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Vol. 15, No. 3

EMPLOYMENT LAW

Features

 

Lost in Translation

There’s a voice on the phone and you can’t understand a word. Or a child says, “My daddy needs to talk to you but he can’t.” Beware: You’ve just entered “The Translation Zone.”

In the part of the country where I work—northern Virginia—I’ve had clients whose first language is Spanish, Portuguese, Vietnamese, Korean, Chinese, Tagalog, Hmong, Swahili, Urdu, Hindi, Persian, Arabic, Russian, and Hebrew. Other attorneys have even more varied clientele. There are issues that arise when you work in the Translation Zone—some of them are cultural, and all of them can make representing clients tricky.

Before you even sit down with the prospective client, know this: If you cannot speak directly to your client and need to use a translator you are about to confront three issues: breach of confidentiality, the possibility of an independent agenda, and accuracy.

To avoid confidentiality issues, hire the “unofficial” translator as an interpreter on a part-time basis, making it all confidential.

In immigration cases particularly, it can be very hard to guard against the independent agenda. Simple awareness is not enough, but it’s a start. I’ve never found a better check on accurate translation than to interview and reinterview the witnesses. Interpreters simply cannot consistently sustain inaccurate translations.

When first meeting new clients, find out if they speak or understand any English. Many clients say they speak no English when, in fact, they understand some and speak a little. But they are not fluent and are embarrassed, so they let a more fluent speaker talk for them. Be diligent. You want to get as much information as possible directly from the client.

If you use interpreters, find out more about them, as well. After all, they are the real witnesses. Find out if they have any “skin in the game.” Other than background information and the relationship to the client, I like to ask:
• What direct knowledge do they have about the situation?
• Do they know the other people involved?
• What opinions have they formed?
• How did they get involved?
• Have they ever been involved in similar situations?

If the interpreter is a child, you must ask even more questions, especially those designed to explore the child’s ability to understand what is being said, the importance of being accurate, the child’s willingness to ask questions when a lack of understanding of the words or concepts prevents the child from accurately translating, and the importance of never repeating to anyone what is heard in the lawyer’s office. If possible, try to use only older children—no one younger than high school age. In some immigration cases, testimony on torture or rape or other unpleasant facts may be key. But many victims will not testify about these things in the presence of a young child or someone of the opposite sex. Ask your client if this is an issue and how to resolve it.

When your client is detained, a policeman can be the translator during interrogations—a common practice in immigration cases. I know of no state where police representatives are precluded from acting as translators in interrogations. The potential for abuse in these circumstances seems significant, but courts have not treated police translators as having a disqualifying “interest.”

Because immigration cases are not criminal, the usual 6th Amendment rights are curtailed. But the Court Interpreters Act of 1978 (28 U.S.C. §§ 1827-1828) requires that non-English speaking persons be provided interpreters in civil and criminal cases in federal courts. This should include immigration cases, but sometimes does not. The Administrative Office of the U.S. Courts maintains a list of qualified  and certified interpreters, which is updated periodically. (http://www.uscourts.gov/interpretprog/interp_prog.html.)

Just because someone is bilingual doesn’t mean he or she is competent to translate legal proceedings. Interpretation is a sophisticated art, demanding not only a broad vocabulary, instant recall, and continuing judgment as to the speaker’s intended meaning, but also the ability to reproduce tone and nuance, and a good working knowledge of both legal terminology and street slang. The moral: Avoid amateurs if you can. Even when you have a competent translator, a translator should be “disinterested” with no outside agenda.

If in federal court, interpreters are selected off the list of qualified and certified interpreters. If there is no one who speaks the language, you are on your own. If you have to bring your own interpreter, do the same preparatory work as you would in the office plus these additional things:
• Be sure to go over the court rules with the interpreter.
• Review your expectations of the interpreter.
• If using a child interpreter, be sure the child understands the oath.
• Review the broad outlines of the testimony you expect to hear so the interpreter can translate smoothly.
• Caution the interpreter strongly about not putting words into the witness’s mouth.
• Discuss cultural issues that interfere with the translation.

Once selected, any interpreter may be removed for good cause. Any of the following actions would qualify as good cause: (1) being unable to interpret adequately, including where the interpreter self-reports such inability; (2) knowingly and willfully making false interpretation while serving in an official capacity; (3) knowingly and willfully disclosing confidential or privileged information obtained while serving in an official capacity; (4) failing to adhere to the requirements prescribed by the local Code of Professional Responsibility for foreign language interpreters; (5) failing to follow other standards prescribed by law. If you don’t speak the language, and the client doesn’t speak English, it can be very hard to show good cause. If you are concerned about a bad translation, bring someone with you who—although perhaps not good enough to use in court—can guard against error.

Finally, a list of eight tips to help if ever you find yourself in the Translation Zone:

1: If possible, match male translator with male witness, female translator with female witness.
2: Be sure your translator speaks the dialect.
3: Select an interpreter who is trained, qualified, sworn, and impartial.
4: If the translator is busy with testimony and you need to talk to your client, ask the court for a break.
5: Immediately object to bad translation.
6: Don’t let untrained translators “help” the case; ensure translations are exact; don’t allow translators to “explain” your words.
7: Beware of others who might speak the language.
8: In court, seat the interpreter between you and the client and slightly behind to facilitate ease of translation between you and your client.

David Zachery Kaufman of Kaufman Law PC in Fairfax, VA, is a solo practitioner. Contact him at david@businessbrawls.com or visit his Web site at http://www.dzklaw.com/index.htm. This article is adapted from a 2007 article that appeared in GPSolo magazine.

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