Even under ideal circumstances, the attorney-client relationship provides ample opportunity for miscommunication. Lawyers often under-explain legal concepts to their clients, forget to leave room for their clients to ask questions, or fail to check in with their clients about changing circumstances and goals. Without encouragement, a client might not ask clarifying questions or raise concerns because they do not want to seem unintelligent, do not know what questions to ask, do not realize information they hold is relevant, do not want to run up their bill, or do not want to seem “too demanding.” This last concern may loom particularly large in the minds of clients who are not paying their attorneys; these clients may worry that the quality of the representation they receive depends on their attorney’s goodwill towards them.
When a client seeks counsel for gender-based violence (GBV), trauma can further complicate attorney-client communication. The brain encodes traumatic memories differently than it does non-traumatic memories: People often remember traumatic events in fragments rather than linear narratives. A person recounting a traumatic event may recall details of the traumatic event inconsistently. Recalling and verbalizing a traumatic event can trigger post-traumatic symptoms like panic, anger, or dissociation, all of which further impair communication.
So, what happens if your client is a GBV survivor and you and your client do not share a language in which you are both proficient enough to discuss their legal case? This Five-for-Five offers tips for working with interpreters when representing GBV clients.
Ensure the interpreter is qualified to interpret for a legal case involving gender-based violence.
Qualification to interpret for a legal case involving GBV goes beyond language proficiency – though language proficiency is necessary. Note that “proficiency" is different from “fluency”: “Proficiency” refers to someone’s mastery of a language, while “fluency” refers to the smoothness of a person’s speech when speaking a particular language. Someone may be fluent in a language but not proficient.
This distinction between fluency and proficiency is just one reason why it is important to hire a professional interpreter whenever possible. While a member of your staff who is bilingual, for example, may be able to communicate smoothly and accurately in two languages, this ability does not mean that this staff member has not only mastered both languages, but has the ability to accurately interpret between the two languages.
When deciding whether an interpreter is qualified to interpret for a GBV case, you should keep in mind the fact that someone’s ability to accurately interpret between your and your client’s languages is necessary, but not sufficient, to qualify that person to interpret for a case that will involve discussions of traumatic, sensitive topics. You have an obligation to your client to ensure that the interpreter will remain impartial, show your client respect, and not censor your client’s account of their experience.
Considerations when deciding whether an interpreter is qualified include:
- The interpreter’s credentials and what steps the interpreter had to take to obtain those credentials. Credentialing of interpreters assesses whether an interpreter can interpret accurately between languages; as noted, this ability is necessary – but not sufficient – to qualify someone to interpret in a GBV case. Note that, though certification is the most rigorous interpreting credential, certification is not available in all languages. In many languages, registration is the most rigorous credential. When evaluating a credential, you should look beyond its name and learn about what earning it entails.
- Any specialized training the interpreter has received, including training on trauma-informed interpreting and interpreting in legal settings.
- Prior experiences interpreting for domestic or sexual violence survivors in legal settings.
- Whether the interpreter is comfortable interpreting discussions of sex, sexual violence, and body parts. This comfort should extend to using slang terms and curse words related to these topics. An interpreter should not sanitize the language of someone for whom they are interpreting; their job is to serve as a conduit.
- Ability to remain stoic, even if the conversation elicits strong emotions. Knowing what prior experience an interpreter has had interpreting for trauma survivors can help you assess whether the interpreter has the ability to maintain composure while interpreting discussion of GBV.
- Absence of bias. An interpreter should treat your client with respect and not try to influence the client’s actions or indicate disapproval about the client’s choices. If a potential interpreter expresses an opinion that sexual assault victims are often to blame for being sexually assaulted, for example, you should not hire that interpreter for a GBV case. Similarly, if an interpreter expresses negative feelings about people with your client’s cultural background, you should not hire that interpreter. If an interpreter you have already hired shames, criticizes, or attempts to influence a client, that interpreter’s services should be terminated immediately.
- Whether the interpreter has a conflict of interest (e.g., knows your client or your client’s abuser). Note that many small language communities are tight-knit; you should run the name of any interpreter you are considering hiring by your client. Even if your client does not have direct experience with the interpreter, they may be aware of the interpreter’s reputation. And, even if your client does not know the interpreter personally, the interpreter may know other people involved in or close to the situation. The importance of having an impartial interpreter is also one of the reasons why you should avoid relying on your client’s friends or family to interpret for them. In addition to likely not being credentialed interpreters in the first place, even the most well-meaning family members and friends will almost always have motive to influence your client’s decisions.
Do not rely on the interpreter to serve as a cultural intermediary, explain legal information to your client, resolve misunderstandings between you and your client, or perform any other role besides that of interpreter.
An interpreter’s job is to serve as a conduit between parties communicating in different languages. An interpreter has an ethical obligation to stay within the scope of this role. You should not encourage or pressure an interpreter to step outside their role by, for example, asking them questions about customs in your client’s culture or asking them to explain legal concepts to your client. Instead, you should explain legal concepts to your client the same way you would if there were no interpreter involved, taking into account your client’s educational background and knowledge of and experience with the American legal system.
Similarly, if you have questions about your client’s culture, you should ask your client.
Encourage the interpreter(s) to take frequent breaks.
Interpreting is mentally taxing. When an interpreter becomes fatigued, their quality of interpretation declines, which means the quality of communication between attorney and client declines. This phenomenon is called “interpreter fatigue.” While an interpreter should proactively ask for a break when they need one, offering an interpreter breaks and encouraging them to take a break whenever they need can help you maintain a good relationship with an interpreter and prevent the interpreter from feeling pressured to push themselves beyond their limits.
If possible, you should work with a team of interpreters who switch off and relieve each other every 20 to 30 minutes. Team interpreting both allows a conversation to continue uninterrupted by an interpreter’s breaks and allows the interpreters to monitor each other’s quality of work and, if necessary, consult each other regarding how best to interpret a word or phrase.
Do not ask interpreters to sight translate documents unless absolutely necessary.
“Sight translation” is when an interpreter verbally translates a written document into a different, spoken language: for example, if a retainer agreement is written in English and an interpreter reads the document and verbalizes its contents to a client in Spanish. Sight translation is not good practice in a legal setting, as legal documents tend to be complex and important. Sight translation is more rushed than written translation and is more likely to result in inaccuracies; it also denies the client the opportunity to read the document themselves.
Instead of relying on an interpreter to sight translate a document, you should arrange to have a written translation of the document made for your client (if your client’s language has a written form). Translation of documents requires planning ahead. If you frequently work with speakers of particular languages, it is good practice to have on-hand copies of your organization’s frequently-used documents, such as retainer agreements, translated into those languages.
If you do not have time to have a document translated, or if your client’s language does not have a written form, you should read the document aloud to your client while the interpreter interprets what you are saying, rather than have the interpreter sight translate. This gives your client the opportunity to ask questions as you convey the information; it also allows the interpreter to ask clarifying questions if necessary.
Sight translation should not be confused with sight interpretation. Sight interpretation is when an interpreter conveys the content of a written document via a sign language, such as American Sign Language. Sight interpretation, unlike sight translation, is acceptable in a legal setting; many signers do not have a written first language, and sign language interpreters are usually accustomed to sight interpreting. However, you should ensure that you give a sign language interpreter plenty of time to read and understand a document you are asking them to sight translate; rushed interpretation can result in inaccuracies. Whenever possible, you should provide the interpreter the document(s) prior to the meeting during which you expect them to sight interpret.
Check in with your client periodically.
It is important that you have a strategy for communicating basic concepts – "yes" or "no," "good" or "bad," "okay" or "not okay" – with your client without the aid of an interpreter. Such communicative shortcuts can allow your client to alert you to a problem without having to use an interpreter, which is an important option to have if the client needs to express that they have an issue with the interpreter. A thumbs up or thumbs down, a nod or shake of the head, a single word in either your client’s preferred language or yours, can suffice.
You should be aware of how your client reacts to and interacts with an interpreter, particularly if that interpreter is new. If you notice a drastic change in your client’s body language, story, or manner of expression, or of the client’s responses do not make sense in the context of what you think you are communicating, you should check in with your client. You should also be aware of how the interpreter interacts with your client: Do they seem to be communicating with your client beyond interpreting for you? Does their behavior strike you as unprofessional? If you have some familiarity with your client’s language, are you noticing possible misinterpretation? You should pay attention to these red flags and be prepared to find a different interpreter if necessary.