This month’s Texas Bar Journal features DIY Depositions, an article exploring the pros and cons of recording depositions without a certified court reporter. The relevant statutes allow this practice under certain exceptions, but the author’s conclusion is that the inconveniences, risks, and resources required are usually not worth the meager savings of eliminating the services of a professional, certified court reporter.
The question of avoiding interpreter fees is also relevant for many law practices. Some bilingual attorneys interpret for their clients’ testimony when possible, and even more use bilingual assistants to interpret during pre-appearance preparations. One attorney recently posted on Facebook in praise of a bilingual Justice of the Peace judge who allowed pro se litigants to proceed in Spanish, saving the parties hundreds of dollars in interpreter fees.
It’s true that there are ways to save on interpreter fees–but do they provide a true savings or a false economy?
A professional court interpreter–which your client is likely to speak through when it counts, on the record–is impartial and ethically bound to not provide any advice or share any opinions on the matters in which they serve. Further, a court interpreter on the record transmits all statements with the same formality as the original, and will interpret all utterances.
Compare this role to bilingual staff in an attorney’s office–who are often friendly, willing to explain things outside of the attorney’s presence, and seek to help the client understand the attorney’s explanations. Witnesses who have not been properly prepared to speak through an interpreter sometimes try to whisper to the interpreter on the stand or ask the interpreter questions like “Do I have to answer that?” Such statements are then interpreted for the court. These witnesses assume the Spanish speaker at their side is there to help, just like the bilingual assistants in the attorney’s office–to the detriment of their performance in front of the jury. How much has to be saved in interpreter fees to make this type of risk worthwhile?
Moreover, a professional court interpreter is versed in formal legal language, and will always use the formal equivalent in Spanish of any formal words used in English. In short, an interpreter will not make a formal statement more understandable for an unsophisticated witness (just as an unsophisticated English speaker does not have a third party explaining things in plain language if the attorney does not undertake this task). If bilingual staff will be helping to prepare your witness, be sure they have demonstrated their ability to maintain the level of formality, high or low, of both the attorney’s speech and the client’s.
A simple gauge could be to ask your staff the legal Spanish term for deposition–the answer is not deposición or entrevista. What happens to your client’s credibility when you put them on the stand, opposing counsel asks, “Do you remember giving a deposition in this case?” and the client says they don’t–only because they’ve only heard it called an interview or other descriptive, but incorrect, term? At minimum, bilingual staff members participating in the preparation of witnesses who will testify through an interpreter should pass the written portion of the Licensed Court Interpreter licensing exam. Conversely, a staff member who cannot pass this exam has not demonstrated the language skills needed to perform this task. Investing in a professional could pay dividends.
Attorneys interpreting for their clients on the record
Some well-intentioned attorneys attempt to save their clients money by serving as attorney and interpreter at the same time for prove-ups and other hearings. Many courts no longer allow this, but some do. But, as I’ve written before, there is an inherent conflict in a single person serving, on one hand, a zealous advocate for a witness, and, on the other, a neutral, disinterested interpreter sworn to faithfully and accurately interpret all utterances. Imagine your client says something in Spanish that is adverse to his case–which hat do you wear in that moment? Are you going to interpret it as a neutral conduit or take action in favor of your client’s interests? How do you wear both without violating one of your oaths?
Practically, I’ve also seen some ugly records with questions and answers missing after an attorney/interpreter lost track of which questions and answers had been stated in English for the record. What is it worth to concentrate on your questioning, and making sure everything that needs to be shown on the record is there? What costs can arise down the road if a critical element is missing from the record? Professional interpreting services bring value that outweighs their costs.
Solutions for true savings
This might surprise you, but I’m also interested in saving your clients the cost of court interpreter services. Just as certain categories of court users are not charged extra for court reporting services or the judge’s time, court users with limited English proficiency have a civil right to a qualified, court-provided interpreter.*
To save your client from paying for interpreter fees in order to access the court system, first check with the court to see if interpreters are provided by the court, perhaps on certain days of the month.
If not, lend your support to organizations such as the Texas Association for Judiciary Interpreters and Translators in efforts to bring such courts into alignment with the law–all persons, regardless of national origin (including English language ability), should have equal access to justice.
*This is a broad subject but in brief: The Civil Rights Act of 1964 prohibits discrimination against “any person in this country on the ground of race, color, or national origin.” It also prohibits that any such person be excluded “from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” This right exists for any person in the US, and state courts that receive federal funds must provide interpreters to Limited English Proficient (LEP) individuals in civil and criminal cases at no charge. Court Interpreters Act of 1978; Executive Order 13166; Brennan Center for Justice Report on Language Access in State Courts.
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