Using Interpreters in Litigation
Mark S. Shipow
Los Angeles Lawyer April 2008, continued
Using the Interpreter
Once the interpreter has been selected, counsel can take several steps to increase the likelihood of obtaining interpretations that are understandable and useful. Counsel should be proactive in taking these steps; it is not enough to trust that the interpreter can handle everything on his or her own.
At the outset, counsel should help the interpreter understand the case. Counsel should provide a copy of the complaint or cross-complaint and answer and a noncontroversial, impartial summary of the case, so that the interpreter has an idea of what the controversy is about and what events and issues are important. This information should be provided with the concurrence of opposing counsel if possible; if not, counsel should recognize that communications with the official (or neutral) interpreter likely are not privileged and could become known to opposing counsel. In addition, the interpreter should be given a list of the key names, terms of art, and technical terms that are likely to be used in the course of testimony, so that he or she can determine the appropriate interpretation in advance. If possible, counsel should agree as to the proper interpretation of these terms.
Efforts should be made to allow the interpreter to speak with the witness prior to the testimony. They should not discuss the case per se, since their conversation will not be privileged. But having them talk to each other in advance (even if only for a few moments prior to the testimony) will help the interpreter and the witness become used to particular accents, mannerisms, and speech patterns.
During the course of testimony, counsel should take breaks more frequently than normal, preferably every hour. In an interpreted deposition, the examining attorney, witness, and court reporter basically work only part of the time, when their language is being spoken. Only the interpreter is concentrating and talking essentially all the time, interpreting either the question or the answer. In this situation, the interpreter tires more quickly, while the attorney, reporter, and witness do not always notice, since they are more or less resting part of the time.
Counsel should try to use the same interpreter for as many witnesses as possible. This increases the continuity of the interpretations and reduces the time and effort needed to bring the interpreter up to speed. Since interpreters are supposed to be impartial (and the good ones truly are), it should not matter whether your interpreter interprets the testimony of your witness or that of the opposing witness. Of course, the issue becomes somewhat complicated when checking interpreters are factored into the process. Also, if counsel needs to use the interpreter in order to be able to speak confidentially with his or her witness, letting the other side use the interpreter probably is not very wise.
If possible, real-time reporting should be made available at the deposition. This allows the interpreter to look at the questions while framing his or her interpretation, rather than having to rely solely on handwritten notes or having to have the question read back. It also allows counsel to more easily refresh his or her memory as to the exact question being answered (since the question may have been asked several minutes earlier).
Consideration should be given to whether to use simultaneous interpretation (the interpreter interprets as the question is being asked or the testimony is being given) or seriatim interpretation (the interpretation is given only after the question or answer is completed). The latter is more commonly used in depositions. Typically, it is easier and more accurate to have the interpretation given after the entire question or answer is provided. In addition, it is difficult to concentrate when two people (the interpreter and the attorney or witness) are speaking at the same time. In either event, it is important that the interpreter provide a complete and accurate interpretation that conveys the entire intended meaning of the witness.10 Also, examining counsel should keep in mind that the questions are directed to the witness, not the interpreter (e.g., "Did you attend that meeting?" not "Ask her whether she attended that meeting"), and the interpreter is to interpret in the first person ("Yes, I attended that meeting"; not "She says that she attended that meeting. ").11
Counsel should educate his or her witness on how to make the interpreter's job easier (and thus increase the likelihood of accurate interpretations) and should keep these points in mind as he or she is conducting the examination. With an interpreter, it is especially important to speak slowly and distinctly. Counsel and the witness should avoid using slang or colloquialisms. The question or answer should be as complete within itself as possible. This is particularly important in languages (such as Chinese and Japanese) in which it is common to speak without specifically identifying such things as who the subject of the sentence is or what quantity of items is being discussed. Leaving it to the interpreter to guess is a recipe for disaster. Make sure that actual names are used, rather than simply titles (Le., “Mr. Lin” rather than “the chairman”). Counsel should keep questions short, and witnesses should do the same with answers to the extent possible. If a longer answer is necessary, have the witness break it down into parts, a sentence or two at a time. Remind the client that everything he or she says will (or at least is supposed to be) interpreted, so the witness should avoid extraneous starts and stops in answers and avoid asking the interpreter to explain the question. As with English, if the witness does not understand the question as interpreted, he or she should simply say so and let the attorney and interpreter figure out how to get it right. On the other hand, if the witness is continually having difficulty understanding the interpretations or believes that the interpretations are not accurate (which can happen even if the witness is not fluent in English), he or she should say so and steps should be taken to figure out what the problem is and correct it.