If your patent infringement case or other civil litigation requires eliciting testimony from non-English speaking witnesses, here are some best practices we’ve observed for making sure your interpreted deposition is accurate and useful when employing an interpreter to accommodate the interpretation to and from English and a target language.
When hiring an interpreter, decide what type of interpreter will best fulfill your case’s requirements, including the exact language and dialect you need interpreted. If using a sign language interpreter, make sure American Sign Language, ASL, is the sign language accommodation that is needed.
Does your Chinese witness speak in a Mandarin or a Cantonese dialect?
Prepare your interpreter for the deposition assignment. Before the day of the deposition, provide key information to your interpreter so that names, numbers, and case-related claims are at the forefront of the interpreter’s thoughts. This would include the appearances to secure law firm and attorney names, the pleadings, and any related jargon likely to be referenced during the deposition.
The court reporter will swear in the interpreter before the witness is sworn in. CompuScripts suggests an oath such as “Do you swear or affirm that you will accurately interpret from English to (target language) and from (target language) to English to the best of your ability?” The interpreter will need to give an affirmative answer. Then the court reporter will swear the witness in through the interpreter.
While there are extremely competent court interpreters, not all interpreters are appropriately trained for legal interpreting assignments. Interpreters should be impartial and interpret everything said on the record to all parties, choosing interpreted words with precision. Court interpreters should be interpreting clearly and completely, not allowing speakers to continue longer than they can manage. Your interpreter may make notes from time to time to assist him in accurately interpreting.
Communication problems can occur, but an experienced interpreter will work ethically within the boundaries of his role to resolve such situations. When an interpreter feels it is necessary to speak directly to a deposition participant, the interpreter should ask permission from counsel before doing so. Your interpreter should avoid side conversations. Mistakes happen, and you should expect an infrequent miscommunication that needs to be corrected by the interpreter. Only when an interpreter finds it necessary to intervene should an interpreter speak on his own behalf, and it should be abundantly clear that the interpreter is speaking on his own behalf. All interpretations should be in the first person.
You should look and speak directly to the person with whom you are having a conversation. If you’re asking the witness a question, look and speak directly to him. If you are discussing a matter with counsel, look and speak directly with her. An interpreter is accommodating your conversation and is not the focus of your conversation. Be sure to instruct your witness on the appropriate procedure as well.
Problems arise when an interpreter interprets in the third person. An example would be:
Q. What is your name?
A. His name is Fred Bloggs.
Another problem that frequently arises with an inexperienced interpreter is added remarks, such as “He said St. Andrews Road, but I think he means Bush River Road.” An interpreter should not summarize, paraphrase, explain, or verbalize his personal opinions.
If an inappropriate situation occurs in your deposition and you do not caution the interpreter to interpret exactly what is said or to interpret in the first person, your transcript may be difficult to casually read as far as who is actually speaking—the witness speaking English or the interpreter.
Through the interpreter, either you or the court reporter should address whether the parties are waiving the signing of the transcribed deposition by the witness.
Court reporters use Q&A sequencing to indicate the question asked in English by the attorney and the answer of the witness given in English through an interpreter. In interpreted transcriptions, you should assume that unless otherwise stated, answers are in a foreign language, or sign language, and interpreted.
There may be times during the deposition where your witness answers in English rather than through an interpreter. Unfortunately, South Carolina does not have any standardized way of addressing this transcription issue, and this can cause confusion on the part of the reader.
Two generally accepted transcription practices are to denote answers in English or through an interpreter by using asterisks or by using parenthetical phrases within the answer. If a court reporter has used asterisks as identifiers in the transcript, be sure that your litigation support software properly imports the asterisk character.
One example for a reporter using parenthetical phrases:
Q. Have you ever been involved in a lawsuit?
A. (In English) Yes, one other time. (Through the interpreter) As an engineer for the company, I testified as to the preventive maintenance of the machinery.
In isolated incidents, this is a helpful way to deal with the occasional answer from the witness in English. If you are letting the witness and interpreter tag-team answers haphazardly, the court reporter may choose to transcribe the answers given by both the witness in English and the interpreted answer in a more efficient way. No matter how the court reporter chooses to deal with the transcription of such occurrences, if there is an ambiguity, there should be a court reporter’s note and explanation in the index for the reader to understand how the testimony was transcribed.
Another situation that can confuse your record is if the interpreter or you are using the third person in your conversation rather than the first person. Generally if an interpreter uses the third person, the court reporter will transcribe an answer in colloquy as THE INTERPRETER since it is obvious the interpreter did not make an accurate interpretation. If you continue to allow the interpreter to use the third person, the court reporter may choose to put the interpreted answer after the customary A. for answer and then add a reporter’s note in the index. When an interpreter finds it necessary to speak on his own behalf rather than as an interpretation, the record will show the interpreter in colloquy as THE INTERPRETER.
Lastly, there may be times when the interpreter and the witness have a discussion that is not in English; or an attorney who is fluent in the native tongue of the witness and the witness may speak directly without the assistance of an interpreter. In either case, your court reporter should use a parenthetical to reflect the discussion for the record. An example:
(Discussion between Interpreter and Witness.)
Remember, you are responsible for crafting your record. The court reporter is responsible for preserving the record. As court reporters, we cannot control the deposition or correct the record, so it’s imperative that you understand how your control or lack of control at an interpreted deposition impacts your transcribed record.
For related reading on how to read you interpreted transcripts, the Legal Resources archives of the Association of Corporate Counsel take a closer look at interpretation issues in International Litigation. The Berkeley La Raza Law Journal discusses Preliminary Guidelines for Establishing Language Competence and Incompetence. The Los Angeles County Bar Association has practice tips by Mark S. Shipow, including strategy in using interpreters in litigation.