignment and reassure him that cases from all other federal judges will be accepted as usual.  This should solve that interpreter’s problem.  It may be very difficult to fix this procrastinating judges situation for all interpreters in all cases, but at least you will get paid on time.

Finally, I remind you again that this posting is not giving any legal advice to anybody, and I ask you to share with the rest of us your experiences and solutions to this terrible problem, and please do not mention any names.

The ten worst things an attorney can do to a court interpreter. Part 1.

March 26, 2013 § 6 Comments

Dear colleagues:

I know that many of you read and contributed to the first posting of this series that dealt with the bad things that judges do to court interpreters.  Well, it is now time for the lawyers to be on the spotlight.  Several years ago I was retained by an attorney (I had never met before) to interpret for a petitioner during the final hearing of a divorce proceeding (final orders, permanent orders, final decree hearing, depending on the place where you live) The attorney contacted me the day before and agreed to pay my urgent fee usually charged for events requested on short notice.  “…It will be really quick…” he said, “…the respondent isn’t even in the country.  We’ll be in and out…”  So we appeared in court the following morning, the judge took the bench and the hearing began.  After the attorney made his arguments to the bench, the judge asked the petitioner how long had he and his wife lived together in the United States.  The petitioner answered in Spanish that his wife had never been to the United States. After a few more questions, and while the attorney was sweating bullets because of this “unexpected” development, the judge dismissed the case stating that he lacked jurisdiction over the parties as they had never lived as a married couple within his county limits. Of course, I interpreted everything to the petitioner but it was clear that he did not understand.  During the judge’s oral decision that turned into a scolding to the lawyer, the attorney turned to his client and whispered in Spanish: “luego te explico” (I’ll explain later) Once the hearing ended and we were in the hallway inside the courthouse, the attorney approached me and asked for my invoice telling me: “…Give me your receipt so we can get the money from my client and you get paid. I don’t think that he will be willing to pay for anything once he understands what happened…” So the lawyer asked his client for my fee, I got paid cash right there inside the courthouse, and the attorney asked his client to go to this office with him so he could explain what had just happened and the reason why “this judge” had decided not to divorce him “yet.”  Well, under any standards this is a horror story that we as interpreters sometimes have to live through; however, this is not a posting about the worst ten things that attorneys do to their clients. This is about the ten worst things they do to us interpreters, so horror stories like the one I mentioned will have to wait for their day on center stage.

Once again keep in mind that I will focus on the attorney, intentionally leaving the clerk’s worst 10, witness’ worst 10, and so forth for future articles.  I am writing this with a therapeutic perspective, trying to add some possible solutions to these problems while at the same time creating empathy and inviting a good healthy laugh when relating to these horror stories. I also want to underline that most of the attorneys I work with are real professionals I have worked with for years. Those who fit this article are not on my list of regular clients. Unlike with the judges, we as interpreters get to chose the attorneys we work with, and that is a big difference.  Because of the length of this posting, I have decided to publish it in two parts. This is part one. Part two will be posted next week.

Here we go:

  1. “You are going to charge me all that money just for talking? Those lawyers who do not have the slightest idea of what we do and firmly believe that because we speak two (or more) languages we are pocketing easy money.  A quick solution would be to stay firm and tell him that we are not just talking, that we are interpreting, and simply say that this is what you charge, that you provide a professional service, and that you will not bargain with them.  Long term solution: Talk to the attorney and explain your services in depth. Make him see the advantages of having a real professional interpreter and run by him the potential problems and complications when the service is poorly provided.  With certain clients you can even adjust your fee because of the work volume they represent.  If all these efforts fail, just fire the client; do not accept any work from him.  Remember, a cheap client will be a bad client in all other aspects of the professional relationship. Move on.
  2. Here, take these papers and explain them to my client.”  There are attorneys that think of us as their servants, paralegals, co-counselors, and many other things.  They seem to think that it is a waste of time for them to be around when you are going to be doing “all the talking.” A good short term solution is to ask them with great emphasis if what they mean is that they want you to sight-translate the documents and to tell their client that they will answer any questions after you finish translating. Repeat the last part to the defendant before you start translating, and refuse to answer any questions.  For a long term solution you can explain what your legal and ethical boundaries and obligations are, what is exactly a sight translation, and suggest that these documents be read in advance at the detention facility or the law office (depending on each case) If hired by the court, you should ask the coordinator/supervisor to talk to the attorneys in order to avoid these situations in the future.
  3. “Your Honor, that is not what my client said”. It is common for the Attorney to speak the native language of the defendant. This is usually one of the main reasons a non-English speaker goes to a certain attorney.  You and I know that there are many lawyers who think they speak the foreign language even when their level is way below fluency .Any attorney will tell you that it is impossible to know what a client will tell the judge, and they often say something that will hurt them, especially those who come from a different culture.  Because of the attorney’s knowledge of the foreign language, he will usually learn the disastrous answer given by his client before the words are interpreted to the judge, and many times they will try to blame the poor answer on the interpretation by saying that their client didn’t say what the interpreter said, or by arguing that the question was not interpreted correctly.  One time a lawyer interrupted me in open court arguing that his client had not said what I interpreted, that she was Cuban and therefore I was not qualified to understand and interpret her answers. What I did next is a good short term solution:  Simply state on the record that you stand by your interpretation or rendition, and if necessary state your credentials.  A more durable solution would be to make sure judges and attorneys know and understand that we are the language experts in the courtroom, that when we make a mistake we admit it and promptly correct it, and that our preparation and credentials go beyond speaking two languages.  We should always interpret what the client says, even when the attorney wanted them to say something else. 
  4. “I know I had to pay you long ago, but I cannot pay you because my client hasn’t paid me yet.” It is common for the lawyer to think that “we are in this together” and assume that it is perfectly fine to delay our payment when their client hasn’t paid them.  Unfortunately for those attorneys, we have no client-provider relationship with their client. Our legal relationship was established by a written (ideally) or an oral agreement to interpret during a certain specific event at a certain rate.  This legally binding agreement is not conditioned to a foreign event such as the attorney being paid by his client who happens to be a third party in this interpretation contract. To solve the problem as expeditiously as possible when you have no written agreement, talk to the attorney (he knows that his payment has nothing to do with you) and negotiate payment; maybe if you give him two weeks to pay; you can also take partial payments if you trust the lawyer, but never wait until he gets paid. Many clients never pay their attorneys when they did not get everything they thought they would get from the case. If you have a written contract, stick to it. Send it to a collections agency or take the lawyer to court if necessary. Remember, this is how you make a living and you earned the money. The long-term solution for all services in the future, especially when you do not know the Law Firm very well, has to be a written contract detailing payment, default of payment, and collection costs. In my experience all attorneys sign it when asked to do so. We have to be smart and take advantage of the legal protections that exist.
  5. “Sorry Judge, but we are late because the Interpreter took forever reading the plea agreement.”   Some attorneys want to save themselves a trip to a detention center by informing their clients about a potential plea agreement when they see their clients in court. I have had many lawyers ask me to read a plea agreement or a presentence investigation report just minutes before a scheduled hearing.  I cannot count the times that I have read these documents in holding cells and jury boxes. Then, after reading the always long and exhausting documents, most attorneys answer their client’s questions.  Of course, reading these documents really means sight translating them because they are written in English.  As you know, this is a difficult task and it takes time to do it right; add to that the time the attorney has to spend answering questions from the defendant and sometimes convincing his client to take the offer because that is the best possible outcome of the case.  When done properly, we are talking of hours of work, and I haven’t even mentioned the time it takes for the jail to bring the defendant to the holding cell.  Of course it is true that while we are working our tail off doing this sight translation, most attorneys are just sitting there doing nothing. I am sure it is extremely boring and frustrating to see how the time goes by and the time for the hearing approaches, but it does not justify blaming the delay on the interpreter who has been working hard all this time.  It is the attorney’s obligation and responsibility to defend and advise his client, they know how long it takes to go over those documents, and they know that it should be done on an earlier date. Such a situation can be avoided by talking to the lawyer as soon as he requests the sight translation and telling him that the process will take time and most likely will not be over by the time the judge calls the case. Now it is the attorney who has to decide what to do: request a continuance, be pushed to the end of the docket, change the hearing to the afternoon, etc., and if he ignores the suggestion, as an officer of the court you can always answer the attorney’s complaint by stating on the record what just happened. This will cover you in case of a formal complaint or investigation by the court.  The better long-term solution would be to always agree with the private attorney to do these sight translations days before a hearing, and for the court appointed attorneys and public defenders you should talk to the courthouse’s chief interpreter or administrator and ask them to require these documents to be read to the defendant ahead of the hearing date.

These are my first five. Next week I will post the other five. In the meantime, I invite you to share your stories, anecdotes and opinions regarding this frustrating but essential part of a court interpreter’s professional practice.

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