Oregon State Bar Bulletin JUNE 2015
In Oregon, 15 percent of the population speaks a language other than English at home. About 40 percent of this population speaks English “less than very well,” according to factfinder.census.gov. But this population is not evenly spread throughout Oregon’s counties. In Washington County, 23 percent of the population speaks a language other than English at home. Figures for some other counties are: Multnomah, 20 percent; Clackamas, 12 percent; Marion, 25 percent; and Hood River, 28 percent.
A lawyer should be prepared to help and work with a client or other participant in the legal process who may have limited proficiency in the English language. Often this may require using an interpreter or translator. How a lawyer addresses this can make all the difference in obtaining access to justice.
There is sometimes confusion over basic terms. An “interpreter” translates oral communications. A “translator” translates documents, which can include electronic media such as YouTube videos.1 “Sight translation” is the reading of a document written in one language aloud into another language. The ability to speak a language is known as “proficiency.”
Language proficiency is a continuum, ranging from none to the highest levels.2 Proficiency may vary, depending on whether the person is speaking, listening, reading or writing. Proficiency may change over time and may be different depending on the topic under discussion.
Who Furnishes the Interpreter or Translator?
Courts and some administrative agencies may furnish interpreters for hearings and trials. Lawyers should know the procedures for requesting an interpreter and should document any requests.3 Failure to do so could produce a postponement of the case, which might be chargeable to the lawyer. In certain immigration and asylum matters, an applicant for a benefit must supply his or her own competent interpreter. Failure to do so could result in delay or even denial of the application.4
Away from court, whether an interpreter or translator is required is a professional judgment for the lawyer to make. The lawyer should consider factors such as the person’s English proficiency level, the need for any specialized vocabulary, the available financial resources, the availability to interpret of competent nonprofessionals and the importance and purpose of the communication.
Many Oregon lawyers have proficiency in languages other than English and quite appropriately use this in lawyer-client communications. However, the bilingual lawyer should remain just that — a lawyer — and should not cross over into the role of interpreter or translator, as this could involve becoming a witness in a case, and raise other potential issues. Bilingual members on the lawyer’s staff, however, can generally be used as interpreters and translators.
A Word about Language Identification
Many languages, such as Chinese5 have variations called dialects that aren’t mutually intelligible. What is a “dialect” and what is a “language” is often a political question. There is even a saying that “a language is a dialect with an army and a navy.” As far as the lawyer is concerned, non-mutually intelligible dialects are separate languages and should be treated as such.
Many countries have official languages which aren’t spoken by large numbers of people within the country. For example, a person from the Kurdistan region of Iraq, where for many years the official language was Arabic, may well speak only Kurdish. This is different from the dialect issue, as Kurdish is not a dialect of Arabic. Similarly, many people speak indigenous languages in countries in Latin America where the official or dominant languages may be Spanish or Portuguese.
Often a person will be reasonably proficient in two or more languages other than English. For example, a person may be equally proficient in Kinyarwanda, a major language of east Africa, and in French, for which it will be much easier to locate an interpreter.
Selecting the Interpreter
• Professionals vs. nonprofessionals
A bilingual person isn’t necessarily qualified to act as an interpreter. Interpretation requires special skills and often a specialized vocabulary in two languages.
Professional interpreters and translators may be more familiar with legal terms and confidentiality. They can be harder to challenge on the grounds of bias. Their credentials are easier to establish. But professionals are expensive and they have scheduling issues.
Nonprofessionals are often family or friends of a client. They may well be as good as or even better than professionals in their language skills, and they are often willing to work without payment. The lawyer must generally educate nonprofessionals regarding interpretation and translation best practices as well as confidentiality. Family members in particular can be prone to charges of biased interpretation.
Occasionally, a dispute or breakup can occur between the client and the nonprofessional interpreter, which can complicate or delay a case. For this reason, and others, the lawyer shouldn’t use current clients as interpreters for other clients; a dispute between them could become a conflict of interest for the lawyer.
The best solution may be to use professionals in critical situations, such as the execution of documents, preparation for testimony and formal proceedings, and save the nonprofessionals for more routine communications. For simple communications where a client has some English proficiency, an interpreter may not be necessary.
• Agreements and fees
The lawyer should have a written agreement with interpreters and translators that includes (among other things) whether and what any fees will be charged and a permanent confidentiality clause. The agreement should prohibit the interpreter or translator from collecting fees directly from the client, as this can lead to trouble. Instead, the invoice should be sent to the lawyer alone. The lawyer’s fee agreement with the client should be specific as to whether interpreter and translator costs can be added on to the client’s bill.
Minors should not be used as interpreters except in very urgent circumstances.
Lawyers should be wary of persons who may introduce a potential client to the lawyer and then ask for an “interpreter” fee. Or perhaps the would-be interpreter doesn’t ask the lawyer for a fee, but seems too eager to help anyway. Something may be amiss, which might trigger a duty of inquiry by the lawyer, especially if the lawyer accepts the case.
A potential client may appear with an “interpreter” who attempts to dominate the interview or cut off a legitimate line of inquiry. This may indicate a conflict of interest between the interpreter and the potential client, possibly over something serious, again potentially triggering a duty of inquiry.
Monitoring the Interpretation
Once the interpreter is selected, the lawyer must take reasonable care to see that the interpretation is properly done. Outside of the courtroom, the lawyer is in charge of the interview, not the interpreter, and the lawyer should exercise this control for the protection of the client.
Watch carefully as the translation is rendered, and closely observe the client’s reaction. Is the response natural and spontaneous? If not, the interpretation may be off, or there may be other issues, perhaps physiological, interfering with comprehension. There may even be a credibility problem.
Follow-up inquiry may be warranted, possibly right away or perhaps only after a repetition of the behavior. The lawyer should also watch for nonverbal clues as to lack of comprehension.
For example, in a court case, the credibility of the lawyer’s client had been challenged on the grounds of inconsistent responses in preliminary proceedings. A new lawyer interviewed the client extensively through an interpreter and noticed a pattern of the client’s laboring to respond to simple questions. Following a referral to a medical professional, the client was found to have dementia, which explained the inconsistent prior responses and allowed the client to prevail in the case.
• Standards for interpretation
All interpretation should be rendered in the first person. For example, “He says he was there,” is improper, as it is in the third person. This introduces ambiguity. Does he refer to the person being interviewed, or is the person describing the actions of someone else? “I was there,” is the correct rendition.
For similar reasons, the lawyer should address the person directly, as if the interpreter were not present. “What did you do?” is an appropriate form of a question; “Ask him what he did,” is not.
Everything should be translated — even greetings and incidental remarks. Don’t permit untranslated side conversations between the interpreter and the person being interviewed. If the interpreter needs to ask a clarifying question, the interpreter should explain the issue to the lawyer and ask the lawyer’s permission to ask the question.
Through the interpreter, the lawyer should instruct the person to pause when giving a longer answer to allow the interpretation to occur.
The lawyer might consider use of a simple sheet of interpreter guidelines, to go over with the interpreter prior to the interview, to let the interpreter know what the lawyer expects.
• Make the interpreter’s work easier
The lawyer should remember that English may not be the interpreter’s first language. Don’t make it difficult for the interpreter to understand you.
Speak deliberately. Use simple short sentences. Enunciate carefully. Don’t slip into informal pronunciation patterns, such as gonna, wanna, s’posed ta. Avoid stray remarks, leading questions and questions that sound like statements.
Avoid idiomatic expressions, for example “elbow grease” and “straight from the horse’s mouth.” Literal translations of these won’t make sense in another language, and they will burden the interpreter with having to find an equivalent expression in the language being translated.
Avoid undefined pronouns which can be hard to render in another language. For example, don’t ask “What did they do?”; ask “What did ABC and XYZ do?”
Don’t try to use jokes to attempt to break the ice. This is difficult enough in English, but in translation, jokes may well come out sounding offensive. A friendly greeting and a smile will suffice. Be careful about handshakes, however, as a greeting, as they are considered quite forward in certain cultures. Acquainting yourself in advance with certain basic cultural norms may help avoid making a faux pas.
Allow the interpreter time to translate the questions, and be careful to wait for the full translated response before asking the next question.
• Idiom and calendar issues
No perfect interpretation exists. Be prepared to encounter idiomatic speech that does not literally make sense in English. If this occurs, it may be appropriate to ask the person, through the interpreter, to give an explanation.
A number of countries, such as Iran and Ethiopia, have different calendars than the Western calendar. If dates have to be acquired in an interview, have the person supply the date according to the calendar they are most comfortable with. Don’t sidetrack the person with trying to ascertain the Western calendar equivalent, which can be figured out later.
Schedule interpreted interviews in advance, and be sure to leave enough time for all involved. Interpreted interviews will take a long time. Leave enough time on the calendar. Be sensitive to the schedule of a professional interpreter. Make sure that person has blocked out enough time to be able to complete his or her work for you before having to move on to the next appointment. Confirm in advance with interpreters that they will be present at interviews.
The lawyer should try to keep the same interpreter throughout a case. This allows problems with interpreter skill to be identified and addressed early.
Translation is Different
Translation presents some different issues from interpretation. Lawyers with bilingual staff may elect to have documents translated in house. Trusted outside persons may also be used as translators. In either case, the translation should be stapled to a copy of the original, and a certificate of true translation, signed by the translator, should be attached.
The certificate of true translation should be made under oath, and signed and dated by the translator. It should identify the original document and its language and state that the translation is true and accurate to the best of the translator’s ability.
The certificate should include the translator’s name, address, telephone number and email address, along with a brief statement about how the translator acquired proficiency both in the English language and in the language of the document.
A lawyer may choose to send the document to a translating service along with a request for an estimate. If the estimate is acceptable, the lawyer authorizes the translation to proceed.
The translation service should furnish a draft for review, particularly if the document is not written in the Roman alphabet, which means that transliteration will be required. This can be problematic for names. For example, there were 112 different ways to spell, in English, the Arabic name of the late dictator of Libya, Moammar Gaddafi.6
The lawyer should review the draft. Does everything appear to be translated, including any official stamps or seals? Does the draft make sense considering what the document purports to be? Does each page in the original correspond to a separate page in the translation? Has the client had a chance to review the draft?
Once the draft is approved, the translation service will finalize it and execute a certificate of true translation. The lawyer should review the certificate carefully to see if it comports with the evidence requirements of the court or administrative agency.
• Keeping original translations and maintaining their evidentiary value
Once an original translation is prepared, the lawyer should submit only copies to courts, administrative agencies and others, unless otherwise specifically requested, and keep the original, which would be expensive to replace. When making a copy or scan of an original certified translation, do not unstaple it. Removing the staple may destroy the evidentiary value of the certificate of translation.
At the conclusion of the case, a lawyer should generally turn over all original translations to the client.
• Preparation of formal statements
A lawyer may need to prepare a statement, declaration or affidavit for someone who lacks proficiency in the English language. Typically this will be for a client. The statement may later become the subject of questioning before a court or an agency, so it must be based upon careful interview of the client through an interpreter. Some clients may be able to write a draft in their own language, which when translated can form the basis for the preparation of the final statement.
The interpreter should sight-read the statement back to the client to ensure accuracy before the client signs the document. Documents signed after a sight-read should include an averment that “this statement was read back to me in the XYZ language. I understand everything in it and affirm that it is all true to the best of my knowledge and belief.”
Languages have subtle shifts in meaning, which may be lost in translation. If the lawyer believes this is happening, it may be appropriate for the lawyer to briefly suspend the questioning and inquire of the interpreter whether an alternative English rendition of a particular word or phrase may be more accurate.
• Limited utility of computer-aided translations
Computer translations have come a long way, but they still are not sufficient for most legal work. They may still have utility however. They can help a lawyer get some idea of what a document may be about. Also, often interpreters will not know a technical or legal term. Use of Google translate may suggest an appropriate word. Be careful to be sure that it is the person giving the statement, with the aid of the interpreter, who makes the selection of words.
The lawyer should be alert to translations presented to the lawyer which include nonsensical or strange words or phrases. They may be the product of a translation program and therefore not reliable evidence.
• Interpreter as an expert witness
In the litigation environment, for any material transaction occurring in a language other than English, the lawyer should ascertain the precise words used and their meaning. It may be necessary to locate a highly credentialed interpreter to testify as an expert witness.
For example, a police officer seeks consent to search a residence in Spanish, but instead of asking to search, the officer chose the wrong word in Spanish and asked only if the police may “look around” the house. The police conduct a thorough search and find evidence in a closed dresser drawer. However, because the consent given was only to “look around,” the evidence is suppressed.
Working with interpreters and translators is a professional skill of the lawyer. It can be both challenging and enjoyable. Attempting to improve your own language skills and cultural awareness can be a big help in certain situations. There are numerous resources available regarding acquiring proficiency in languages other than English. While it sounds trite, in fact learning a few basic words in the client’s language, such as those for hello, goodbye, please and thank you, will help the lawyer show respect for the client and help build trust. Learning related aspects of the client’s culture, such as naming customs, will also help with the course of the representation.
This article is only a summary of the breadth of the topic. The lawyer should develop a plan at the start of a case to address any interpreter or translator issues. Having standard forms and procedures may help. Implementation of these procedures, with appropriate flexibility, will improve the client’s access to justice.
1. Framer, Isabel, “Interpreting the Interpreter: What Every LAV Attorney and Advocate Needs to Know about Legal Interpretation, Legal Assistant Providers Outreach Project,” (undated) www.ncdsv.org/images/Interpretingnterpreter-WhatEveryLAVAtty.pdf.
2. Council of Chief State School Officers, “English Language Proficiency (ELP) Standards” (April 2014), www.or.us/opportunities/grants/nclb/title_iii/final-4_30-elpa21-standards.pdf.
3. For a detailed summary of interpreter procedures for Oregon state courts, see the website of the Oregon Judicial Department, at http://courts.oregon.gov/ojd/osca/cpsd/InterpreterServices/pages/ScheduleAnInterpreter.aspx
4. U.S. Citizenship and Immigration Services, Asylum Division, “Asylum Officer Basic Training Course, Interviewing Part VI: Working with an Interpreter” (9/14/06), at pages 5 and 6, www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/Interview-Part6-Working-with-an- Interpreter-31aug10.pdf.
5. Greene, Robert Lane, “How a dialect differs from a language,” The Economist, 2/16/14, www.economist.com/blogs/economist-explains/2014/02/economist-explains-8 ; “Of dialects, armies and navies,” The Economist, 8/4/10, www.economist.com/blogs/johnson/2010/08/languages_and_dialects.
6. Bass, Sadie, How Many Different Ways Can You Spell ‘Gaddafi’?, ABC News (9/22/09), http://abcnews.go.com/blogs/headlines/2009/09/how-many-different-ways-can-you-spell-gaddafi/
ABOUT THE AUTHOR
Michael T. Purcell is an immigration lawyer who frequently works with interpreters and translators in the office and in court.
© 2015 Michael T. Purcell