In the October 19, 2017 edition of The Legal Intelligencer, Edward T. Kang, managing member of the firm, writes on the significant impact interpreters can have on a case.
The jury was thoroughly confused when a witness testified through an interpreter that he paid hundreds of thousands of dollars for a ladder in a construction case I tried a few years ago. What reasonable person would pay hundreds of thousands of dollars for a ladder? The “ladder,” however, was really a staircase—a distinction that was obviously important to the case. The delineation between interpreting and translating—in other words, between explaining the meaning and translating words verbatim—is vital when it comes to the use of interpreters during witness examinations.
The American legal system is wrought with a specialized lexicon and complexities that do not exist in the English language. Though an interpreter is not allowed to explain the legal procedure or give advice to a witness, they are your conduit to the witness and the mouthpiece of the witness for the judge or jury. An interpreter has the power, whether consciously or unknowingly, to skew the words of the witness as they choose your words. One question or answer, rephrased improperly, can completely change the outcome of a case.
How to Select the Interpreter
For many business litigators, interacting with and using interpreters is a rarity. Selecting the right interpreter can be as difficult as finding a credible witness. Not only does the interpreter need to be immensely knowledgeable about the languages that they are interpreting, but he also needs to understand and appreciate the cultural differences between two places speaking the different languages. So, how do you choose the right one?
First, you should hire your own interpreter. Many courts will appoint an interpreter for a trial or hearing upon request. I have seen many court-appointed interpreters who were good. But, if you are trying a big case, you should not take any chance of hoping that you would get a good interpreter. Instead, hire your own. The Pennsylvania court system publishes a list of certified interpreters.
Third, you should get a backup interpreter. In the construction case I tried, I met with and hired someone that I believed met all the criteria. Unfortunately, during a span of an almost two-week long jury trial, my interpreter had a conflict and could not show up at my trial. That left me with no choice but to hire someone on one day’s notice.
How to Prepare the Interpreter
After you pick the right interpreter, it is time to prepare her for the examination. First, your interpreter needs to understand the case. You should share with the interpreter certain relevant documents filed in the case, such as the complaint and answer. Understanding the case provides a context of the case for the interpreter. Ask your interpreter to review these documents before the next step: arranging a meeting between the interpreter and the witness.
Having a meeting between your interpreter and witness is perhaps the single most important part of preparing the interpreter. Ideally, your interpreter and your witness need to develop a rapport. In a profession where word choice is powerful, an interpreter can undermine the point you are trying to make or the answer you are trying to get. You should meet with your interpreter and witness before any deposition, hearing, or trial. Your interpreter needs to understand how the witness communicates, including any speaking pattern, regional dialect, speech defects, body gestures and other idiosyncrasies of the witness.
When the Witness Is Your Client
Preparing your client to testify is of fundamental importance—even more so when your client needs an interpreter. Witness testimony frequently involves narrative, nuances, and details you want to make sure will come across to your audience. This can be challenging for an interpreter, who will want to interpret completely and accurately. This is why it is important that the interpreter and your client meet before your client testifies.
A primary concern for practitioners in this situation is whether having an interpreter present will waive the attorney-client privilege. In general, it is well-established that third parties hired by counsel to assist in the provision of legal advice to a client are covered by the attorney-client privilege and work product doctrine. (See, e.g., Commonwealth v. Noll, 662 A.2d 1123, 1126 (1995).) Pennsylvania also protects by statute communications made in the presence of a court-appointed interpreter. See 42 Pa.C.S.A. Section 4415. Therefore, you should be confident that your communications with your client through an interpreter will be protected from disclosure.
With this in mind, it is important that both you and your client practice speaking with an interpreter before going on the record. You should do a practice session of a direct examination. You will begin to develop a rhythm examining your client using an interpreter. Make sure your client understands that questions may also come from a judge in addition to the attorneys and to not be thrown off by that.
You should also make sure that your client is prepared for a cross-examination. She needs to appreciate that the form and style of cross-examinations will be drastically different from direct examinations. Your interpreter should help you prepare your client for cross-examinations. One difficulty during cross-examinations that I have seen frequently is when a lawyer who has never used an interpreter is cross-examining a witness. These lawyers do not change the form or style of their questions as they should (see below about examining an adverse witness using an interpreter). These lawyers use too many negative form questions. Suppose a cross-examiner asked the following question: “You didn’t get the letter?” Ordinarily, an English-speaking witness who understood this question would answer “no” if she did not get the letter. But, speakers of certain languages would answer “yes” to mean that she did not get the letter. A skilled interpreter would know how to interpret correctly for your client regardless of who is asking the question and how the question is phrased.
When the Witness Is Adverse
It is important to get into a rhythm and line of questioning during cross-examinations. This is extremely difficult to do so when there is an interpreter between you and the witness. It is likely that the normal drama and style associated with cross-examination will be compromised. Accordingly, focus on the content, and keep your questions simple and direct.
Specifically, you need to make sure each question contains only one fact. You should try to eliminate using adjectives and adverbs whenever possible. The simpler the questions and responses can be, the simpler it will be for the interpreter, witness and jury to understand.
As shown above about negative questions, you should try to avoid asking questions in the negative. To that end, you should completely eliminate asking any questions containing double negatives—one is bad enough.
You need to instruct the witness not to explain her answer to the interpreter. I have seen some adverse witnesses try to engage in private conversations with the interpreter in responding to a simple, short, direct question. You need to cut that out from the beginning.
Although most adverse witnesses who ask for an interpreter legitimately need one, some ask for an interpreter solely to either impede the cross-examiner’s rhythm or avoid having to answer questions spontaneously—that is, these witnesses unnecessarily request an interpreter so they can use the extra time to come up with the “best” answer rather than the truthful answer.
You can throw off these “smart” witnesses during cross-examinations by asking a surprise question. A surprise question in this context is an unexpected question at the moment. This could be a conclusory question that you would normally save until the end of one topic. A question like, “You took the company’s customer list when you left, didn’t you?” (I know this is a negative question you should normally avoid. But this is an exception as you do not care about establishing a rhythm.) You may draw an objection for lack of foundation. But imagine the impact on the jury of watching the witness who, earlier could not understand a simple question like “what is the name of your current employer,” now all the sudden blurts out “no” in English. The jury will not believe her anymore.
It is not going to be economically feasible to hire and prepare an interpreter for every case where it is needed. You may have no choice but to use a court-appointed interpreter. But for those significant cases involving material witnesses requiring an interpreter (like your client or opponent), you should not take the chance of going with a court-appointed interpreter. Instead, you should invest in a good interpreter, including a backup interpreter. It could change the outcome of the case.
Edward T. Kang is the managing member of Kang Haggerty LLC, and devotes the majority of his practice to business litigation and other litigation involving business entities.