Working with Foreign Language Clients
Misunderstandings, uncertainty prevail when
communication fails.
Overcome language barriers by following this practical advice to enhance your legal
teams’ success.
By D.L. Hawley
September/October 2000 IssueWhen
you have a client who speaks little or no English, communication is difficult and can lead
to misunderstandings and uncertainty. It also impairs your legal team’s ability to
provide legal services at the level you want to achieve.
While a lack of knowledge or improper usage of the
English language is a frequent situation in immigration law cases, it may happen in any
type of case such as criminal, probate, corporate or family law and involve document
creation, negotiations or a trial. The non-English speaker may be your client or a
witness. The person may have no knowledge of English, limited speaking and no reading or
writing skills, or limited speaking, reading and writing skills. The person may speak a
European or an Asian language. Speakers of one language may come from different countries
with very different cultures and dialects. All of these factors will influence what
procedures and personnel you use to enhance communication.
Difficulties on Both Sides
When a client doesn’t speak English, it creates
difficulties for both the client and the law firm. Many legal consumers feel somewhat
intimidated or overwhelmed by being in a law office and being part of a legal proceeding,
even if it’s just a simple matter like making a will. People who may not completely
understand North American culture, let alone the legal culture, can feel even more anxious
when involved in the U.S. legal system. Add a lessened ability to communicate in English,
and the situation can be frustrating for both the client and the legal team.
"Some people feel that we are too hurried and just
deal with legal issues and not the whole person," said Maria A. Laporte, a freelance
translator in Garland, Texas, who translates Portuguese to English to Portuguese, and
Spanish and French into English and Portuguese. Laporte, who was born in Brazil, grew up
with many languages and studied language at school. She was a paralegal and translator for
Arco International Oil & Gas, before starting her translating business.
"In some cultures a person may say ‘yes’
as you explain something, but it doesn’t mean they understand, it just means they
want you to keep talking because they are trying to follow the conversation," added
Walter Bacak, executive director of the American Translators Association (ATA). Assuming a
client understands because he or she says "yes" can lead to problems such as the
client failing to bring in documents or missing an appointment or court date.
"Foreign nationals come to the [United States] to
make a life and don’t have time to go to school to learn English so they tend to
learn spoken English and speak in broken, grammatically incorrect sentences which may be
hard to understand," explained Paola Judith Frumin, a paralegal with the immigration
Law Office of Sheela Murthy in Owings Mills, Md.
Frumin, who was born in Argentina, speaks English,
Spanish, Hebrew and French and is an English as a Second Language (ESL) teacher in the
evenings. Cultural differences can also affect communication, according to Frumin. For
example, looking an Asian person in the eye is a sign of disrespect, so Asian clients will
often stare at the table instead of looking at you.
Being aware that there are cultural differences as well
as difficulties in understanding English language will help you in creating solutions to
lessen these difficulties.
Using Law Firm, Client Resources
Many immigration law firms hire paralegals and other
staff who speak languages other than English. This makes sense for firms where a majority
of the clients are non-English speakers, but may not be practical for firms that
don’t have an immigration law department. However, paralegals who do speak an
additional language are a valuable asset and should promote this within their law firm so
they can assist in cases that involve clients who speak the same language as the
paralegal.
"I speak Spanish and this was one of the reasons I
was hired," said America Calderon, a paralegal with the immigration law office of
Jose Pertierra, Attorney at Law in Washington, D.C.
Calderon, who has been with the firm for 14 years,
explained that 90 percent of their clients speak Spanish, and come to the firm because
they hear that the lawyers and paralegals speak Spanish. But she added that not all
Spanish speakers come from the same culture and this can lead to problems at times. A
person from one country may not understand someone from another country, because Spanish
is spoken with a different accent by someone from Cuba, Spain, or a Central or South
American country. Different cultural meanings may also be given to words by people from
different cultures. For example, asking a woman what her relationship with her husband is
like, may mean how long they were married or what their sexual relationship is like,
depending on which country she lived in. Knowing the potential for such problems can help
paralegals to avoid them.
In addition, using client resources may be a solution.
Sometimes a client will have an employer or other adult who can assist in getting
documents or acting as an interpreter when meeting with the client. However, using a
client’s child to interpret isn’t a good idea because legal matters are
confidential and a child may tell others what is going on, according to Frumin. With an
adult, you can advise the person of the importance and obligation for confidentiality.
Be wary of using translating software, since such
software gives only a very basic translation, often with grammatical errors. Translation
software doesn’t translate legal or other specialty terms or concepts.
Using Outside Experts
Using a language specialist is often the best solution
when a legal case involves a non-English speaking client, or involves international
transactions and foreign-language documents. A paralegal or other staff member who has
high school or other basic language training may be able to engage in social conversations
with clients, but for legal testimony and documentation you need a language expert.
There are two categories of language experts. Translators
deal with the written word and translate documents from English into another language, or
from another language into English. Interpreters deal with the spoken word and listen to
an English speaker and translate into another language by speaking to another person, and
then listening to the non-English speaker and translating into spoken English to the
English language person.
Translators tend to go only one way, translating into
their native language. Interpreters must go both ways translating into the opposite
language of the speaker as each person speaks. Most professionals specialize in either
translation or interpreting.
"We find that clients who are not experienced in
using translators or interpreters miss the fact that these are highly specialized and
technical skills that require a great deal of training," said Ann Macfarlane,
president of ATA and owner of Russian Resources International in Seattle. "Many
people also don’t know there is a difference between written and spoken language.
Professionals use the correct grammar and know the right words to use within the
context."
"Whether you decide to get an interpreter or
translator will depend on the subject matter, the complexity of the issue and what is at
stake," Bacak added. "You want someone from the culture or an American who knows
the language and has spent time in the country because there is different terminology.
"People from Brazil speak Portuguese differently
than people from Portugal, and Spanish is different in Spain and Mexico. You want someone
to translate into their native language."
How do you find a translator or interpreter who knows the
culture of a particular country or region that meets your needs and who also understands
legal issues and terminology or specialty area terminology for your case? It’s easy.
You can use the databases at the Web sites for the two major organizations for translators
and interpreters.
ATA profiles more than 3,800 individuals and nearly 100
companies that offer translation and interpreting services. On ATA’s Web site at www.atanet.org, you can find translators and interpreters
for just about any language categorized by areas of expertise including the legal
specialties of banking and financial, contract, corporate, patent, trademark, copyright,
personal injury and tax law. You’ll also find resources for a wide range of
disciplines in medicine, science, industry, technology, entertainment, engineering,
computers and business.
The National Association of Judiciary Interpreters and
Translators (NAJIT), with less than 1,000 listings, allows you to search for an
interpreter or translator by language, location or credentials such as federal court
certification, state court certification, Registry of Interpreters for the Deaf (RID)
certification, Department of State and ATA accreditation. NAJIT’s web site is located
at www.najit.org.
Zion Avdi, a full-time freelance translator and
interpreter who’s also a licensed attorney in both Israel and Colorado, recommends
that you concentrate on finding the best person for your case, which often means looking
beyond your local area. He suggested that while your approach may depend on how urgent
your need is or whether you need a team of translators for a large case, a law firm should
start with assigning a paralegal to conduct extensive research to make a list of potential
translators or interpreters. The paralegal should search the Internet, ATA and NAJIT
directories and national directories, making a list of people with their specialty areas,
languages and qualifications. You can also place ads in magazines setting out the
qualifications you need, or ask for references from court personnel. You should talk to
each candidate to get references, ask about other law firm experience and make an initial
screening. Check references. Then the law team can make a final selection.
Choose an interpreter or translator who knows the subject
matter of your case. You may want to select someone with legal training for translation of
legal documents, but someone with engineering, medical or other experience if your case
involves a specialty area, such as product liability, patent, personal injury, etc. A
person with this experience will be familiar with specialty terms used in the discipline.
Using Translators
"One of my favorite things is when a lawyer calls
and has a room full of litigation documents in a foreign language and has a request for
production of documents," according to Tom West, owner of Intermark Language Services
in Atlanta. West started the company after practicing law with a large Atlanta firm for
five years and finding local translation services had no legal expertise. "We suggest
that the law firm will save money if we sit with them and go through the documents before
translations start and say ‘this is a contract’ or ‘this is a letter
ordering airline tickets,’ so they can decide what documents relate to the case and
need to be translated."
You should get a translator involved as soon as you see
foreign-language documents and make this priority-one, West suggested. Don’t wait
until the last minute, since translation takes time and the translator may have to come
back to the legal team with questions, especially if the original documents are not clear
in their meaning, Laporte added. Macfarlane recommended that paralegals and others on the
legal team make themselves available to the translator who may have questions about the
documents or about specialized terms. For instance, a case involving forestry terms that
aren’t available in a dictionary may leave the translator with questions that only
you can answer. You also need to build in time for the translator to have the documents
proofread by another translator, Laporte added.
It’s important to keep in mind that a translator
must know the law. For example, a person can be completely fluent in French but not be
able to translate "motion to dismiss for failure to state a claim" in a court
document with the correct legal meaning. If you ask the French professor at your local
university to be your translator, he or she may be an expert in Jean Paul Sartre and not
have a clue about the meanings of the terms in articles of association, according to West.
"I was once asked to review a product warranty that
was translated by someone else," Avdi said. "There were all kinds of remedies
listed and the translator had those remedies as being exclusive to the customer, meaning
only the customer could use the remedies as opposed to the exclusivity being the list of
remedies or the only remedies that the customer could use. If a translator doesn’t
understand how warranties are written, he can get into trouble."
To allow the translator the opportunity to produce the
best possible work product, you should send more, rather than less, documentation.
According to West, often a paralegal will make a decision to send some pages of a document
rather than others. While the paralegal may find certain pages unnecessary, a translator
may need those excluded pages to appropriately understand the context and meaning of the
material. For example, one problem created by not providing complete materials could leave
the translator wondering if a word like "trunk," appearing in the limited pages,
relates to an elephant, tree, car or suitcase. Another problem can arise in translating
from particular languages. In the German language, all nouns are capitalized, and a
translator may not know if the word Schreiber means "writer" or if it’s
someone’s name. While these examples may seem like minor points, they may not be so
minor in the mind of your clients.
Brief the translator as to the nature of the case, the
factual and legal issues, purpose and your expectations of the outcome to assist the
translator by providing as complete a context as possible for understanding the documents.
The role of a translator is to translate and convey the message, not to initiate things,
but when a translator is part of the legal team it’s important that he or she knows
what the case is about, according to Advi.
To best manage the documents and be cost effective, work
with the translator to conduct an initial screening of the documents, Avdi advised. Do a
brief summary of each document so you know what the document is about and you’ll know
what you have before you do complete translations. If the translator and paralegal can
work together to create glossaries, as they go through the documents they’ll have a
valuable tool for future translations.
If you’re having a contract you drafted translated
into another language, you should include a governing language clause such as "In the
event of a dispute, the English language version shall prevail," West suggested. You
already have a prevailing law, and this will match the language to the language of your
chosen court.
Using Interpreters
Often courts provide interpreters for criminal or other
cases, but there will be times that you’ll want to hire your own interpreter,
especially in complex civil cases involving specialty disciplines like engineering or
medicine. Choosing an interpreter is similar to choosing a translator, but you should
start looking close to home since this will eliminate or reduce travel expenses which
aren’t involved in sending the documents to a translator. For an interpreter with
experience in a specialty discipline, however, you may have to search nationally.
"It would be nice if we got some information on a
case, but usually a law office doesn’t want to give out information to keep us
neutral," said Izumi Suzuki, president of Suzuki, Myers & Associates in Novi,
Mich., a company offering translation and interpreting services in Japanese and English.
"This is why it is important to get an interpreter who knows the subject
matter."
It’s best if the interpreter understands the legal
procedure of the individual court and how things work in the courtroom, according to Avdi.
Make sure your legal team allows the interpreter to take breaks during the procedure or
have two interpreters who take turns during a trial. If the trial will be a long one,
choose an interpreter with a lot of court experience since this can be a very intimidating
experience.
If you have an interpreter at a deposition, make sure
it’s a different person than you use to interpret client consultations, Suzuki
suggested. At a deposition, it’s best if the interpreter doesn’t have prior
knowledge of what is going on in the case.
On Your Own
There may be many times when, as a legal assistant, you
must interact with a non-English speaking client without the assistance or availability of
a language specialist.
There are things you can do to help communicate with
these clients. Here are some tips from the experts:
- Keep your vocabulary and your sentences simple
- Ask often if they understand or have any questions
- Don’t use jargon, slang or idioms.
- After you meet with a client, send a simply-worded letter
outlining what you said so he or she can take the time to read or translate it with a
dictionary
- Talk at a slow pace to help the other person understand
you
- Be aware of cultural differences in greetings, manners and
expression
- Explain the procedures of how things will go in the case
such as when the client may need to come in, what steps will occur, how long each step
will take and how and who the client should contact with a question. Also explain that
you’re just looking after this legal case and not other matters in their life, if
this is the situation
- If you’re having a person sign a document in English,
and he or she doesn’t read English, be careful to determine the person actually
understands what the document says. You may need someone else to interpret for complex
documents.
Most importantly, don’t automatically assume that a
non-English speaking client understood you. If you have any doubt, repeat it. If
you’re still in doubt as to the client’s understanding, it may be time to bring
in a translator or interpreter. Language barriers are easier obstacles to overcome than
legal errors due to unintentional mistakes. |
