Language Access

Language Access webteam Wed, 02/09/2022 - 13:17

Luz M. Molina, Jack Nelson Distinguished Professor of Law, acquired her Juris Doctorate from Tulane University in 1979. She joined the faculty of Loyola University New Orleans College of Law permanently in 1990. Prof. Molina directs the Workplace Justice Project, a labor and employment law practice where student practitioners represent workers who earn very low wages in work-related legal issues. Some of the information shared here also appeared in her article, Language Access to Louisiana Courts: A Failure to Provide Fundamental Access to Justice, published in the Fall 2008 edition of the Loyola Journal of Public Interest Law1 . Law students Emily Cabrera and William Ercole assisted with research. 

The material in this chapter is current through March 6, 2022.

1 Introduction

1 Introduction aetrahan Wed, 06/22/2022 - 10:43

Clients who do not speak English or have limited English proficiency (LEP) face communication challenges that affect critical aspects of their lives when those challenges are encountered within the legal system. These clients experience the challenges of communicating in English with respect to legal matters within the attorney-client relationship and throughout the course of the legal process. This chapter is designed to provide attorneys with the basic legal tools and best practices to manage communication issues at the trial level on behalf of LEP clients, including issues of availability, appointment, qualifications, competence, and payment of language interpreters. For the sake of completeness regarding interpreters in the court system, language services for the deaf and hard of hearing are also briefly addressed.

This chapter not only examines the role of interpreters in the courtroom, but also the need for interpreters within the context of the attorney-LEP-client relationship.1 It may be necessary to use an interpreter in all interactions in order to fulfill an attorney’s professional duty to engage in meaningful communication with an LEP client.2

The information shared here is structured to give attorneys an appreciation for interpretation as a profession and of the need for interpreters within the court system as an aspect of due process. While courts have tended to recognize the right to an interpreter in criminal cases, that right has not always been recognized in civil proceedings. In the latter, courts have tended to favor determinations that assess the need for an interpreter based on judges’ perceptions of whether a non-English speaking party “really does need one.” Even where the need for an interpreter has been recognized, states have often balked at providing one at their expense. 

While appointment and payment of interpreters has frequently been a problematic issue in state court, federal courts have more consistently recognized the need for “language access.” This concept is derived from Title VI of the Civil Rights Act of 1964, which states that “no person in the United States shall, on the ground of . . . national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”3 Although it may be that some court officials are either fluent (or at least appropriately proficient) in another language4 and thus able to engage directly with LEP individuals, language access in the courts is most commonly facilitated through the employ of independent interpreters and translators.5  

Thus, in 1975, the Federal Rules of Evidence established a standard for interpreters by requiring that they be qualified and “give an oath or affirmation to make a true translation.”6 While it is unclear when interpreters became consistently available in federal courts, the quality of interpretation has been formally regulated since 1978 under the Federal Court Interpreters Act.7

Today, the Administrative Office of the U.S. Courts maintains a fairly robust instructional manual for its interpreters.8

There has been growing recognition of the need for interpreters in the courts at all levels. In 2012, the American Bar Association issued a comprehensive report addressing this issue.9 For those interested, it remains a very useful document that gives a cohesive sense of the substantive and practical application of interpreting standards, while highlighting interpreters’ importance as an integral part of justice in our court systems, both state and federal.

For those new to the topic of interpreters in the court system, the Administrative Office of the U.S. Courts has produced an excellent webinar with an overview of how interpreters work and interact with the courts.10 Although the video contextualizes the interpreters’ work within the criminal justice system, the issues discussed are equally applicable in civil court proceedings.

  • 1While there are, of course, other types of interpretation such as medical, technical, business, and so on, which require specific training in the unique vocabulary used in those areas or subjects, this chapter confines itself to the roles and responsibilities of court and legal interpreters.
  • 2La. R. Prof’l Conduct 6.2(b) (“A lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.”).
  • 342 U.S.C. § 2000d.
  • 4Proficiency in a foreign language may mean any number of levels of understanding from none, to basic, to limited working knowledge, to professional knowledge, all the way to full bilingual skills. Thus, it cannot be presumed that proficiency, without further information as to the level, means mastery of a particular language.
  • 5The terms “interpreter” and “translator” are often used interchangeably without regard to their true definitions. Interpretation and translation, however, are two totally different functions. Interpreting is the “verbal rendering of communication from a source language to a target language; translating is a rendering of communication in written form.” Sylvia Tiscareno, Court Interpreters – Providing Equal Access to Justice, New. Law., Sept. 2021, at 24, 27.
  • 6Fed. R. Evid. 604. Previous language made interpreters subject to the rules “relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.” Commentary to the streamlined rule makes it clear that, although the language (referring to experts) is no longer present, its removal did not affect any substantive change to its application.
  • 728 U.S.C. § 1827.
  • 8Ct. Servs. Off., Admin. Off. U.S. Cts., Federal Court Interpreter Orientation Manual and Glossary (2020).
  • 9See generally Standing Comm. on Legal Aid & Indigent Defendants, A.B.A., Standards for Language Access in Courts (2012).
  • 10The presentation features judges and interpreters who explore the access to justice dimension of language interpretation in the courts and its challenges. How Interpreters Aid Access to Justice, U.S. Cts. (Jan. 16, 2020).

2 Interpreters and Access to Justice in Louisiana

2 Interpreters and Access to Justice in Louisiana aetrahan Wed, 06/22/2022 - 10:51

Requiring LEP individuals to participate in civil or criminal proceedings without an interpreter is an affront to procedural and substantive due process. Without the ability to understand the proceedings, LEP individuals are unable to meaningfully advance their claims or adequately defend themselves despite the grave consequences they may face. As Louisiana’s immigrant population has grown,1 access to interpreters has become an increasingly important access-to-justice issue.2

The role of interpreters in Louisiana courts has been often misunderstood by judges, attorneys, and LEP litigants themselves. This misunderstanding is particularly problematic for the courts, which are charged with the knowledge necessary to understand interpreters’ relevance and importance. Although Louisiana, like the federal system, has classified interpreters within the evidentiary code as experts,3 the relative dearth of legislative guidance or judicial consensus concerning interpreter qualifications and appointment as well as payment for their services has unsurprisingly left their role a bit of a mystery.

The lack of understanding of the critical need for legal court interpreters and the attendant legal requirements related to their competency continues to be true to some extent across the legal field, but a great deal of progress has been made since the 2020 approval of a language access plan applicable to all Louisiana courts.4 The Plan embodies a “commitment to work with lower courts in the Louisiana Judiciary to phase-in a language access program that will provide language assistance services at no cost to limited English proficient individuals in all state court proceedings and operations.”5 Of greatest significance, this framework for the appointment of interpreters eschews a perception-based determination of the need for an interpreter and requires that courts—not the parties—pay for interpretation services. Additional information on interpreters in Louisiana courts is available through the Louisiana Supreme Court’s Office of Language Access webpage.6

  • 1As of 2022, 3.5% of the state population speaks Spanish at home while 3.4% speak French, including Louisiana Creole and Cajun. A total of 8.6% of the state’s residents speak a language other than English at home. Louisiana Population 2022, World Population Rev.
  • 2The National Center for Access to Justice (NCAJ) annually tracks language access in jurisdictions cross the country: “Courts function acceptably only when judges, witnesses, parties, and other people in the courtroom understand each other. When participants have limited proficiency in English, courts may need to provide interpreters, translate documents, and offer other language assistance. The [NCAJ] has worked to ensure that courts, lawyers, litigants, and members of the public understand the importance of adequate language access in the courts. NCAJ’s flagship Justice Index has identified 35 best practice policies that states should adopt to ensure language access in the justice system. Our data shows how every US state is doing against those benchmarks--and how their overall policy frameworks measure up against one another.” Language Access, Nat’l Cert. for Access to Just. (2022). Louisiana’s rating is found here. Justice Index, Nat’l Cert. for Access to Just. (2022), (select Louisiana on map).
  • 3Fed. R. Evid. 604 (explicit in language before 2011 stylistic amendment); La. C.E. art. 604.
  • 4Brian Wiggins, La. Sup. Ct., Language Access Plan in Louisiana Courts (2020), The Plan is the result of a Memorandum of Understanding entered into in 2019 between the Louisiana Supreme Court and the United States Department of Justice. Id. § I(A).
  • 5Id.; see also Brian P. Wiggins, What Lawyers Should Know about Louisiana’s New Language Access Plan, 69 La. B.J. 282, 283 (2021).
  • 6Office of Language Access, La. Sup. Ct.

3 The Role of Interpreters in the Courts

3 The Role of Interpreters in the Courts aetrahan Wed, 06/22/2022 - 10:58

It is useful to understand the role of and methodologies used by interpreters in the courtroom, as well as the judge’s role beyond simply appointing an interpreter. A judge unaware of the necessary skills and competencies required of an interpreter is likely to overlook serious due process breaches and ultimately become an unwitting participant in inequities triggered by poor or downright irresponsible interpretations. Attorneys must also be acquainted with the skills required in interpretation as it is their ethical duty to monitor the accuracy of the interpretation, the court’s handling of any objections in that regard, and other court actions which can render the interpreter ineffective.

Such actions include failing to address interpreter fatigue in long proceedings. Interpreter fatigue occurs after approximately two hours of interpretation; in lengthy proceedings, it is a best practice to employ multiple interpreters in order to give the initial interpreter a period of rest. In such cases, an attorney should be attuned to that need and the possibility of having to object when the lack of rest breaks prejudices the LEP client.

A different problem for interpreters relates to the appropriate protocols when using them:

When courtroom workers ignore or forget procedures for interpreter mediated conversations, the interpreter’s ability to accurately interpret can be adversely affected. Attorneys and judges are often guilty of either failing to pause to allow the interpreter to give his rendition or waiting to pause until they have uttered a statement that is too long for the interpreter to retain and render.1

Speakers also sometimes address the interpreter directly, instead of the non-English speaker, thereby creating confusion. Judges should be aware of the need to intervene when there may be a likelihood of confusion because the interpretation protocol has been abandoned or purposely subverted.

Although judges should feel encouraged to conduct their own voir dire in instances where there is reason to believe interpretation will be deficient, it is not always the case that they will do so; many courts are still unclear as to the complexity of issues that can affect interpreter competency. Moreover, even a competent interpreter may work to the detriment of a non-English speaker if a linguistically accurate interpretation nevertheless fails to incorporate cultural context. This complicated question requires all the care and expertise only a judge can bring to bear and, of course, may necessitate the intervention by an LEP client’s attorney to direct the court’s attention to this problem. If it becomes apparent that the interpretation is suspect in some way, the attorney may wish to approach the bench to discuss the matter, and, if there is no satisfactory resolution, object on the record, challenging the interpretation—although, as with all objections, clear reasons must be articulated.2

  • 1Cassandra L. McKeown & Michael G. Miller, Say What? South Dakota’s Unsettling Indifference to Linguistic Minorities in the Courtroom, 54 S.D.L. Rev. 33, 48 (2009).
  • 2For further discussion, see Section 6.2.2 and Section 6.2.5. Challenging an interpretation will necessitate the use of information which would have to be provided by another interpreter or someone with fluency in the source language. This would mean that the attorney might consider employing a second interpreter to monitor the interpretation. Although not normally necessary, it might be a good practice in emotionally charged or controversial cases where prejudice is a real risk. An additional interpreter would also be essential in complying with a monolingual attorney’s ethical duty to competently represent an LEP individual by assisting with communications during court proceedings.

4 Modes of Interpretation

4 Modes of Interpretation aetrahan Wed, 06/22/2022 - 11:01

At its most basic level, interpretation is the oral translation into a language of the words of a person speaking a different language.1 This definition, however, belies the complexity of this process as performed by the interpreter and as experienced by those dependent on the interpreter for communication in a courtroom. 

For example, the mere fact of being bilingual does not qualify an individual for court interpreting, even if the person is fluent. This is also an important point to note in the context of attorney-client communications. Even a bilingual attorney’s language skills may not rise to the level of proficiency necessary to engage in communication with the LEP client in a way that meets the standards of the Rules of Professional Conduct; this may also be true of bilingual staff. 

In the parlance of interpreters, interpretation occurs when a statement in a “source” language (the language to be interpreted) is rendered in a “target” language (the language into which the statement is interpreted). Professional interpreters understand and appropriately use four modes of interpretation: simultaneous, consecutive, summary, and sight translation.

Simultaneous interpretation occurs when the interpreter and the speaker whose statements are being interpreted speak contemporaneously.2 The foreign language is normally conveyed to the non-English speaker in a whisper or through the use of headphones. This mode is mandated in federal courts for use with an LEP party except when that party is testifying. 3

In consecutive interpretation, the interpreter allows the speaker to completely finish a statement in the source language and then gives an interpretation in the target language. This mode of interpreting is mandated in federal court for use with testimony.4 If a state court deviates from this normally accepted methodology, it may be prudent for the attorney to evaluate the need for the variance and to raise an objection if simultaneous or summary interpretation impinges on the client’s due process rights.5

Summary interpretation occurs when the statement made in the source language is condensed and thereafter rendered in the target language. This mode of interpreting should be avoided altogether. At most, it should be restricted to interpreting highly technical language (legal or otherwise) that would be difficult to follow even for a native English speaker. 

Sight translation refers to the oral translation of a document for the benefit of the court or the parties. It is often employed in the course of a party’s court testimony and in depositions involving the use of documents in a language in which the deponent is not proficient. 

Please note that in Louisiana none of the foreign language testimony or questions rendered by the interpreter in the foreign language are stenographically or audio recorded by the court reporter. Everything the interpreter renders in English is recorded, as normally expected.6

  • 1What Does a Court Interpreter Do?
  • 2“This is the mode used at the counsel table, whereby the interpreter interprets for the defendant or litigant what the attorneys, judge, and English-speaking witnesses are saying.” Susan Berk-Seligson, The Bilingual Courtroom 38 (2002). This would include opening statements, closing arguments, and ongoing exchanges between the party and the court.
  • 328 U.S.C. § 1827(k).
  • 4Seligson, supra, at 38.
  • 5For instance, simultaneous interpretation of testimony can be very confusing because two different languages are spoken at the same time. Similarly, summary interpretation allows the interpreter to choose what is conveyed in order to render it in a condensed form - a recipe for prejudice, as it does not convey what is actually said.
  • 6For a good discussion of the lack of a record in the foreign language as directly affecting LEP individuals’ constitutional rights, see Lisa Santaniello, If an Interpreter Mistranslates in a Courtroom and There is No Recording, Does Anyone Care? The Case for Protecting LEP Defendants’ Constitutional Rights, 14 Nw. J.L. & Pub. Pol’y 91 (2018). However, note Minnesota courts’ suggestion that it is a best practice in criminal cases to make an audio recording (or video for sign language) of all proceedings where an interpreter was employed in order to ensure an avenue for challenging interpreter accuracy in the event that the fairness of the trial is questioned. Minn. Sup. Ct. Interpreter Advisory Comm., Best Practices Manual on Interpreters in the Minnesota State Court System 17 (1999); see also State v. Ahmed, A11-0977, 2012 WL 2685009, at *3 (Minn. Ct. App. July 9, 2012).

5 Bilingualism and Interpreter Training, Credentials, and Ethics

5 Bilingualism and Interpreter Training, Credentials, and Ethics aetrahan Wed, 06/22/2022 - 11:08

5.1 Bilingualism

5.1 Bilingualism aetrahan Wed, 06/22/2022 - 11:08

Although this view may be changing in today’s legal environment, historically it has been far too common to think that any bilingual speaker can be a qualified and competent court interpreter.1 This is a mistaken belief. Accurate interpretation requires a sophisticated college-level use of both English and the foreign language. Accordingly, in the case of legal interpretation, the interpreter must understand the four varieties of spoken legal language: formal legal language, standard English, colloquial English, and other sub-varieties. Moreover,

[I]interpreting requires the use of several cognitive and motor skills, including:

  1. Listen
  2. Comprehend
  3. Abstract the message from the words and the word order
  4. Store ideas
  5. Search for the conceptual and semantic matches
  6. Reconstruct the message in the other language
  7. WHILE . . . speaking and listening for the next chunk of language process
  8. WHILE . . . monitoring their own output.2  

Both aspects of interpretation—mastery of two languages and understanding the mechanics of the process, including cultural competence—require specialized training. Whatever skills a bilingual speaker may have by virtue of birth or language arts education are not an adequate substitute for mastery of the specific professional skill of interpretation.

5.2 Training

5.2 Training aetrahan Wed, 06/22/2022 - 11:11

For the last three or four decades, interpreters have worked consistently to develop language interpretation as a recognized and properly compensated profession. This is, of course, a worthy and necessary goal given the important role interpreters play in facilitating language access for LEP individuals. However, unlike medical or legal education, for example, interpreter training lacks a standardized curriculum and is often unavailable as part of a university degree. Such training is available at some universities or community colleges as a free-standing certificate program and, increasingly these days, online.1

5.3 Credentials

5.3 Credentials aetrahan Wed, 06/22/2022 - 11:15

The structure of court and legal interpreters’ credentials varies by state.1 The most common categories are “certified” and “registered.” As Louisiana has moved to regulate the quality of court interpretation, the Louisiana Supreme Court has begun to offer regular interpreter training2 and has established a hierarchy of proficiency designations which identify interpreters by their level of competence.3 The court also maintains a list of certified and registered interpreters sorted by language.4 By virtue of their credentials and qualification by the Office of Language Access, the interpreters on this list are prima facie qualified to interpret in the courtroom. Courts are encouraged to appoint interpreters on the list.

Nevertheless, registered interpreters do not always possess the oral language skills that constitute full language competency, as they are only required to pass a written exam. Certified interpreters must pass both. Accordingly, if you choose a registered interpreter, it is highly recommended that you ascertain whether the interpreter is competent to interpret in your particular matter. If the circumstances permit, this may be done informally, but if not, you should do so through voir dire.

5.4 Ethics

5.4 Ethics aetrahan Wed, 06/22/2022 - 11:17

Attorneys should be fully familiar with the Louisiana Code of Professional Responsibility for Language Interpreters,1 as it is the basis of interpreter competency.2 The Code consists of 10 canons that capture interpreters’ core responsibilities: Accuracy and completeness; representation of qualifications; impartiality and avoidance of conflict of interest; professional demeanor; confidentiality; restrictions on public comments; scope of practice; assessing and reporting impediments to performance; duty to report ethical violations; and professional development. 

Of these 10 canons, three are of particular interest in understanding the nature of interpreters’ work: interpreters must interpret accurately and completely what they hear, they must remain impartial and avoid any conflict of interest, and their work must be kept strictly confidential. Anyone who is qualified as an interpreter by a court, including those listed by the Louisiana Supreme Court, should be presumed to have a certain acceptable level of competence and professionalism. However, attorneys should still retain some control over the appointment and competent performance of the court interpreter involved in their LEP clients’ court proceedings. 

Beyond ensuring that an interpreter is trained and follows the ethical canons, attorneys should keep in mind that interpretation involves the understanding of cultural factors that may impact credibility and the perception of fairness. Courts and attorneys must ensure that the interpreter renders the client’s “voice” accurately and without bias. If an interpreter is unqualified, breaches ethical norms, or fails to render an accurate and unbiased translation, an attorney may consider filing a complaint against the interpreter. The procedure for filing complaints can be found in the Louisiana Supreme Court’s “Language Access Complaint Policy.”3

6 Court Interpreters in Louisiana

6 Court Interpreters in Louisiana aetrahan Wed, 06/22/2022 - 11:20

6.1 The Right to a Court-Appointed Interpreter

6.1 The Right to a Court-Appointed Interpreter aetrahan Wed, 06/22/2022 - 11:24

LEP litigants have a right to a court interpreter without cost to either party. Articles 192.2 and 25.1 of the Codes of Civil and Criminal Procedure, respectively, mandate that a judge appoint a foreign language interpreter when requested by a principal party in interest or a witness. These articles, as recently amended, no longer allow the cost of the interpreter to be taxed as a court cost to be paid by the litigants; instead, the interpreter must be paid “out of the appropriate court fund.”1 The Louisiana Access to Justice Commission and the Louisiana Bar Association provide attorneys with a good and quick reference on how to engage court interpreters, and an attorney when encountering the need for an interpreter for the first time would do well to consult it.2

Attorneys should request an interpreter as soon as a hearing is set on the calendar; if this is not possible, the request should be made at least 10 days before the hearing. Requests are made pursuant to District Court Rule 5.1 by submitting a form3 (available at Appendix 5.1B4 ) to the language access coordinator5 of the court in question.

The right to an interpreter applies to the entire proceeding and to both parties and witnesses. The import of these code articles is that a judge cannot explore whether the main party or witness requesting an interpreter “really needs one”: if the party requests an interpreter, the judge shall appoint a competent one; the appointment is not discretionary. 

Nevertheless, there may be instances where an interpreter has not been requested, but it becomes obvious that a witness or litigant has difficulty understanding English. In such cases, the court is permitted to evaluate and ascertain the need for an interpreter by asking questions that require answers more involved than a “yes” or a “no”. The Louisiana Supreme Court has released a bench card to assist judges in handling the language access needs of LEP individuals.6 It is useful to be acquainted with what is expected of the court in instances when it must determine the need for an interpreter. Should the attorney disagree with the decision not to appoint one, it may be necessary to challenge the court’s determination. 

An attorney who decides to challenge the court’s decision should note that case law is scant on this topic. Generally, it has been held that the appointment of an expert (e.g., an interpreter) lies within the court’s discretion. However, if an interpreter is requested, La. C.C.P. art. 192.2 makes the appointment mandatory; if one is not requested, but appears to be necessary, it seems that the appointment remains discretionary. In those cases, the court is simply encouraged to conduct a factual inquiry as to the need for an interpreter, and “any doubts [as to whether an LEP individual needs an interpreter] should be resolved in favor of the LEP individual and an interpreter should be required.”7

In those instances where discretionary appointment is denied without any or with only scant evidence, the attorney may consider asking for a voir dire of the LEP client or witness as to their English proficiency. If allowed, consider offering extrinsic evidence of the client’s inability to fully understand English, stressing that without an interpreter, the client will be unable to participate meaningfully in the proceedings. If the court rejects such evidence, it may be prudent to proffer it. Finally, given the critical importance of the parties’ and witnesses’ understanding of and participation in the proceedings, the attorney may consider filing a supervisory writ and arguing that the client will be irreparably harmed due to the client’s or the witness’ inability to speak and understand English.8 In addition to legal recourse which may be available through the legal proceeding itself, LEP individuals also “have a right to complain if [they] ... had a problem getting court services because [they] do not speak English or if [they] are not proficient in English.”9

Deaf and severely hearing-impaired litigants have rights to interpreters that are broader than those of LEP individuals. These include the right to an interpreter at depositions10 and at several kinds of judicial or quasi-judicial proceedings.11 Further, in cases where it is the practice or policy of the courts to appoint counsel for indigent parties (e.g., in criminal cases), deaf and severely hearing-impaired individuals also have a right to have a “qualified interpreter/transliterator” appointed and paid for “to assist in communication with counsel in all phases of the preparation and presentation of the case.”12  This is not the case for LEP individuals, even though it would seem to be of equally importance to them in, for example, cases that could result in the loss of their freedom or their children. Nevertheless, LEP individuals do not have such a right in Louisiana.13

  • 1La. C.C.P. art. 192.2; La. C.Cr.P. art. 25.1. Previous versions of these articles allowed interpreter costs as court costs to be taxed to the litigants. This is no longer permitted.
  • 2La. Access to Just. Comm’n, Engaging Court Interpreters: An Attorney Reference Card.
  • 3Note that this requirement is under review as it may not be necessary.
  • 4La. Dist. Ct. R. 5.1 app. 5.1B.
  • 5Each court is required to designate a language access coordinator whose identity should be easily ascertained. Brian Wiggins, La. Sup. Ct., Language Access Plan in Louisiana Courts § II(B)(1)(c) (2020).
  • 6Off. Language Access, La. Sup. Ct.,
  • 7Id.
  • 8La. C.C.P. art. 1841. Note that interlocutory appeals are generally disfavored. They are handled pursuant to the discretion of the appellate court.
  • 9Language Access Complaints, La. Sup. Ct.
  • 10La. C.C.P. art. 192.2.
  • 11La. R.S. 46:2364(A). These proceedings “include[e] but are not limited to proceedings of civil and criminal court, grand jury, before a magistrate, juvenile, adoption, mental health commitment, and any proceeding in which a person who is deaf or hard of hearing may be subjected to confinement or criminal sanction . . . .”
  • 12La. R.S. 46:2364(F).
  • 13A witness who cannot speak English will be provided an interpreter before a grand jury. La. C.Cr.P. art. 433(A)(1)(e).

6.2 Interpreter Qualifications and Competence

6.2 Interpreter Qualifications and Competence aetrahan Wed, 06/22/2022 - 11:44

6.2.1 General Principles

6.2.1 General Principles aetrahan Wed, 06/22/2022 - 11:46

The attorney has at least three opportunities to challenge a court interpreter: at the time appointment is requested or needed (but one is not appointed), at the interpreter’s qualification through voir dire or some other process, and during the interpretation itself to the extent that the interpretation is inaccurate or the interpreter’s performance presents other issues serious enough to prejudice the client. Issues of appointment have been greatly minimized in light of the 2008 amendments to La. C.C.P. art. 192.2 and La. C.Cr.P. art. 25.1, both of which mandate the appointment of a court interpreter when requested by an LEP individual. However, issues of appointment should not be conflated with issues of interpreter qualification, or once the interpreter has been qualified, with issues of competence and performance. 

The additional issue of whether an attorney may challenge the qualification of the interpreter after the interpreter has been properly qualified by a court is not addressed here. Nevertheless, by way of short discussion, La. C.E. art. 706 offers the opportunity to challenge the appointment. As this done through a hearing to determine whether an interpreter should be appointed, it is apparently available only before the interpreted begins to interpret for a client or witness. However, it is possible to envision a situation in which an interpreter, previously qualified, turns out to be unqualified given their actual performance. For example, there might be a clear language mismatch between witness and interpreter, or the interpreter might consistently deliver subpar interpretations or make serious ethical lapses. Such a performance would belie the initial qualification. If a mere objection to competence will not remediate the prejudice to the client, disqualification or removal should be an option. At this point, Louisiana courts offer no guidance in this regard. However, it stands to reason that the court will entertain a motion to remove or disqualify an interpreter in appropriate circumstances, when fairness and the LEP individual’s meaningful participation in the proceedings are grossly compromised.1

6.2.2 Qualifications

6.2.2 Qualifications aetrahan Wed, 06/22/2022 - 12:54

Stating the obvious, interpreters must be qualified in order to interpret in a court proceeding. The essence of an interpreter’s qualifications is the competency to render an accurate interpretation. It cannot be emphasized enough that the interpreter is of critical importance to the LEP individual. This is equally true whether the communication is with the court or with the individual’s attorney. Just as the court would not appoint its clerk or stenographer or use a family member to interpret in court, so should attorneys not choose individuals who have no training, skill, or experience as interpreters when communicating with a client. 

For purposes of court appointment, interpreter qualifications are governed by the La. C.E. art. 604, which states that “[a]n interpreter is subject to the provisions of this Code relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.”  Thus, Louisiana, like many other states, classifies interpreters as expert witnesses.  Yet nothing in Louisiana law sets forth any interpreter standards, nor is there any guidance for judges or lawyers to follow when considering the use and evaluation of an interpreter other than La. C.C.P. art. 192.2, which simply requires that the interpreter be competent, and La. C.E. arts. 702 and 706, which must be read in pari materia with La. C.E. art. 604.  

Article 702 of the Louisiana Code of Evidence allows an individual qualified as an expert on account of the individual’s education, knowledge, experience, training, or skill to testify to an opinion on a particular subject. If the expert is qualified, the article further requires that the opinion satisfy a four-element test: (1) the opinion will help the trier of fact to understand the evidence or ascertain facts at issue; (2) there is enough data to support the opinion; (3) the opinion was reached through an established method; and (4) the methodology has been properly applied in reaching the opinion.  

When applied to interpreters, this language is like fitting a square peg in a round hole. This ill fit should be immediately obvious because interpreters, unlike experts, cannot and should not give opinions. That alone should make La. C.E. art. 702 inapplicable. Leaving that fundamental difference between interpreters and experts aside, one must still do a bit of mental gymnastics to make the factors fit. The first two factors could be fulfilled by acknowledging that, yes, an interpreter will help the court understand the facts in English, which facts are those being spoken in the language other than English. The last two factors, reliability of the methodology and their applicability seem to be met as long as the interpreter is qualified and competent as an interpreter. Nevertheless, despite the poor fit between the requirements for expert witnesses and the role of the interpreter, the court’s discretion to qualify the interpreter is tied to La. C.E. art. 702 pursuant to the cross-reference set out in La. C.E. art. 604. A trial court’s refusal to qualify an interpreter-expert is reviewed for manifest error.  

The other evidentiary provision implicated here, La. C.E. art. 706, regulates a court’s appointment of experts (presumably including interpreters). This article allows a court, on its own or upon motion by a party, to enter an order to show cause why an expert should not be appointed.  Article 706 also allows any court-appointed expert to be called to testify and to be deposed. Nevertheless, Article 706 is as inappropriate as Article 702 when applied to interpreters. Because interpreters must be disinterested, they are ethically prohibited from giving an opinion and thus are unlikely to need to testify or be deposed. The only exception would be if the interpreter has been qualified as a language expert, for instance, as a linguist who could give an opinion as to whether a written contractual arrangement was accurately translated or whether previous court interpretations were accurate. In such cases, the interpreter-expert is not serving as a court interpreter. However, an attorney worried about the accurate nature of an interpretation might consider retaining such an expert to be present during the proceedings in order to monitor the competence of the court-appointed interpreter. 

In the end, however, the fact remains that a court interpreter is not an expert in the sense contemplated by La. C.E. arts. 702 and 706. Neither applies, as interpreters should not be deposed, give an opinion, or otherwise testify.

6.2.3 Challenging Interpreter Qualifications

6.2.3 Challenging Interpreter Qualifications aetrahan Wed, 06/22/2022 - 12:04

At times an attorney may deem it appropriate to challenge a court interpreter’s qualifications. The decision should be carefully weighed in light of interpreter standards and ethics, and, even more importantly, the language needs of the LEP client. For example, a court might appoint a Spanish-speaking interpreter for an LEP individual from Guatemala, presuming that that individual speaks Spanish, when in fact the individual speaks the Quechua language, but no Spanish. More nuanced still is where the LEP individual speaks a local dialect or one heavily influenced by colloquialisms. 

In keeping with the Code of Evidence, the challenge should be made by requesting a voir dire of the interpreter at the time the appointment is being considered. However, note that under the La. C.C.P. art. 192.2 and La. C.Cr.P. 25.1, which mandate the appointment of a qualified interpreter upon request by the LEP individual, a legitimate question arises as to whether, for example, interpreters who are listed by the Louisiana Supreme Court as “registered” or “certified” are presumptively qualified by virtue of having been previously vetted by the Court (through training and testing). There are no rules that address this issue, and thus, the attorney is left to consult what is available: La. C.E. arts. 702 and 706.

Possible voir dire to establish an interpreter’s qualifications might include questions about the communication needs of the particular LEP individual involved, knowledge of legal terminology, any conflicts of interest which might exist, ethics, mastery of languages, and/or prior disqualification. The Best Practices Manual on Interpreters in the Minnesota State Court System offers some ideas for voir dire of interpreters.1

6.2.4 Competence

6.2.4 Competence aetrahan Wed, 06/22/2022 - 12:06

Accurate communication and appreciation for what is being said in a courtroom is paramount in creating a fair legal environment. The interpreter can “inadvertently change the tenor of participant’s statements and thereby communicate an attitude that the speaker neither holds nor wishes to convey.”1 These mishaps can change perceptions of the LEP individual’s credibility, “competence, intelligence, and trustworthiness.”2   The interpreter’s ability to change the communication dynamic is not just about what the interpreter says. “Contrary to the judiciary’s assumptions, the interpreter is not a passive conduit, but an active participant and [manager of] the intercultural event of interpreting.”3   An interpreters’ methodology and skill level are significant because they affect the accuracy of the interpretation. This process gives new “ears” to the LEP individual and, in turn, shapes and informs the most fundamental and basic function of the courts—ascertaining facts and making credibility determinations based on those facts. A poor interpretation can be catastrophic for an LEP client if, for example, it creates an appearance of untrustworthiness in a case turning on the credibility of competing witnesses. 

Interpreters must understand both cultures, that is “nuances of culture, region[,] and dialect”4 as well as styles of speaking, which the interpreter should maintain so that the communication is meaningful. Unfortunately, “the bench and bar regularly underestimate the difficulty of facilitating accurate communication between languages and cultures”5 as linguistic accuracy is not necessarily sufficient to convey appropriate meaning. Simply providing linguistic accuracy does not place the non-English speaker on equal footing with the English speaker; an LEP individual may still be at a disadvantage. In fact, scholars working in this area “argue that interpreters ought to perceive their role as communication facilitators, thereby abandoning attempts to provide verbatim renditions in favor of ensuring actual understanding between the speakers.”6

In short, interpretation is not simply a mechanical act; it is contextual, rooted in the social and cultural environment in which the languages are spoken:

Among the contextual factors that the interpreters should consider are the social issues that inevitably affect communication such as ethnicity, race, gender, and power differentials. The significance of these factors cannot be overstated, particularly in the charged atmosphere of the courtroom, because they often directly affect the meaning, if not the actual text, of a message. If the English speakers in the courtroom share one meaning and the non-English speaker perceives another, there is significant potential for prejudice. At the very least, the non-English speaker becomes a non-comprehending party to the interaction. Alternatively, if the interpreter and non-English speaker have a shared meaning that is foreign to the English-speaking participants, the non-English speaker’s testimony can appear nonsensical or absurd to the English-speaking people. 7

In short, failure to take pragmatic meanings into account can hamper communication.

Beyond the linguistic and cultural intricacies of the actual interpretation, interpreters must have enormous memory skills in order to retain the information in the process of interpretation; in fact, “[e]ven when witness testimony is mundane, courtroom interpreting requires exceptional recall and attention to detail.”8  Interpreter fatigue is not uncommon:

The complex skills involved in courtroom interpreting mean that interpreter fatigue should be of significant concern to courts and attorneys. Studies indicate that interpreter error increases dramatically after twenty minutes of interpreting and it is recommended that courts consider appointing teams of interpreters or provide regular breaks to ensure the highest level of accuracy.9

Judges may also feel impatient or believe the interpreter is taking too long; this kind of pressure may in turn affect the accuracy of the interpretation as the interpreter responds to the court’s disquiet. Periodic rest periods should be considered at the very least every 1½ to 2 hours. A similar problem arises when interpreters are not given the opportunity to familiarize themselves with complex legal information, names, and, most importantly, the linguistic needs of the non-English speaker.

Throughout the whole process, interpreters must also understand legal terminology and the concepts associated with it, as well as the rules and procedures of the particular court where the interpretation takes place. It may also be useful, to the extent necessary, for the interpreter to become acquainted with the terminology for judicial officers and other court personnel in the foreign judicial system familiar to the LEP individual and the similarities and differences in the roles played by their American equivalents so as to be able to convey to the LEP individual a clear understanding of those roles.

  • 1Cassandra L. McKeown & Michael G. Miller, Say What? South Dakota’s Unsettling Indifference to Linguistic Minorities in the Courtroom, 54 S.D.L. Rev. 33, 45 (2009).
  • 2Id.
  • 3Id.
  • 4Id. at 41.
  • 5Id. at 42.
  • 6Id.
  • 7 Id. at 43 (internal citations omitted).
  • 8Id. at 48
  • 9Id. at 49.

6.2.5 Benchmarks of Interpreter Competency-

6.2.5 Benchmarks of Interpreter Competency- aetrahan Wed, 06/22/2022 - 12:11

A fairly straightforward way to determine whether an interpreter is substantially competent is to apply the benchmarks of interpreter competency. The following indicators of professional competence should give the attorney a way to assess whether an objection is in order to protect the integrity of an LEP individual’s testimony, keeping in mind that no one is perfect and that interpretation is difficult, even under the best circumstances.1 Competent interpreters should:

  • Understand and know when to employ accepted modes of court interpretation (i.e., simultaneous, and consecutive interpretation and sight translation) as well as legal terminology. 
  • Accurately interpret without embellishment or omission, preserving language level and register.2 This includes providing simultaneous interpretation “of all open-court speeches, questions, answers, instructions, directions, and court rulings.” Interpretation of “a possible vulgar meaning” or of “[c]olloquial, slang, obscene or crude language, as well as sophisticated and erudite language” must be conveyed “in accordance with the usage of the speaker;” an interpreter “is not to tone down, improve or edit any words or statements.” Similarly, an interpreter must “not simplify or explain statements for a LEP or Deaf or Hard of Hearing person even when the interpreter believes that the person for whom she is interpreting is unable to understand the speaker’s language level. If necessary, the LEP or Deaf or Hard of Hearing person may request an explanation or simplification from the Court and/or judge.”3
  • Make use of appropriate legal and bilingual dictionaries as needed. However, if the interpreter shows signs of not being able to accurately interpret, the interpreter is under an obligation to tell the court. Moreover, if there is no such disclosure, but the attorney determines that the interpretation is not accurate, the attorney should raise the issue immediately.
  • Keep all information in confidence. This includes disclosures made by the LEP individual to another person through the court interpreter and any other information deemed confidential by the court. 
  • Maintain an impartial attitude. This means not having unneeded contact with counsel, witnesses, or interested parties. This rule applies in and out of court. And, needless to say, an interpreter must not give legal advice of any kind. 
  • Speak in an intelligible and firm voice. Interpreters should position themselves near the LEP individual or Hard of Hearing person in order to maintain appropriate contact that will facilitate the interpretation; they should not obstruct the view of counsel, the judge, or the jury. 
  • 1These competency benchmarks are based on accepted interpreter responsibilities as set forth by the State of New York. They are illustrative here because they reflect commonly accepted practices. See N.Y. State Unified Ct. Sys., Interpreter Manual and Code of Ethics 7–10 (2018).
  • 2“In linguistics, the register is defined as the way a speaker uses language differently in different circumstances. Think about the words you choose, your tone of voice, even your body language.” Richard Norquist, What Is Register in Linguistics? ThoughtCo (July 25, 2019)
  • 3N.Y. State Unified Ct. Sys., supra, at 7.

6.2.6 Challenging Interpreter Competence

6.2.6 Challenging Interpreter Competence cmluwisc Fri, 09/01/2023 - 15:04

The issue of the competence of the court interpreter normally relates to their actual performance during trial/hearings. The interpreter must be able to perform in a way that meets accepted benchmarks, that is, engage in best practices that ensure that the interpreter will be able to convey accurately what the LEP individual wishes to communicate in a court of law. 

Accuracy and all that it implies—fluency, cultural competence, register, etc.—is one of the most critical functions of the court interpreter. Inaccurate interpretations are prejudicial. They deny the LEP individual the very “voice” the interpreter is trusted to convey. The benchmarks set forth in the previous section represent standards against which an attorney may judge performance and object as necessary to prevent prejudice.

Certain deviations from these benchmarks such as mumbling instead of speaking clearly, offering personal opinions about the case or the party, or failing to interpret in consecutive mode are easily ascertainable. However, those related to the accuracy of the interpretation may not be unless the attorney is fully bilingual in the language spoken by the LEP individual. It is strongly suggested that an attorney concerned about the accuracy of the interpretation retain an additional qualified interpreter to monitor the court interpreter’s performance. If this proves to be impossible, an alternative might be to ask the court to allow an audio recording of those portions of the proceeding that involve the court interpreter and make the recordings part of the record. It is unclear whether a court would allow this, but, if there is a possibility of prejudice, it may be prudent to make the request and thereby create a record that will allow for appropriate appellate review.1

  • 1Appellate review of the interpreter issue would be available either way – if the audio recording is available, then an expert linguist can opine as to the accuracy of the interpretation if that is the error; if the audio is not allowed, the issue might be whether the recording should have been allowed under the particular circumstances of the request.

7 Working with Interpreters

7 Working with Interpreters aetrahan Wed, 06/22/2022 - 12:55

7.1 Attorney-Client Communications

7.1 Attorney-Client Communications aetrahan Wed, 06/22/2022 - 12:55

Prior to discussing tips on interacting effectively with interpreters, it is important to note that the need to appoint an interpreter at court proceedings underscores the fact that an LEP client’s inability to communicate in English is also an issue in the attorney-client relationship. Not much has been published on this point or discussed in ethics presentations, but it is clear that our clients’ English proficiency affects our ethical obligation to offer competent representation and clearly communicate with them regarding their cases.1

Clear communication is the bedrock of competent representation. Thus, the move toward improving the quality of communication available to LEP individuals in court proceedings raises the issue of attorneys’ ethical obligations to their own clients to provide understandable communication through competent and accurate interpretation during the representation. Although Louisiana does not offer any guidance in this regard, the American Bar Association recently weighed in on this issue when it published a formal opinion on Language Access in the Client-Lawyer Relationship.2 The opinion emphasizes what should be obvious to all competent attorneys: “[i]f a lawyer does not communicate with a client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation necessary to provide the client with competent representation.”3  

Given these considerations, a lawyer should always strive to use a qualified interpreter; if a trained and qualified interpreter is not available, an attorney may request that the client provide the interpreter. Realistically, it is unlikely that an LEP client will have the resources to find and retain a professionally trained interpreter. Nevertheless, attorneys should never use a family member or a child to interpret. Doing so would violate confidentiality and pose a clear conflict of interest. Using family members, especially children, is also inadvisable and even dangerous due to the trauma that hearing and interpreting a client’s full story may cause.

In some cases, it may be possible for counsel to use office staff who are bilingual, but such staff should be trained as interpreters.4 Being bilingual does not qualify a person as an interpreter; interpretation is a profession that requires training and skill. For attorneys without access to a qualified interpreter, another tool is a language line. Although these services do not guarantee full meaningful communication, they are better than using unqualified interpreters. A quick internet search will identify many available services; there are several that are Louisiana-based. Last but not least, if the interview is to be held in a detention facility, it is advisable to check all institutional requirements prior to the meeting.

7.2 Common Misconceptions

7.2 Common Misconceptions aetrahan Wed, 06/22/2022 - 13:00

Admittedly, there is a bit of getting used to in working through an interpreter. However, some attorneys have misconceptions regarding the role and involvement of interpreters in the cases in which they interpret; these often prevent attorneys and LEP clients from using interpreters’ services to the fullest extent possible. More particularly, and anecdotally, attorneys, and sometimes LEP clients, worry about sharing documents with interpreters or otherwise involving them appropriately in conversations with LEP clients prior to events such as depositions and trial. 

Generally, this worry arises from fear of breaching confidentiality and, sometimes, from failure to understand the impartial nature of interpretation. This is particularly so when it comes to allowing interpreters to speak with LEP clients; for some attorneys, it may trigger concerns about interpreter bias or creating a conflict of interest. However, distrust of qualified interpreters for these reasons is not justified in light of their training and requirement that they comply with a code of ethics that addresses these issues.

7.3 Best Practices

7.3 Best Practices aetrahan Wed, 06/22/2022 - 13:01

The elements of interpreter competency become a set of best practices for attorneys who must, or should, communicate with LEP clients through an interpreter. Thus, attorneys should keep in mind the following when dealing with their own interpreters: 

  • Request to see the interpreter’s qualifications and credentials. Inquire as to whether they are familiar with the LEP client’s national, regional, and/or local language or dialect. In this regard, do allow the interpreter to speak with the LEP individual for a few minutes about something other than the case to give the interpreter a chance to get accustomed to any unusual features of accent, dialogue, or register. There can be wide variations in how a word is rendered within the same language. For example, depending of the variety of Spanish spoken by an LEP individual, the word “bus” may need to be translated as “guagua,” “autobus,” or “bondi,” among others.
  • Set initial expectations about how the attorney and the interpreter will interact and, if there are any concerns, review them upfront. Likewise, the interpreter should explain to the LEP individual how interpretation works and what the interpreter expects of that individual during the interpretation.
  • Do allow the interpreter to view court files prior to the proceedings and to become familiar with names, parties, and technical vocabulary. Remember that Canon 5 of the Code of Professional Responsibility for Language Interpreters requires them to protect confidential information.
  • Do not use the interpreter to explain anything. A good interpreter will decline such a request. Interpreters only act as conduits of communication between two parties, and therefore will interpret no other information beyond what is conveyed by the party speaking.
  • Do not allow the interpreter to offer personal opinions or become involved in the conversation; this also means that the interpreter should not be asked to give an opinion. The interpreter is there only to interpret, and the attorney should be able to recognize when interpreter communication becomes opinion. 
  • It is up to the attorney to start and end the interpreter’s intervention. Beware of allowing independent interpreter conversations without the attorney present.
  • When engaging an interpreter for client meetings and other case-related matters, keep communications with the interpreter restricted to the mechanics or skills required during interpretation; that is, do not discuss issues related to substantive aspects of the case with the interpreter.
  • Legal interpretation uses the consecutive mode of interpretation. That means that the attorney will experience pauses while the interpreter repeats each statement in the respective language. Do not rush the interpreter; wait until the interpreter fully finishes the exchange with the LEP individual before proceeding with the next communication.
  • Remember to always speak directly to the person requiring interpreting services, as you would in a normal conversation; this is essential to avoid confusion. For example, look at the client and say “Please tell me your date of birth,” rather than addressing the interpreter with the question, “Ask them what their date of birth is.”1
  • Parallel to the attorney or judge’s use of the first person to address the LEP individual, expect the interpreter to render that individual’s response in the first person as well. 
  • Avoid using idioms, slang, and legal jargon. These can be very difficult to interpret.
  • Speak clearly, at a reasonable pace, one question at a time, and loudly enough for the interpreter to hear. Be aware of extraneous noise. It can interfere with the interpreter’s ability to hear and capture the words as intended.
  • Expect meetings and court proceedings involving interpreters to take additional time. Plan accordingly.
  • Understand that the interpreter is a neutral party. Thus, make sure that the interpreter is not adding, omitting, or summarizing anything. Do not allow the LEP individual to ask the interpreter any questions that otherwise should be answered by the attorney; always instruct the interpreter to relay those questions to the attorney. 
  • Do allow the interpreter to access dictionaries or other linguistic reference materials as needed (in hard copy or on an electronic device). Use of such resources does not mean that the interpreter lacks competence; in fact, it is one of the hallmarks of competence. Be respectful of an interpreter’s need to clarify a word or a phrase by consulting reference material.
  • Make the interpreter feel comfortable, in particular during sessions that deal with difficult, stressful, or emotionally charged communications.
  • Consider the possibility that you may need multiple interpreters in a single court appearance: one for the court, one for you and your client. Additionally, if the court proceeding will take several hours, be aware of the need to employ more than one interpreter in order to allow each interpreter to rest, normally every two hours.
  • Do consider the need to employ an interpreter for client communications during the course of representation of the LEP client, even if you are fully bilingual or use bilingual office personnel who are not otherwise trained as professional interpreters. 
  • 1For a video demonstrating correct and incorrect ways to communicate with a client through an interpreter, see LegalServicesNJ, Working with Interpreters, YouTube (Aug. 2, 2010).

7.4 Preparing the Client for Testimony

7.4 Preparing the Client for Testimony aetrahan Wed, 06/22/2022 - 13:03

You should set aside time to prepare your LEP client on how to work effectively with an interpreter. This step is not optional. Communication through an interpreter is not always intuitive. The following advice to the LEP client should help facilitate clear communication at the office conference and, more importantly, when giving testimony at depositions, trial, or any other proceeding:

  • Speak slowly and clearly.
  • Use short sentences.
  • Try not to use slang (not to be confused with colloquial language).
  • Do not speak when another person is speaking. Be patient.
  • Stick to the native language even if the client speaks a little English.
  • Immediately indicate if the interpreter’s question or use of certain words is not understood and wait for the court to resolve the matter before answering.
  • Be aware that anything said through the court interpreter will be interpreted word for word and that the interpreter is required to tell the court everything said. 
  • Understand that the interpreter is not allowed to explain the client’s answers.
  • Do not ask the interpreter how to answer a question.
  • Do not reveal any confidential information to the interpreter unless you are answering a direct question during the process of interpretation and your lawyer is present. 

7.5 Remote interpreting

7.5 Remote interpreting aetrahan Wed, 06/22/2022 - 13:06

Remote interpretation normally occurs by telephone or video conferencing. The former has been used for quite a while, especially in the federal court system, often in instances where the speaker’s language cannot be identified; it is a good starter, but not good enough to conduct an entire hearing. The latter has become more commonplace, especially following the emergence of COVID-19. To the extent that Louisiana courts may use a video conferencing system, the attorney should consult with the particular court about interpreter needs. Because Louisiana does not have a unified court system, courts’ capabilities in this regard will differ. It is recommended that you contact the particular court’s language access coordinator. If unable to get the necessary information, you may consider contacting the Louisiana Office of Language Access for further guidance.1 The National Center for State Courts also provides general information on remote interpretation.2

For purposes of individual attorney communication with LEP and Deaf and Hard of Hearing persons, several products exist in the marketplace that may be employed for this purpose. Some video conferencing services provide interpreting modules as part of the video conferencing platform, while others interact with those platforms.3

7.6 Standard Expectations of Interpreters

7.6 Standard Expectations of Interpreters aetrahan Wed, 06/22/2022 - 13:08

Although this chapter has discussed interpreter qualifications and competencies from the point of view of courts, LEP parties, and attorneys, interpreters must also be aware of what is expected of them: 

  • Understand the matters handled by the particular court and any special vocabulary that may be used in those proceedings. 
  • Be acquainted with the case materials as much as possible. This is particularly important if there is complex terminology; advance notice will allow the interpreter to resolve those linguistic issues that can be anticipated.
  • Be aware of the native-language level of proficiency and culture of the LEP individual or Deaf or Hard of Hearing person. 
  • Be able to explain to the LEP individual or Deaf or Hard of Hearing person how the interpretation will take place (i.e., most likely consecutively) and the fact that everything said will be interpreted. 
  • Advise the LEP individual or Deaf or Hard of Hearing person to direct all communication to the court or the attorneys, as appropriate, and that the interpreter cannot engage in independent conversation of any kind. 
  • Remain in interpreter mode, which means using the first-person singular to avoid confusion and always use the third-person singular when speaking on the interpreter’s own behalf. For example, “Your honor, the interpreter cannot hear, needs clarification, cannot understand the concept conveyed, is aware that the word or term does not have an equivalent translation, etc.”
  • Immediately inform the court if the interpreter realizes there is an interpretation error, even after the proceedings have ended.

8 Language Inclusivity and Vulnerable Populations

8 Language Inclusivity and Vulnerable Populations aetrahan Wed, 06/22/2022 - 13:15

Attorneys are reminded of the legal profession’s efforts to address language barriers for communities affected by natural disasters, which, as we know, often involve legal issues. The COVID-19 pandemic, in particular, has sharpened our awareness of the need to overcome those barriers.1

9 Conclusion

9 Conclusion aetrahan Wed, 06/22/2022 - 13:17

Why does all of this information matter? Whether an interpreter should be appointed at all to assist an LEP individual is now less problematic in light of the changes to the Codes of Civil and Criminal Procedure and guidance from the Louisiana Supreme Court. However, interpreters’ qualifications and their competence, and adherence to ethical norms, may require the vigilance and intervention of attorneys representing LEP clients. 

It is an attorney’s duty to be informed as to the interpreter’s qualifications and aware enough to assess the interpreter’s competence and ethical compliance once the interpretation gets underway. The information set forth here is intended to provide benchmarks to guide attorneys in framing any necessary challenges to an interpreter’s qualifications, performance in the context of competence standards, and other actions implicated by the Code of Professional Responsibility for Language Interpreters. The critical advice here is that an attorney must make any challenges in a timely manner.