By Noel J. Meza
Greene & Roberts LLP
In September of 2020, I had my first non-English speaking client during the COVID-19 era. I thought, “Gee, this is going to be a piece of cake since everything is virtual.” Boy, was I wrong! In this article, I am going to share some of the lessons and challenges I learned about doing virtual hearings with non-English speakers.
Lesson #1: Educate your client on the basics of our legal system
Non-English-speakers may need additional assistance understanding our legal system. Many of those who cannot speak English may have recently immigrated to our country, and each of them has a very unique perspective about our legal system and how our courts operate. Some have a serious distrust of our system. I had a prospective client tell me he was afraid that the defendant — a big corporation — could bribe all the judges in Southern California because that is how it was in his country, while others have no idea how our system works.
The first goal should be to gauge your client’s understanding and knowledge of our legal system and to set reasonable expectations. For example, clients should be instructed to diligently obey the judge’s orders. One client I had wanted to cut corners on an order prohibiting communication with a third-party pending litigation. I had to research and communicate to my client what consequences there were if he violated the order. This included giving him stern warnings, reminding him to abstain from communications, and instructing him to report any unsolicited communications from the other side.
Lesson #2: Explain to your client that he/she should not contact the judge directly
Non-English-speakers should be advised to not try to directly communicate to the judge during a live hearing. In one of my hearings, my client innocently interrupted the judge on several different occasions and began to deliver an oral argument, in their own native language, as to the facts of the case. The judge immediately cut my client off and explained — through the interpreter — that only counsel (me) could address the court on my client’s behalf. I immediately instructed the client (on the record) to not make any more statements. But the client kept interrupting. The judge became visibly upset and instructed the client, once again, to not make any more statements and that anything that he wished to say needed to be said through me. After I explained this again to the client, the client immediately understood and for the remainder of the hearing did not make any more interruptions.
Lesson #3: Make sure you choose an interpreter that is competent and that you can trust
Selection of an appropriate interpreter is key. Some clients do not have the money for a professional interpreter outside of court, so they stick to their family members or close friends. The problem is that this can cause issues regarding attorney-client confidentiality. In some scenarios, it can be problematic if the client chooses to engage in written communications with his family member or friend regarding his case. It is very important to instruct the client to not engage in written communications with the interpreter outside of the attorney-client setting, as such communications may be discoverable.
Lesson #4: Instruct your client to speak clearly and slowly enough for the interpreter
Some interpreters may not be able to interpret accurately or quickly enough. This might be because the client speaks too quickly or is used to speaking very informally in his native tongue. Things can get “lost in translation.” You definitely don’t want something significant translated incorrectly.
Explain to your client the importance of having a competent interpreter before choosing one. Also explain to the client that he/she should speak very clearly and even slowly if necessary. Encourage the client to confirm with the interpreter that the testimony is understandable.
Lesson #5: Communicate with your client via email when possible
Have your client email questions as opposed to asking them over a telephone call. A call can be twice as long as you might expect because everything has to be translated back and forth between you and the client. Here, the best practice is to instruct the client to email questions if possible. That gives the client and his interpreter ample time to formulate and narrow their questions.
Lesson #6: Find out what the judge’s preferences are for in-court interpreting
Some judges prefer two interpreters — one for each side — rather than having one for both sides. Some judges prefer live translating (whereby only the lawyers and client can hear the interpreters). Find out what your judge’s preferences are. You can call the clerk and ask. Some judges don’t have a lot of experience with non-English-speakers. Or, the judge has always done things a particular way and might not know that there is be a new or better way of doing it.
Do not be afraid to educate the court if you think there is a better way of interpreting/translating. For example, when I externed for a federal judge and interned at the U.S. Attorney’s office, I spent a lot of time in federal court watching criminal hearings. As you can imagine, a lot of the defendants at our local federal courthouse only speak Spanish because of our proximity to Mexico. In federal court, I observed that many of the judges prefer having only one interpreter and doing a live translation rather than having the interpreter translate every two to three sentences. This might be a bit tricky to do with a virtual hearing. But talk to the clerk and offer to help the clerk explore options.