Lost in Translation

Translation is a frustrating topic for me, and given that many of my clients or their family members speak a language other than English, Spanish or French-- the three languages I am able to speak-- I must deal with translators quite often in my work.

Obviously, a translator is essential to developing and preparing a case for someone with whom I cannot communicate. I have had the luck of finding excellent interpreters at times when I've needed them, and all have been generous enough to volunteer their time. However, more often than not I must rely on family or friends of client's to assist me, and this causes almost inevitable problems.

Among my greatest frustrations is when a translator, and it is usually a male relative in such circumstances, interferes with the statements made by an older woman, believing she cannot explain herself well enough to me to satisfy my legal objectives. Unfortunately, legal strategy is not always common sense, and despite good intentions, when a translator attempts to analyze and interpret potential testimony, or help refresh the memory of a hesitant witness, the effect can be counterproductive, if not completely detrimental to the goal.

Here is an example of an all too common scenario I've faced over the years:


I am preparing the testimony of the elderly mother of a client who faces deportation. Her testimony is critical in some way or another to her son's case and I need her to testify in court. Perhaps she will suffer if he is deported because he takes care of or financially supports her; or perhaps she can simply create a sympathetic image of a son who has been convicted of a criminal offense. The mother is often uneducated and functionally or completely illiterate in her own language, and neither speaks nor understands English at all. A younger male relative will step in to translate, and will emphasize to me that this woman hardly attended school and has a poor memory as well. I tell him not to worry, and instruct, "let me work with her; just translate everything she says. Do not interpret any of her words; simply translate them verbatim even if they seem to make no sense." And then I begin. I ask the first question which requires a brief response. Instead, the nervous mother launches into a quick paced dialogue with the interpreting relative. After a few minutes, I tell them to stop the conversation. "What did she say?" I ask. His answer is usually something like, "well, I was telling her that she needed to be more precise because you wanted to know.... and since she cannot recall, I told her...." Ultimately, he never tells me what it was that she actually said, just what he wanted her to say. I want to scream. Instead, I remain calm and repeat, "please just let her say whatever comes to mind and tell me what she says. Let me attempt to obtain a clarification if one is needed. That is my role as a lawyer conducting a direct examination." We begin again and perhaps get through one or two more questions when the back-and-forth between my witness and the relative repeats itself. In the end, I truly have no clue what this woman will be like as a witness in the courtroom.

I once had such an encounter with a kind and supportive mother whose testimony was critical to the case I was handling at the time. The woman did not know exactly how old she was, or how old her children were. This is not uncommon in her country where birthdates seem irrelevant to many, and I've dealt with the obstacle before. I also knew it was not all that important to know these exact facts. There were documents we could use to prove those points. However, the translating relative felt it was his obligation to give her the answers when I asked similar questions, such as where does so-and-so live. The mother only knew whether her children lived in the U.S. or somewhere abroad and that was good enough for me. I politely explained to my translator that he would not be able to testify on her behalf in the courtroom, so if she did not know an answer, she should simply say so. I would work around the dilemma. I further told him that, on the other hand, if I did not know everything she was telling me, I could not properly prepare follow-up questions to lead her along in the testimony in a way that would feel comfortable and logical to her. "I know," he said, "but you have to understand..." "No, no, I do get it!" I wanted to exclaim, "but it does not matter." Instead, I remained agreeable, and assured him that I could work around cultural and other sorts of limitations. They key was knowing what my witness said.

A few days later, I again met with my client's mother, along with a young female and an older male relative. I was informed immediately that the young woman would serve as the interpreter since she was a better speaker of English than he. This was fine by me. We started the mock direct examination, and much to my delight, the young woman told me exactly what the mother was saying. "Where does your daughter live?" "Minnesota," my witness answered without trouble. "Describe the day you had surgery," I asked a bit later, and she launched into a clear explanation of her fear and pain, and the fact that her devoted son had been at her side the entire time. Her responses were perfect! No, they were not necessarily sophisticated, but she was relevantly answering the question in her own words and I was getting the testimony that I needed to prove my point. I was thrilled. And then, after four or five questions and answers, I heard the male voice interrupt. He was beginning a dialogue with the mother, undoubtedly telling her to be more detailed about this or that, or reminding her that something really had not occurred that way, but this way. The young woman scolded him, "shhhh," she said, which she probably followed with a "let her speak," that I could not understand in the ensuing exchange between the three of them. I was quite happy to have an ally.

This is not to presume that a female interpreter will necessarily be an ally. One of the worst experiences I've ever had with a translator involved an asylum case from a region of the world with a small population, but one that is very vocal and united in light of the persecution they have suffered. The translator was not related to my client, although she nonetheless felt quite personally committed to his asylum claim. Her solidarity was such that she fed him a story of past persecution that he had never experienced in an attempt to guarantee his success at gaining asylum. Thus, unbeknownst to me, I was preparing a case based on a fact that was untrue, but one that would, from the translator's perspective, make an otherwise weak claim more viable. The preparation of this case had been frustrating precisely because the interpreter and my client had engaged in a lot of conversation together from which I was totally excluded, and when she would finally give me my client's response to the question I'd posed, it invariably seemed much shorter and less descriptive than what I'd heard. As much as I urged her to tell me everything my client had stated, she insisted on giving me a history of her people's plight and why the client would suffer if deported. Her explanations were filled with examples of what might happen to this man if he were returned, but none seemed to refelect his own testimony. Thankfully, when my client and I appeared in court, without the translator's presence, and I was just about to file the asylum application, the client stopped me. He admitted that the application contained a statement that was untrue; one that the translator had urged him to make. While the timing of this admission was not ideal, I was glad to have had the opportunity to correct the application. In the end, this client was granted asylum based on the strength of his own story and the fear of future persecution.

Immigration courts use translating services to fill the need for communication with non-speakers of English. I honestly have no idea what kind of education or qualifications these interpreters have, or what training they obtain prior to be sent into a courtroom where their language skills may determine the outcome of a case deeply affecting another's life; but I have consistently had doubts about the abilities of some of them.I am fortunate to speak two "foreign" languages, so I can monitor interpretation in French and Spanish, and have noted inaccuracies on several occasions. I recall one French translator called to testify in a case involving an African client. She had overheard my client and I speaking French in the lobby while we waited for the proceedings to begin. Thus when we were in the courtroom, I noted that each time she translated his words, she looked at me for approval. A couple of times, when she saw my eyebrows furrow at her translation, she became flustered. Once I had to intervene, telling the immigration judge that the translator had made an error and I wanted the exchange repeated for the record. After a bit more testimony had been taken, and within less than fifteen minutes into the hearing, the translator admitted to the judge that she was incapable of the task. I was shocked. What if I had not been there? What if an attorney who did not speak French had entrusted this woman with his client's fate? A pro bono attorney who has handled two French-speaking African asylum cases for my agency, has twice asked for the disqualification of the same French translator, sensing immediately that something was not right in the testimony. The translator often stumbled on words, and asked the court for permission to look up basic vocabulary in the dictionary. This keen lawyer, without knowing a word of French, knew that the translation differed from what he knew about the case, and was wise enough to intervene.

I represented a Somali speaker in an asylum case before the immigration court. He testified that in the course of the torture he'd endured, he had been burnt with a sword that had been heated in the flames of a fire. The court-appointed translator, obviously not knowing the word for sword, interpreted the word as "a long knife used in olden days." When my client, who also spoke French, stated that he knew someone who had traveled to "Cote d'Ivoire," and the translator did not understand this French word, the judge allowed me to clarify for the record that my client was referring to the French-speaking West African nation of Ivory Coast. Sadly, when my client later used the term "Cote d'Ivoire" once more in his testimony, the translator again paused in confusion.The judge then admonished her that she'd already been told this meant Ivory Coast. In an attempt to clarify the matter, I asked the translator to tell my client to use, from then on, only the Somali word for Ivory Coast. She looked at me and said, "we do not have that word in Somali." I was dumbstruck and could no longer contain my frustration, and I responded sarcastically, "You have no word for a fellow country on the West Coast of Africa?" "No," she affirmed.

When I explain to the men who are detained by Immigration and Customs Enforcement their rights in the courtroom, I tell them that the court will provide them a translator if they do not speak English. I consistently advise them to advise the judge if they do not understand the translator, or for example, if she or he speaks an incomprehensible dialect of their language. "Do not be shy about this," I warn them since the interpreter serves as their voice in the court, and if the message to or from the judge is not clear, it could have a serious impact on the outcome of their cases. I only wish that translators were given the same warning. While immigration attorneys are permitted to examine an interpreter about his or her competency to translate in court, they rarely ever do so. Hence it is even difficult to predict whether a judge would react favorably to such lengthy questioning during each hearing, as it would take time away from an already burdensome docket. Instead, lawyers tend to react when courtroom communication is obviously suffering, as did the volunteer attorney in the French-speaking African asylum cases. Of course, this strategy assumes that we can recognize a flaw. For now, however, it is as though the entire immigration court system, including defense lawyers, is confident that the agencies which provide translation services and interpreters are competent to assess and hire a legal interpreter based on his or her linguistic capabalities in English and a second language. Experience tells me that this premise sorely needs to be addressed.