1 Introduction

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).

Disclaimer: The articles in the Gillis Long Desk Manual do not contain any legal advice.