Interpreting depositions correctly.

March 27, 2017 § 12 Comments

Dear Colleagues:

Next to interpreting in a hearing, legal depositions are the most common professional service provided by court interpreters. They are in high demand, the field is full of potential direct clients, and they usually pay much better than an assignment by the court. With so many apparent advantages, the question that first comes to mind is: Why so many court interpreters do not pursue these assignments? And even among those who provide the service regularly, why is it that so few of our colleagues know what depositions are for, and how to correctly provide the service to ensure top accuracy and quality? Let’s see:

A deposition is the testimony of a witness taken orally (oral deposition) or in writing (interrogatories) outside open court, but in compliance with a court order or statute. It is a pretrial discovery device by which one party, through their attorney, ask oral questions of the other party or of a witness of the other party. It is conducted under oath or affirmation, without a judge, usually at the law office of one of the attorneys or at a court reporters’ office, and a word-for-word transcript is made. Interrogatories are answered in writing under oath or affirmation as well.

Depositions take place in both, criminal and civil proceedings and they are an extremely important part of the discovery process that takes place in an adversarial system, so that the attorneys of one party know what the counterpart or their witnesses will say during the trial. (Fed. R. Civil P.26 et seq.; Fed. R. Criminal P.15)

Oftentimes I run into colleagues who complain about “having to interpret” during a pretrial hearing “instead of interpreting during the trial”. My usual answer has to do with the importance of the pretrial motions and the discovery in general. I try to convey the concept that most cases are won or lost during the pretrial. Ascertaining the facts, excluding illegally obtained evidence, impeaching a witness based on statements made during a deposition, are invaluable as these legal actions and decisions determine what a jury will and will not hear at trial. A litigant exits the pretrial process with a strong winnable case or weakened by the discovery and pretrial motions argued before the judge.

Because of the importance and complexity of a deposition (and all pretrial actions and motions in general) it baffles me how extreme professional interpreting services can be at this stage of the process.

As depositions do not take place in the presence of the court, interpreting services for non-English speaking deponents are left to the professionalism, knowledge, and pocket of the attorney who represents the client. Because many attorneys seldom deal with foreign-language speakers, and for that reason know very little about interpreters and their services, they tend to seek the services of an agency, not for its quality or reputation, but because it was suggested by another colleague who had a case involving a non-English speaker in the past. For the most part the recommendation by the other attorney has to do with things such as: “they are cheap and they are quick”. Quality and experience are mentioned every once in a while.

We all know that, for the most part, there are no standards or policy regulating who can be an agency in the United States. This is an invitation to those with little to no interpreting knowledge to throw their hat in the ring and profit from this very popular professional service.

For the same reason: lack of basic quality standards, many paraprofessionals who unsuccessfully attempted to become certified court interpreters and failed, gravitate to this goose with the golden eggs where they will be on high demand by the above-mentioned ignorant agency owners who in turn will satisfy the requirements of the law office by providing interpreting services that are quick and cheap, regardless of their questionable quality.

But the landscape gets more complicated: For the same good reasons that bottom feeder agencies and paraprofessional interpreters are attracted to depositions, the best of the best in the world of legal interpreting participate in this market as well.

You see,  federal and state court systems retain the services of certified court interpreters, these professionals are for the most part better than non-certified, and from that point of view they are in demand. The problem is that the judiciary does not pay that well, with federal fees being half or less of what a conference interpreter makes, and under constraints of fixed fee schedules and budget cut limitations, the courts are less attractive to the very best in the profession. On the other hand, these top-notch court certified interpreters can negotiate with responsible and experienced law firms that value quality over rock bottom prices. This is the world of the direct client. Reputable agencies who handle big law firms and have a name to protect will also approach and retain these same high quality individuals. In fact, the field is so attractive that even interpreters from the highest caliber who usually do not work in the court system, and despite their vast experience and great skill have never pursued a court certification (but no doubt that candle these assignments because of their knowledge and capacity) provide interpreting services in depositions.

The result of all of the above circumstances and the participation of the wide range of individuals involved in this professional service is a reality where some depositions are interpreted at the highest possible level while at the same time many others are being butchered by paraprofessional interpreters, unscrupulous agencies, and careless lawyers. What a mess!

The good news is that, if they choose to do so, the best interpreters will be able to find good professional profitable clients whose clients will benefit immensely of a properly conducted discovery. The bad news is that many litigants, unaware of this reality, will trust the judgement of their advisers and end up with a defective interpreting service that most likely will impact the outcome of their case one way or another.

The solution to this problem, from the interpreters’ point of view, is relatively simple: stick to the good clients and ignore the bottom feeders. You do not need them, and they think they do not need you.

To me the biggest problem for the best interpreters who work depositions is, dear friends and colleagues, the alarming practice followed by so many of the top interpreters who accept to work alone in a deposition. Yes, I am referring to all of those who work solo, even when they provide services to the richest law firms in the world, including the work they do in very high-profile cases.

Team interpreting is a typical professional practice where two (or more) interpreters work as equal members of a team, rotating responsibilities at prearranged intervals and providing support and feedback to each other. This practice provides continuity and accuracy in the message transmission as it avoids fatigue and allows for word and concept checking during the rendition.

The National Association of Judiciary Interpreters and Translators of the United States (NAJIT) clearly spells out the function and the need for the second interpreter: “…The typical team is comprised of two interpreters who work in tandem, providing relief every 30 minutes. The interpreter engaged in delivering the interpretation at any given moment is called the active interpreter. His job is to interpret the court proceedings truly and accurately. The other interpreter is called the support interpreter. His job is to… (2) assist the active interpreter by looking up vocabulary, or acting as a second ear to confirm quickly spoken… 4) be available in case the active interpreter has an emergency; and (5) serve as an impartial language expert in the case of any challenge to interpretation…” (NAJIT Position paper Team Interpreting in the courtroom. Primary author: Andrew Erickson. 2007)

Scientific studies have shown that mental fatigue sets in after approximately 30 minutes of sustained simultaneous interpretation, resulting in a marked loss in accuracy. This is so regardless of how experienced or talented the interpreter may be. A 1998 study conducted at the École de Traduction et d’Interprétation at the University of Geneva, demonstrated the effects of interpreting over increasing periods of time. The conclusion of the study was that an interpreter’s own judgment of output quality becomes unreliable after increased time on task.  (Moser-Mercer, B., Kunzli, B., and Korac, M. 1998. “Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” University of Geneva, École de Traduction et d’Interprétation. Interpreting Vol. 3 (1), p. 47-64. John Benjamins Publishing Co.)

It is true that most reputable agencies and experienced law firms grant the solo interpreter, who is providing the services at the deposition, the choice to take as many breaks as needed. This is often the justification I hear from my colleagues as well.

I am glad that they get to rest their brain and voice every now and then, but it is not enough. There is no scientific conclusion as to how long the interpreter needs to rest before being back in optimum shape in order to continue the rendition with the same quality and at the same level as it was done at the beginning of the session. Obviously, the University of Geneva’s findings suggest that it takes about 30 minutes to get back to the top of your game.

I do not work under these “solo” conditions, but I could assure you that interpreters do not get a 30 minute break for every 30 minutes of service, and if they do, the attorneys would be better served by having a second interpreter actively interpreting during those 30 minutes. You see, it is a myth that having short breaks here and there will protect the interpreter and assure the quality of the service. This “solution” was developed to make everybody feel good even though nothing is really accomplished from the interpreter’s and the interpretation’s perspective. The only “positive” outcome of this solo work with “as many breaks as needed” has to do with the pocketbook of the law office and the profits of the agency. That is all.

But moving beyond that, there is a second, and equally important issue that goes unsolved without team interpreting.

Interpreting is a human task. It is extremely complex and delicate. Depositions present difficult situations that interpreters must solve in order to fulfill the ultimate purpose of the deposition: to ascertain the facts of the case, and to learn the unknown, to be able to ultimately prevail in court. In a deposition setting, interpreters need to understand and convey the message in two different languages, often spoken by individuals of different backgrounds, education, and willingness to disclose the truth. Interpreters need to find in their brain the appropriate scientific terminology, technical word, and regional expression that a deponent has used in the source language. The need to double-check a term, clarify an idiomatic expression, and research a concept are always present; In fact, they are the regular practice of the best interpreters who understand the relevance of the task at hand, and professionally look for the appropriate equivalency with the right syntax and grammar. This is not a job for one. Team interpreting allows the active interpreter to remain mentally fresh, while the support interpreter takes on other functions that would lead the active interpreter to cognitive overload.

For these reasons, it is universally accepted that team interpreting is the standard practice in courtrooms, conferences, international organizations, government events, and any other assignment that may last over 30 minutes. I only agree to do a deposition when I am working with a partner. My sense of professionalism, my reputation, my health, and my sanity, would not allow me to do anything else.

I invite you to stand up for what is right for you and for the profession. Just as you refuse to interpret a trial unless you have a partner, I encourage you to demand team interpreting in all depositions. It is only then that you will be living to the highest standards that a legal process requires. It is only then that you can unequivocally say that you did your best job at a deposition. Working solo, even if you take short breaks, will not relieve fatigue and it will not magically produce a support interpreter who will help you navigate the treacherous waters of legal interpreting.  I now invite you to share your thoughts on this extremely important issue and the terrible practice that permeates deposition interpreting.

The “must attend” conferences of 2017.

January 5, 2017 § 7 Comments

Dear Colleagues:

2016 was a great year for many of us. Quite a few of you developed professionally and became better at what you do. I congratulate you for that important achievement; unfortunately, competitors are still out there, languages are still changing, technology continues to improve, and clients (agencies or direct corporations) are willing to pay for what they need but are looking for the best service at the best possible price.  The question is: How do we adapt to reality, keep up with technology, and improve our service?  The answer is complex and it includes many different issues that have to be addressed.  Today, at the dawn of a new year, the time for planning activities, and programming agendas, we will concentrate on one of them: Professional development.

It is practically impossible to beat the competition, command a high professional fee, and have a satisfied client who does not want to have anything to do with any other interpreter but you, unless you can deliver quality interpreting and state-of-the-art technology.  In other words, we need to be better interpreters.  We need to study, we have to practice our craft, we should have a peer support network (those colleagues you call when in doubt about a term, a client or grammar) and we need to attend professional conferences.

I personally find immense value in professional conferences because you learn from the workshops and presentations, you network with colleagues and friends, and you find out what is happening out there in the very competitive world of interpreting.  Fortunately there are many professional conferences all year long and all over the world.  Fortunately (for many of us) attending a professional conference is tax deductible in our respective countries.  Unfortunately there are so many attractive conferences and we have to pick and choose where to go.   I understand that some of you may decide to attend one conference per year or maybe your policy is to go to conferences that are offered near your home base. I also know that many of you have professional agendas that may keep you from attending a particular event even if you wanted to be there.  I applaud all organizations and individuals who put together a conference. I salute all presenters and support staff that makes a conference possible, and I wish I could attend them all.

Because this is impossible, I decided to share with all of you the 2017 conferences that I am determined to attend:

The International Association of Professional Translators and Interpreters (IAPTI) Annual Conference in Buenos Aires, Argentina (April 22-23).  I go to this conference because it is IAPTI. Because it is about us, the interpreters and translators! This conference, and this organization for that matter, presents a unique point of view of our profession that I consider priceless.  It is the only international conference of this size where there are no corporate sponsors. All you see is translators and interpreters like you.  Some of the results of this innovative approach are that the conference attracts a very important group of colleagues that stay away from other events because they are bothered by the corporate presence.  This is the conference to attend if you want to learn how to deal with agencies, corporate clients and governments, because the absence of all those other players fosters this dialogue.  You can attend the presentations and workshops knowing that no presenter is there to sell you anything and that is fun to have at least once a year. Extra added bonus: Beautiful Buenos Aires! I am personally delighted that IAPTI decided to take its conference to Latin America where so many colleagues need these events.

The National Association of Judiciary Interpreters and Translators (NAJIT) Annual Conference in Washington, D.C. (May 19-21) I am determined to be in Washington, D.C. in May for the largest judiciary and legal interpreter and translator gathering anywhere in the world.  This conference lets me have an accurate idea of the changes in this area that is so important for our profession in the United States.  It is a unique event because everybody shares the same field and you get to see and network with colleagues that do not attend other non-court interpreting conferences. Extra added bonus: As the capital of the United States, Washington, D.C. offers interpreters and translators the opportunity to physically see where it all happens: the government institutions and agencies, monuments, museums, and the federal court system: History and the law!

International Federation of Translators (FIT) XXI World Congress in Brisbane, Australia (August 3-5) This is an excellent event to attend for several reasons: It is an international meeting of professionals who actually live all over the world. There are other big events where interpreters and translators from many countries get together, but most of them live in the United States or the United Kingdom; at the FIT World Congress most of the professionals attending the event will be coming from their respective countries, bringing along different perspectives, points of view, and first-hand information on the status of the profession somewhere different from the country where you live. Extra added bonus: Despite the long trip for most of us, the central theme of the congress is “Disruption and Diversification”. Enough said: This are issues that affect all of us and should be near and dear to the heart of all professional interpreters and translators.

XXI Translation and Interpreting Congress San Jerónimo (FIL/OMT) in Guadalajara, Mexico (November 25-26) Every year the Mexican Translators Association (OMT) puts together a magnificent program featuring well-known presenters from all over the world. Coming from an unprecedented success during their XX Congress, the 2017 edition will surely have workshops and presentations in varied, useful, and trending topics. This is the activity to attend this year for those colleagues who work with the Spanish language.  Extra added bonus: The Congress is held in the same venue (Expo Guadalajara) and at the same time as the International Book Fair, one of the largest in the Spanish language world. Besides the professional sessions, attendees can also stroll up and down the immense fairgrounds a purchase some books, listen to some or the most renowned authors in the world, or just window shop in between sessions.

I know the choice is difficult, and some of you may have reservations about professional gatherings like the ones I covered above.  Remember, the world of interpreting is more competitive every day and you will need an edge to beat the competition.  That advantage might be what you learned at one of these conferences, or whom you met while at the convention.  Please kindly share your thoughts and let us know what local, national or international conference or conferences you plan to attend in 2017.

State court interpreter certifications could turn meaningless.

October 16, 2014 § 17 Comments

Dear Colleagues:

A couple of weeks ago I received an email that concerns me enormously. I am sure that many of you who are based in the United States have received similar emails from state-level judicial agencies. In my case, I got an electronic communication from the Administrative Office of the Courts of one of the fifty states in the U.S. (not the federal government) this was one of those global emails that are sent out to everybody on a master list. Basically, the message was that the National Center for State Courts in the United States (NCSC), apparently in coordination with (at least) some states, is planning to offer remote telephonic interpreting across state lines, and for that purpose, the states (and I assume the NCSC as well) are compiling lists of state-level certified court interpreters who may want to be part of the interpreter pool that will be used to interpret court hearings from a different state. Although I hope the message’s meaning was different, this is what I understood. The email is written in such a way that, to the reader, this idea looks good and beneficial for everyone: the interpreters, because they will have more work (although I would guess that the fees offered by the state governments will not be anything to brag about) the states with underserved populations due to the lack of interpreters, because they will get somebody who has been certified somewhere by a state-level judiciary, and the foreign language speaker, as they will have the services of a professional interpreter instead of a family member or a paraprofessional.

Does it sound good to you? Well, if I understood the email as a communication asking permission to include interpreters’ names on a master list to indiscriminately interpret by phone, regardless of the state, it did not sound even half decent to me. Let me explain:

It is true that state-level certified interpreters are better equipped than paraprofessionals, and therefore the service provided should be of better quality. It is true that all state-level certified interpreters have attended a basic orientation and they have passed a court certification test (now administered by the NCSC or CLAC) and in many cases they have also taken an ethics and professional responsibility test. This obviously puts them ahead of those unscrupulous people that are roaming through the hallways of many courthouses in the United States. Unfortunately, and this is the real and very big problem: these interpreters, who have been certified by one of the fifty states, would now interpret cases from other states where both substantive and adjective law are different. That is the problem. The interpreter will interpret legal proceedings based on legislation that he does not know. Unlike U.S. federally certified court interpreters who work nationwide because they interpret the same federal legislation all across the country, these state-level individuals will have to deal with fifty, sometimes very different, legal systems.

Just like the age to get married and gun control laws vary from state to state, the catalog of crimes and civil law contracts are different. Think of one single situation: battery and assault; or is it assault and menacing? Well, the answer is: it depends on the state, and the differences are radical. Penalties and procedures also change depending on the state. This is why attorneys can only practice in those jurisdictions where they have passed the Bar Exam. It is a very delicate matter.

If this is indeed what the NCSC and the states want to do (and I hope I am wrong) then I am extremely concerned as an interpreter, because this will be another attempt to de-professionalize our jobs and make them look more like the legal secretary who can work anywhere, and less like the attorneys who can only practice in the state (or states) where they are members of the state bar. Sure, I understand that state-level agencies will praise the “benefits” of this solution, which in reality will solve their own problem (not the interpreters’ or the foreign language speakers’): Compliance with Title VI of the Civil Rights Act. This is a state-level priority because states that do not comply will lose federal money.

I am also worried as an attorney for several reasons: First, states will allow interpreting services across state lines using telecommunications. This could be an interstate commerce issue where the federal government has to participate (at least); but the second reason is the one that motivated me to write this post: interpreters who do not know the legal system of a particular state will practice in that jurisdiction. They may physically be in the state where they are certified, but their services will affect a court system, and litigants in another state where they have never demonstrated their capacity to practice. I believe attorneys who represent foreign speakers need to be aware of this potential “solution” so that from the beginning they know that perhaps the case could later be appealed for ineffective assistance of the interpreter. Attorneys need to know that when they are advising their client on an assault charge in their home state, they may be using the services of an interpreter from a state where assault really means battery. Lawyers will need to assess the potential procedural complications in case they sue the interpreter. Jurisdiction will have to be determined, and these lawsuits could end up in federal court.

If this “program” has also been planned for civil cases, then the problem is worse. Remember, there are at least three different civil legal systems in the United States, the one followed by those states who have a system based on the Anglo-Saxon tradition, those whose system comes in part from the days where these territories were part of the Spanish Crown (just think divorce and community property division) and then Louisiana and the Napoleonic written system. As an attorney, or a foreign language speaker, I would not want to have an interpreter from another state, much less one from a state where the system is different.

I sure hope that this “solution” (if conceived as I understood it) is discarded and the states look for better options such as a higher fee for those interpreting in state courts. There are very good and capable interpreters everywhere in the United States, it is just that they will not work for the fees currently offered. A more attractive fee would also encourage others who would like to join the profession but are reluctant because of the lack of money to even make a decent living.

By the way, these problems apply to those languages where there is no certification and the interpreters are registered or qualified to work in court by a particular state.

I really wish I am mistaken and this is not happening in the United States, but if it is, I will continue to watch the developments of this program, and if needed, I will speak up in legal forums to bring awareness of the potential risks generated by using state-level certified interpreters in places where they have never been certified. I now ask you to share your thoughts, and concerns, about this potential change that would end up rendering a state-level court interpreter certification useless.

At last interpreters and translators meet to talk about the state of the profession.

November 19, 2013 § 4 Comments

Dear colleagues:

As interpreters and translators we have been gathering for decades in workshops, conferences, and professional associations.  We are lucky to have so many places where we can improve our skills, enhance our knowledge, and do networking with others. We have the fortune to have excellent organizations that are international and very big like ATA and FIT; others that are regional and smaller, some that are specific to a particular field like NAJIT and IMIA, and we even have separate organizations exclusively for interpreters or translators.   All these professional groups are very important and useful to our profession. They all serve different purposes, and we need them all.  A few years ago we witnessed the birth of InterpretAmerica, another forum for all interpreters to talk to each other as professionals, and to directly address the other players in our industry: equipment providers, government contractors, the big language agencies, academic institutions, international organisms, and others.

We had all these resources to thrive in our profession but something was missing:  We had no outlet to talk to each other as individual professional interpreters and translators; a place where we could talk about the business side of our work.  A forum where we could address the recent changes brought to our work by the globalization movement; the disparity and often times ruthless competition that we face as freelancers in a world where new technology and gigantic language service providers are driving the professional fees down; and in some cases the quality of the service even lower.

We all know of the court interpreting crisis that has developed in the United Kingdom.  Many of you know that, unlike the U.S. federal court system where you find the best court interpreters because it pays the highest fees, American immigration courts pay very little under less than ideal working conditions, and for the most part do not use the services of top tier interpreters.  Of course, it is common knowledge that big language service providers are paying incredibly low fees to good translators based in developing countries, and it is no secret that every day more businesses turn to machine translation to solve their most common communication problems.

What most interpreters and translators do not know, is that there are other countries in the world who want to emulate the United Kingdom’s model; that there are government agencies who outsource the authority to “certify” or “qualify” individuals as interpreters or translators in order to comply with legal mandates and to meet the demand for these services, at least on paper.

A few weeks ago I attended in London the first congress of the International Association of Professional Translators and Interpreters (IAPTI) an event where hundreds of well-known veteran interpreters and translators from all over the world met with the most talented new generation of professional interpreters and translators I have ever seen in my life.  The reason for this event: to discuss all these developments and issues that we currently face in our profession, in order to be better prepared and armed with skill and knowledge to embrace technology and face globalization as freelancers.  The organization and the conference are for individual translators and interpreters. No corporate memberships. No big language service providers.  It was refreshing to attend presentations that dealt with issues such as how to protect your market, defend the quality of your work, and honor the real value of your work so you never give in to those who want you to work for less than a fair fee.    It was wonderful to see so many colleagues taking note of the business side of the profession so they can do better when competing for the good client in the real world.  I salute the brains, heart and soul of this much needed type of professional association: Aurora Humarán and Lorena Andrea Vicente, President and Vice-president of IAPTI respectively.

Dear colleagues, in this new global economy, where we are all competing in the same world market, we need all the professional associations we have. They are all useful.

I invite all of my freelance interpreter and translator friends and colleagues who want to thrive in this new economy to acquire the necessary tools and resources to win. IAPTI is an essential resource.  I encourage you all to submit a membership application and to attend next year’s conference. I can assure you that you will be inspired by the talent and energy of this new group of young interpreters and translators.  As a member of IAPTI you will be in a better position to flourish in our industry. You will love the atmosphere of a IAPTI conference where everybody is like you: an individual translator or interpreter trying to deliver an excellent product in exchange for an excellent pay.  I invite our friends and colleagues who are part of IAPTI, and those who were in London for the conference, to share their comments with the rest of us.

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