A world of words comes to court: representing linguistic minorities calls for special effort to build trust, work with interpreters, and ensure that your clients understand the legal process.

In 1990, the U.S. Census Bureau reported that approximately 32 million people spoke a language other than English in their homes. An additional 14 million were reported with limited proficiency in English. That equates to roughly 45 million "linguistic minorities" in this country. Since the 1990 census, the population has grown by more than 30 million, and the number of linguistic minorities has grown in kind. (1)

The term "linguistic minority" refers to people who have limited or no proficiency in the dominant language. In the United States, this includes

   persons who, because ... their mother tongue is a language other than
   English, do not speak or comprehend what others say in English, to the
   extent that they cannot use English effectively ... for sending and
   receiving information, thereby partially or completely excluding them from
   full participation in legal proceedings or court support services, ... or
   substantially prejudicing their rights. (2)

Thus it's no surprise that many clients fall into the category of linguistic minorities. It is vital that you develop a system to ensure that you can provide these clients with capable legal representation--allowing open attorney-client communication and helping clients understand legal proceedings. If you do not, you may find that you either limit your practice to a shrinking portion of the population, or put yourself in the precarious position of trying to represent clients with whom you cannot communicate effectively.

Using interpreters

Non-English-speaking clients present various challenges from the outset of litigation. Language obstacles can increase clients' general fear of the legal system. Distrust of the courts can be ingrained in people born in other countries, especially if their homeland did not afford them the rights and protections of this country. It is your job to allay your clients' fears.

You can ease their anxiety and build trust with open communication and full disclosure. Moreover, unless you are well versed in the relevant language, you will need to use interpreters to communicate effectively during client interviews, counseling sessions, trial, and all aspects of legal representation. Interpreters allow linguistic minorities to participate meaningfully in the judicial proceeding.

When possible, enlist the aid of someone in your office, preferably a legal assistant who is fluent in the language. By doing so, you assure your clients that they have an open means of dialogue with you and others in your office. Also, familiarity breeds trust. A client's comfort level will grow if he or she speaks routinely with members of your office.

Not every law office will be able to provide an interpreter. If this is the case, there are alternatives such as professional interpreters or your clients' relatives. Relatives offer a natural sense of comfort and trust, but family members cannot be used to translate in all settings; nor can legal assistants. At some point during litigation, you may need professional interpreters. (3) Professional interpreters can safeguard parties' or witnesses' rights and provide the impartiality that is vital in more formal legal proceedings.

Many practitioners may worry that conversations including a third-party interpreter are not protected by the attorney-client privilege. That privilege does apply to these conversations generally, and in most instances an interpreter cannot testify about them. (4) The law in this area is limited, however, and varies from jurisdiction to jurisdiction. Always check your jurisdiction's rules to ensure that interpreted communications will be considered privileged.

Interviewing clients

With linguistic-minority clients, plan on spending roughly twice as long on an initial interview as you would otherwise, because of the need for translation.

Use an interpreter for the initial client interview. Explain that the interpreter's role is primarily to serve as a "conduit of information" between the two of you. (5) Explain that the fact that you cannot speak the client's language will not adversely affect the case, and that if he or she has questions or concerns, you can have someone available at a moment's notice to translate.

Next, explain that the interpreter's role will change to suit the setting. In some instances, such as client meetings, the interpretation will be informal. In other settings, such as depositions and trial, the interpreter will be considered an officer of the court and will provide only direct word-for-word translation. In those settings, the interpreter cannot answer questions for the client or attempt on his or her own to clarify the meaning of an answer or question.

After you have established some measure of trust, you must remain vigilant in observing your clients' reactions to the information that is being translated. With linguistic minorities, information gathering can be time consuming and imprecise. Often, clients' answers will seem vague or unrelated to your questions. Typically this is because many words, particularly legal terms, have no direct translation from one language to another. In addition, cultural variations and unique sayings may prove difficult for both the client and attorney to comprehend. By rephrasing questions, you can clarify their answers and possibly reveal new facts or patterns to further a case.

To properly evaluate your clients' veracity, you must read their nonverbal communications. Simple gestures, such as pausing before an answer, can indicate that they have little or no personal knowledge in relation to your question or simply don't understand your question. Reading body language, though, is a limited tool. For example, you might interpret a client's refusing to make eye contact as a sign of lying, when in reality he or she may merely be ashamed to be the victim of an injury. When confronted with this type of physical reaction, inquire further to discover the meaning behind the body language.

If during the course of a meeting you ask a client to sign any papers, you should make every attempt to provide the person with a version in his or her own language. At the very least, you should always provide clients with copies of all documents they sign. This will increase their trust in you.

Preparing for deposition

Preparation is important in every deposition, and more so for those of non-English-speaking clients and witnesses. As you do in initial interviews, make sure that your clients and witnesses understand the role of an interpreter, and tell them what will occur at the deposition.

Remind them that during a deposition, the interpreter is an officer of the court and cannot help them with their testimony. The interpreter will communicate exactly what your client or witness is asked and what he or she says. Advise clients and witnesses not to fill in gaps where they don't have personal knowledge. Insist that they answer only the questions that they understand.

The presence of interpreters at depositions inevitably creates some problems. Translations can be misleading--because of cultural or linguistic differences--and can substantially lengthen depositions. Stipulations or agreements can help. For instance, you can use stipulations to establish the procedure that the parties will use to settle disputes. One easy solution is to place disagreements about interpretations and translations off the record and set time limits for reviewing errors. This will not only save time and money, but it will also ease the burden on the stenographer.

He or she will also have to make some adjustments. Before a deposition, explain to the stenographer how the proceeding will accommodate the non-English-speaking witness and the interpreter: The interpreter should provide an exact translation of the witness's words, not his or her interpretation of what the witness is trying to say. The words of the translator are the words of the witness. Therefore, the interpreter should be instructed to refer to himself or herself as "the interpreter" so that the transcript will distinguish between the interpreter and the witness on objections and interruptions.

Finally, remind the stenographer to alert the participants to problems as they occur. You should videotape or audiotape the deposition to preserve the actual words spoken so the testimony can be examined later for interpretation errors.

Going to trial

How will your linguistic-minority clients handle trial? Their fears of the legal setting will be exacerbated at the sight of the bailiff, judge, and jury. Furthermore, trials, unlike depositions, are held in a courtroom rather than in a private room. To alleviate some of your clients' anxiety, you should show them the courtroom before trial. Explain where the judge, jury, court personnel, and parties will sit.

Next, discuss the judge's role at trial. The judge's presence can often intimidate many newcomers. Instruct clients and witnesses to dress appropriately and be respectful in the courtroom. Remind them that beneath that robe, a judge is just a person. Although you will make the trial presentation, your clients' demeanor and attitude will reflect on you.

Finally, explain the trial process from the opening statement to the jury verdict. Your faith in the legal process may boost your clients' confidence.

Linguistic minorities on the witness stand. Using an interpreter at trial complicates witness examinations. Be sure to remind your client that the interpreter is not there to help with testimony. The interpreter in the trial setting is there for the benefit of the court. The interpreter's role is to translate the spoken word for the record while the client or witness is on the witness stand. If you are concerned that your client will not be able to follow the proceedings without a translator, ask the court to allow an interpreter to sit at counsel's table to translate the proceeding.

At times, eliciting testimony through a translator can be burdensome. Combat this by keeping questions short and simple when possible. You and your client should enunciate your words and speak with adequate volume. In addition, avoid extraneous comments between you and your clients, because the interpreter must translate everything said in open court. Perhaps more important, instruct your client not to interrupt the interpreter before he or she is finished, as this will only lead to confusion, misunderstanding, and possibly misinterpretation.

Moreover, your clients may have some limited knowledge of English. Sometimes these clients will answer some questions in English or begin to answer before the translation is complete. For the sake of accuracy, consistency, and credibility, instruct them to wait until the full interpretation is complete and to speak in only one language. If they cannot testify without an interpreter, make certain to use one at both deposition and trial.

Get to know several reliable interpreters. Find out how they enunciate, express emphasis, and speak before you use them in trial, because juries tend to attribute the appearance and demeanor of the interpreter to the witness. Look for an interpreter who is poised, professional, and personable--one who has good tone variation in his or her voice so the testimony does not become monotonous.

Applicable rules and interpreters' code of conduct. Clients do not have a constitutional right to a court-appointed interpreter to supplement counsel. (6) Generally, when dealing with witnesses with limited English proficiency, the judge has the discretion to appoint a qualified interpreter to assist a party, witness, or other participant in a judicial proceeding. This happens if the court determines that the party's primary language is not English and that this inhibits his or her comprehension of the proceedings or communication with counsel. (7)

Judges must decide whether to appoint an interpreter on a case-by-case basis. Federal Rule of Civil Procedure 43(f) guides federal courts in the appointment and the costs of interpreters. (8) However, this rule is applicable only in civil trials governed by the Federal Court Interpreter's Act. (9)

In most state courts, the trial judge decides whether an interpreter is necessary, (10) a decision that appellate courts review using an abuse-of-discretion standard. (11) The client will probably bear the costs, which usually are not reimbursable. However, some states provide for an interpreter in civil trials. (12)

You should inform the judge before trial that your client does not speak fluent English and may need an interpreter. Most judges understand the accommodations that should be made and are familiar with the relevant procedures and rules of court. If not, you as counsel should educate the judge and, with the court's permission, make the necessary arrangements to have an interpreter present at the trial. Note that you will need agreement from opposing counsel as to the interpreter you select.

The judge may have personal preferences for dealing with parties and witnesses who do not speak English. For example, most judges want a stipulation on how objections to translations will be made so as to avoid creating a "trial within a trial." Therefore, you should contact opposing counsel and agree on procedures for settling translation disputes. At the very least, an attempt to stipulate will demonstrate a good-faith effort to accommodate the judge's concerns.

Currently, no national law guides court interpreters' conduct. However, most jurisdictions have adopted their own standards. For example, the Code of Professional Responsibility of the Official Interpreters of the United States Courts, published by the Administrative Office of the U.S. Courts, governs interpreters in the federal courts. The National Center for State Courts has a model code for interpreters that states can follow to devise their own standards. In addition, professional organizations of court interpreters have codes of ethics to guide their members.

Objecting at trial

Having an interpreter at trial requires the court to accommodate a new objection process. Before trial, suggest your preferred procedures for handling objections. As mentioned earlier, attempt to get together with opposing counsel to stipulate to a procedure. The judge will probably decide before the trial begins what procedures will be used.

Objections to interpreters. An interpreter's presence creates a host of atypical objections. For instance, objections to the interpreter can be made even before he or she says a single word. Federal Rule of Evidence 604 treats the interpreter as an expert witness who must meet the qualifications of Rule 702 to testify. This means that by "reason of knowledge, skill, experience, training, or education, the interpreter is capable of providing a true translation" of the testimony. (13)

Courts requiring that the interpreter be qualified as an expert witness resolve parties' objections to interpretations by placing the interpreter on the stand. In rarer circumstances, the court may require certification of the interpreter's training or skill level by an administrative body, such as the State Court Interpreter Consortium.

When the court appoints an interpreter and fails to administer an oath or affirmation, a contemporaneous objection must be made. Failure to object at that time may waive the issue for appeal. (14)

Objections to interpretations of testimony. When an objection is made, the interpreter should use hand signals to stop the witness from testifying further until the judge has ruled on the objection. (15) Instruct the interpreter to translate objections and their discussion so the client or witness understands what is happening.

When objecting or countering an objection to translated testimony, have the court reporter, not the interpreter, read back the testimony. Failing to do so will allow mis-interpretations to stand or the interpreter's bias to enter the objection process. [See the box on page 24 for common problems with interpreted testimony.]

Objections to translations. Objections to translated documents are often the subject of motions in limine. To avoid such challenges, both sides can stipulate to the authenticity of the source document and the translation. If opposing parties disagree regarding the translation, the meaning of the document becomes an issue of fact. In that case, the jury must watch a "battle of the expert translators" and decide which one is more credible.

Excluding potential jurors

In some cases, a potential juror's English-speaking ability becomes an issue, and one party may seek to have him or her excluded from the panel. A body of case law has emerged to deal with this question.

The leading case on striking jurors who do not speak English or who are bilingual is Hernandez v. New York. (16) The U.S. Supreme Court's review of this attempted-murder conviction revolved around the jury selection process. Before trial, the prosecutor used four peremptory challenges to strike Latino jurors. Hernandez's counsel alleged that two of these violated the Equal Protection Clause because the jurors were struck based on their ethnicity.

Without waiting for a ruling on whether the defendant had established a prima facie case of discrimination under the Supreme Court's decision in Batson v. Kentucky, (17) the prosecutor stated that he struck the two potential jurors because he doubted their ability to listen and follow the interpreter. Specifically, he had seen them looking away from him and hesitating before answering his question on whether they would accept the translator as the final arbiter of the witness's responses. The prosecutor also said that he had no motive to exclude Latino jurors because all interested parties and witnesses in the lawsuit were Latinos. (18) The Supreme Court held that prosecutors may strike potential jurors based on their ability to speak a language other than English. (19)

To use Hernandez to exclude potential jurors, you must understand the three-part test that the Supreme Court set forth in Batson to bar the exclusion of jurors based on race. (20) The decision has been applied to prevent the exclusion of jurors on other bases, such as gender, (21) ethnic and national heritage, (22) and religion. (23) After a contemporaneous objection, this test is used to determine whether a peremptory challenge violates the Equal Protection Clause:

1. The objecting party must show that the challenging party exercised peremptory challenges based on race.

2. The challenging party must then articulate a race-neutral explanation for striking the jurors in question.

3. The trial court must decide whether the objecting party has proven purposeful discrimination. (24)

Due to the fast growth of linguistic minorities in the United States, numerous issues are not yet resolved. For example, at mediation, is it mandatory (or even desirable) to have an interpreter? What portions of the mediation should be interpreted? Can a civil defendant require that an interpreter translate everything his or her counsel says at mediation? Who must bear that cost?

Many of these questions will not be answered until courts or legislatures address them specifically.

In this age, you cannot maintain a successful practice without having a system in place for working with non-English-speaking clients. With a little effort, you can represent linguistic minorities successfully--strengthening your practice and expanding your experiences.

Notes

(1.) U.S. Census Bureau, Quick Tables. DP-2, Social Characteristics: 1990, at http://factfinder. census.gov (last visited Mar. 28, 2002).

(2.) Charles M. Grabau & Llewellyn Joseph Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation. 30 NEW ENG. L. REV. 227, 234 n.9 (1996) (citing the ADMIN. OFFICE OF THE COURTS OF N.J., STANDARDS FOR COURT INTERPRETING, LEGAL TRANSLATING, AND BILINGUAL SERVICES [section]2:1(H) (working draft Aug. 8. 1995)).

(3.) Id. at 241.

(4.) See Michael G. Walsh, Annotation, Applicability of Attorney-Client Privilege to Communications Made in Presence of or Solely to or by Third Person, 14 A.L.R. 4th 594, [section]22 (1984) (citing State v. Acquino-Cervantes, 945 P.2d 767 (Wash. Ct. App. 1997); see also People v. Osorio, 549 N.E.2d 1183, 1186 (N.Y. 1989); United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999); United States v. Mass. Inst. of Tech., 129 F.3d 681,684 (1st Cir. 1997). See generally United States v. Bay State Ambulance & Hosp. Rental Serv., Inc., 874 F.2d 20, 28 (1st Cir. 1989).

(5.) Helen E. Reagan, Considerations in Litigating a Civil Case with Non-English-Speaking Clients, 65 AM. JUR. TRIALS 1 [section]6 (1997).

(6.) Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965); see also Jara v. Mun. Ct., 578 P.2d 94 (Cal. 1978), cert. denied, 439 U.S. 1067 (1979).

(7.) United States v. Johnson, 248 F.3d 655, 661 (7th Cir. 2001).

(8.) The rule provides that "the court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court."

(9.) 28 U.S.C. [section]1827 (1994).

(10.) See, e.g., Watson v. State, 190 So. 2d 161,167 (Fla. 1966), cert. denied, 389 U.S. 960 (1967).

(11.) See, e.g., Hardin v. United States, 324 F.2d 553, 554-55 (5th Cir. 1963).

(12.) Grabau & Gibbons, supra note 2, at 263, n.147 (citing OR. REV. STAT. [section]45.275(1)(a)-(c) (1993)).

(13.) MICHAEL H. GRAHAM, HANDBOOK ON FEDERAL EVIDENCE [section]604.1 (5th ed. 2001).

(14.) Id. at [section]604.1 & n.8 (citing United States v. Perez, 651 F.2d 268 (5th Cir. 1981)).

(15.) Reagan, supra note 5, at [section]31.

(16.) 500 U.S. 352 (1991).

(17.) 476 U.S. 79 (1986).

(18.) Hernandez, 500 U.S. 352,352-56.

(19.) Id. at 372.

(20.) Batson, 476 U.S. 79, 97-98.

(21.) J.E.B. v. Alabama, 500 U.S. 352 (1991).

(22.) See Hernandez, 500 U.S. 352.

(23.) See United States v. Somerstein, 959 F. Supp. 592, 595 (E.D.N.Y. 1997) (citing Davis v. Minnesota, 511 U.S. 115 (1994) (Thomas, J., dissenting) (objection to denial of certiorari).

(24.) Batson, 476 U.S., 79, 96.

RELATED ARTICLE: Check out translation help online.

Foreign-language translations are among the growing number of services available on the Internet. Web sites offering translations can be useful if you choose them carefully.

These services grew out of large global companies' need to translate their Web pages and content. As of 1999, this industry generated more than $30 billion per year. (Robin Lloyd, Translation Services Key to Global Internet (Oct. 15, 1999) at www.CNN.com/tech/ computing/9910/15/translation (last visited Apr. 4, 2002).)

Many of these companies expanded to offer a range of foreign language services, including document and personal-file translation. Companies such as Systran (www.systransoft.com) provide professional translation services via e-mail. For a document with 2,000 Words or less, translations can be returned to the client within three days. The minimum fee for each translated document is $50.

The only thing an attorney can do to ensure the quality of the translation service is to research the reputation of the company. Alternatives include

local colleges and language schools, which may have personnel who will agree to provide translation for a fee.

Though online translation services may seem an economical option, they do not always address the legal aspects of your documents. Legal documents often involve complex language, strange punctuation, and legal citations. Translators are not legal professionals and can easily miss these idiosyncrasies. One way to avoid this problem is to employ a bilingual person in your firm. However, if this is not feasible, you will have to turn to outside translation sources.

A good place to start your search is the American Translators Association (ATA) Web site, www.atanet.org. This site provides links to state chapters of the ATA and a directory of more than 2,200 translators classified by their language proficiency and specialty. Law is one of these specialties. Subspecialties include personal injury, contracts, and tax law. A cursory search of translators specializing in legal translations returned over 450 hits.

In addition to online services, AT&T's language line is a useful tool, offering interpretation services over the telephone in almost 150 languages. AT&T claims that it has 2,000 interpreters trained in legal terminology. Their services are available 24 hours a day, 7 days a week. To hear demonstrations, call [phone].

--John Elliott Leighton

RELATED ARTICLE: Word problems.

Interpreted testimony often prompts objections. Here are some common problems that may cause a party to challenge an interpretation (1):

* The interpreter is fluent in a foreign language but not in the different dialects within that language. (2)

* The interpretation is "colored"--or its tone is changed--by the interpreter. For example, an interpreter may be excessively polite or formal, use the active voice instead of the speaker's passive voice, or interrupt the attorney or witness. Sometimes an interpreter may "hedge"--meaning that he or she uses a word or phrase that leaves the listener unsure of how seriously to take the statement. (3)

* The interpreter's personal bias permeates questions and answers. For example, he or she may change, embellish, or downplay the witness's answers.

* Idiomatic phrases often don't translate between languages.

* Gender-neutral pronouns in English may not exist in other languages. (4)

* Incorrect or inaccurate interpretations may yield too much or too little information.

* The witness gives nonresponsive answers, so the judge must assert control over the witness, decide if parts of the testimony are inadmissible, and instruct the jury accordingly.

* Misunderstandings between an attorney and a witness generate inconsistent and unreliable answers.

* Words or phrases are ambiguous. When the definition of a word is not understood by the witness or translator, then the witness, opposing attorneys, and judge will all struggle to find the proper use of the word.

There is no sure-fire method for avoiding these problems--some things just cannot be translated. The best approach is to prepare your client or witness for his or her testimony. During the course of preparation you can typically discover the words or phrases that your client may have difficulty comprehending and work to help him or her understand what you are asking or what will be asked at trial. At the same time, you can clear up any confusion regarding your client's answers.

--John Elliott Leighton

Notes

(1.) Many of the examples in this section are culled from Helen E. Reagan, Considerations in Litigating a Civil Case with Non-English-Speaking Client's, 65 AM. JUR. TRIALS 1 [subsection]34-45 (1997]).

(2.) Beth Gottesman Lindie, Inadequate Interpreting Services in Courts and the Rules of Admissibility of Testimony on Extrajudicial Interpretations, 48 U, MIAMI. L. REV. 399, 415-16 (1993).

(3.) Charles M. Grabau & Llewellyn Joseph Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation, 30 NEW ENG. L. REV, 227, 311-317 (1996).

(4.) Lindie, supra note 2.

The views expressed in this column are the authors and do not constitute an endorsement of any product by TRIAL or ATLA.

John Elliott Leighton is a partner with Leesfield, Leighton, Rubio, Mahfood & Boyers in Miami. He gratefully acknowledges the assistance of Justin Griffin, a recent graduate of the University of Miami Law School, and Mark Alan Sylvester, an associate with the firm, in preparing this article.