Five Best Practices to Ensure Effective Language Access in the Legal Setting

By John Bichsel

Below are five best practices for court administrators, interpreters, attorneys, and other stakeholders to help ensure that interpreted legal proceedings are accessible to clients, accurate, and in line with the standards of the profession. 

1. Verify Language Preference of Client

When an assumption is made about a non- or limited-English speaking client’s language preference—such as presuming that all people from Mexico speak Spanish, or that different varieties of a language are mutually intelligible—the wrong interpreter may be assigned, wasting time and resources and, most critically, opening the way for a potential miscarriage of justice.  The best practice is to use a set of background questions to determine exactly what language or language variety a client speaks (see González, Vásquez, & Mikkelson, 2012, pp. 538-539, for the type of background questions to ask).

2. Verify Waiver of Interpreting Services

In some cases, a limited-English speaking client will waive the right to an interpreter.  However, it is crucial to err on the side of caution and carefully evaluate a client’s language accommodation needs.  Research shows that the complexity of courtroom language is at the 12th-14th grade level, and in numerous cases limited-English speakers who waive interpreters find themselves bewildered by the language of the courtroom.  Clients may waive interpreting services for many reasons—they may not understand their right to linguistic accommodation, they may wish to appear cooperative, or they may have “linguistic pride” and strategically mask their low English proficiency.  To fully understand and participate in a legal proceeding requires advanced English proficiency, and the best practice is to follow procedures to ensure a limited-English speaker’s waiver of interpreting services is knowing, intelligent, and voluntary (see González, Vásquez, & Mikkelson, 2012, pp. 537-549, for several evaluation procedures).

3. Team Interpreting

Research shows that interpreters begin experiencing fatigue after 30 minutes of interpreting, which often results in serious errors (NAJIT, 2007; González, Vásquez, & Mikkelson, 2012).  For this reason, team interpreting is standard policy in legal and other settings where interpretation exceeds one hour. In addition to preventing fatigue from adversely affecting the proceedings, team interpreting makes the second interpreter available to actively assist with clarifications of terminology or other aspects of the interpretation (see González, Vásquez, & Mikkelson, 2012, pp. 1353-1354 for a model team interpreting policy). The best practice for proceedings lasting over one hour is to assign two interpreters and rotate them every 30-45 minutes during simultaneous and every 45-60 minutes during consecutive interpretation (NAJIT, 2007).       

4. Code of Ethics and Professional Development

Various states, agencies, and associations publish Codes of Ethics for interpreters that indicate several principles that a professional interpreter must follow (e.g., maintaining accuracy, being impartial, adhering to protocol, etc.).  One common denominator among these Codes is the requirement for interpreters to not only maintain their interpreting skills and knowledge, but also to continually improve their abilities and advance the profession by attending training workshops or availing themselves of other educational opportunities; keeping up-to-date with terminology in their working languages; and attending professional conferences and interacting with other colleagues. Because of the nature of language and vastness of topics they deal with, professional interpreters are engaged in a lifetime learning experience. (See http://www.courtethics.org/Interpreter%20Codes.htm for a compendium of interpreter codes for judiciary interpreters.)

5. Finding and Preparing Qualified Interpreters in Uncommon Languages

Changing immigration patterns have created a surging demand for qualified interpreters in uncommon or rare languages and a concomitant challenge for court administrators to find and prepare interpreters for work in the legal setting.  Following are five steps adapted from NAJIT (2005, pp. 25-30) to find and orient interpreters of uncommon languages and ensure that interpreted proceedings meet the required standards of linguistic access.

a. Verify what language is needed. This involves the use of a questionnaire to determine the language of the client (see NAJIT, 2005, p. 30; González, Vásquez, & Mikkelson, 2012, pp. 538-539).

b. Determine the type of proceeding.  The nature, length, and complexity of a proceeding is essential to the selection of an appropriate interpreter (or interpreters, if team interpreting is called for), and the provision of sufficient preparation time.

c. Identify the modes of interpreting that will be used.  It is important to identify if a proceeding will require simultaneous, consecutive, and/or sight translation, as it cannot be taken for granted that an uncommon language interpreter will be familiar with all modes, especially simultaneous.  In the case of sight translation, the interpreter must be able to read the document.

d. Find a qualified interpreter.  This involves contacting courts, interpreter associations, embassies, universities, or other entities. Once prospects are identified, and in the absence of interpreter certification, consider credentials, experience, and command of English (see voir dire to establish the qualifications of the interpreter at NAJIT, 2005, p. 30, and González, Vásquez, & Mikkelson, 2012, pp. 557-562). In some cases quality relay and remote interpreting may be an alternative.

e. Prepare interpreter for proceeding. Uncommon language interpreters may require extensive preparation, especially if they are not familiar with the U.S. judicial system.  They may need orientation on the nature of the case, the modes to be used, equipment, courtroom actors and protocol, and ethical responsibilities.  

 

References

González, R. D., Vásquez, V. F., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy, and practice. 2nd ed. Durham, NC: Carolina Academic Press.

National Association of Judiciary Interpreters and Translators. (2005). Preparing interpreters in rare languages. (NAJIT Position Paper, N. Festinger). http://www.najit.org/publications/positions.php

National Association of Judiciary Interpreters and Translators. (2007). Team interpreting in the courtroom. (NAJIT Position Paper, A. Erickson).  http://www.najit.org/publications/positions.php

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