When opposing counsel is taking the deposition of a client and retains an interpreter, it is advisable to learn whether that interpreter is likely to do a good job. If there are concerns, counsel should try to resolve them beforehand. Both sides are well served by having a competent interpreter. However, there is a right to object to the competency or qualifications of the interpreter, either before the proceeding begins or later if competency becomes an issue.12
Whether or not there is a lack of confidence in the interpreter chosen by the other side, counsel should consider bringing an interpreter to the deposition in order to check the work of the primary interpreter. Otherwise, counsel is committed to whatever interpretations are provided by the official interpreter. Counsel does have the right to discredit the accuracy of an interpretation through cross-examination or independent proof.13 However, this is not a realistic option unless the deposition is audio recorded. Even if there is a recording, objecting to a particular interpretation after the fact is a very problematic proposition. Counsel is much better off dealing with the issue at the deposition, which means having a checking interpreter available.
There is virtually no mention of checking interpreters in either the case law or treatises. However, it is common in international litigation for counsel to use checking interpreters. Moreover, it seems unlikely that a judge would prohibit an attorney from bringing a checking interpreter to assist the attorney at a deposition, much as attorneys often have paralegals, experts, or colleagues assist them at depositions. Furthermore, quite often counsel can communicate with a non-English speaking client only through an interpreter, and has retained such an interpreter to be part of the litigation team.14 In such cases, there will be little added effort and expense in having that interpreter attend the client's deposition to verify the official interpretations. Using the official or neutral interpreter for such communications risks waiver, since the neutral often will be working for both sides.
When selecting a checking interpreter, the same care should be taken as when selecting an official interpreter. As an additional consideration, counsel should select someone who knows how to be discreet and professional in making suggestions and corrections to the official interpreter. This is no easy feat. Naturally, interpreters are confident that their interpretation is correct, and often do not take kindly to being challenged. It does not help that frequently there is no single correct interpretation. The best approach is to have the checking interpreter provide suggested changes only when truly necessary to make the question or answer intelligible, or where some word or phrase that is important to the litigation is used (thus highlighting the need to make sure that the interpreter has been briefed beforehand and understands the key issues in the case). Sometimes it is best to have the checking interpreter explain the problem to the attorney personally (by speaking off the record or by providing a note), and then letting the attorney decide whether or not to raise the issue on the record. If there is a disagreement, and the interpreters cannot work out a mutually agreeable interpretation, an objection should be made on the record, and the checking interpreter should specify what he or she believes is the correct interpretation.
In sum, today it is common for cases to involve witnesses whose native language is not English. Counsel should take care to ensure that the inability of a witness-particularly one's client-to communicate in English does not adversely affect the case. As with every other aspect of litigation, proper preparation and attention to detail will allow non-English speakers to have a fair day in court.
by Mark S. Shipow, Esq.
Los Angeles Lawyer, April 2008
1 The terms "interpreter" and " translator " often are used interchangeab1y. However, an interpreter is one who takes the meaning of oral statements (such as testimony) from one language to another, while a translator is one who takes the meaning of written statements (such as documents) from one language to another. See Evid. Code §751(a) (interpreter required to "make a true interpretation of the witness' answers") and §751(c) (translator required to "make a true translation ...of any writing").
2 Hilbert v. Kundicoff, 204 Cal. 485 (1928).
3 See Jara v. Municipal Court, 21 Cal. 3d 181 (1978).
4 See Standards of Judicial Administration, Standard 2.11(a)(11).
5 Once an answer is given, an interpretation may be required. See People v. Wong Ah Bank, 65 Cal. 305 (1884) (It is the duty of the interpreter to report every statement made by the witness; the court should require strict compliance with this requirement.).
6 At the end of 2007, the languages designated by the Judicial Council were Arabic, Cantonese, Eastern Armenian, Western Armenian, Japanese, Korean, Mandarin, Portuguese, Russian, Spanish, Tagalog, and Vietnamese. See http://www.courtinfo.ca.gov/programs/courtinterpreters.
7 Gov’t Code §68560.5. As a practical matter, many attorneys use noncertified interpreters for depositions. In the absence of an objection by opposing counsel, a court is unlikely to intervene, but a court likely would require a certified interpreter if the issue were presented prior to the deposition, or if opposing counsel preserves the record with a proper objection. The certification issue may trap the unwary in international litigation if opposing counsel preserves the record with a proper objection. For example, if a deposition is taken in a foreign country through the use of a non-court-certified interpreter, and a proper objection is made, the deposition testimony may not be allowed at trial. Since the out-of- state witness would not be subject to the subpoena power of the California courts, the witness's testimony may be unusable. See Code Civ. Proc. §1989.
8 See http://www.courtinfo.ca.gov/program/courtinterpreters for a list of certified interpreters.
9 See People v. Roberts, 162 Cal. App. 3d 350 (1984); People v. Estrada, 176 Cal. App. 3d 410 (1986).
10 People v. Wong Ah Bank, 65 Cal. 305 (1884); Standards of Judicial Administration, Standard 2.11(a )(5).
11 Standards of Judicial Administration, Standard 2.11(b)(1), (a)(61; People v. Shaw, 35 Cal. 3d 535 (1984).
12 People v. Phillips, 12 Cal. App. 760 (1910); People v. Aranda, 186 Cal. App. 3d 230 (1986).
13 People v. Walker, 69 Cal. App. 475 (1924).
14 Use of an interpreter with a client would not waive the attorney-client privilege, since the interpreter is "reasonably necessary" for confidential communications between lawyer and client. Evid. Code §952.