The Fine Art of Litigation Involving Non-English-Speaking Witnesses

Act One: Deposition Preparation Session The most important aspect of witness preparation for deposition is rehearsing the testimony with both the witness and the interpreter. Both you and the NES witness need to understand what the interpreter can offer and how to use him or her.  And what better practice grounds than the deposition preparation session?

First, invite the same interpreter scheduled to appear at the deposition to your preparation session with the NES witness.  Almost every jurisdiction acknowledges that communications between the interpreter and your client are privileged if the interpreter is acting as your agent. However, the privilege is not conferred automatically, so confirm with the laws of your jurisdiction. 

Second, be selective or forever hold your peace (and hope you never actually have to refer to the deposition transcript). Nowadays, anyone with an iPad and Google Translate app calls himself an interpreter. If you ask just one question of your interpreter, ask this one simple question: “What specific language do you plan on interpreting into English for me?”  There are many different types of Spanish, in the form of Spanish dialects. There is a world of a difference between Mexican Spanish, Castilian Spanish, and Argentinean Spanish, to name only a few.  If you think this piece of advice is mundane, flip to the BBC channel on your television and interpret from British English to American English any given segment. How accurate is your interpretation?

With the right interpreter by your side, it is time to observe and direct! Does your witness seem comfortable with the interpreter? Is their conversation flowing smoothly? Or is your witness constantly repeating herself, in an effort to correct the interpreter? If your NES witness understands some English, do not forget to instruct her to only answer the question asked by the interpreter, not the attorney, even if she recognizes the two questions are different. Instruct the interpreter to convey tone and emotion, not in an overly dramatic fashion, but precisely in the same manner shown by the witness. This ensures the court reporter will transcribe your witness’s testimony more accurately; for example, responses that convey doubt and may actually be questions, as opposed to statements, become recognizable to the court reporter. If you are a proactive director at the deposition preparation session, you will ensure your witness is equipped to comfortably handle the deposition with more confidence.

Act Two: Taking the Deposition The backdrop has drastically changed; the NES witness is foreign to you.  Controlling the compatibility between the NES witness and the interpreter becomes less important. Your primary focus is on creating a comfortable environment for the witness to divulge as much information as possible, amid the interpreter. This is a task that is both tiring and frustrating. Multiply the time allotted for the deposition by two and a half; that is how long it will take you to complete it. Bring a snack and extra patience. 

The key to making the NES witness comfortable lies in your ability to deliver bite-sized questions. This technique not only increases the likelihood the interpreter will get the translation right, but also, more importantly, demonstrates to the NES witness you recognize and respect that she does not speak English. Why is that important?  Try to imagine what it would be like to give sworn testimony in a foreign country where the attorney across the table is asking convoluted, technical questions in a language you do not understand. The NES witness is already at a disadvantage before she walks into the room, and she knows it. You are facing a witness that is insecure; she will be disengaged and respond with brief answers, unless you put her at ease early on in the deposition.

To achieve honest and lengthy answers from the NES witness, you have to start by asking very short, concise questions. A general statement such as “Mrs. Suarez, as you already know, we are here today to discuss the slip and fall incident you observed at your store in March of last year, involving an elderly lady, my client, Ms. Lang, which occurred in the produce aisle,” is confusing to the NES witness and may even cause her to think that you are taking advantage of her.   You can close the gap between you and her by saying it differently: “My client is Mrs. Lang” (stop for interpretation); “she slipped and fell at your store last year” (stop for interpretation); “you observed the fall, which occurred in the produce aisle” (stop for interpretation); “and we’re here today to discuss what you saw.” Do not underestimate the power of bite-sized questions.  It keeps the interpreter engaged, gains the trust of the witness, and is the difference between a transcript that is 12 pages long versus 55 pages long.

Here are some great points to establish during the deposition:

Act Three: Cross-examination Jurors may or may not perceive the trial as a performance, but there is no doubt that cross-examination is a dance. During cross-examination, every step matters, and rhythm, tempo, and delivery rule above all else (on some occasions, even above knowing the key facts of your own case).  We are taught early on that during direct-examination the jurors’ focus should be entirely on the witness, and that cross-examination is when the attorney takes center stage. However, when you cross-examine a NES witness, a different approach is necessary because what is normally a two-person dance is now a three-person dance. Truth be told, the interpreter does not fit into the style of cross-examination that jurors expect to see and we have been molded to perform. When was the last time you saw an interpreter on an episode of Law & Order? Therefore, you must be conscious of the additional dance partner and lead the dance accordingly; otherwise, the interpreter will steal your spotlight.     

We already know the most effective cross-examinations are brief, concise, and to the point. When you cross-examine an NES witness, being brief, concise, and to the point is not an option, it is mandatory.  Remember that tempo and rhythm are far gone from the courtroom in this scenario. Your new reality is this: you deliver a poignant, leading question; the interpreter repeats it to the witness; the witness may provide a response or not understand your question and instead say, “que?” (huh?); the interpreter may turn to the jury and complete the interpretation or may repeat the question to the witness. The delay is unbelievably awkward.  So choose your most important points, keep them short and simple, and sit down.

Exude confidence but be wary of being perceived by the jury as insensitive and disrespectful to the NES witness. Jurors are often sympathetic toward witnesses that are aided by an interpreter. They recognize the examination process is more difficult on the NES witness, which will in turn affect how they view your treatment of the NES witness (regardless of what they promised they would disregard when you spoke with them at voir dire). By the same token, you are still leading this dance.  If you notice the NES witness’s response was not fully translated (either because your freshman Spanish kicked into gear or because the NES witness just spoke for three minutes and the interpreter’s translation was one word), do not be afraid to ask the interpreter to attempt the translation again. Understand that interpreters go into autopilot mode and may make mistakes; either you correct the obvious error or risk appearing weak and creating an inaccurate record. 

You have accepted the principle that the interpreter is an integral part of your case when dealing with a NES witness; it is the mechanism delivering your evidence to the jury. To master the art of lawyering when a NES witness is involved, the interpreter is just that, a part of the case, barely noticed by the jury.

Keywords: woman advocate, litigation, non-English-speaking witnesses, deposition, cross-examination, interpreter, trial