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How to work witH an interpreter

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

presented on Wednesday, October 24, 2012.

P r o g r A m C o - s P o N s o r :

NYCLA Multilingual Lawyering Committee

P r o g r A m C h A I r :

Dawn Maruna, Mound Cotton Wollan & Greengrass

F A C u L t Y :

Hon. Jeffrey K. Oing, Acting Justice, Supreme Court, New York County, Commercial Division and General IAS Part

Sandra Bryan, Coordinator, NYS Court Interpreting Services, Office of Court AdministrationAri Schnall, NYCLA’s Multilingual Lawyering Committee

2 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS (also NJ): This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional & Non-Transitional credit hours: 1 Ethics; 1 Skills.

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2hours of total CLE credit. Of these, 1 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

Information Regarding CLE Credits and Certification How to Work with an Interpreter

October 24, 2012; 6:00 PM to 8:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Work with an Interpreter October 24, 2012; 6:00 PM to 8:00 PM

AGENDA

Program Co-sponsor: NYCLA Multilingual Lawyering Committee Program Chair: Dawn Maruna, Mound Cotton Wollan & Greengrass Faculty: Hon. Jeffrey K. Oing, Acting Justice, Supreme Court, New York

County, Commercial Division and General IAS Part; Sandra Bryan, Coordinator, NYS Court Interpreting Services, Office of Court Administration; Ari Schnall, NYCLA's Multilingual Lawyering Committee

6:30 PM – 7:00 PM Registration 7:00 PM – 7:10 PM Introductions and Announcements 7:10 PM – 8:00 PM Discussion

"How To Work With A Legal Interpreter" CLE Wednesday, October 24, 2012, 6:00 p.m.-8:00p.m.

Hosted by the New York County Lawyers Association's Multilingual Lawyering Committee

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Course Faculty

Sandra Bryan, Coordinator of Court Interpreting Services for the New York State Unified Court

System's Office of Court Administration. Ms. Bryan began her career with the court system as a

Spanish court interpreter and has been responsible for overseeing court interpreting services for

all languages on a statewide basis since 2001. She holds a B.A. from the City University of New

York at Queens College and a J.D. from St. John’s University School of Law. She is a member of

the New York State Court System's Advisory Committee on Court Interpreting.

Justice Jeffrey K. Oing was elected to Supreme Court of the State of New York on November 2,

2010, and took office on January 1, 2011. Justice Oing presides over a general IA Part with a

case inventory of approximately 500 cases. He handles jury and non-jury trials involving personal

injury, commercial matters, and governmental matters. On April 7, 2011, Justice Oing was

assigned to the New York Country Supreme Court's Commercial Division. Prior to his election to

the Supreme Court, Justice Oing was an elected New York County Civil Court Judge from 2004

to 2010 where he was appointed Supervising Judge of the New York County Civil Court. He

holds a B.A. from Columbia University and a J.D. from New York University. He serves as Co-

Chair of the New York State Court System's Advisory Committee on Court Interpreting.

Ari Schnall, Esq. is a director of LL.M. and Foreign Attorney Programs for NYCLA's

Multilingual Lawyering Committee. He holds a J.D. from St. John's University School of Law

where he served as Articles and Notes Editor for the American Bankruptcy Institute Law Review.

He later completed a term as a law clerk to the Honorable Alan S. Trust of the United States

Bankruptcy Court of the Eastern of New York and received an LL.M. in bankruptcy law from St.

John's. Mr. Schnall currently focuses his practice on real estate and patent law. He also serves as

a Hebrew-English interpreter on a per diem basis for the New York State Unified Court System.

Program Chair: Dawn M. Maruna, Esq., Co-Chair, NYCLA Multilingual Lawyering Committee

& Associate, Mound Cotton Wollan & Greengrass

Special thanks to Committee Co-Chair Liesse-Marie Slemon and Ari Schnall for their assistance

in compiling this CLE packet.

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Course Overview

I. The Importance Of Learning How To Work With Legal Interpreters

II. The Role Of The Legal Interpreter

III. Evaluating And Hiring An Interpreter

IV. Preparing To Work With An Interpreter

V. Ethical Issues And Best Practices

VI. Common Pitfalls And How To Deal With Them

"The language of law must not be foreign to the ears of those who are to obey it."

Learned Hand

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I. The Importance Of Learning How To Work With Legal Interpreters1

The United States is growing in linguistic diversity every year. The United State Census

Bureau reported in 2010 that "the number of people 5 and older who spoke a language other than

English at home has more than doubled in the last three decades and at a pace four times greater

than the nation's population growth."2 In fact, over 55 million Americans, or 20% of the total

population, have reported that they speak a language other than English at home.3 Among those

individuals, over half of them have reported that they speak English less than "very well" and may

be considered to be Limited English Proficiency (LEPs) speakers.4 Accordingly, there is a

growing demand for legal service providers equipped to meet the needs of America's

linguistically diverse population.5

New York City is well-known for being one of the most linguistically diverse places in the

nation. The wide variety of languages regularly interpreted by the New York State Unified Court

System is prime evidence of NYC's status as a mecca of linguistic diversity. Consider the

following statistics compiled by the Migration Policy Institute regarding the demographics and

growth of New York’s LEP population:6

• The foreign-born, limited English proficient (LEP) population age 5 and older in

New York increased by 15.2 percent between 2000 and 2010;

• Rates of limited English proficiency were higher among speakers of certain

language groupings than among others;

1 This CLE will focus on the work of interpreters but will touch on the work of translators. The significance of both terms will be explored during the CLE. 2 U.S. Census Bureau, "New Census Bureau Report Analyzes Nation's Linguistic Diversity," Apr. 27, 2010, available at: https://www.census.gov/newsroom/releases/archives/american_community_survey_acs/cb10-cn58.html 3 Id. 4 Flores, G., Language Barriers To Health Care In The United States, N Engl J Med. 355(3):229-231, July 20, 2006. 5 Diamond, L.C. & Jacobs, E.A, Let's Not Contribute To Disparities: The Best Methods For Teaching Clinicians How To Overcome Language Barriers To Health Care, J Gen Intern Med 25 (Suppl 2):S189-193, May 2010. 6 Migration Policy Institute, "New York: Language & Education," 2010, http://www.migrationinformation.org/datahub/state2.cfm?ID=NY (citing 2010 U.S. Census Bureau data).

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• Of all of the households in New York in 2010, 8.2 percent were linguistically

isolated, meaning that all persons age 14 and over in the household were LEP; and

• In 2010, 46.9 percent of immigrants age 5 and older in New York were LEP.

Taken together, the above statistics demonstrate that linguistic diversity is growing throughout the

United States, including New York. This increasing demand warrants the attention of the legal

community and underscores the crucial role that interpreters play in the delivery of legal services.

The importance of using interpreters in the legal process is supported not only by statistics

demonstrating the proliferation of linguistic diversity in New York and the United States as a

whole, but also by the potential access to justice issues raised by insufficient access to proper

legal interpretation. The following case law excerpts demonstrate that the New York State court

system's acknowledgement of those issues over the last four decades:

• "It is a fundamental axiom of jurisprudence that due process of law includes the right to

have an adequate interpretation of the proceedings. This would apply to a litigant who

does not speak sufficient English to understand the proceedings; or suffers from some

developmental disability that might require the assistance of another person or an

interpretive device; or is in need of a guardian to protect his or her rights.”7

• It is “imperative that every criminal defendant - if the right to be present is to have

meaning - possess sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding."8

• “[C]onsiderations of fairness, integrity of fact-finding process, and potency of adversary

system of justice forbid that state should prosecute defendant who is not present at trial.”9

7 Yellen v. Baez, 177 Misc. 2d 332, 336, 16 N.Y.S.2d 724 (N.Y. City Civ. Ct. 1997). 8 US ex. Rel. Negron v. NY, 434 F.2d 386, 388 (2d Cir. 1970). 9 Id.

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• “Differences in dialect, such as derived from practical everyday living and working in a

two-language world, mandates that a court be scrupulously concerned with affording a

minority group, such as [the] Spanish-speaking population of New York City, every

aspect of the fair trial . . . [f]airness dictates a need for assuring that interpreters of the

Spanish language have an understanding and appreciation of the growth and scope of

New York City Spanish, attuned to problems caused by different dialects.”10

Despite the obvious need for attorneys to work closely with interpreters to deliver

effective legal services, the largest strides in training attorneys and judges to do so have only

occurred within the last decade. Rather, most attorneys remain inexperienced in working with

interpreters and rarely undergo training on how to work with interpreters.

II. The Role Of The Legal Interpreter

Interpreters are used in a variety of legal settings to facilitate communication between

English and non-English or LEP speakers. Those settings span the public, private, and

government sectors and may include, but are certainly not limited to, client and witness

interviews, depositions, meetings, hearings, mediations, arbitrations, and trials. Interpreters are

regularly employed by both English-speaking and multilingual attorneys to facilitate their work

and assist clients and witnesses with communicating their positions. In New York City's legal

system, interpreters are most frequently and effectively used by attorneys in connection with

public service, law enforcement, government, and court matters, but are also routinely used by

domestic and international companies and law firms of all sizes.

10 Santana v. New York City Transit Auth., 505 N.Y.S.2d 775, 778-79 (N.Y. Sup. Ct. 1986).

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From a linguistic standpoint, interpreters are concerned with a variety of issues including

vocabulary, tone, syntax, cooperation with and from the speaker being interpreted, clarity, and

style. An efficient and appropriate legal interpreter will exhibit professionalism, courtesy, be

honest about his or her limitations, be culturally competent, and take steps to sure the accuracy

and completeness of his or her interpretation.

A common misconception exists that the job of the interpreter is to simply act as a "pane

of glass" through which communication may flow unaltered in meaning. This view of the

interpreter's job is rooted in the fact that interpreters are generally not allowed to alter, subtract, or

add to the communication being interpreted and is expected to approximate the vocal, linguistic,

and stylish characteristics of the speaker.

While that "pane of glass" view holds some truth, it fails to appreciate that effective

interpretation often requires the interpreter to exercise significant discretion over how to best

convey the meaning, not just the literal content, of the communication at issue. That discretion

includes knowing how and when to clarify the meaning or cultural import of a communication.

Therefore, there may very well be a disconnect between what the interpreter understands his or

her role to be and how attorneys, judges, clients, and others perceive the role of the interpreter.

For example, colloquial expressions, offensive words, slang, and scholarly language have

to be conveyed in accordance with the usage of the speaker. When dealing with terms that may

have no literal interpretation (e.g., a vulgar insult), the interpreter may "provide an equally

offensive term in English . . . a literal rendition of the original; or . . . repeat the original . . . word,

and allow the attorneys to ask the witness what the word means to the witness."11

For words whose meaning has changed over time or may vary by social context, the

interpreter should offer the word’s modern-day equivalent and provide minimal social or cultural

11 Elena M. de Jongh, Foreign Language Interpreters in the Courtroom: The Case for Linguistic and Cultural Proficiency, 75 Mod. Lang. J. 285, 291 (1991).

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explanation to properly convey the intended meaning. For instance, cabron used to mean “big

goat” in Mexican Spanish. Today, it is considered to be a harsh insult more akin to “bastard”.12

When the interpreter encounters "code" words or phrases specifically used by the speaker

to confuse or conceal information, the interpreter must be as literal as possible in his or her

interpretation. A commonly known “code” phrase in English is: “The eagle has landed.” The

interpretation of this phrase should include an eagle landing in addition to conveying the phrase’s

actual significance.13

On the other hand, inexperienced interpreters are sometimes tempted to revise what is

being said in a manner that distorts, rather than clarifies, the speaker's meaning. They may add to

a phrase when they think it is unclear on its own or subtract words that they feel are unnecessary.

Interpreters commonly succumb to this temptation as a time-saving measure when a speaker says

too much without pausing.

If a speaker speaks for more than 15 seconds without pausing to let an interpreter interpret

their words, the interpreter may have difficulty remember exactly what was said and may instead

rely solely on what he or she may remember. Some interpreters know how many seconds or

words they can retain before a pause and will help you to develop a rhythm during the session.

Unfortunately, inexperienced interpreters may remain silent about the issue and simply try their

best to keep up.

Other common misconceptions about interpreting include that: 1) bilingual persons (most

frequently friends, family members, and community members) are adequately qualified to act as

legal interpreters simply because they speak the same language as the client or witness; and 2)

professional interpretation is a skill that comes naturally to multilingual persons when, in fact, it is

an acquired skill developed through significant study and practice.

12 Id. 13 Id.

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III. Evaluating And Hiring An Interpreter

A. Determining Whether An Interpreter Is Needed

A number of courts have ruled that a defendant's physical presence in the courtroom is not

enough to constitute legal presence; for a defendant to be "meaningfully present," everything that

is being said in the case must be communicated in a language he or she can understand. This

concept, known as "linguistic presence," requires the services of a qualified foreign-language

interpreter for non-English speakers and a sign language interpreter for the hearing-impaired. In

State v. Natividad, 526 P.2d 730 (1974) (en banc), the Arizona Supreme Court held:

The inability of a defendant to understand the proceedings would be [not only] fundamentally unfair but particularly inappropriate in a state where a significant minority of the population is burdened with the handicap of being unable to effectively communicate in our national language. A defendant's inability to spontaneously understand testimony being given would undoubtedly limit his [or her] attorney's effectiveness, especially on cross-examination. It would be as though a defendant were forced to observe the proceedings from a soundproof booth or seated out of hearing at the rear of the courtroom, being able to observe but not comprehend the criminal processes whereby the state had put his [or her] freedom in jeopardy. Such a trial comes close to being an invective against an insensible object, possibly infringing upon the accused's basic right to be present in the courtroom at every stage of his [or her] trial. (Lewis v. United States, 146 U.S. 370 (1892); Negron v. New York, 434 F.2d 386 (2d Cir. 1970)).

Some people may be unable to communicate in English at all or will have such minimal

proficiency in English that the decision to request an interpreter will be obvious. In other cases, a

person’s lack of proficiency may be more subtle, yet an interpreter may still be needed in order

for that person to fully understand the judicial proceedings. If there is any doubt, here are some

simple tests to help you make the determination:

■ Ask a question that requires the person to answer in a few sentences, rather than a few words. Avoid questions that can be answered with ‘yes’ or ‘no’ or common questions such as ‘Where do you live?’

■ Ask the person to repeat a message that you have just conveyed in his/her own words.

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Remember, the interpreter is there to enable you to do your job competently; it is not a

disconnected service to the client. If you decide that an interpreter is required for a particular

case, you will need to discuss this with your client prior to arranging the hiring of the interpreter.

B. Hiring An Interpreter Versus A Translator

The terms “interpret” and “translate” have similar definitions and are often used

interchangeably:

• Interpret – To explain the meaning of; to conceive the significance of; to translate orally; and

• Translate – To render in another language; to put in simpler terms; to explain. Though this may not necessarily be reflected in the dictionary definitions of the term, within the

industry, an interpreter refers to one who provides an oral interpretation while a translator would

provide a written translation of a text. Consequently, interpreters and translators often develop

different skill sets. Interpreters must have the capacity to work “on the fly” and convey oral

messages in both languages, interpreting in both directions. In contrast, translators require strong

writing abilities and will often convert written text from a second language into their native

language, in one direction only. This often means that a translation will be of higher quality than

an interpretation of the same message, but that must be weighed against the added practicality and

utility of interpretation. Thus, it can be unwise to dismiss the cost of a professional interpreter as

unnecessary.

Recently, in Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. __, 132 S.Ct. 1997, 2006

(2012), the United States Supreme Court opined on the ordinary meaning of the term "interpreter"

in the context of interpreting the phrase "compensation of interpreters," as it is used in the United

States Court Interpreters Act, 28 U.S.C. 1920 (6). In reaching its decision, the Court

acknowledged that popular and legal dictionaries have historically defined an "interpreter" as

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someone who conveys the spoken rather than the written word from one language or dialect to

another. Rejecting the respondent's argument that the term "interpreter" can reasonably include

the services of a "translator," or someone who converts writings from one language or dialect to

another, the Court ultimately concluded that the statute, which explicitly provides compensation

for interpreters, was not intended to provide compensation to persons who translate written

documents. In addition to highlighting the confusion that exists over the proper meanings of the

terms "interpreter" and "translator," the decision also demonstrates how complicated funding

issues can impact the availability of interpreters in the American justice system.

C. Interpretative Modes

Interpreters operate in different modes. Those modes include consecutive, simultaneous,

and sight translation. It is important to determine which mode or combination of modes is

necessary to achieve the interpretation desired. In the simultaneous mode, the interpreter and

speaker communicate at the same time. In the consecutive mode, the interpreter waits for the

speaker to convey his or her message and then conveys that message subsequently. Sight

translation is a hybrid mode that involving the verbal communication of a written source, such as

a document, in the context of a live interpretation.

D. "Certified" Interpreters

It is important not to be misled by the word “certified” when dealing with interpreters or

translators. When contacting an agency claiming to be “certified,” consider asking the following

questions. Outside of the court interpreting context, it is oftentimes more important to use a

competent interpreter than a certified one.

1. What do you mean by the word “certified”? Is the interpreter certified or the

agency?

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a. This small question is important. Some agencies will “certify” that their

organization provided the interpretation service yet there is no standard

requiring that the employees of interpretation agencies to have formal

training as interpreters. If the interpreter is the one claiming to be certified,

ask the next question.

2. What organization certified you? When? Where?

a. Some institutions providing certifications require their interpreters or

translators to demonstrate a degree of proficiency in a particular language

while others may additionally require demonstration of

interpreting/translating skills. The takeaway here is that there is no firm

standard amongst interpretation or translation programs for “certifying” the

quality of their work or their ability.

3. Is the certification in the language or in a specific field (finance, marketing,

tourism, medical)? Does the certification pertain to a particular dialect?

a. National Association of Judiciary Interpreters and Translators' (NAJIT)

encourages at least a minimum level of competency in a language in order

for an interpreter to interpreter for a court.

NAJIT Certification means a court interpreter or translator has

been tested by a clearly defined method and has demonstrated a

minimum level of competence. Several different organizations

and government entities have set up certification programs for

court and legal interpreters and translators. In addition, each

state and the federal government has its own unique set of

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requirements that judiciary interpreters must meet in order to

practice in their courts.

There are several organizations listed on the NAJIT website and the variety

only highlights the lack of uniformity in the standards set for legal

interpreters. More information can be found on NAJIT’s website at:

http://www.najit.org/certification/certification.php

b. The medical field is different. The National Board of Certification of

Medical Interpreters sets the standard and regulates the testing done on

those hoping to be medical interpreters. Those who meet the prerequisites

and successfully complete the written and oral parts of the exam earn the

credential of Certified Medical Interpreter (CMI). The CMI credential is

awarded in the specific language or languages for which the oral exam is

passed (for example CMI-Spanish). A similar type of credential does not

yet exist for legal interpreters.

4. Does the certification pertain to a particular dialect?

5. How much coursework or experience is necessary for him or her to maintain

his or her certification?

a. What activities does he or she engage in to ensure the continual

improvement and deepening of his or her language skills and knowledge?

6. Do you perform simultaneous and/or consecutive interpreting? Are you more

comfortable with one than the other? Have you done hybrid interpretation

involving sight translation or other interpretative modes?

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7. Have you taken the New York State Court Interpreter exam in this language?

Is your certification current? What kinds of work have you done for the

court? When?

8. If your matter requires cultural competency in addition to interpretation

skills, make sure to raise that requirement with the interpreter.

a. Just because an interpreter possesses a high level of proficiency in two or

more languages he or she does not necessarily possess a significant level of

knowledge of foreign legal systems and terminology. For example, a

business negotiation being conducted between American and foreign

businesspersons and/or attorneys may benefit from the use of an interpreter

who is familiar with the customs and legal system of the foreign party or

parties.

E. Important Questions To Ask The Interpreter

When contacting an interpreter or interpretation agency, consider asking the following

questions.

1. Do you speak (language), specifically (dialect)?

It is highly advisable that you find out the country, region, and community that the LEP is

from as there is no guarantee that speakers of the same overall language will necessarily

understand one another. If the interpreter and the LEP’s ability to communicate is not verified in

advance, you could compromise the completeness and the accuracy of the interpretation.

2. Do you have any degrees or certifications? (Refer to previous section

regarding same for further information).

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3. Do you have experience interpreting (relevant) terminology?

If you expect that the communication will involve discussions of trade-specific, medical,

or other technical terminology, this is a critical question to ask. If the most qualified interpreter

available does not have a strong background in the terminology involved, it may be appropriate to

have him or her research that terminology and assess whether he or she is sufficiently comfortable

interpreting the terminology required.

C. Availability of Court Interpreters14

The New York State Unified Court System provides language interpreters to non-English

speakers and sign interpreters to hearing impaired persons to facilitate their understanding of and

ability to participate in court programs and services. The court system maintains a roster of full-

time and part-time interpreters and relationships with various interpreting services to provide

interpretation in dozens of non-English languages.

The court system conducts pre-screening of all interpreters and requires that they abide by

a professional code of ethics that requires them to maintain a high level of professionalism and

confidentiality in their work. Court interpreters are primarily responsible for providing accurate

and impartial interpretation at court proceedings and may be required to complete subject-specific

training programs pertinent to the nature of their work. For example, a court interpreter planning

to assist a domestic violence victim may undergo training to prepare him or her for dealing with

the types of sensitive information that often accompany such work.

To obtain an interpreter, litigants or their representatives should contact the Chief Clerk's

Office of the court in which the litigant is going to appear or call the Office of Court Interpreting

Services at (646) 386-5670. For all other inquiries related to court interpreting, interested persons

14 NYS Unified Court System Court Interpreting Office, "FAQ's About Getting an Interpreter," http://www.nycourts.gov/courtinterpreter/faqs.shtml (last accessed on Oct. 18, 2012).

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may contact the New York State Unified Court System's Office of Court Interpreting Services in

writing, by e-mail or by telephone at:

Office of Court Administration Division of Professional and Court Services 25 Beaver Street, 8th Floor New York, NY 10004 (646) 386-5670 courtinterpreter@nycourts.gov

Please refer to the Appendix of this course guide for additional information regarding the

availability of interpreting services in the New York State Unified Court System.

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III. Preparing To Work With A Legal Interpreter

There are many considerations to keep in mind when preparing to work with a legal interpreter.

A. Preliminary Considerations

i. The more information the interpreter has prior to the interpretation session, the

better he or she can prepare for that session.

• Note that an interpreter often will not prepare for a session unless

specifically requested to do so.

ii. At the very least, let the interpreter know ahead of time the field or topic that

will be discussed.

• An agency may assign different interpreters depending on the type of

case it is and based on particular interpreters’ specialties. Not

informing an agency of this basic information can result in the loss of

the added benefit of having a specialized interpreter.

iii. The decision how much preliminary material to send an interpreter may be a

strategic decision, utilizing a cost-benefit analysis, but it is important to realize

how much preliminary material can improve the quality of the interpreting.

This is especially true when technical terms are used or where industry-

specific vocabulary is used.

• An example of useful information is a list of frequently used words

from previous sessions. Note, a reporting company can often provide

software-generated lists of words and their frequencies.

• In some cases, a preliminary meeting with the interpreter may be

advantageous, whether with or without the person needing the

interpretation.

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• Though remember, an interpreter should remain neutral and not

be affiliated with either side in litigation.

iv. See if there are official translations available, and if so, use those instead of

on-the-spot interpretations.

• This is particularly true in courtroom settings where standardized

language may often be used (e.g., allocutions) and in common

languages (e.g., Spanish). Much thought has often gone into the

official translation, so it may likely be better than a spontaneous

interpretation, but additionally, accountability for the translation is

easier.

v. Remember that often information conveyed is, and must remain, confidential.

• This is true for preliminary information conveyed but also for subject-

matter discussed during the interpretation session.

vi. When allocating time, remember that an interpreted session may take up to

double the amount of time that the session would have taken if it were

conducted in a single language.

vii. Organize the room in such a way that is conducive to effective interpreting.

• Often, the best setting is to have the interpreter sit a bit behind and next

to the person for whom he is interpreting and across from the other

person participating in the communication. Note, though, that there are

drawbacks to the triangle setting – optimally, the interpreter should be

as passive as possible, and the participants should not be diverting their

attention from one another to face and talk to the interpreter.

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viii. Check for any relationship between the interpreter and the person she is

interpreting for. Often, foreign-language communities are small and tight-knit,

whether here in the U.S. or in the country of origin. While a common

acquaintance, or even a friendship between the actual parties, may not always

disqualify the interpreter, it is something to watch out for.

• One example would be where at issue is a sensitive topic that may be

dealt with differently in different cultures. For instance, a case

involving domestic sexual assault – the person who is being interpreted

may fear that sensitive information may leak back to the community,

with consequences potentially being worse than what we may be used

to in our culture.

• Another example would be if a party involved in the case has a certain

societal or political status that may, consciously or subconsciously,

impair the free flow of information.

B. Interpreting Protocol

While an experienced interpreter should be familiar with most, if not all, of

the following protocol, it is important that the client is informed of how the process works.

Additionally, a non-professional interpreter, if one must be used, should be advised of these

points.

i. The interpreter will attempt to interpret as precisely as possible, maintaining the

same meaning and tone as the original message while remaining in the same

register as the source.

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• Consider “I don’t know” vs. “I have no idea” vs. “I have no clue.” While these

may substantively mean the same thing, the tone and register convey a certain

message that may alter the proceeding or future proceedings.

• An interpreter should not explain any terms or add information that

was not literally in the original message. E.g. “time is of the essence” should

be interpreted as that exact phrase, even if the interpreter may know that that

phrase is basically legal code for indicating ramifications for a future breach.

• This does NOT mean that an interpreter will use a word-for-word

interpretation! Sentence formation may be different in different languages, or

certain words not existing on their own in certain languages.

o This is perhaps the biggest challenge in the interpretation

context – finding the right balance between not adding any information

yet still conveying a meaningful message in the target language.

Opposing parties may often argue that an interpreter did add

information when interpreting, therefore invalidating the proceeding.

• The interpreter will not omit any information, regardless of how

unimportant he feels it may be. It is not for him to make decisions as to what is

important. An interpreter can be thought of as a messenger delivering goods

that others provide.

ii. The attorney and the client should try, as much as possible, to communicate directly

even though the language barrier requires the interpreter to act as a middleman. The

parties should not address the interpreter

• E.g. “ask the client whether she was at location X on date Y” should be

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avoided; “were you at location X on date Y?” is how the attorney should

address the question. Similarly, if the client says “I was there,” the

interpreter should not convert that to “she was there” but rather speak as if

he were the client.

iii. There should be no side conversations during the session. This includes between the

attorney and the interpreter (in English, excluding the client) and between the

interpreter and the client (in the foreign language).

• Even a simple “what?” by the client (in the foreign language) should be

interpreted back to the original speaker for him to repeat his message. The

interpreter should not answer directly to the client.

iv. An interpreter can break from character if needed, but that should be clearly

indicated, and permission should be asked from both sides.

• If the client refers to a date as right after Rosh Hashana – Rosh Hashana

may mean “new years,” but an interpreter may want to clearly state that

this is his addition, and say that the client referred to the Jewish new year

which is not at the same time of year as new years.

C. Managing Interruptions

Establish a way for the interpreter to interrupt whoever is speaking. This detail is often

overlooked but extremely important. If the interpreter did not understand one word or phrase

spoken by a party, you must decide whether you want him or her to:

• Interpret the portion that they did understand and then ask for clarification

on the portion they did not understand.

• Advise both parties that there was a portion that the interpreter did not

understand and then tell the other party that they will either

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o ask the speaker to repeat the message or

o explain what they meant.

If this parameter is not discussed before the interpreting session, the supervising attorney

risks the interpreter stopping the speaker directly and engaging in a side conversation in order to

understand what was said. A common manner in which interrupters signal the need to interrupt is

by simply raising their hands, but this detail still should be discussed with the interpreter and LEP

before the session starts.

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IV. Ethical Issues & Best Practices A. What Ethical Codes Apply To Interpreters and Translators?

There is no single, established code of ethics that governs all interpreters and translators,

but several organizations, including professional organizations, advisory committees, and courts

have developed such codes. Among the most commonly consulted codes of ethics for interpreters

are those established by the National Association of Judiciary Interpreters & Translators (NAJIT)

and the National Center for State Court's Consortium for Language Access in the Courts.

B. Court Interpreting Codes By State

Many United States court systems have developed their own codes of ethics for legal

interpreters. A directory of the codes of several states is available at CourtEthics.org.15 Before

using a court interpreter, it is advisable to contact the court or visit its website to obtain a copy of

the court's code, when available.

In 2012, the NYS Court System recently issued a video entitled "Judges’ Guide To

Working with Court Interpreters." The video was created to train judges on how to make

effective use of the court's interpreting services, but it is a valuable resource for anyone interested

in learning more about the subject. A transcript of the video is available at the New York State

Unified Court System's website, www.nycourts.gov.

C. Fundamental Ethical Considerations

Most ethical codes developed for interpreters and translators share certain, basic

principles. Those principles include ensuring that the interpreter:

1. Conveys all communications faithfully, in line with the author or speaker’s

original meaning or intent.

15 See http://www.courtethics.org/Interpreter%20Codes.htm.

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2. Informs himself/herself of the speaker's intended audience to ensure that

the message conveyed is context appropriate.

3. Is truthful about his or her qualifications and exhibits self-knowledge by

not accepting any assignments for which he or she is not qualified.

4. Safeguards the interests of the witness(es) or client(s) as well as any

confidential information learned during the session.

5. Notifies the supervising attorney of any unresolved difficulties that might

arise during the session or uncompleted tasks requested of him or her.

6. Respects and refrains from interfering with or supplanting the words and

opinions of the witness or client with his or her personal opinion.

7. Obtains a clear understanding of the nature of the work expected of him or

her.

Attorneys are well-advised to review and discuss each of the above considerations with

their interpreters to ensure that every interpreting session is conducted in the most ethical manner

possible.

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V. Group Discussion: Common Challenges And How To Manage Them

The following topics will be addressed by our guest faculty as part of the group discussion

portion of the program.

A. Preventative measures/how to handle problematic scenarios (interpreting mistakes,

misunderstandings, no-show interpreters, etc.).

B. Potential ethical challenges for multilingual attorneys who are trying to maintain

their roles as attorneys but have knowledge of language being interpreted and may

be tempted to challenge or supplement the interpretation being conducted.

C. Possible privilege, confidentiality, and conflict of interest issues posed by the

involvement of family members, friends, law firm staff, and other third parties.