Interpreting depositions correctly.

March 27, 2017 § 17 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.

Are the interpreters working conditions in danger?

April 21, 2014 § 7 Comments

Dear colleagues:

A few days ago a colleague contacted me to ask if I had seen the updated United States Federal Court Interpreter Orientation Manual and Glossary. Although I do not exactly know how long ago this version came to be, my answer was that I had not. She asked me to take a look and then tell her my opinion. I read the publication from beginning to end. The first thing I noticed was that some extremely qualified colleagues had been involved in this updating process. Then I read the publication. Most of the manual seemed to be well written and it looked like it covered most of the relevant points and situations that happen in federal cases. That is, until I got to Chapter 3(VII)(C) For your benefit as readers, I transcribe the applicable portion of the manual next:

“Federal Court Interpreter Orientation Manual and Glossary.

Chapter 3: Overview of Court Interpreting.

VII Interpreters in the Courtroom…

C. Number of Interpreters per Proceeding: Team/Tandem Interpreting.

       The number of interpreters may vary according to the type of proceeding and the number of defendants that require interpreter services. To mitigate the effects of interpreter fatigue, proceedings estimated to exceed four hours are often covered by two interpreters through team, or tandem interpreting. The passive interpreter should remain seated in close proximity to the active interpreter and refrain from leaving the courtroom for any significant length of time without good reason…”

Yes dear colleagues, it reads four hours.

For the past eighteen months or so, I have devoted a good part of my time to help and assist in the development of interpreting rules and policy for interpreters in different parts of the world. I have held talks, workshops, presentations and one-on-ones with many interested parties that are developing or restructuring interpreter working conditions and rules of professional performance; and I have done it driven by two priorities: (1) To provide an excellent service and (2) To protect interpreters so they are able to fulfill priority number one.

I have sat in meetings and presentations where I heard of countries where government offices and private agencies require interpreters to work alone when interpreting consecutively regardless of the duration of the assignment; I have heard how individuals in decision-making positions question the need for team interpreting in small conferences or in legal settings. I heard it all and I heard it over and over again. You must know then, that one of the things that kept me going, and gave me the moral authority to dispute the rules or policy with real scientific arguments and data, was the knowledge that in the United States all reputable conferences, the federal judicial system, and many state-level courthouses, were honoring and following the principles of team interpreting and interpreters switching roles from active to support (passive) every 30 minutes or so. Now you can imagine my reaction when I read Chapter 3(VII)(C) above.

Dear friends and colleagues, as many of you know, scientific studies have demonstrated that mental fatigue sets in after approximately 30 minutes of interpreting. These studies show how the quality of the rendition is compromised when an interpreter, regardless of his capacity and skill, continues to interpret beyond this 30 minute marker. Even when the interpreter who has been working for a long period of time thinks that his rendition is accurate, it is not, according to a study by the University of Geneva’s Translation and Interpretation School (“Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” Moser-Mercer, B. Kunzli, B. & Korac, M. University of Geneva, École de Traduction et d’Interprétation. Interpreting Volume 3(1) p. 47-63. John Benjamins Publishing Co.) Jesús Baigorri Jalón tells us that “…an average of 30 minutes of consecutive work was the maximum time during which a satisfactory (interpretation) could be done; after this time, one runs the risk of deteriorating results due to fatigue…” (“La Interpretación de conferencias: el nacimiento de una profesión. De París a Nuremberg”. Editorial Comares, Granada. P.188)

Recognizing this well-documented issue, and as part of its tradition of excellence and professionalism, the International Association of Conference Interpreters (AIIC) clearly indicates in article six of its Professional Standards:

“Article 6…

  • *An interpreter shall not, as a general rule, work alone in a simultaneous interpretation booth, without the availability of a colleague to relieve her or him should the need arise.
  • **One of whom must be able to relieve each of the other two. In certain circumstances this number may be reduced to two (particularly for short meetings or meetings of a general nature, provided that each of the two interpreters can work into both languages)…”

This is also contemplated within the Sign Language interpreter community. The ASL Team Interpreting Guidelines state the following:

“…Interpreting assignments one hour or longer in length with continuous interpreting, will require the use of a team of two interpreters. The teaming allows the interpreters to switch roles every 15-20 minutes. Teaming will reduce physical strain, prevent repetitive strain injury, and prevent mental fatigue which can cause the quality of the interpreting to deteriorate…”

The National Association of Judiciary Interpreters and Translators (NAJIT) issued a position paper on this particular issue, and their study concludes that:

“…Due process rights are best preserved with faithful simultaneous interpretation of legal proceedings… In a controlled study it was shown that interpreters’ work quality decreases after 30 minutes. In the challenging courtroom environment, team interpreting ensures that the comprehension effort required to provide accurate interpretation is not compromised. To deliver unassailably accurate language service, court interpreters work in teams…” (NAJIT Position Paper. Team Interpreting in the Courtroom. March 1, 2007)

Even Wikipedia is aware of the complexities of interpreting and the need for team interpreting when it says:

“…Because of the intense concentration needed by interpreters to hear every word spoken and provide an accurate rendition in the target language, professional interpreters work in pairs or in teams of three, so that after interpreting for twenty minutes, the interpreters switch…” (Wikipedia)

As we can clearly see, the fact that team interpreting is required to do this job, and that those in the team need to switch roles every 30 minutes or so is undisputed. This is why several countries that due to globalization are just starting to use interpreting services more often than before, are adopting the team interpreting principle; most of them agreeing to a 20-30 minute policy for interpreters to switch roles. It cannot be possible that the United States federal judiciary got it wrong. There is no way that these updated rules are telling the professional community (interpreters, judges and attorneys) and society at large (litigants, victims, experts, etc.) that the policy will take us backwards. I just do not believe that is what our government wanted to do.

This all leaves us with two possibilities then: Either the rules are poorly written, and that is why we got this confusion, of the rules committee made a mistake. If it was a mistake, it should be corrected immediately. If the rule refers to something else, it should be re-written to make it clear. As part of my research for this article, I heard that the rules were updated because of the arrival of telephonic interpreting. If that is the case, the language must be amended to show that this rule is meant to apply to telephonic hearings. Then, after they do that, we will have to argue that telephonic hearing also needs team interpreting, but that would be another battle for another day.

Dear colleagues, I know that each judicial district sets its own rules, in fact, I am privileged to work in districts where the team interpreter rule is honored and enforced. I am aware of the fact that these rules will probably not change the way most districts operate; however, they are there, and someone can use them in the future to damage the service and hurt the profession. The rule needs to be amended immediately. Many of us will never work alone. Many of us will demand a team, but there could be new colleagues, greedy ignorant language service agencies, and inept court administrators who may be tempted to use them as an excuse to try to change policy. They would fail. They would lose. They would disappear, but I ask you: Why do we have to fight that battle (again) when all that needs to be done is to amend the manual. Please share your thoughts on this issue with the rest of us.

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