March 21, 2019 § 5 Comments
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.
January 27, 2017 § 10 Comments
For several months I have noticed a proliferation of blog posts, language agency advertisements, webinars, and conference presentations where the interpreter’s knowledge of legal terminology is emphasized. Seminars, on-line and in-person, focus on the importance of legal terminology and are usually packed with lists of words and phrases found in statutes and regulations. Bilingual glossaries are given away as perks to those who paid to attend the talk, and power point presentations are full of sections of the law that were literally cut and pasted from the statute.
Attendees to this “terminology workshops” are told to memorize the new words and expressions just because “…that is what the Act says” or “this is the term found in the bilingual legal dictionary”, and their questions are often answered with the reading of more sections of the law, without giving any logical reason or explanation as to the why it has to be the way the instructor said so. There are many blog posts, language agency websites, webinars, and conference presentations where current and accurate terminology is shared, but there is absolutely no context. This is dangerous and it is wrong.
Sometimes we read that a populist government, a well-known linguist, or a prestigious language institution issue statements advocating for legal terminology that is more accessible to the common individual. This is also extremely dangerous, irresponsible, and very wrong.
Legal terminology is what it is for a reason: It deals with social values higher than accessibility; it deals with legal accuracy and legal certainty, two values that are needed in any society to keep individuals safe. Free to pursue their lives as they please by creating legal transactions, forming legal bonds, and asserting their legal rights, which are necessary to reach their goals and be happy. To protect this higher values, a legal system needs to be complex and sophisticated. We need the proper terminology to put these concepts, which we call legal precepts, in writing for all to see and observe. It is a fact that many times they will differ from conventional language, not because legislators, attorneys and judges wanted to, but because they had to. This is why we have lawyers in our society.
Memorizing legal terminology like a parrot is easy, it only requires of memory and patience. Knowing the “why” and “how” of a legal term, and understanding its different meanings and applications according to context is a different story: it requires a deep knowledge of legal philosophy, substantive and adjective law, and the development of an analytical capacity that allows the individual, who has the background mentioned above, to decipher hidden meanings, legislators’ intent, and applicability to the specific set of facts (there is a term in Spanish to describe this essential skill: “criterio jurídico”) It is only then that we are in a position to truly know the meaning of a term that makes it applicable to our particular set of facts. We need to have context to know when and how to use legal terminology. Everything else is confusing, vague, and potentially damaging to the client.
In Mexican legal Spanish, the term for bankruptcy is different depending on the type of proceedings. The legal term “bankruptcy”, used in the American legal system does not give us enough information to decide the appropriate terminology. We would need to have context to determine if we are facing a Chapter 7 bankruptcy, in which case the correct legal term would be “quiebra”, or a Chapter 11 bankruptcy, as this would be translated or interpreted as “suspensión de pagos”. Without getting into Bankruptcy Law, I have to tell you that these are two very different legal figures and proceedings with very distinct consequences.
Black’s Law Dictionary defines legal interpretation as: “The art or process of discovering and ascertaining the meaning…” (Black’s Law Dictionary Centennial Edition 6th. Edition p.817)
To be able to properly interpret a hearing or sight translate a legal document, court interpreters must know legal terminology on both languages, but to provide a professional accurate rendition, the interpreter must understand the legal concepts and court proceedings being interpreted, and put everything that is happening at the hearing in context, so the choice of legal terms and concepts in the target language is correct.
It is essential that those teaching legal terminology are skilled in this area so they can answer questions with accuracy, and it is important that they explain the “why” and “how” of the legal terms and concepts that they are teaching. It is also very important that those paying for a webinar, workshop, or glossary, demand this knowledge from their instructors. Everything else is dangerous and unethical. Please do not get me wrong, I am not calling for all court interpreters to have a law degree (although having one is a tremendous advantage). All I am asking is that you stop and think of all the possibilities before you utter a legal term in court, and that when you pay for a continuing education course, workshop, talk, or webinar on legal terminology, you make sure the instructor does have the required legal knowledge and skill to teach the subject correctly.
I hope that the next time you see an agency advertising that their interpreters know the appropriate legal terminology, you go a little deeper to find out if they are offering interpreters who truly know how select the applicable legal term or concept, of they are simply advertising bilingual parrots for hire. I now invite you to share with the rest of us your ideas regarding this crucial aspect of court and legal interpreting.
October 23, 2014 § 9 Comments
This time I am going to refer to a problem that many of us have encountered during our careers: The individual who is also an interpreter and he or she is difficult to deal with at the professional level, not when we go out and socialize, but when we are doing our job. I am not talking about the lazy interpreter, the self-centered know-it-all interpreter, the bad interpreter, or even the vulgar disrespectful interpreter. My colleagues, this time I want to discuss a situation where a colleague gets an assignment, job, or promotion and has a personality change.
We all know colleagues who have made career changes or have received a promotion; that is great if that is what they wanted to accomplish and I think we would all agree that this makes us happy for that person. In fact, many of these changes have benefited the profession at large because these colleagues are now using their new position or status to improve the quality of the service and the working conditions for all of us. They recognize that one of the reasons for their hiring or promotion was the fact that they have been interpreters in the past: they have walked the walk. These changes have contributed significantly to the advance of our profession. Unfortunately, not everybody reacts the same way.
Some time ago I was in an interpreter social gathering with many old and new friends. As it often happens, some colleagues began to talk shop and it was not long before quite a few of them were talking about an interpreter who had recently been hired or promoted (I did not get all the details) to a position that now rendered this individual as the one with the power to hire interpreters for assignments; This person was now in charge of assigning interpreters, negotiating pay and other labor conditions, and setting protocol and procedure for those who wanted to work with that organization. Apparently, this person had been another freelancer until recently and had been a good colleague, maybe not the best interpreter, but certainly a very reliable one. The person was well-liked by the professional community, so the hiring (or promotion) was received warmly by the other interpreters. It all seemed to indicate that this was going to be an excellent choice for everybody; one of those changes that I was referring to at the beginning of this piece. Unfortunately, it did not happen that way.
Apparently, the freelance interpreters saw many changes once this person was hired and became part of the company’s staff. They all received innumerable emails with memos that were setting rules and policies for everything imaginable: How to report the status of an assignment (right in the middle of the event!) how to get paid, how to invoice, how to write a cover letter, how to dress for work, and many others. These interpreters were not happy. Remember: They were no rookies; most of them were practicing their profession way before this newly hired individual decided to become an interpreter, and they were doing a good job; there were no complaints.
When some of them questioned the newly hired “supervisor” on these changes, the person responded by saying that these changes to the system would help the company’s clerical staff as they would make it easier for them to understand what the interpreters were doing. He never even addressed the fact that this would require of more of the freelancers’ time because they were being asked to do part of the employees’ work for the same fee. Everyone knows that to a freelancer time is equal to money.
According to this policy, they now had to do extra work for the same pay. In other words, by implementing all these bureaucratic rules and policies, the first thing this person did in the new job was to give the interpreters a pay cut. This reminded me of the time when, for a brief period of time, I was part of the system and the first thing I was told was that from that moment on I was a corporate entity and all my decisions and actions should be geared to protect the employer, regardless of what happened to the interpreters. I was told that it was us against them. Needless to say, under that philosophy, I barely lasted a blink of an eye at that job.
After listening to this heartbreaking story, I told the interpreters at the social gathering to diversify even more, to try to work for that individual as little as possible, to reject the bureaucratic memos, to continue to provide a quality professional service, and to keep in mind that although time is money for the freelancer, the rule does not apply to those like this person who will make the same paycheck regardless of how they spend their time. I mentioned that even though this person may be socially friendly and nice to them, they must remember that somewhere deep inside, these individuals are always aware of their professional limitations, and consider that promotions, like the one the individual got in this case, are the zenith of their career; I reminded them that even when we don’t see their job that way, they do, and they will defend their newly acquired status with everything they have. I told them that this strategy of versatility and widening our scope of practice is exactly what I have been doing throughout my career. Eventually, we should always use these nonsensical circumstances as motivation to grow as professionals and look for newer and better professional opportunities. I now ask you to share your personal experience with individuals in similar circumstances to the ones described in this post, and to tell us what you did to either adjust and cope with the circumstances, or to get out of this situation.
May 12, 2014 § 8 Comments
With the new National Code of Criminal Procedure (Código Nacional de Procedimientos Penales) just enacted in Mexico this past March 2014, the country with the largest Spanish speaking population in the world took one of the most dramatic steps on the implementation of their new oral legal proceedings. As many of you know, for the past few years Mexico has been moving towards a new judicial system that resembles the adversarial procedure followed by Common Law countries, and distancing itself from the more formalistic written inquisitorial system that comes from the Roman/French legal tradition. There have been constitutional amendments, training programs for judges and attorneys, and they are currently in the middle of an important legislative overhaul to match all legal precepts to the new process. These changes have brought two significant changes to our profession as court interpreters in both, Mexico and the United States. The first one is the obvious greater need for court interpreters as the new system will require services that the old written procedural rules did not. The second fundamental change, and the one that will impact the profession in the United States more than anything in the past, is the creation of new terminology and vocabulary by the Mexican legislator that will mirror very closely the criminal (and later the civil) procedure followed by the United States. In other words, for the first time ever, we will have a catalog of legal terms in Spanish that will be the law of the land in a country with close to 115 million Spanish speakers. Add to this reality the fact that Mexican society has an intense interaction with American society, and that most of the Spanish speakers in the United States are Mexican, and you get a combination of trade, crime, cultural exchanges, and family matters in Spanish that involve the two largest Spanish speaking countries in the world.
For the Mexican court interpreter, living in Mexico or in the United States, this will translate in a tremendous workload increase on the Mexican side of the border; for the Spanish language court interpreters who work in the United States (with the exception of some areas of the country where non-Mexican Spanish, particularly from Central America and the Caribbean, is broadly spoken) this means the emerging of a new culture where people who recently moved from Mexico to the U.S., Mexican citizens who live in the United States but get their news from the Mexican media, and their relatives who continue to reside in Mexico, will need and demand an accurate interpretation employing the official legal terminology in the Mexican legislation. Many of you work, as I do, with Mexican attorneys, and you know how they are always looking for interpreters and translators who can work with Mexican legal terms instead of “homemade” terminology generated out of necessity when there was no adversarial legal system in any Spanish speaking country. My friends, I suggest that there will be an even greater need for Spanish interpreters as the involvement of Mexican attorneys and Law Firms increase and their lawyers retain the services of court interpreters who know Mexican legal Spanish. By the way, the same comments apply to those court interpreters with knowledge of legal terminology from other Spanish speaking countries where the oral system is being implemented; Chile and Costa Rica are pioneers of this change. I emphasize the Mexican changes because they are the most recent and impact a much larger number of people. At this time the big question on the table for us as interpreters, particularly those who live in the United States, will be: how do we react to this irreversible change? I know I will embrace it, learn the new terminology, and apply it to my work. I hope most of you will do the same.
To those colleagues who might say that there is already a terminology used by many interpreters in the United States, and that it is the Spanish speaker who needs to realize this fact and get used to this current vocabulary, I ask you to consider two factors: (1) the language used by many court interpreters in the United States has been helpful and even useful in its attempt to provide an equivalent term that non-English speakers could understand. It was a great accomplishment in times when there were no official sources in the Spanish-speaking countries; but it is not official and in many instances it uses non-legal or lay terms that are not catalogued in any legislation; and (2) Mexican attorneys want to understand what the interpreter says and at the same time they want to devote their attention and energy to the legal problems of the case, they do not want to spend their energy trying to understand the vocabulary the interpreter is using and they never heard before; in other words: from the interpreter’s perspective adapting to the change is also a business decision.
On May 16 I will take some of the first steps by offering a preconference workshop during the NAJIT Annual Conference in Las Vegas, Nevada. Those who join me will be exposed to the most recent legislative changes by the Mexican government, will hear of the policies that Mexico is adopting to forge ahead with the adversarial system, and will see first-hand how these oral proceedings are conducted over there. I invite you to please share your thoughts on this huge change, and to tell us how you plan to adjust to it; or, if you do not think that you have to change anything you are doing right now, please do not just say that you will continue to do the same, instead, I invite you to explain why you will not adjust to these changes, and how they will not impact the place where you work as a court interpreter.