GPSolo January/February 2007
Representing Non-English Speaking Clients
The attorney who represents non-English-speaking clients must recognize initially that such representation will be more time consuming than the representation of English-speaking clients. There are also many pitfalls resulting from communication problems and cultural differences. You must begin your representation carefully, making sure a basic foundation for communication between client and attorney exists.
The first significant problem occurs from the natural tendency of both parties to be helpful and agreeable. Often during interviews between an attorney and a non-English-speaking client, and especially with an unskilled interpreter (or no interpreter), the parties will attempt to signify agreement and understanding, so as not to be difficult, when in fact information has not been conveyed accurately. Be careful when clients seem to continuously nod their heads affirmatively and say yes to all your questions. You should test the client’s understanding in some manner to make sure the client can repeat the particular understanding.
Another basic problem often occurs in the introduction between the client and attorney. Numerous time-wasting problems occur simply because the attorney, court clerk, or other individual fails to identify the correct name and spelling of the name of the represented individual. This problem illustrates the extra care you must use throughout the representation to avoid issues that would never occur with an English-speaking client.
You should verify the client’s full name by examining his or her driver’s license or other identification card. Further, make sure the “last name” is identified—often, the driver’s license will have the last name and first name reversed, with the family name not in the top position on the driver’s license but rather in the second position. People from several Asian and other countries commonly give “last name” first. We suggest that all governmental entities and courts, and attorney’s working therewith, use the term “family name”—the term is less confusing and is used commonly by the federal government. Also make sure to use the full name, including middle name, on pleadings; many foreign countries have relatively few family names, and confusion with other individuals having the same name is quite common among non-English-speaking individuals from these countries. Further, officials in some countries actually insist on knowing the middle name of your client when receiving a document from the United States to make sure that the document is in fact identified with the person submitting it. In Vietnam, for example, to receive money by wire it often is necessary to have the middle name; dissolution of marriage decrees received in Vietnam from the United States have been rejected for lack of the middle name.
Use of the full name will often avoid confusion with other individuals. We have seen numerous cases of confusion with other individuals of the same or similar name, causing court personnel to confuse files, credit bureaus to confuse individuals, government agencies running record checks to confuse records, and attorneys to sue the wrong defendants; many of these errors could have been avoided by checking the full name of the individual. Plaintiffs suing a non-English-speaking individual should make sure the defendant’s information is accurate by checking Social Security Numbers or other identifying records.
You should also identify the client’s status as a permanent resident (Green Card holder), refugee, or citizen. (See the sidebar on page 20. We will not discuss illegal aliens, as these individuals will require an immigration attorney specialist.)
There are numerous problems that often occur when representing the non-English-speaking client in a transaction such as a real estate purchase or a business purchase. Cultural differences may mean that the non-English-speaking client does not appreciate the necessity to follow the technicalities of the law. Many immigrants come from countries where the population historically has opposed the government and viewed the government as an enemy not to be cooperated with. Frankly, lying to the government in some countries may have been necessary for some immigrant clients to survive. In many countries the law is not that fully developed. A child custody plan in China or Vietnam may be only a few sentences long. Clients not accustomed to our laws and procedures will not necessarily appreciate the necessity of detailing an agreement in writing or a clear title.
Often the client will not convey the correct marital status to a lawyer, banker, tax preparer, or real estate closer. In some home countries, marital status is not necessarily an important issue, especially for real estate purposes. Consequently, in the United States numerous properties are conveyed wherein a grantor or grantee from such a country identifies himself as a single person when in fact he is not. On other occasions clients will indicate that they are married individuals when in fact they are not. This problem becomes even more difficult when parents, brothers, or other family members are placed on the title for various reasons. Sometimes there is no identification as to whether or not these individuals are married. Such uncertainty becomes a major problem in the case of a death or dissolution of marriage.
Often in the sale of a business such as a small restaurant or nail salon, one finds that the buyer is not the buyer, the seller is not the seller, and the price is not the price. In addition, the use of cash to conclude all or part of the sale is very common. When the lawyer finds that the client is using cash to supplement the written sale price, certain difficulties arise immediately. Each case must be addressed separately, of course. The significance of giving a receipt for cash in light of the contract wording must be carefully considered so that the receipt clearly indicates how it applies to the sale price. On some occasions the client and/or other party will not allow a receipt.
Service of Process Issues
On occasion it may be necessary to serve process in a foreign country when representing a non-English-speaking person in this country. You first will have to address whether or not the country is a party to the Hague Convention relating to service of process. If the country is not a party to the convention normal, but rather technical, personal service procedures can be utilized, and mailed service is usually not available. (See the U.S. State Department website for some of the complexities involved: www.travel.state.gov/law/service_general.html.) However, many countries, Vietnam for example, are not a party to the convention. Our existing rules for substituted service might be appropriately used in these cases, and you should consider an affidavit for substituted service requesting the use of international certified mail, return receipt requested, explaining that normal service of process is not available. You could also mail an identical copy of the process by express mail service through the U.S. Postal Service or FedEx, and the mailing of summons by both methods should be approved by our courts as the most feasible service method. (See also the Postal Service website: www.usps.com/global/
intlspecialservices.htm.) International certified mail is virtually identical to our normal certified mail, return receipt requested. Service of process by that method will often be the best solution in dissolution of marriage cases wherein your client has left his or her spouse behind in the home country. Service also is required in numerous probate matters wherein heirs of the deceased remain in the home country. We do have a duty to use the best process available.
Interpreters and Translators
When taking on a non-English-speaking client, you must consider cost. Ideally, the attorney should suggest for non-court proceedings that the client agree to obtain a family member or friend who is willing to serve as an interpreter. Be aware that using an interpreter slows down communications, requiring all matters to take a longer time. Billing for this extra time may be difficult, and you must decide how to confront this problem in each case. Of course, more complex matters will require more highly skilled interpreters. Certain matters of litigation or more complex transactions may require actual translations of documents. This will be a great expense to the client if the client does not have someone to perform the services.
In the state of Missouri, RSMO. 476.803 covers the appointment of an interpreter for a non-English-speaking person who is a party or a witness, and it appears to make such appointment mandatory. Such appointment, however, may be waived so long as the waiver is knowing and intelligent. The waiver may be retracted. In actual practice the courts might not follow the specifics of the appointment statute, especially in informal proceedings and uncontested matters.
In civil matters, courts will vary as to the necessity of and procedure for using an interpreter. Most judges will allow informal interpreters for informal matters and uncontested hearings. Although the interpreters are sworn, courts in the St. Louis area do not usually require any particular certification for the interpreter in an uncontested matter. Contested civil cases or hearings of more significance, such as a wrongful death approval settlement, will require interpreters certified by the state court administrator. Most court clerks in metropolitan areas will have experience contacting the state court administrator to obtain a certified interpreter. You may wish to have your own interpreter in the courtroom separate from the court-appointed interpreter for matters of importance such as a jury trial. You should clarify whether an interpreter is necessary and who is to make the contact to schedule the interpreter before trial, and memorialize the procedure with a memo to the court file to avoid blame when an interpreter fails to appear. This seems to happen all too frequently despite efforts to avoid this problem. You will be wise to call the court clerk a couple of days before any scheduled trial to make sure an interpreter has in fact been scheduled.
In criminal matters, courts in the St. Louis area are usually very careful to use interpreters. The court may conduct a pre-trial interview of the defendant to determine the need for an interpreter. The interpreters will usually convey matters such as motions and instructions to the defendant, at least in summary form, in addition to interpreting witnesses. As in civil trials (and with the court’s permission), you may wish to employ an additional interpreter, not necessarily certified, who will function separately from the court’s interpreter.
You will often find it easier to speak facing the interpreter rather than the client. Although this may look awkward, it is often more effective, particularly when the defendant understands part of what the attorney is saying and may attempt to answer the attorney without waiting for the translation.
Evidence of Cultural Differences
Occasionally a litigant will offer a voluntary testimonial opinion such as “That’s the way we do things like that in [his or her home country].” Such testimony can be surprising and damaging. You may wish to object to such testimony on one or more grounds, such as either non-responsive, irrelevant, hearsay, or the opinion of the witness who has not been shown to be an expert in the culture or behavior of members of the home society. Occasionally these opinions are in fact incorrect and are simply thrown out by the witness, who knows that such opinions cannot really be checked by the judge or jury. Therefore you must be ready to recognize such probably inadmissible testimony and object to it. On the other hand, there can be cultural differences as to behaviors that can excuse, to a degree, certain conduct that a judge or jury might find intentional or negligent, for example. We believe someone in a community leadership position, such as a cleric or teacher, might very well be able to testify by way of personal opinion and could be qualified as an expert on the cultural differences between the United States and the home country based upon this leader’s education and experience.
OVERVIEW OF CLIENT STATUS
• Cannot vote
• Must register for Selective Service if 18 to 26 years old and male
• Must live here
• S.S.I. payments terminable
• May receive special status allowing stay in the United States
• May later apply for permanent residency
• Must be careful about returning to home country
• Preferred status to avoid criminal issues causing removal
• May actually lose ability to sponsor their parents’ spouses who are not their parent, their children’s spouses, etc., whom they were able to sponsor if they were only permanent residents
L. Richard Brinkman Jr. practices with Denk & Brinkman in Arnold, Missouri. He can be reached at firstname.lastname@example.org. This article originally appeared as a presentation at the 2006 Missouri Bar Solo and Small Firm Conference, © 2006 Missouri Bar Association. Reprinted by permission.