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).