The Language of Civil Justice: Finding and Working with Interpreters

FEATURE

The Language of Civil Justice:
Finding and Working with Interpreters

BY JANA J. EDMONDSON-COOPER AND MICHAEL J. ESHMAN

One of the two of us is a bilingual federal prosecutor and seasoned language access consultant who formerly served as a professionally trained legal interpreter and serves on the Georgia Supreme Court Commission on Interpreters; and the other is a bilingual trial attorney and mediator who was raised speaking English and Spanish in the home and speaks Spanish fluently. Neither of us is qualified to serve as an interpreter in a legal setting and likely would not make a good interpreter in that setting.

INTERPRETTING IS HARD! Being conversant or fluent in a foreign language is one thing; being able to quickly process information between two languages, while accounting for different dialects and legal and/or medical jargon, all the while upholding the ethical requirements of a legal interpreter is something entirely different and more difficult than many of us fully appreciate. For those of us who represent limited English proficient (“LEP”) or Deaf/Hard of Hearing (“DHH”) clients, understanding the barriers our clients face and the resources and solutions available to us to help them be heard and understood is not just best practice; it is our legal and ethical obligation. Our LEP and DHH clients want and deserve more than just their day in court; they have the right to be heard and understood when they get there.

FINDING AND WORKING WITH “LICENSED” INTERPRETERS

When working with an interpreter in any judicial proceeding, including court-managed functions such as court-ordered mediation, your client is entitled to the most qualified, available interpreter (i.e., every effort should be made to locate the most qualified interpreter which would be the interpreter with the highest level of licensing designation in your client’s language). See e.g. Ramos v. Terry, 279 Ga. 889 (2005); see also, Ling v. State, 288 Ga. 299, 702 S.E.2d 881 (2010). The Georgia Commission on Interpreters (Commission) is the policy making body appointed by the Georgia Supreme Court to oversee the development of a statewide plan for the use of foreign language interpreters in civil and criminal proceedings in Georgia. The Commission has three licensing designations for foreign language interpreters – certified, conditionally approved, and registered. You can locate licensed interpreters and/or verify the licensure of an interpreter by visiting (https://georgiacourts.gov/coi). You can search by name, language, and licensing designation.

Within the Commission’s licensing designations the highest is “Certified.” Interpreters designated as “Certified” are individuals competent in court interpretation as demonstrated by successful completion of an oral and written examination demonstrating competence in interpreting as provided for by the Georgia Commission on Interpreters and the completion of required continuing education providing familiarity with the Georgia court system and the roles and responsibilities of interpreters within that system. This designation level requires an Oral Certification Exam score of 70% or higher in each mode of interpretation (sight, consecutive, and simultaneous). In lieu of examination, the Commission may recognize federal certification or certification of states participating in the National Consortium for State Court Interpreter Certification.

Attorneys and judges have ethical and legal obligations to make sure they are heard as accurately and completely as possible.

The next licensing designation is “Conditionally Approved.” Interpreters designated as “Conditionally Approved” by the Commission are individuals appearing competent in court interpretation that have completed mandatory classroom training and passed a written examination demonstrating familiarity with the Georgia court system and the roles and responsibilities of interpreters within that system. Also, such individuals must have achieved a sufficient score on an oral examination as determined by the Commission. This designation level requires an overall score of 60%, with no score in any mode of interpretation falling below 55%. Courts, and court-managed functions, are required to make a diligent effort to appoint a Certified interpreter before considering one that is only Conditionally Approved.

Currently, National Center for State Court oral certification exams exist only for the following languages: Arabic, Cantonese, French, Hatian-Creole, Hmong, Ilocano, Khmer, Korean, Loation, Mandarin, Polish, Portuguese, Russian, Somali, Spanish, Tagalog, and Vietnamese. For any language for which no national certification examination is available, the highest level of licensure is “Registered.” This designation level is available to interpreters who have completed the mandatory classroom training, passed a written examination demonstrating familiarity with the Georgia court system and the roles and responsibilities of interpreters within that system, and to complete two Oral Proficiency Interviews (“OPI”), one in English and one in the language in which the interpreter seeks licensure.

KEY TAKEAWAYS

The key takeaways from this section are:

  1. Use the Commission’s Interpreter Registry (https://gcr.onegovcloud.com/public/directory/) to search for licensed interpreters and vet licensure. Do not take licensure for granted and be careful assuming what the interpreter knows regarding licensing. It is possible for an interpreter to incorrectly believe that he or she is licensed;
  2. Interpreting is hard. A passing score for the highest level of certification is 70%. It should give us all some pause to consider that under the best circumstances, with the highest level of qualified and licensed interpreter, up to 30% of what our LEP or DHH clients are saying is being missed and/or misinterpreted.
  3. Try to get your LEP and DHH clients the highest level of licensed interpreter available for depositions, hearings, and trials, and understand that for more rare/less-encountered languages “Registered” and/or unlicensed may be the best you can do. However, even if an interpreter is unlicensed, Ramosrequires that the person to be

FINDING AND WORKING WITH UNLICENSED INTERPRETERS

An unlicensed interpreter can be a staff member who speaks your client’s language, an attorney who speaks your client’s language, a client’s family member, or a third party neutral interpreter. An unlicensed interpreter should not be relied upon for any court proceeding, including your client’s deposition, if it can be avoided. If you have a client who speaks a rare or indigenous language, you are encouraged to contact the Commission to help you find a qualified interpreter. Where the Commission is unable to assist with finding an interpreter in a needed language, you may also contact a commercial interpretation/translation service provider who can provide an in-person interpreter. When contacting a commercial interpreter service it is important to specifically request a certified or other licensed interpreter and to ask whether the interpreters have any specialized training and/or experience in legal/courtroom settings. If the unlicensed interpreter will be used at a hearing or in trial, ask whether the judge has had the unlicensed interpreter review and sign the Commission’s Instructions for Use of Non- Licensed Interpreters, which is available on the Commission’s webpage.

ADDITIONAL CONSIDERATIONS

The Commission’s Instructions for Use of Non-Licensed Interpreters is also a good guide for you to review and to have an unlicensed interpreter you work with review. Some additional considerations to keep in mind when working with an unlicensed interpreter are:

  1. The setting and circumstances – for instance, in casual conversation in your office, it may be fine to rely on your client’s child to help you communicate with your client. In court, deposition, mediation, or when communicating important and confidential information concerning your client’s case, using a child as your interpreter presents a host of problems (competency, conflicts of interest, understanding the process, understanding the ethical obligations of an interpreter, undue burden on the child, etc.);
  2. The interpreter’s ability – even if you do not personally speak the language, listen for discrepancies between interpretation and what is being said. Listen for responses and/or interpretations that seem much too short or long; listen for the interpreter and your client having a dialogue rather than interpretation of a question and answer; listen for an interpreter who seems to be searching for and/or stumbling over words. Be willing to either step-in to ask the interpreter if they are having problems or to ask the court to step-in if you perceive a problem; and
  3. Conflicts of interest – there will be conflicts of interest when you rely on a staff member, attorney, or client’s family member. Even when working with a third-party neutral interpreter, you should confirm that the interpreter does not know your client and does not have a conflict of interest.

OTHER PRACTICAL TIPS AND MISCELLANEOUS CONSIDERATIONS

There is an important distinction to make between proceedings interpreters and table interpreters. Proceedings interpreters interpret between your client and others (e.g., interpreting questions to your client on examination and interpreting your client’s responses). A table interpreter, in contrast, is there to help you (or your table) communicate with your client. If you rely on a staff member or client’s family member as a table interpreter, be mindful that your client may develop, or may already have, a closer relationship with your table interpreter than with you. A client’s family member, in particular, can present unique challenges of a table interpreter exceeding their intended role and under-interpreting, over-interpreting, and/or exercising undue influence on your client during litigation. It will take practice to develop a comfortable and professional balance for effectively communicating with your client through a table interpreter. Practice to have a good, working balance in place with your client and table interpreter well-before you get to trial.

In the course of representing an LEP or DHH client, there may be occasion when you look to widely available apps, like Google Translate, to help you communicate. Be careful. For instance, if you rely on Google translate, the word “settlement” in Spanish becomes “asentamiento,” which is a place where people establish a community and not an agreement to settle a case. These are convenient tools, but they can create more confusion if they are relied upon too heavily. Never rely on translation software alone to translate vital documents such as pleadings, settlement agreements, or documentation critical to your client’s case.

CONCLUSION

Our LEP and DHH clients face unique barriers to justice. Attorneys and judges have ethical and legal obligations to make sure they are heard as accurately and completely as possible. The Commission helps develop and implement regulations in the courts across the state to help LEP and DHH litigants to be heard, and it is a resource available to all of us to help us do the same. Still, interpreting is hard, and there are limitations to what can be done through an interpreter under the best circumstances. We hope that helping to identify some of these barriers and limitations and highlighting the work of the Commission will help you consider and address these barriers and limitations in your own cases.

ABOUT THE AUTHORS

Jana J. Edmundson-Cooper is a bilingual federal prosecutor with the U.S. Department of Labor (DOL) Office of the Solicitor (SOL), litigating labor & employment enforcement matters. She also serves as an in-house subject-matter expert on language access/limited English proficiency issues within SOL as well as its several client-agencies. Edmondson-Cooper is President and Chief A2J Officer of Edmondson Consulting, LLC which seeks to improve access, promote equity, and preserve justice by providing A2J/language access consultation services to stakeholders nationwide; and has contributed to the development of local, state, and federal language access policies and the development of state and national curricula for training attorneys and judges on language access as an A2J issue.

Michael J. Eshman, is a partner at Eshman Begnaud, LLC, in Decatur, GA. He has represented plaintiffs in products liability and other third-party liability cases arising from workplace injuries, catastrophic injury and wrongful death cases, governmental liability and federal civil rights cases, and criminal and civil appeals in state and federal court. Michael is bilingual, speaking English and Spanish, and has served as a third party neutral in some personal injury cases.

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