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September 24, 2018 Article

“Say What?”—Using Interpreters in Children’s Cases

By Jennifer Baum

“Translation is that which transforms everything so that nothing changes.”
—Günter Grass

Much attention has been paid over the years to training lawyers on best practices for representing children, but scant attention has been paid to the proper representation of non-English speaking children. However, recent changes to the United States’ immigration policy and practice have thrust this extra-vulnerable client population into the legal spotlight, and children’s lawyers are increasingly being called upon to provide legal services to clients who require translation or interpretation.

While both terms are often used interchangeably, “translation” refers to the conversion of written materials from one language to another while “interpretation” means the conversion of speech from one language to another. Knowing the difference isn’t absolutely necessary, but it can be important.

All the specialized training in the world will be for naught if your carefully chosen words—and those of your client—cannot be understood due to a language barrier. This is a concern now more than ever as increasingly accessible international travel combined with social and economic forces are fueling unprecedented, sudden, and dramatic shifts in worldwide migration. Just like that, a frightened child from far away, who does not speak English, sits in your office and needs your help.

You need an interpreter.

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean—neither more nor less.’”
—Lewis Carroll in Through the Looking Glass

Where to Find an Interpreter
The Bureau of Labor Statistics notes that interpretation and translation have been growing fields of employment for some years, and that between 2016–2026 they are expected to grow nearly another 20 percent—a much higher rate of growth than most other professions. The languages most in demand include French, Arabic, the Chinese languages, and Spanish, but translators for indigenous languages from Mexico and Central America—such as Mixteci, the Mayan languages, and Zapotec—are also needed. This is especially relevant for attorneys who represent unaccompanied minors, separated children and parents, asylum seekers, special immigration juveniles, and others entering the United States from southern nations. According to the National Association of Judiciary Interpreters & Translators, most U.S. jurisdictions have a certification process in place for official court interpreters.

But what about out-of-court interpretation? While any practitioner can tell you that that the quality of translation and interpretation can vary, the court-certified pool of interpreters can be a good place to start when setting out to find a for-hire interpreter. Many courts maintain lists of official interpreters to choose from if you want to go that route, but you may pay “official” (i.e. higher) rates for this service. If you do not need to use a court-certified interpreter for, say, a client interview in your office or to help you review paperwork from another country, then other resources can include the foreign languages department at a local university (professors of one language may speak multiple languages and may also have capable students who are willing to interpret for low cost or even college credit), local affinity churches, social services agencies, and other places where native speakers of the target language might be found.

Two caveats, though: (1) never rely on family or friends to translate, due to confidentiality concerns; and (2) regardless of the source of the interpretation, always have interpreters sign a confidentiality agreement before beginning an interview.

If an in-person interpreter cannot be located and time is of the essence, a variety of phone translation services are available. However, this often expensive and impersonal option obviously comes with some sacrifice. You should carefully weigh the pros can cons before relying on phone translation, especially when the client is young, but if the choice is between accessing necessary information or going without, the phone can, in many cases, be better than nothing.

There is one more thing to keep in mind, and it is a critical first step toward locating the best interpreter—properly identifying the child’s spoken language. And it may not be a simple matter. A child may have traveled through several countries before arriving in the United States, and her travels may have spanned days, weeks, or even years. She may speak one language at home and another at school. The country’s official language could be yet a third with which she is familiar. This is especially true for countries with a history of colonialization, where indigenous and official languages may co-exist even though they are not spoken by all. Best practices do not rely simply on identifying their country of origin, their last habitual residence, or their country’s official language, but will require an investigation into a child’s particular circumstances. Attempt to determine what language the child feels most comfortable speaking and do not assume that naming a language tells the whole story. For example, to my horror I once discovered, twenty minutes into a hearing, that the court-certified Guyanese Wolof interpreter could not translate into Senegalese Wolof. I only learned about it by speaking to the ten-year-old client in French. And it was his step-father who alerted me, as the child did not volunteer that he could not understand the proceedings—another sobering lesson from that day.

“The difference between the right word and the almost right word is really a large matter—it’s the difference between lightning and a lightning bug.”
—Mark Twain

Modes of Interpretation
There are three modes of interpretation. The first and most immediate is simultaneous interpretation. Here, English is translated into the target language (and vice versa) as it is being spoken, resulting in two people speaking at the same time. This is the method most commonly used in court and can be loud and confusing to the uninitiated (which almost always includes clients). This is especially true for bilingual speakers or speakers who know some English and may be distracted by bits and pieces of understood English breaking through the interpretation. The effect is only worse for children, who are more easily overwhelmed than adults. Some courts, including federal courts, use headsets and translators (think the United Nations) to reduce distraction, but this is not yet common in state and local courts.

In sequential, or consecutive, interpretation, the interpreter waits until the speaker has finished, and then converts the statement(s) into the target language. This is a much less distracting method of interpretation and is the far better choice for interviewing children, but it also takes longer than simultaneous interpretation. It is almost always the preferred method for interviewing any client in a small setting, however, because it allows for a more natural and relaxed conversation.

In summary interpretation or translation, the interpreter conveys the gist of what was said, without providing a word-by-word conversion of the language used. This can be useful to set up logistics or to get basic, non-sensitive information where the client’s exact words are not critical to the representation, such as finding out whether the client received a letter. This method might work well with very young children for whom linear conversation might be difficult even in their native language.  

Preparing for an Interview
While you may feel (and to a large extent are) dependent upon the interpreter, you should remember that it is your interview, not the interpreter’s, and it is you who sets the ground rules. You control the logistics, the content, the pace, and the tone of the interview. Be polite, respectful, and friendly, but in charge.

In an ideal world, consider meeting with the interpreter ahead of time to explain the general subject matter of the conversation; any technical, slang, sensitive, or embarrassing terms that may come up; and to explain your goals to the interpreter. Prepare your interpreter if you reasonably believe that your conversation may turn to sexual abuse, suicide, gang violence, or mental illness.  

Provide your interpreter with water, if you can, and a notepad and pen. Let the interpreter know what you expect from him. Instruct him to:

  • translate exactly what is said;
  • speak in the first person, mirroring what you and the interview subject say and how you say it;
  • not touch the interview subject; and
  • not have side conversations with the interview subject.

Before beginning the interview, minimize noise and distractions. Arrange the interview so that you are sitting or standing next to the interpreter—never bookend a client between yourself and the interpreter, as this will force the client to pivot his head back and forth throughout the interview depending on who is talking and will impede your ability to bond with your client or interview subject or to communicate non-verbally with him. Although the client may still shift his attention between you and your interpreter even when you are standing next to each other, the shift will be less pronounced, and your client will still be able to keep both of you in view at the same time.

“Say Whaaaat?”
—Bruno Mars in “Uptown Funk”

During the Interview
Make sure to have paper and pen available for the client, who may be asked to spell names or other words. Be respectful of your interpreter and offer stretching breaks, if you can. Interviewing children about difficult subjects can be draining for everyone, but it is twice as draining for the interpreter who must have the same conversation twice.

Remember to speak slowly (not loudly) and clearly, and do not chew gum or have anything in your mouth. The following general rules will increase the effectiveness of your conversation:

  • Avoid idiomatic expressions, puns, other wordplay; they usually do not translate well. For example, instead of saying, “It was a piece of cake,” say, “It was easy.”
  • Do not say anything you do not wish to be translated. Never assume your interview subject cannot understand any English. Chances are, your client is learning some English here and there, and may, in fact, understand much of what you say even if she cannot yet speak English well herself.
  • Give the interpreter time when needed. Speaking in English does not necessarily mean thinking in it, as any bilingual person can tell you.

Because interpretation is always going to involve some degree of subjective word choice, check in with your client more frequently than you would with an English-speaking client to catch mistranslations where you can. Asking your interview subject to repeat back to you, in her own words, the concept you just explained will help ferret out interpretation (or other) issues. Monitor your non-English speaking client more closely and more frequently for body language or facial expressions that might indicate confusion.

It is a good idea to try to limit your sentences to just one idea or phrase each. This is not a natural way of talking, even to most children, and may require some practice. If a lengthy explanation is needed, consider breaking it down into idea chunks: instead of “Please remember, when we go to court, that not every adult there will agree with your goals,” you could say, “There is something I want you to remember. [Pause for interpreter.] There will be many adults in the court room. [Pause for interpreter.] The other adults may not agree with us.” Whenever feasible, preview the sentence in your head before saying it to reduce your complex sentences to simple ones. There are a number of ways the sentence “Opposing counsel has filed an affidavit in opposition” could be translated. But you could make it easier and less susceptible to mistranslation by saying, “The lawyer for the government filed a paper. [Pause.] That paper disagrees with our paper.”

You should also try to avoid “time travel” in one sentence. “Despite what she told me last week, your aunt now cannot be here until next Tuesday” will be easier to translate this way: “Do you remember I spoke with your aunt last week? [Pause.] And that she said she would be here today? [Pause.] Well, it turns out that something changed. [Pause.] She can’t be here until next Tuesday.”

As a rule, maintain eye contact with the child, not with the interpreter. This will be reassuring to the child and will reinforce that you are the person in charge, not the interpreter. During the interview it is not rude, but a good practice, to act as if the interpreter is not in the room. It would be overbearing to instruct the client not to look at the interpreter, but by maintaining eye contact with the client, you will naturally hold the client’s attention longer, even while the interpreter is speaking. Some shifts in attention are to be expected, however, and the client should not be made to feel pressure either way. As mentioned before, sitting next to the interpreter will make it easier for the child to see you both.

Finally, after the interview is over, remember to thank your interpreter and arrange for prompt payment, if that applies. They have done difficult and critical work for you. You can also debrief with your interpreter about impressions she may have gotten about the client’s level of education, regional accent, etc. to help get a better picture of your client’s circumstances.

For more tips and information about interpretation and translation, you can visit the websites for the National Association of Judiciary Interpreters & Translators and the National Center for State Courts’ Consortium for Language Access in the Courts’ Guide to Translation of Legal Materials.

Jennifer Baum is a professor of clinical legal education at St. John’s University School of Law.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).