Deposing a non-English speaker is likely not something that most U.S. attorneys regularly do. But many of us have likely done it at least once, especially if we practice in an immigration hotspot. A deposition using an interpreter, however, is no ordinary deposition. It requires extra preparation and awareness to achieve the best possible results for your client. Below are 10 practical tips for examining a non-English speaker.
- Confirm whether an interpreter is necessary in writing and at the deposition. If the deponent states that he or she does not require an interpreter, an email or testimony to this effect can impeach any later testimony that he or she did not understand a question. It may also provide grounds to reopen the deposition as needed and recover costs for any resulting motion practice. See, e.g., Fed. R. Civ. P. 37(a)(5)(A) (where party-deponent gives evasive or incomplete answer, party-opponent moving to compel better answers may recover expenses incurred in making the motion, including attorney fees). Conversely, if the deponent states that he or she does require an interpreter, documentary proof may be useful later in recovering translation costs as the prevailing party, as discussed below.
- Beware of dialects. Many languages have different dialects. Those dialects can differ in both accent and word choice. These differences can meaningfully impact the translation of a deponent’s testimony. If possible, hire an interpreter who is familiar with, and ideally fluent in, the witness’s dialect.
- Use only an interpreter you trust. The last thing you want is for opposing counsel—who speaks the deponent’s native language—to begin arguing with the interpreter over his or her translation and for you to not know who is right. To avoid this uncertainty, use a reputable interpreter who comes recommended or whom you have used before.
- If possible, bring a colleague who speaks the witness’s native tongue. If you don’t speak the deponent’s native language, consider bringing a colleague who does. Your colleague can not only help keep opposing counsel in line, but also make sure that the interpreter is competently and accurately translating.
- Remember that the witness may be illiterate in his or her native tongue. Just because a deponent speaks his or her native tongue does not mean he or she can read or write it. So establish the witness’s literacy level early in the deposition. When showing an illiterate witness an exhibit written in his or her native language, you will need to not only translate it in advance for yourself but also have the interpreter read it to the witness.
- Inquire about the deponent’s English proficiency. Just because a deponent requests an interpreter does not necessarily mean he or she does not understand English. The deponent may just feel more comfortable speaking in his or her native language. Inquiring into the deponent’s English proficiency may be relevant to a number of issues in your case, such as, for instance, how well he or she understood the subject product’s warnings or whether he or she could read the English-only “wet floor” sign. So do not hesitate to ask how much English the deponent understands orally, how well he or she can read or write it, whether he or she ever took English classes, and whether he or she speaks in English in his or her daily life.
- Inquire about how the party-witness completed discovery responses. If the deponent is a party who responded to discovery before the deposition, you should ask how he or she provided responses in English. Were the requests translated for the deponent? Orally or in writing? How did the deponent know what documents to search for? While opposing counsel may object on privilege grounds, it still may behoove you to inquire to the extent that you can.
- Identify key translators in the witness’s daily life. Everyday translators may wind up being key fact witnesses. If, say, the deponent is a Spanish-speaking personal-injury plaintiff but her medical records document her subjective complaints in English, you should ask how that came to be so. Is her doctor bilingual? Does she bring a relative to translate for her? If the plaintiff is self-employed and seeks lost wages, ask who helps with his or her taxes and other financial matters.
- Be aware of time limits and seek relief when necessary. Translated depositions are bound to take longer because every question must be asked and answered twice. So be aware of any deposition time limits in your jurisdiction and any available flexibility with those limits for interpreted-assisted depositions, and seek relief as needed. See, e.g., Fed. R. Civ. P. 30(d)(1) (absent stipulation or court order, deposition is limited to one seven-hour day); id. at Advisory Committee’s note (“Parties considering extending the time for a deposition--and courts asked to order an extension--might consider a variety of factors. For example, if the witness needs an interpreter, that may prolong the examination.”).
- If you are the prevailing party, seek translation costs. While not necessarily a tip for taking the deposition itself, it is good to remember that if your client prevails, interpreter costs—which can be significant—may be recoverable. Maintain proper documentation of your interpreter expenses and seek their recovery where available. See, e.g., Fed. R. Civ. 54(d)(1) (providing for costs to prevailing party); 28 U.S.C. § 1920(6) (“compensation of interpreters” may be taxed as costs).
With these practice pointers in mind, your next interpreter-assisted deposition should proceed far more smoothly. Good luck. Audentes fortuna iuvat.