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Working Through Interpretation Issues in Multilingual Litigation

December 13, 2017

court interpretersLitigation involving speakers of multiple languages has become an everyday occurrence. Real-time, consecutive interpretation services may be required for international business disputes, expert testimony, and to meet the needs of an increasingly multi-lingual U.S. society.

However, anytime words are handed from one person to another, there’s a potential for problems. Remember playing “telephone” as kids? That game was played between speakers of the same language and usually resulted in some pretty laughable sentences. It gets much more complicated – and serious – when professionals and their businesses need to communicate across multiple languages and cultures in a court of law.

Potential pitfalls

Here are four of the top concerns that arise when multilingual litigation requires the use of an interpreter:

  • Influence: An interpreter is an influential participant in litigation with the power to quietly shape testimony. From the perspective of a defendant, witness, or expert, an interpreted response often leads to the question: “Whose words are these, and who was it that chose them?” This is not an insignificant query. An attorney’s strategy typically depends on a very deliberate use of wording, and a precise translation of a carefully constructed phrase may not exist in another tongue.
  • Mistranslation: Phrasing a question to elicit a usable answer can be undermined by interpretation, as noted by the Association of Corporate Counsel (ACC), which cites a study of Spanish-to-English legal interpretation. That research found that “even consecutive interpretation (the most accurate form) mistranslated leading questions one-third of the time. In the context of depositions, the accuracy rate for leading questions dropped to 55%.” One way to avoid such errors is to keep questions simple and clear, yet still strategically purposeful.
  • Timing: When every question and answer needs to be spoken twice — in the source language and by the interpreter — things take twice as long. This is worrisome for two reasons: 1) It can make the jury impatient and 2) the court may at some point have to assess legal fees to be paid by one party to the other for the additional time.
  • Disputes: Cost increases also come into play if there is a dispute regarding the accuracy of interpretations in depositions or court. Translation disagreements add to the length of and complexity of the litigation process, and, if they can’t be resolved quickly, can affect the clarity of deposition transcripts and of court records.

A judge’s discretion

Though the right to an interpreter in court is viewed as being implied by the Fifth, Sixth, and Fourteenth Amendments, and by Title IV of the Civil Rights Act, it largely remains up to judges to decide whether or not the use of an interpreter is necessary, and judges tend to be parsimonious about this. (One exception is in litigation brought by the U.S. government, where the Court Interpreters Act requires the providing of interpreters for non-English speakers.)

The most obvious consideration a judge will have is whether or not a non-English speaker or a limited English speaker (LEP) can be understood. In such cases, there’s usually agreement between the court and attorneys regarding interpretation. If none is provided by the plaintiff or defendant, or if there’s a dispute regarding an interpreter, the court can appoint one of its own choosing.

More difficult are situations where there is some English proficiency on the part of a witness, but less than 100%. A judge may step in to make a decision as to the need for interpretive services to avoid giving one side an unfair advantage or if the court is concerned that language issues are likely to cause confusion in the courtroom and complicate the court record.

An attorney’s choices

In the deposition, an attorney seeking to capture testimony will assess the English-speaking capabilities of each deponent. When speaking with LEPs, it’s very much a strategic call, taking into account not only the need for a faithful interpretation of the testimony, but also the deponent’s comfort level with communicating in English.

Whoever is representing the deponent must likewise determine how to best ensure their client’s testimony is accurately rendered. If they feel the interpreter is either prone to error or the falsification of testimony, a check interpreter can be employed to raise objections one-by-one during the deposition or afterward.

How to deploy the check interpreter is a strategy call as well. Continually interrupting to offer corrections can cause confusion both during the process and in the transcript, and it’s something a judge may be unhappy about later on during a trial. On the other hand, remaining silent too long can be misconstrued as waiving objections, as in a case where issues were raised after the primary interpreter had left the deposition.

Regarding the trial, an attorney must assess how each non-English speaker or LEP will be best presented to the judge and/or jury. It may be that using an interpreter is required for clarity, or it may be that an LEP will be more persuasive in his or her own voice even with minor language issues present. And, once more, the opposing team has its own considerations, including the impression they’d prefer a witness to make. They may also want a check interpreter in court.

An ounce of prevention

Putting aside nuisance lawsuits and cases where costs are deliberately driven up as a strategy, most participants don’t want litigation to cost more than it needs to. In cases where language issues are anticipated, the best solution — where possible — is for counsel representing both sides to work together to pre-empt issues. For example:

  • The expense of a check interpreter can be avoided if both sides can come to agreement on a single linguist.
  • Both teams can agree to use English testimony wherever possible.
  • In some cases, it’s clear ahead of time that the meanings of certain phrases are likely to be central to the resolution of the dispute. These can be collected and their meanings negotiated in advance of depositions. If agreement is impossible, a consensus on usable alternative phrases may be attainable. If not, the parties can at least devise a plan for their later reconciliation.

Looking forward

As multilingual court proceedings become even more common, it’s likely that statutory guidelines will further clarify the role of interpretation in litigation. Even so, while sometimes the need for interpretation is obvious, it’s likely to remain a strategic tool an attorney has at his or her disposal — one that carries with it both benefits and pitfalls — and an extra factor for courts to consider.