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Tennessee Association of Professional Interpreters and Translators T A P I T
The Tennessee Association of Professional Interpreters and Translators welcomes this additional opportunity to express our views and clarify concepts through the extension of the deadline for comments. We have come to believe that it is necessary to provide a more in-depth picture of what court interpreters ARE, and what they DO within the justice system, so that the members of the Supreme Court may appreciate the very unique position occupied by court interpreters, and the qualities that differentiate them from attorneys, investigators and expert witnesses. When the author of this letter first began giving presentations about court interpreter issues to Judges and attorneys, both she and they were amazed to discover that, although all of them thought they knew and understood what interpreters do, as the presentation progressed they were astounded at how much they didn't know about it. Thus, the first step in this document will be to describe the skills, knowledge and attributes required for the competent performance of court interpreting. We believe that after coming to appreciate more thoroughly that court interpreting is a specialized field requiring not just some special vocabulary and bilingual talent, but unique and highly prized skills, training and knowledge, and that the profession already has its own set of customary and necessary standards of compensation (all of which are well established throughout the nation's public and private sectors) you will be compelled to agree that Rule 13, as currently written, does not reflect appropriate guidelines for interpreter compensation and must be revised to take into account the current requirements and realities of Tennessee's qualified court interpreters.
According to Supreme Court Rules 41 and 42, Court interpreters must master and be competent practitioners of three specific kinds or "modes" of interpreting: consecutive interpreting, simultaneous interpreting and sight translation. They must also be completely familiar with, and able to correctly apply, their code of professional responsibility. The following is a description of the abovementioned modes of interpreting, their application in court and their comparative place in the world of international affairs. A note about Ethics follows. Consecutive interpreting: The most well-known and commonest
kind of interpreting. This occurs when one speaker speaks, the interpreter waits and subsequently
interprets that speech, then another person speaks or answers, and the
interpreter interprets that locution after the person has finished speaking,
thus portions of speech are interpreted "consecutively" and
out loud for all to hear. This mode of interpreting, in a court setting,
is used for witness testimony and any other spoken exchanges that include
foreign language speech that must be placed on the record (guilty
pleas, for example). Since the court reporter can only make a record of
the English interpretation of foreign language speech, the requirement
for great precision and faithful delivery is paramount for the practitioner
of consecutive interpreting in court. This mode requires excellent short-term
memory and rapid, automatic processing of verbal content so that in converting
the message to another language, the consecutive interpreter does not
inadvertently lose or change any elements of the communication being conveyed.
(SC Rule 41, Canon 1: "Interpreters shall render a complete and accurate
interpretation or sight translation, without altering, omitting, or adding
anything to what is stated or written, and without explanation.")
Since living languages, by nature, do not allow for word-for-word equivalencies
(consider, for example, the disaster that would result from a literal
translation of the common expression, "he'll stab you in the back
to get that job"…), whole "chunks" of meaning must
be received, understood contextually and converted by the interpreter
to a different language with different grammatical and syntactical rules.
In so doing, the interpreter must also choose from among myriad synonyms
and levels of discourse (formal, colloquial, technical, etc.) to find
the exact nuances expressed in the original message. This process, in
which hundreds of decisions are made in the passage of seconds, is highly
stressful and requires intense concentration, especially when the fate
of other human beings may depend on the accuracy of the interpreted message
placed on the record for posterity. While lay people consider consecutive interpreting to be the "easiest" form of interpreting, most professional interpreters would say that, in a court setting, it is the most demanding and stressful of the three modes. It is interesting to note that in international applications, consecutive interpreting is considered a specialization in its own right. Most United Nations and conference interpreters will refuse even to attempt to do consecutive interpreting, while persons who specialize in it (interpreters for foreign dignitaries and heads of state) tend to perform consecutive interpreting exclusively, at a very high level and only after rigorous, specialized training in memory retention and note taking. Experts in consecutive interpreting often receive "celebrity" status in the field and are very highly paid. In contrast, every court interpreter is expected to be competent in both consecutive and simultaneous interpreting; yet little recognition is given to this remarkable feat in the legal arena, especially at the state level. Simultaneous Interpreting: also sometimes called "U.N.-style"
interpreting. This occurs when the interpreter listens to the spoken message and renders
a continuous foreign language rendition of its content just a phrase or
two after the utterances being interpreted. The simultaneous mode is used
when the interpreter is interpreting for one or more defendants (or other
parties in interest) every spoken word occurring during a proceeding:
evidence, legal arguments, objections, rulings, conversations, everything.
In other words, simultaneous interpreting is utilized to place a Limited
English Proficient (LEP) person in the same position as a similarly situated
English speaking person. It requires accuracy and completeness in order
to satisfy constitutional guarantees regarding due process and equal access
to justice. The competent performance of this skill encompasses the physical
ability to listen and speak at the same time, and the mental multi-tasking
ability to receive, digest, decode and re-code incoming messages instantaneously
without altering, omitting or adding anything or losing the meaning and
continuity of uninterrupted incoming verbiage. It also requires specialized
knowledge and mental acuity to keep up with and understand extremely fast-paced
and often convoluted verbal exchanges embodying complex legal concepts,
or complicated recitations of events about which the interpreter often
has been given no prior knowledge or meaningful contexts. The amount of time, effort and expense that interpreters must dedicate
to the specialized training and constant practice required to master and
maintain this skill is very great, and the size and quality of the interpreter's
"internalized dictionaries" must be extremely advanced. It is
no accident that U.N. and conference interpreters are, by common agreement,
limited to interpreting for short periods of time with ample rest periods
between performances, since simultaneous interpreting requires an extremely
high level of concentration and is very exhausting. It is also no coincidence
that such interpreters are highly valued and very well remunerated for
their expertise, since international agencies have long recognized that
good simultaneous interpreters are a relatively scarce resource that must
be supported by good working conditions and provided with appropriate
financial incentives to continue in such a demanding field. The Association
of International Conference Interpreters (AIIC) requires that member interpreters
work in teams of at least two interpreters per language in comfortable
booths, with closed circuit TV and clear headphone access to speakers'
voices and faces, provision of prepared texts beforehand, and work-days
that may not exceed 4-6 hours during which each interpreter works only
30 minutes per hour. In contrast, the burden of complete accuracy, the
unpredictable nature of the subject matter, bad acoustics, and the far-less-than-ideal
working conditions found in courts make simultaneous court interpreting
even more difficult and fatiguing than conference or diplomatic interpreting. Supreme Court Rule 42, shows some recognition of such a level of difficulty
in Section 3(f): "The court may wish to consider using multiple
interpreters in legal proceedings where one or more of the following situations
exist: (1) Legal proceedings lasting more than 2 hours - Generally, in
legal proceedings lasting more than two hours a team of two interpreters
should be designated to ensure the accuracy and completeness of the record
by allowing interpreters to alternate work and rest in short shifts, thus
avoiding fatigue." (Fatigue, like incompetence, produces inaccuracies
and defeats the goal of guaranteeing constitutional due process rights.)
Nevertheless, such recognition of the challenges faced by Tennessee Court
Interpreters has not seemed to translate into appropriately flexible and
reliable financial incentives. For any among you who suspect that we are exaggerating, or who would like to personally acquire a rough idea of the intensity of focus needed for the task of simultaneous interpreting, TAPIT recommends tuning in to National Public Radio to a news or talk show and attempting to "shadow" the spoken content (that is, repeat verbatim exactly what you are hearing, just 10-15 words after you hear it) continuously for about 10 minutes, without missing or changing a single word. It is likely that those who attempt this little demonstration will find the task mentally exhausting and quite irritating, even after only a few minutes. Now imagine doing the same thing, but with the extra burden of converting it into another language, for periods sometimes exceeding 2 hours. This will provide an experiential understanding of the need for frequent rest periods and the use of multiple interpreters in short shifts to avoid fatigue. Sight translation: This mode is a hybrid mixture of interpreting
and translating. In sight translation, the interpreter is asked to quickly read a document in one language and then provide an oral rendition of its contents in a different language. While it may be the least stressful of the three modes (time is not at such a premium in this mode) it is, nonetheless, very demanding. Written legal documents are characterized by dense, information-filled prose in which concepts are reduced to their most economical expression and legal jargon is prevalent. Such dense texts, which may have taken hours to draft, must be converted into a completely different language (often from countries whose legal systems may not have exactly equivalent concepts) on the spot and without lengthy study or consultation with reference works. This mode often requires very specialized knowledge of legal terminology, from varied countries and different legal systems, in order for the interpreter to correctly capture and accurately render the contents of the document. Ethical performance of duties: Tennessee Court interpreter ethics
are stated in Rule 41. The canons guiding ethical court interpreting performance (stated in
SC Rule 41) are not intuitive, they are not about common-sense ideas of
morality, advocacy or utility, and they are not the same as attorneys'
codes of professional responsibility. Common sense might seem to indicate
that the interpreter, as a conduit for communication, carries the burden
of ascertaining that parties understand one another, yet this is not true.
Court Interpreters are sworn to maintain complete accuracy and NOT to
explain anything or interject any comments of their own. It is up to the
communicating parties to ascertain that understanding is taking place,
and if it is not, to adjust their level of discourse accordingly and/or
explain concepts that are difficult to assimilate. That this concept is
not understood by untrained interpreters, judges and attorneys alike is
clearly evidenced every day in Tennessee courts when Judges and attorneys
still routinely ask the interpreter if the defendant "understands
his rights" or "understands what is going on" or when they
tell the interpreter to "explain to him that he needs to do x and
y". Such questions or requests directed to the interpreter not only
totally inappropriate, but, for the interpreter, an inducement to violate
her ethical canons since the interpreter is sworn only to interpret the
direct discourse between participants and the Court, and cannot ethically
explain anything or make any such statements (i.e., be a witness) while
serving as an interpreter. Non-credentialed bilinguals (often family members,
friends or volunteers allowed to interpret in court in order "to
save money") rarely understand the concept of impartiality and often
tend to think that they should advocate for, explain concepts to and generally
"help" non-English speakers through the legal process. All of
those activities constitute violations of court interpreter ethics, yet
without specific training, how can they know this? In their everyday community
interpreting experiences, this has seemed intuitively to be the right
thing to do. Here is another example: attorneys and judges often want
interpreters to "meet in the hallway" with defendants (unaccompanied
by legal counsel) to read them documents and explain options, or they
may ask interpreters to give their opinions as to the mental or educational
condition of the LEP individual; again, all of these things are forbidden
to interpreters under their code of ethics. The above are only a few, rather simplistic, examples of how court interpreters' ethical rules are not well understood and all-too-frequently subverted by bench and bar, due to lack of education about interpreter ethics. Court interpreters face real-life, sometimes complex, ethical dilemmas every day and it is only by constant training and on-going discussions among professionals that they can learn to identify and then navigate their way though the often-murky waters of ethically perplexing situations. Now let us consider the fundamental attributes and knowledge needed
by a court interpreter in order to perform the tasks required by SC Rules
41 and 42 described above: Court interpreters must have, at a minimum, a relatively high level of education and cultural awareness in two languages, with a large, sophisticated vocabulary in both languages to start with; they must possess a capacity for quick thinking and flexibility, mental and physical stamina and agility, and the patience and perseverance to withstand a very lengthy and exhaustive period of training and practice in order to perform at the skill levels required by the courts. They must be lifetime learners since language usages and slang can change frequently and often differ according to the various geographical and national regions where the languages are used. Contrary to popular perceptions, the ability to speak, write and understand two languages does not mean that one can function as an interpreter. The study of a language at the university level does not equip a person to be an interpreter. Even training and professional experience as a translator does not mean that one can interpret, although it may provide a good starting point for learning the necessary skills. Unlike investigators, attorneys and expert witnesses who may possess specialized academic and practical knowledge, court interpreters must not only acquire specialized knowledge, but they must also master the difficult performance skills described above. That is, they must possess a thoroughly integrated combination of: 1) extensive and varied linguistic/cultural/legal/general/technical information and terminologies, and 2) highly developed performance skills, achieved and maintained only by continuous study and constant practice. On the performance side, a comparison might be made with, say, music or sports: The fact that a person has fingers and may have learned to play "chop-sticks" as a child does not make him a pianist, nor does the mere possession of legs make a person a long-distance runner. Those attributes are simply part of the most basic requirements for pursuing further development that MIGHT result in expertise. Likewise, mere knowledge of two languages is only the most basic, minimal requirement for becoming an interpreter. To continue with our analogy, if a person studies and invests considerable time and effort into learning techniques and practicing a musical instrument or a given sport, he could become a very proficient concert pianist or accomplished athlete. With even more practice and dedication, a person with superior talents and abilities might even achieve recognition as one of the best performers in his field. Likewise, interpreters, after very intense and lengthy practice, may achieve skill levels in interpreting that are sufficiently high to pass rigorous court interpreter exams (for which pass rates typically range from 2%-8%). But here is where our analogy comes up short. In addition to performance skills, court interpreting also requires specialized studies and intellectual diligence. It is axiomatic that the court interpreter must have thorough and accurate understanding of a wide array of concepts, terms and idiomatic expressions in the English language and that he or she must also have a rapid, native or near-native ability to communicate in a foreign language. To this must be added: an extensive vocabulary -- the "internalized dictionaries" referred to above; wide-ranging general knowledge; an understanding of court procedures, laws, ethical precepts and protocols; awareness of cultural differences; quick access to a wide variety of synonyms and antonyms at different discourse levels (formal, slang, upper-class, underworld, etc.); appreciation of subtle grammatical points; ability to avoid semantic and syntactical traps; the list could go on and on. In reference to technical terminology, the interpreter must be a "quick study" - researching and quickly committing to memory long lists of specialized terms and jargon. Why? Any kind of subject can come up in a court hearing, from the street slang of uneducated fact witnesses to the highly sophisticated, technical testimony of experts in a wide variety of specialties, to the dense, convoluted language of legal precedents cited by attorneys and judges. The interpreter may be faced with the arcane terminology of an autopsy report or testimony about the construction of aircraft or watercraft in which secret drug compartments have been constructed; he or she may have to interpret the testimony of a forensic chemist describing the methods and chemical substances used to determine the composition of a suspected controlled substance. The possibilities are endless. In these circumstances, the interpreter must constantly be studying and learning new vocabulary and creating more glossaries for future use. Good interpreters are walking dictionaries. In this sense, it might be more instructive to compare court interpreters to physicians specialized in the practice of surgery: To start with, the surgeon must possess certain very basic physical and educational attributes - sound physical and mental condition; intact, steady hands; a general, broad-based knowledge of human anatomy and medicine. Then he must successfully undertake specialized studies - intimate and very extensive knowledge about the specific anatomy, disease processes and new medical developments related to his specialized area of practice. Finally, he must, through study of specific techniques and repeated practice, develop the physical dexterity, stamina and precise motor skills needed to actually perform the surgical procedures for which he has attained specialized knowledge. Only after achieving a high and reliable level of combined knowledge and performance skills is the surgeon allowed to practice on human beings. And for this very special combination of knowledge and performance attributes, he is given special professional recognition and commensurate compensation. The situation for interpreters is similar, up to a point. Interpreters, too, must possess certain very basic physical and educational attributes: clear speech, the ability to hear well, a good, general, broad-based education, preferably at university level, and superior knowledge of and fluency in two languages (including proper semantic, syntactic and structural elements); these are the basic foundation for beginning interpreter training. To these must be added specialized studies of specific legal/court terminology, familiarization with the law and with court procedures and protocols, continuing study of every kind of specialized document and testimony that may come up in court proceedings, and an ongoing learning process about current trends in terminology and slang. Finally, the interpreter must study and repeatedly practice the specific techniques and skills that will enable him or her to have the mental agility, physical and mental stamina, and precise, rapid decision-making skills needed to flawlessly perform interpreting tasks at high speeds and imperfect conditions in the courtroom. Only then should an interpreter be allowed to intervene as the appointed communication conduit in cases where, potentially, the life and liberty of human beings is at stake. Unfortunately, this is the point at which there is a divergence from
all the above analogies. While surgeons, master musicians and accomplished
athletes enjoy prestige and wealth, court interpreters do not. Why? Because
of that pervasive and erroneous belief that "anyone who can
read, write and understand two languages" can perform the demanding
tasks required of court interpreters! Because historically Tennessee lawyers,
judges and court administrators have employed untrained bilingual individuals
who lack requisite skills and do not comport themselves as professionals,
thus reinforcing the bias that prevents the legal community from recognizing
court interpreting as a highly skilled profession. Because both bench
and bar are sadly in need of more education about the difficult and lengthy
training and knowledge required to pass stringent court interpreter, certification
exams and thus do not distinguish between credentialed interpreters and
non-credentialed bilinguals. In short, despite the huge advance accomplished
by the Supreme Court in the establishment of Rules 41 and 42, many people
in the legal community, including many judges and even some practicing
interpreters, do not treat court interpreting as a valued professional
career, but still think of it as some sort of side-line activity easily
performed by "that guy down at the high-school that speaks Spanish"
who just needs to "show up and help out"! With this sort of
distorted perception still lingering in the minds of so many, it is no
wonder that people in our profession despair of ever receiving the level
of respect and compensation they deserve. TAPIT is hopeful and insistent
that the excellent work of the Tennessee State Court Interpreter Certification
Program should not be undermined by downgrading fees and neglecting to
ensure employment for the few hardy souls who have been willing to undertake
rigorous training to become true professionals in the field of court interpreting.
We hope, also, that this lengthy description of the knowledge and performance
skills required by this profession will have enabled Supreme Court members
to appreciate that court interpreters have very different qualities, roles
and needs than the attorneys, investigators and experts with whom they
have been grouped in Rule 13.
With that having been said, let us get right down to the ways in which proposed Supreme Court Rule 13, Section 4(a)(3)(K) impacts court interpreters and the areas in which TAPIT considers the Rule to be misguided and counterproductive. I. General Considerations: Should interpreters' compensation be regulated under Section 4(a)(3)(K) of proposed Rule 13 at all? The section of Rule 13 under which interpreter compensation is prescribed, Section 4(a)(3)(K), is titled "Payment of expenses incident to representation". Similarly, a memo from the AOC posted to the web page of the Tennessee State Court Interpreter Certification Program and sent to interpreters on the Roster, titled "Reimbursement Process for Spoken Foreign Language Interpreters or Translators in Indigent Cases" states as follows: "The use of a spoken foreign language interpreter or translator in an indigent matter is considered an attorney expense under Tennessee Supreme Court Rule 13, Section 4(a)(3)(K). (See Addendum 1) On careful reading of all of Rule 13 and upon considering the proper position occupied by interpreters in court cases, TAPIT has grave doubts as to the wisdom of including interpreter remuneration for any in-court interpreting under this section. A case could be made for allowing interpreter payment for out-of-court work to remain in this section, in that the interpreter, in facilitating communications between client and attorney may be considered to be aiding the attorney to provide appropriate representation for his client. On the other hand, an interpreter in never, except when actually hired as an expert, a part of any "defense team". Interpreters, when functioning strictly as interpreters, are not involved in seeking or creating information or materials needed for the defense of the attorney's client, unlike the investigators and experts with whom they have been grouped in this section. Like a telephone, interpreters only facilitate communication - they have little to do with its content and they do not intervene in matters of defense or prosecution. This distinction is even more critical when considering the role of the interpreter in the courtroom. The interpreter is an impartial officer of the court. She does not "help" either side, but serves the Court alone and is the Court's tool for ensuring equal access to justice to LEP individuals. That this position of neutrality should be tainted by a close connection with the defense attorney --through a compensation mechanism no less!-- is unjustified and undesirable. It only serves to reinforce a prevalent bias on the part of some prosecutors that interpreters are defendants' allies and therefore intrinsically untrustworthy. TAPIT suggests that there might be better models to follow; for example,
it might be preferable to treat foreign language interpreters' compensation
in a way similar to that of interpreters for the Deaf: The position of a court interpreter might, alternatively, be considered to be more similar to that of a court reporter than that of an investigator or expert witness. Like court reporters, interpreters are impartial, disinterested court officers without whose presence the proceeding could not take place. Even though attorneys may seek out court reporters to obtain transcripts and out-of-court services for depositions, the court reporters position of neutrality is not questioned and provision for payment of their service in court is not dependent on defense attorney submissions. Perhaps this would be an appropriate model to investigate. TAPIT recognizes that the Supreme Court has made a valiant effort to resolve all the doubts and inconsistencies that previously dogged the process of interpreter payment, but this new set of procedures has not, according to complaints from our members, accomplished this goal. Current AOC oversight of interpreter invoices under Rule 13 has been cumbersome, confused, nit picking, aggravating and slow. Apart from this, TAPIT considers that it is unduly onerous for both interpreters and attorneys to have to channel all interpreter invoicing through multiple attorneys' offices, where it creates more paperwork for the law firms and leaves the interpreter completely deprived of control as to the date in which her billing is actually presented to the AOC. It should also be mentioned that to date, the plan for billing indicated
in Rule 13 (i.e. as an attorney expense) and outlined in the previously
mentioned AOC memo is not, in fact, being universally followed in Tennessee
courts at present. The memo states: "Effective September 8, 2003, the Administrative Office of the
Courts will reimburse spoken foreign language interpreters and translators
for services rendered in indigent matters for in-court time as well as
out-of-court time. The court order authorizing the use of the interpreter or translator
should be dated prior to the first date of service. The attached claim
for reimbursement should be completed by the interpreter and sent to
appointed counsel for review and approval. Once reviewed and approved,
appointed counsel should forward the invoice and court order to the [AOC]."
[emphasis added] However, for in-court services, this is often not practicable and sometime
is contrary to local courts preferred practices. The interpreter may have
NO connection at all with the appointed attorney, perhaps not even know
where he is located, if she comes in from out-of-town to interpret in
a hearing for which she has been summoned by court personnel … yet
she must somehow seek him out and process her invoices through him? And
how can this be considered a service "incident to representation"?
Many courts make all arrangements for in-court services through their
own coordinators and insist that invoices for such services to be sent
directly to them (Davidson County and Metro courts, for example); others
arrange for services exclusively through agencies; yet others make each
Judge's secretary responsible for hiring the interpreter; in each case,
there is NO attorney requesting interpreter services or funds for "expenses
incident to representation". Sometimes interpreters work in hearings
only to find afterwards that court personnel have not secured an order
from the Judge and have no clue at all as to what to do about paying an
interpreter. All of this is very aggravating. The classification of interpreter
fees globally as attorney expenses and the recommended procedures are
neither efficient nor workable. It is the court's responsibility to secure and ensure payment of interpreters for in-court proceedings just as it is the Judge's responsibility to appoint them (SC Rule 42). The way in which this matter is handled by the Federal Courts might also serve as a model, since it parallels what Rule 13 seeks to achieve: While all interpreter services for indigent defendants, both in- and out-of-court, are paid out of funds provided for in the Criminal Justice Act. The court directly hires and pays interpreter services performed during in-court proceedings (the court clerk's office pays invoices directly with CJA funds from Washington), while all out-of-court interpreter expenses are handled through the Public Defender's Office since it is the officially designated source of appointed counsel and possesses a budget or other mechanism to obtain CJA funds for auxiliary services, including interpreting services, required by attorneys (both PDs and private appointed attorneys). This method has several advantages: it preserves certain consistency in the way invoices are handles; it keeps interpreter interests at a distance from defense matters; and it is a very efficient and simple way of keeping the in-court and out-of-court services separate, ensuring the provision of appropriate language services for the court while avoiding any appearance of partiality. For more reasons why attorneys should not be deemed appropriate as those responsible for "hiring" in-court interpreters, please see Section 5 below. And one further problem - Rule 13 fails to account for interpreting for the prosecution. If interpreter services are requested by the court exclusively for the interpretation of testimony by prosecution witnesses, as sometimes occurs, what then? In a real-life scenario, some months ago, an interpreter was called to court and informed that she was to interpret for prosecution witnesses. After she performed excellent service, the court refused to pay, since this situation was not covered by the indigent defense fund. The prosecutor refused to pay, saying that his office had no funds for interpreters at all. The interpreter has still not been paid and apparently no one has any plans to solve the problem. For interpreters, increasingly, the solution is simply to avoid suffering this kind of aggravation by not working for any Tennessee state courts at all! II. Compensation for travel Rule 13 states that travel time for interpreters shall be paid at half
the rate paid for interpreting services. The first and most important
reason that the policy of one-half pay for travel time should be rescinded
is simply this: TAPIT, whose membership stands currently at more than
70 professional interpreters and translators, has now heard from all of
our registered and certified court interpreter members and has confirmed
what we previously predicted: they have universally agreed that they are
unwilling to travel to outlying courts under these conditions, and they
are already refusing assignments involving travel. Obviously, this means
that courts outside of major population centers are now and will remain,
until the Rule is changed, severely underserved by the Tennessee State
Court Certification Program into which so much hope and taxpayer money
has been invested. Allow us to point out that the current problem related
to travel to outlying courts is, hopefully, going to be a temporary one.
Once more interpreters are certified throughout the state, it will be
unnecessary to ask interpreters to travel great distances for those assignments. In the meanwhile, let us look at the practical reality of the current
situation under the interim provisions of Rule 13. (This is a real-life
case.) A certified Nashville-based interpreter accepts an assignment for
an 11:00 hearing in McMinnville. With rush hour traffic and an unfamiliar
destination, the interpreter leaves at 8:30 a.m. in order to arrive punctually,
set up her equipment, and be available for possible attorney-client consultation
prior to the hearing. Let us suppose that the interpreter arrives at 10:30
and that the 11:00 hearing lasts one hour. The interpreter (having eaten
nothing since 7:30 a.m.) leaves at noon arrives back in Nashville after
2 pm. Since she was not informed of the exact length of the hearing, she
did not know when she would be able to return to Nashville and thus was
not able to book any other work for the remainder of the day. Under Rule
13, what will the interpreter earn? One and one half hour at full pay
and 4 hours at half pay. That is to say, $75.00 plus $100.00. Thus, for
a day in which she could have earned eight hours' fees at $50.00/hr.,
or $400.00, by staying and working in Nashville, instead she earns a maximum
of $175.00. Unlike attorneys, investigators and experts, she has no
follow-up work after this assignment; this is her total billing for that
day, and, perhaps, for that entire case. Under Rule 13, by accepting
an assignment requiring travel, she has exposed herself to a loss of $275.00
for a day's work. How often can any full-time professional afford to do
this? Furthermore, let us suppose the interpreter could have had an all-day
assignment in a deposition at $75.00/hour (a common fee in the private
sector). Then her loss is even greater -- $425.00 loss for that one day.
It is unimaginable that even the most civic-minded of interpreters could
allow herself to continue serving the courts under such blatant conditions
of undue hardship. (To illustrate the value placed on a certified court interpreter's unique skills, please see the attachment titled "Notice of Position Vacancy" (Addendum 2) from the U.S. District Court for the Northern District of Illinois, wherein the pay scale reaches more than $109,000.00 per year apart from full federal benefits, easily worth an additional $30,000.00.) The foregoing scenario could be alleviated in two ways: III. Guaranteed commitment; tenth-of-an-hour units It is a common occurrence in all the courts in the state of Tennessee that the courts request interpreters to be present and available at a certain hour but give no indication as to the time of termination of the assignment. Therefore, an interpreter's time is not his own. Without a pre-established assignment time and a minimum guarantee of compensated time, the interpreter is unable to schedule assignments for optimal profitable use of his time. TAPIT recommends that courts:
Rule 13 should authorize courts to guarantee minimum payments for time reserved. TAPIT has previously stated (in our letter of Nov. 14) that interpreters never bill for their services using tenths of an hour. Interpreter services are external to their offices - they are always performed elsewhere. Tenth-of-an-hour units are unworkable under those circumstances, as it could never be worthwhile for an interpreter to suit up, prepare equipment and papers, drive to an assignment and be paid only for a few tenths of an hour if the hearing is brief or continued. An informal survey by TAPIT reveals that, to our knowledge, nowhere in the United States are interpreters required to bill in tenths of an hour. Rule 13 should eliminate references to tenths-of-an-hour billing units. If Rule 13 authorizes guaranteed minimum payments, the use of 10ths of an hour units is moot.
1. Caps on interpreter fees undermine the entire Tennessee State Court
Certification Program. 2. Supply and Demand It should be noted, furthermore, that the scarcity situation is unlikely
to improve substantially in the short-term, since passing rates for the
final step in the certification process (the oral proficiency exam) during
the last twelve months plummeted to less than 2%. This is proof of the
fact that interpreters are not "born" but "made".
As pointed out in section I of this letter, contrary to popular assumption,
the skills for excellence in court interpreting are acquired only after
extensive investment in study and practice time, along with the purchase
of expensive reference and study materials. Bilingual ability is certainly
not enough. Many non-credentialed bilingual individuals (some of whom
are currently practicing in court) may desire earnestly to become certified
but there is no guarantee that they will ever be capable of meeting the
stringent requirements and skill levels needed for performance at a certified
level. 3. The caps are selective (a) Courts regularly bypass the Rule already by paying higher rates to
agencies that supply them with interpreters, many of whom are not Certified
or Registered. (b) The Court's recognition of market forces is evidenced by the section in Rule 13 allowing negotiation of fee amounts with interpreters of languages Other Than Spanish (OTS). This is discriminatory - if negotiations are to be allowed, they should be allowed across the board. It is also inappropriate - the majority of OTS interpreters in Tennessee are not only NOT Certified, they are, for the most part, untrained, non-credentialed and non-professional. And yet the Court is willing to negotiate with amateur interpreters for fees that are higher than the cap established for well-trained certified Spanish interpreters. One of the negative repercussions of this counterproductive policy is that it eliminates any incentive unskilled, non-credentialed OTS bilinguals might have to undertake rigorous, long-term training and expense to become credentialed, since they can command whatever fee they wish without making any efforts to improve. Another is the disillusionment experienced by Certified Spanish Court interpreters when they see that, by comparison, their hard work has produced not appreciation and advancement but, rather, an effort to limit their earnings under this selective imposition of caps. Moreover, while it may seem that market forces are driving this decision because of the relative scarcity of interpreters in "exotic" languages, the fact is that in demographic terms the demand for qualified Spanish language interpreters is proportionally much greater. Finally, it is a fact that some certified interpreters have higher skill levels and more extensive work experience than others, thus it would seem counterproductive to limit the courts' ability to negotiate to obtain interpreters with more advanced expertise for especially demanding or high-stake cases. 4. Caps for interpreters do not reflect recognition of differences
in experience and skill levels. Sections 2 and 3 of Rule 13 clearly reflect that the Supreme Court takes into account the fact that attorneys and experts have differing levels of experience and specialized training. Rates for attorneys in non-capital cases are about half those established for attorneys in capital cases. Sections (3)(c) and (3)(d) outline long lists of attributes for attorneys who may work in capital cases and receive higher compensation and a higher cap for total billing. The list of experts' fees likewise designates much higher rates for some kinds of expertise than others, yet no similar consideration is given for interpreters (save the exception noted directly above, regarding OTS languages, which does not refer to competence or expertise but rather to considerations of supply and demand alone). Yet interpreters, as mentioned above, also have greater and lesser levels of experience, training and skill. Capping interpreter fees at just one fee level does not do justice to this fact. Since it would be unduly difficult at this time for the certification program, still in its infancy, to try to establish distinctions of this nature, the wisest and simplest solution would seem to be to simply eliminate caps altogether and leave courts with suggested minimum fees and discretionary authority to negotiate for the services of interpreters with more experience, training or specialized skills when necessary or desirable. IV. Recognition of the distinction between registered, certified and
non-credentialed interpreters and oversight. Rule 13 deals with differences in rates of compensation for Certified,
Registered, and Non-credentialed interpreters. Therefore, it is of interest
to consider whether such distinctions are, in fact, being respected. Despite
Rule 42, it seems that in more cases than not, no effort whatsoever is
made to ensure the provision of certified interpreters or to verify whether
the interpreter being contracted is certified, registered or non-credentialed.
Many courts seem unable to understand or recognize the differences between
"registered" and "certified" interpreters. This may
partly be due to the fact that the letters issued by the Administrative
Office of the Courts, approving an interpreter as Registered or Certified,
are identical in format and content -except for that one word; and no
clear identification document is issued. It is not infrequent that courts
say (and may believe) that they are hiring a Certified interpreter when
in reality the individual they have hired is not Certified but Registered,
or, in some cases, is not credentialed at all but merely claimed to be.
It is imperative that the courts make such distinctions and take pains
to verify the credentials of the interpreters they hire. It would be ideal
if the AOC would issue clearly differentiated ID cards for its Certified
and Registered interpreters. A corresponding ID number could be also then
be entered by the interpreter included on his invoices so that the AOC
would have no doubts that it is paying the correct rate to the service
provider. In this context it is also important to have some oversight that would include a disciplinary function for the many individuals currently masquerading as interpreters in the courts, claiming to have credentials that are, in reality, non-existent and non-verifiable. As an example, up until recent times, a certain individual worked in some Nashville courts claiming to have certification from a national court interpreting association, when in fact he not only did not possess such certification but had never even been a member of said association. No attempt was made to verify his credentials and he was allowed to work, as a preferred provider in fact, in various courts for more than a decade. Even when such fraudulent claims were brought to the attention of the courts in question, and even after this person subsequently proved himself incapable of passing even the basic written test to become Registered, he was allowed to continue working in the courts and was paid at a preferential rate. This is just one of many such deplorable examples that are occurring throughout our state. If the Supreme Court and the AOC are so desirous of saving money, let it be accomplished by avoiding fraud rather than punishing honest interpreters with reduced fees. V. Who Should Be Responsible for Obtaining Interpreter Services? While Rule 13 does not directly address the matter of the obtaining of
interpreters services but simply focuses on the way in which they shall
be paid, it is clear that no interpreter can be paid unless someone requests
his or her services. In this sense, and referring back to the question
posed in Section 1 (i.e. should interpreter services be classified as
"expenses incident to representation" as stated by Rule 13),
TAPIT feels it is appropriate to mention, and important that the Supreme
Court be aware, that there are problems brewing regarding the manner in
which interpreters are to be obtained for in-court assignments. A recent communication from the Administrative Office of the Courts to
Tennessee Court Administrative Personnel now places the onus of locating
and obtaining interpreters for in-court proceedings in the hands of attorneys.
It seems that the rationale for such a decision is based on the logic
that if attorneys must hire interpreters for their attorney-client conferences,
then attorneys should be responsible for informing the interpreter of
in-court assignments and assuring their appearance. Why is this fraught
with peril? First of all, many attorneys have little experience with or
knowledge of interpreter ethics, skills and credentials, and some self-proclaimed
bilingual attorneys (whose skills often leave much to be desired) even
have a vested interest in NOT using interpreters during conferences with
clients (they believe that this will give them an edge for appointment
to cases involving LEP defendants). In addition, historically, lawyers
have tended to use family members, friends and volunteers. This is most
common in the case of retained counsel. At present, few attorneys even
know of the existence of the Roster of Certified and Registered interpreters,
nor of the Certification Program itself, in spite of efforts to disseminate
information about Rules 41 and 42. If interpreter selection is left to
the criteria of attorneys, it is probable that many court proceedings
may be delayed or may have to be continued, at greater cost to the court,
because the interpreter selected by the attorney does not meet Rule 42
requirements. Prior to the adoption of Rule 42, the hiring of interpreters
by attorneys for in-court service was the rule rather than the exception
-- that practice was abandoned because it was unsatisfactory and led to
frequent use of unprofessional services. Now that it has, again, become
the norm, the same problems are likely to surface. It is also important to note that the provision of proceedings interpreters services by defense attorneys can only serve to strengthen the already overwhelming prejudice held by prosecutors that interpreters are somehow allied to the "defense team" and therefore not impartial or trustworthy. VI. Judge's Order Appointing Interpreter; Independent, impartial interpreters Billing under Rule 13 can only be paid when accompanied by a Judge's
Order appointing the interpreter. Therefore we consider it pertinent to
explore problems we see in the Judge's Order provided by the AOC (downloadable
from the website) that must accompany the invoice form under Rule 13.
(See Addendum 3) Unlike attorneys, interpreters are not "exclusively connected" to a given case or defendant. As stated in Rules 41 and 42, interpreters are independent, impartial professionals who may work with equal accuracy and integrity for defense, prosecution and the court. Interpreters may also interpret for any or all of the codefendants in a case with no fear of bias or lack of confidentiality. The custom of placing a particular interpreter's name on the court order gives the impression that only that interpreter may work for that particular defendant and his attorney, while in fact any equally skilled interpreter could fill the position. We therefore think it erroneous to specify a specific interpreter's name on the order. The only specification in the Order should be for a Certified interpreter, or a Registered interpreter if a Certified interpreter is not available. This would avoid the need to issue multiple orders for the same case or the same defendant. Given the paucity of certified interpreters, it is unrealistic to suppose that the same interpreter will be available to serve in every event in a given case, or, indeed, that her exclusive services would be requested for each and every such event. Keep in mind that it is highly probably that said interpreter has already been named on several different orders, given the existing shortage. It is also undesirable for interpreters to be limited to performing only one function, i.e., to interpret only for the defense, or only for the prosecution, or only for the proceedings in a given case. This is unnecessary and wasteful of scarce resources, for in that scenario a trial would require two proceedings interpreters, one or more defense interpreters and one or more prosecution interpreters, performing overlapping roles. Since interpreters are impartial, they should be permitted to accept assignments that do not limit them to one role or one party. That is to say an interpreter could interpret attorney-client conferences for a defendant; could be hired by the prosecution to interpret for prosecution witnesses; and/or could be hired for in-court proceedings in the same case without detriment to the cannons of confidentiality and impartiality as stated in the code of ethics outlined in Supreme Court in Rule 41. CONCLUSION: TAPIT thanks the Honorable Judges of the Supreme Court for their attention to all of these comments. We realize that we have presented a great deal of detailed information for your consideration, but we believe that the discussion of Rule 13 policies in relation to interpreters can now be carried on with a clearer perspective. The main points we wish to emphasize, in sum, are that court interpreters have a unique position in the justice process. Credentialed interpreters are skilled experts, but unlike expert witnesses, investigators and attorneys, their connection to a given case, in terms of remunerated activities, is generally restricted to discrete and limited assignments performed in court or at attorney-client interviews. While they may occasionally obtain translation or other work related to a case, for the most part interpreters participation in court cases is very limited; if they are to survive, they must fill their working days with fully compensated activities at the highest fees they can obtain. Under current court conditions of unpredictability and inefficiency, this is already difficult. If current Rule 13 measures are adopted as stated, interpreters will be unable to justify continued dedication to court interpreting work. If court interpreters' pay is capped, cut in half for traveling, measured in tenths of an hour, lacking in any kind of minimum guarantee of time or wages, and dependent on attorney selection and invoicing practices, they will gradually abandon the justice system for greener fields. We ask that all of these limitations be removed, that our suggestions in this and our previous letter be implemented, and that consideration be given to a less cumbersome, more logical and efficient system for compensation. Respectfully submitted, Judith Kenigson Kristy
©2004 Judith Kenigson Kristy Posted with kind permission of Judith Kenigson Kristy and TAPIT |
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