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.

The Perils of the Pro-Se Witness

Court interpreters should prepare carefully for the pro se witness. A Pro Se witness is a litigant who chooses to go to trial without an attorney or legal representation. “Pro se” is a Latin term, meaning “on one’s own behalf” and a “litigant” is someone who is either suing someone or is being sued in court.Gorilla

The right to appear pro se in a civil case in federal court is contained in a statute, 28 U.S.C. § 1654. Thus, anyone can appear pro se, and anyone who appears before the Court without an attorney is considered pro se. Interpreters can find out if either party is pro se by looking at the case style or reviewing the court docket online. There won’t be a pro se party in the following cases:
A. When the litigant is a corporations or a partnership.
B. A pro se litigant may not represent a class in a class action.
C. A non-attorney parent may not appear pro se on behalf of a child, except to appeal the denial of the child’s social security benefits.

This post covers both scenarios, the pro se witness needing an interpreter, or if the witness for the opposing counsel needs a full trial interpretation. The interpreter should be prepared for many objections and rulings and interruptions to ongoing testimony. Tempers can flare and there will be a lot of people talking over each other. This interpreting setting is not a smooth question and answer process.

Pro se witnesses often don’t know the correct procedure for testifying in a courtroom or the trial procedures litigants have to follow. I also notice that most pro se witnesses are so focused on having their say that when they are told they have to follow certain steps, they get irritated. There can be disruptions with such normally quick and effortless procedures such as pre-trial motions and agreements and document filings. Just getting to the point when they are put under oath will take longer than you are used to.

The interpreter must be ready for objections and instructions by the judge during pro se testimony. Such litigants usually aren’t familiar with testimony limitations, such as hear say, mentioning insurance and references to evidence not admitted. Another pattern I see is the tendency to testify in the narrative. This is when they tell a story instead of following the standard question-answer format which allows opposing counsel to object to a question before it was answered.

The best advice for interpreters with a pro se litigant is to pack your patience. Be prepared by knowing the potential objections and the definitions which the judge will use to explain them. You will use note taking a lot to cover the talk overs, interruptions, long, rambling responses and compound questions. I recommend that you brief the pro se on the correct process of speaking through an interpreter. But hold fast to the limitation of your scope of work and do not ever provide advice on how to proceed or define terminology.

In my classes I always suggest observing a case with a pro se litigant before you interpret such a case. Justice of the Peace courts often have pro se litigants. Get permission to observe from the bailiff first and then sit back and be prepared to be amazed.