Questions that Sink and Questions that Float

Big JoyYour question is hanging in midair and the witness, in the sworn proceeding is looking at you, gape mouthed. Was the question clear?  Or maybe the witness is deciding what part of it to answer. You could be facing  a cycle of delays and frustration. This occurs whether the proceeding is interpreted or not. But it does seem that as the interpreter, I can see the disconnect happen before the questioning attorney catches on.

The fault lies in the broad wording of the question that allows for a flexibility in responsiveness. Add a nervous, reluctant, or even impatient witness and you have Q&A chaos. I’ve even got a name for it: the “Who’s On First” scenario after the famous Abbott and Costello comedy sketch.

It’s no fun for any of us to go down that bumpy road. Sometimes the lawyers get irritated at each other as the objection, “Non Responsive” triggers the objection: “Asked and Answered” over and over. Other times I’ve seen the questioning attorney instruct that the question be certified because the opposing counsel will  refuse to allow the question to be repeated after several attempts. Fact witnesses and Pro Se witnesses, who are unfamiliar with the questioning process, can quickly stymie whatever progress has been made when the “Who’s On First” routine starts up.

In such cases that there is an interpreter, professional interpreters know to simply be patient, show no reaction and continue interpreting accurately and completely. These situations are not a challenge to an interpreter.

In 1999, Claims Magazine, the national publication of the Insurance industry, published my article titled, What do You Mean by That? Specific Terms in a Q&A Produce Direct Responses. You can find the article on my website here http://www.linguisticworld.com/books_and_articles.html.  At the date of this blog post it is a full 17 years later and I still see many of these examples of questions that sink.

The most common culprit is the compound question. This is a question that contains two or more questions being asked. Often it offers alternative responses much like a multiple choice question. This kind of question is standard for casual conversation but in a Q&A setting, where the person is under oath, a single yes or no to such a question encompasses more factors. Another form is when the subject action is maintained but extra dates, times and persons are added to the single event.

Unfortunately, even a seemingly simple question can be compound.  The Yes or No to “Do you know if the light was red for the other driver?” could be responsive to the light being red or not, or it could be responsive to the witness knowing or not. Several clients of mine offer a follow up question to that one with a “No, you don’t know or no, the light wasn’t red?” And surprisingly, the response is the complete answer that contains the question.

The solution is to break down the question as soon as you see the witness is not able to transition to compound questions smoothly. Limit high register legalese terminology that will trigger confusion. The result will be more concise responses and a well-connected communication.

How Distance Protects You : The Witness Outburst

Legal interpreters are taught to keep an emotional distance with the witness to guarantee the witness complete access to the  judicial process, as if they spoke fluent English. It also benefits the interpreter  to have a sole focus on the linguistic components of the statement  while monitoring the content.  Certified interpreters are  bound  by our Code of Professional Responsibility to not show any emotion or bias  in reaction to the statements we are interpreting. In order to do this we have to remain oblivious to the base problem  between the parties.distance-can-protect-you380w

Sometimes maintaining  distance can protect us too. By virtue of being a party to a lawsuit,  some witnesses are facing a very difficult phase of their lives. No matter if they are the plaintiff or the defendant.  The setting exposes the interpreter to a witness whose perception of the difficulty  can range anywhere from an inconvenience to a  life changing crisis.

For example, in a civil matter where a business agreement was not honored, the party will suffer compromise of the investment of time and money.  A personal injury affects one party’s physical and emotional life yet may affect the financial life of the other. Family law and criminal cases easily display a strain on either party and often it is on both parties.

The interpreter can’t predict aggressive questioning or  know how a witness will react to a probing Q&A process.  Establishing the distance at the start of the proceeding is  a good safeguard. In my introductory spiel I include that I have nothing to do with the case and that my work is regulated by state law.  Not making eye contact reinforces the distance. Most outbursts in a courtroom are quickly diffused by the Judge. But that is not the case in other discovery proceedings.

I’ve had a 6’7 Stevedore pick me up by my shoulders and yell in my face, angry at the pointed question I very accurately interpreted. I’ve had several witnesses dissolve into tears in my lap when reminded of the loss of a loved one. I’ve seen witnesses curse and yell  at everyone in the room. I’ve seen a witness knock over the videographer’s camera. One angry witness hit the court reporter’s steno machine to stop writing what he said. The most memorable was a divorce mediation and the wife announced she was a witch, whereupon she went around the table putting a curse on everyone. When she got around to me, I reminded her I would have to interpret the curse and it would fall back on her.  I was spared.

Interpreters need to understand the lawyer’s obligations to their client. Lawyers are trained to evaluate their client’s personality so they can best represent them. Lawyers can assess their client’s responsiveness patterns during deposition and trial preparation.  But we interpreters need to  be prepared for outbursts  from the start of our career. We also need to be comfortable knowing that in such an eruption that we can and should reference the event as an impediment to our performance. We can ask for a break. And we can address the issue with the attorney. We can protect ourselves and our good work.

Interpreting in the Middle of A Missile Attack

missile-attack

A missile attack  is disorder, loud disruption and chaos. Depositions and even court trials can take on that air before being  brought under control. For the interpreter and the court reporter it is  very difficult to perform our work under those conditions. And mistakes are understandable.  For the interpreter, these are impediments to your performance that you cannot overcome. But you can do damage control as soon as the disruption begins.

Certified (“Licensed” in Texas) court interpreters are bound to a Code of Professional Responsibility that includes an instruction to report any impediments to our performance.

(i) CANON 7: ASSESSING AND REPORTING IMPEDIMENTS TO PERFORMANCE. Interpreters shall assess at all times their ability to deliver their services. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the judge.

I have been interrupted while interpreting by jackhammers breaking up a parking lot next door, that was so loud I could not  hear the witness. Also I’ve experienced the witness yelling at the attorney while the attorney continued asking the question and while the other attorney was yelling at his witness and the court reporter was yelling at all of them to stop talking over each other.  I recall several more incidents when the witness has erupted over an aggressive question, behaving physically or starting a screaming rant.  In those situations you could easily misinterpret so you have to retain control of your actions including possibly to stop interpreting.

Once everyone calms down the interpreter has  to report , on the record, to the attorneys or to the judge the point in the testimony at which you were no longer able to interpret and specify the cause: the specific impediment. Then they decide how to rectify the miscommunication.

More often than not the witness goes silent and I find I am interpreting the attorneys argument and I indicate by gesture the respective attorney while they talk over each other.  The court reporter is often the one who stops the  disruption at a deposition, at trial it is the Judge.

Sometimes the location itself is a minefield of impediments.  I’ve interpreted in industrial facilities with loud machinery operating around me. I’ve interpreted  statements on the deck of container ships in the middle of the Houston Ship Channel.  Colleagues report interpreting assignments where they are at the back of a City Council room filled with protesters.

Attorneys, investigators and insurance adjusters have to go where they can find the answers to the questions in order to best represent their client.  If that means talking to a Limited English speaker at their workplace or wherever they can be found then that’s where you will go.

A professional interpreter understands this but also knows to  assess the location for impediments at the moment of the assignment. Ask where it is  specfically and look up the address.  If it is a questionable location, express your concerns to the person you will be interpreting for and ask for a change of venue. Tell them that you will have to stop the proceeding if you are not able to interpret accurately. Then don’t be afraid to turn down the assignment.

Know the difference between milder forms of chaos that you can overcome and still perform your job according to your oath and impediments that  will not allow you to interpret accurately.

And Now for the Musical Portion of my Closing Argument.

As  court interpreters, we have to be ready for all kinds of terminology. Speaking styles too. A register that rises to the level of Shakespearean sonnets , or drops to a Mafioso style threat.  We have to render it duplicating the tone, style and meaning. So, we study and prepare. I enjoy sitting in on trials and study how the lawyers speak especially during opening and closing.singer-on-stage

But none of that prepared me for the lawyer who sang during his closing argument.

I was interpreting the trial for the defendant. It was a car accident and my client was the insurance company. It was all so standard that I don’t remember the details or most of the testimony.  The opposing counsel was well prepared and consistently …normal sounding during litigation. Nothing stood out during  voir dire or cross or even  the deliberations over the charge to the jury. A bit of drama during that would have tipped me off.

I wasn’t even distracted by the Plaintiff’s father who wore in a full Marine dress uniform throughout the trial. He sat behind his daughter, a high school senior.

I was interpreting the full trial for the defendant, a middle aged man from Honduras. He was calm, polite and…normal.

I remember being aware that since we were at closing arguments, all that was left, time wise, was jury deliberations and then I’d be released.  Frankly I was probably thinking about dinner plans.

For closing, both lawyers restated the high points of the case that reflected well on their client. And the lawyer for the plaintiff, as usual, proceeded to follow the defense with a second closing.  In this one he reminded the jury of the testimony presented showing how his client was very close to her father and that her father had been very worried  about her ever since  this accident.  And that her father was an honorable member of the military.

The lawyer stopped right in front of the jury, looked right into their eyes and asked them,

“Who today isn’t aware of the contributions of the military to our country?  It just makes me think of the song,  Some Gave All by Billie Ray Cyrus

Then in a pretty nice baritone voice he sang these words:

“All gave some and some gave all / And some stood through for the red, white and blue / And some had to fall / And if you ever think of me / Think of all your liberties / And recall, some gave all.”

He caught me off guard for a second.  I may have shown surprise on my face. But I got right to work interpreting ….not singing…. the lyrics. I avoided eye contact with the defendant and I focused on the wood grain of the table while interpreting simultaneously. But out of the corner of my eye I caught my client’s jaw drop.  There was no reaction from the Judge and the jury didn’t applaud.

I have been surprised by literary testimony that included poetry and recitations from religious texts. I guess I can add interpretation of live singing to my own repertoire, so to speak.

I’m just glad he didn’t choose Achy Breaky Heart.

(Some Gave All. (C) 1993 Mercury Records, a Division of UMG Recordings, Inc)

Keeping Up With the Warp Speed Witness

12512317_1666237360285094_2805551571254001401_nListening to anyone speaking fast in a sworn proceeding is more of an event of animated questioning for most participants at the trial or deposition.

Unless you are the interpreter or the court reporter.

Court interpreters are sworn to transmit the question and the response word for word, accurately and completely. So we develop listening, note taking and responsiveness analysis skills. Here are a few tips on identifying and rendering the complete and identical sounding statement of the warp speed speaker in compliance with  your oath.

The attorney and the witness have a higher probability to speak super quickly during a Q&A process. In trial, Judges pick up speed while reading out loud the  written instructions or the charge to the jury. Almost everyone speaks faster than normal when reading written evidence into the record.

TIP: Ask for a copy of the document to sight translate simultaneously, in trial if there is no screen displaying the document or during a deposition .

The attorney will respond quickly to  evidence mentioned by a witness that is uniquely  positive or negative impact on their case. If positive, they will want the witness to stay on that topic so they will quickly add related questions. If negative,  they will want the witness to go no further on that topic and they will change the topic altogether.  In both situations they will accentuate the words in tone and volume that pertain to their chosen emphasized topic.

TIP: In your taking, jot down the accentuated words, since they will possibly be repeated by the questioning attorney for whom that is a valuable topic. And if one side wants the subject matter changed, the opposing counsel may zero in on that subject during cross.

Witnesses launch into hurried responses when triggered by something they feel strongly about. Their attorney may want that emotion displayed for the jury or on the deposition record, so we interpreters need to perfect our skills as much as possible before resorting to asking for intervention from the judge (or the questioning attorney (deposition).

Some triggers are obvious in the pointed, aggressive wording of the question, others are unknown to the interpreter.

TIP:  We ignore the impact of the  question or the response and focus on the content.

An animated emotional response has  peaks of loudness, words that are run together, repeated points and sometimes stammering if  the witness is flustered. We are supposed to render the same tone and style of the speaker in our interpretation.

TIP: Take notes while the witness responds to allow the witness to respond completely without interruption. Speed up your note taking with symbols and abbreviations.

TIP: Circle the loud words or phrases. ( I reserve underlining for topics frequently repeated in a question.)

TIP: Separate the words that were run together when spoken or you won’t be able to read your own notes. But encapsulate from end to end them with an underlining arrow or brackets to remind you to render them in a run together fashion.

TIP: Number the repeated points and the words that are stammered so that you repeat them just as many times as they were originally spoken. For example   He turned left⁴

Have an evacuation plan. Know your limits by shadowing with a recorded lecture or television audio. Be prepared to notify the Judge, on the record and  in the third person, that the witness is speaking too fast and is impeding your ability to render an accurate interpretation. Normally the Judge will advise the witness to slow down. Frankly, this instruction rarely sticks. If necessary, tell the Judge  that you respectfully request that the witness be asked to break up their response into 3 or four sentences at a time.

TIP : Remember if you or the attorney interrupts the witness, that you have to interpret every word spoken  for the record, even if it is an incomplete sentence.

 

Freedom of Speech Versus Speaking Freely in America

first-amendmentIn today’s heated political climate in the U.S., arguments spread faster than mosquitos after a week of rain. I get a kick out of hearing someone tossing a sharply worded opinion, and then diving behind the defensive shield follow up       “ I have the right to Freedom of Speech”.  I had a nagging feeling it wasn’t so all inclusive and since my ancestors fought in that Revolution, I did some research.  Hopefully you, as an American, claim this right knowing it was granted in the first amendment to our constitution in 1789. The driving force was freedom of political dissent. Today in America there cannot be a law that limits your freedom of speech.  Here is the wording of the first amendment- one sentence of 45 words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The author James Madison, meant it to be simple and basic so it would pass the vote. But, I feel, over 227 years later we really need to take responsibility for our words.  And to prove that, look at how lawsuits helped form new terms classifying exercising freedom of speech.

Fighting Words

Words which would likely make the person whom they are addressed commit an act of violence.  Fighting words are a category of speech that is unprotected by the First Amendment.  Chaplinsky v New Hampshire, 315 U.S. 568 (1942).

Defamation

A statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements).

If you want to sue someone who you feel has defamed you to win a defamation case, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Unless that person has Absolute Privilege

If a statement is made in certain contexts or in certain venues, the First Amendment may give the speaker an absolute defense to a charge of defamation.  This privilege usually only exists in the government context; for example, sworn testimony in a judicial or legislative hearing is privileged.

Libel

Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.

Slander

A false statement, usually made orally, which defames another person. Unlike libel, damages from slander are not presumed and must be proven by the party suing. See, e.g. TXO Production Corp. v. Alliance Resources, 509 U.S. 443 (1993).

So how about making it clear that you are speaking freely? There is a standard for that too. You are supposed to ask permission.

The history is during Operation Torch (invasion of North Africa in 1942) which took place under US command, British service personnel didn’t know how to address their American counterparts. Being British and polite, they said ‘Permission to speak freely sir.’

The only time I see that happen is working as a court interpreter when the witness, already on the stand,  will ask the Judge for permission to speak freely. Their attorney immediately turns pale with eyes as wide as a deer in headlights. I guess no one told them about Absolute Privilege.

Are you ready for the reputation  you’ll have as a “Free spoken” person?  Defined as  “ Given to speaking freely without reserve, frank and outspoken”, the term was first used in  1625.

That was a full one hundred and sixty four years before there was a right to do so. I wonder how they would define it today.

The Waterfall Witness

Despite all the terminology compiled and studied before a proceeding, the way a witness responds to a question can hold the most surprises for the legal interpreter.  So we have to change our listening and processing mode for each different style of responsiveness. We base our performance on canons of professional responsibility for completeness, not paraphrasing and not omitting what is said. But if we don’t catch every word spoken, we run the risk of failing our oath.

Witnesses respond according to their reaction to the question and to the way the subject matter is emphasized. Sometimes they are intimidated by the process. Sometimes they show anger while facing the representative of those they hold responsible for damages or those who sued them. It is an entirely personal behavior no matter how much preparation they were given by their lawyer.

The easiest back and forth to interpret is the orderly question followed by the short response with no heightened emotion by either party. The other extreme is the witness who either launches into or builds up to a rapid free flow of extensive narrative, without a pause whatsoever. I call this the Waterfall Witness. Waterfall

The interpreter needs to develop three skills to master the rendering of waterfall testimony.
1. Prediction. Observe the witness long enough to catch any emotion beyond complacence. Note the length of the responses to the personal history questions. If they are beyond the scope of the question, you have warning of a pattern there. If the witness dissects the question in the answer, that can erupt in long winded hostility. Grief lends itself to listing memories. Anger becomes confrontation and repetitive phrasing of the stated issues.
2. Pace duplication. As linguists we are listening in order to render. You will have to erase any reaction to the content of the testimony in order to retain it. The best way is to keep pace with the speaker. Duplicate the tempo of the speaker with either your notetaking or your simultaneous interpreting.
3. Keep track of the topic. The waterfall witness will add topics and stray off topic. Your notetaking should highlight the new topic and the key word they use. I have even drawn a hierarchical map with arrows charting the response from topic to topic.

I have found that in a deposition the attorneys rarely interrupt a waterfall witness simply because they want to hear everything this witness may possibly have to say about the issue. If they do it is through an objection. But in trials, attorneys will interrupt via objections and the Judge will interrupt with an instruction. So the interpreter also has to monitor the point when the judge interrupted during the witness’s testimony for the court reporter to hear that clearly. Then the full instruction to the witness has to be interpreted along with their response. Even then, you cannot rest because the objecting attorney may reply with a “Thank you, your honor”.

The interpreting mode can be an issue. Trying to take fully accurate notes of a 300 word missive at the pace of emotional discourse is risky. I expand my note taking to include topic with key words and identify the order in the response. I go through a lot of paper. It is easier to go into simultaneous mode which can be done in a deposition. But  in court it  is hard for the jury, the court reporter and the judge to hear you not to mention the attorney further back in the courtroom. If you are allowed to use simultaneous, I suggest getting permission from the Judge to step forward closer to the court reporter and then speaking louder.

All told, taking on a waterfall witness is not for the novice interpreter. So practice a lot and go watch one in court. Remember, witnesses have the right to testify in the form that is natural to them. So, it is up to us to raise our skill level to meet this challenge.

The Document Translation Gold Mine for the Court Interpreter.

A lot of us claim to be translators or interpreters but not both. For many years I too, only claimed to be a court interpreter and I would only accept in person assignments for legal or law enforcement proceedings. Then I discovered the treasures that translating legal documentation provided.
FtBCtyjailScanThe fact is the terminology that stumps us the most is legalese. Not the rantings of an emotional witness but terms like: “The Plaintiff prays” and “Requests for Admissions “and “General Denial”. The most abundant source of this is the continuous stream of legal documents produced in the discovery phase of the civil lawsuit. Most of my colleagues consider the pre deposition, pretrial phase as a lawyer’s only domain so they don’t even investigate what happens before we step in, when the parties face each other. I believe the best preparation is knowing as much as possible about what happened before I step in and what is expected to happen afterwards. So I studied these phases from the attorney’s point of view and I discovered all the words that had ever stymied me. Since then I have never been even delayed in providing an accurate translation of those terms.
I incorporated these assets into a continuing education course I developed on civil discovery for licensed court interpreters and translators in Texas. From the start to when the class finished, comments like “That’s what that means”, or “That’s what they are talking about” echoed around the room.
Whether in court or a deposition, we can be handed such documents, as exhibits, and asked to sight translate them. So, studying samples first is key to seamless sight translation. In depositions, questions may contain phrasings taken directly from these standard forms but the interpreter may not be handed a document to refer to. Recognizing the document title, the interpreter can then know the terms associated with that document and their meanings and usage. Documents such as Plaintiff’s Original Petition, Original Set of Interrogatories and Verification of Employment can show the foundation for the questions and objections we hear and must be familiar with.
Then I made another amazing discovery of my own. I volunteer at the Harris County District Clerk’s Historical Documents room at the civil courthouse. This room houses court records dating back to the 1700s; through the period Texas was a part of Mexico, then a Republic and then after joining the United States as the 28th state of the Union. I index and transcribe evidence and court transcripts, the earliest written in quill pen. Some, originally written in Spanish, were translated over 180 years ago. Our court system has followed the same processes with the same legalese for centuries. I found Plaintiff’s Original Petitions, Charges to the Jury and Summons as old as the Republic of Texas. They contain the exact same phrasings of those used today.
So, try translating legal procedural documents. Study and practice with them. Your interpreting skills will grow and your performance will shine.