By Chief Judge Kenneth M. Switzer, Nashville
The Bureau’s annual educational conference took place two weeks ago and always produces several hidden gems. One that I found most intriguing was the session on interpretation.
Interpreters have become an important part of the Court of Workers’ Compensation Claims over the last seven years. During that time, the need for in-court interpretation has increased. And the increase is not only related to one language, but several across the state. Throughout Tennessee, the population of those with limited English proficiency, or “LEP,” has grown. That growth stretches the availability of quality interpreters.
In a session entitled “Language Access and Working with Interpreters,” we listened to Professor Sherley Cruz from the UT College of Law and Assistant Dean Spring Miller of Vanderbilt University speak on the issue of quality courtroom interpretation. (By the way, if you’ve registered and paid, the conference can be viewed on demand Nov. 15-Dec. 3, if you want to watch this session or any others.)
But before I get to their recommendations and our response, let’s clarify the terminology. To “interpret” means to convey/communicate/translate/convert the spoken word from one language to another. To “translate “means to convey/communicate/translate the written word from one language to another.
Now with that understanding, let’s talk about interpretation in the Court.
To begin with, interpretation is necessary because many injured workers have limited English proficiency. Interpretation matters because it’s a fundamental part of fairness and legal due process. Interpretation is a professional role that we should respect.
We should all recognize that it’s not easy. In fact, it’s pretty hard, especially in our setting. In workers’ compensation, we use many terms that might not have a direct legal equivalent in other languages. Concepts like maximum medical improvement, impairment rating, initial benefit period, preponderance of the evidence, etc. are hard to explain. And, we can only translate our documents into so many languages and dialects.
Next, the way the judge directs the interpretation process affects the understanding of the LEP individual. For instance, allowing a long discourse to occur before permitting interpretation increases the risk of confusion, forgetting what was said, and misinterpretation. And, from the Court’s perspective, a long interpretation of a seemingly short question raises a problem all its own. What exactly did the interpreter say to the LEP individual? Are they giving advice or making suggestions? And we’ve all seen the long discussion between the interpreter and the LEP person, where the interpreter turns to the judge and says simply “no.”
So, with these concerns in mind, going forward, we should all strive in an interpretation setting to do the following:
- Use professional interpreters only. No more family members, co-workers or paralegals interpreting ̶ even for settlements, status hearings and motions.
- Ensure full interpretation by waiting for each sentence to be interpreted. This will take longer for sure, but we can be patient.
- No simultaneous interpretation will be permitted. This is where the interpreter whispers into the LEP person’s ear while the trial is on-going. It’s just too hard for the interpreter and the LEP person to process all the information, and it’s distracting to the others in the courtroom.
- Review protocols with the interpreter and counsel beforehand. The judge will instruct the interpreter to convey exactly what is said. The interpreter will ask the judge or speaking party to explain a question or statement if the LEP person needs an explanation before answering. Also, the interpreter will not provide an explanation on their own.
- Provide training to interpreters on workers’ compensation law. We have our own peculiar language and processes. This will make them better interpreters.
This last point is one the Bureau is currently pursuing. We’re developing a training session for interpreters on the language and process of our system. Look for a future blog post about the specifics.
We’ll also seek training for the judges on interpretation best practices.
So, let’s all be more mindful of the importance of interpretation in our courts. Not only is it about fundamental fairness and due process; it’s just the right thing to do.
From the Bench 
Chief Judge Switzer,
Thank you for this article and best practices suggestions for interpretation. As part of this initiative within the BWC and CWCC can we expect to receive additional templates of settlement documents in Spanish? I think this would help the settlement approval process a great deal. I realize that may not be feasible for the SD-2 but if we all had access to Settlement Agreements and Orders in Spanish it may help the translation process during the preparation conversations and the actual hearing. Thanks in advance for your consideration.
LikeLike
I agree with nearly everything in this article, with one exception. I am concerned about the court insisting on “professional interpreters only” even for informal proceedings like settlement approvals and status hearings. It creates a potential access to justice issue. Professional interpreters have to be paid, and it can be a significant expense (especially for less-common languages). Certainly, a professional interpreter is indispensable for formal proceedings like trials and depositions. However, I disagree that it is a good idea to inject this cost into informal, uncontested proceedings like a settlement approval hearing. Who pays the interpreter? Is it fair to create a situation where every employee who speaks Spanish, Arabic, Mandarin, or some other language gets a little less money than his or her English-speaking counterparts, because they have to hire an interpreter to finalize an otherwise-undisputed settlement?
I certainly recognize the hazard that bilingual family members, friends, or other non-professional interpreters may not always reach the same levels of accuracy as a professional, certified interpreter. The judge must be especially watchful for any signs that the interpreting is not going smoothly, or a full understanding of the proceeding is not actually being conveyed. However, I believe the potential disadvantages have to be weighed against the costs that the employee must bear. In an uncontested proceeding, I believe the balance weighs in favor of greater leniency in what interpreters should be allowed.
In my view, this is a situation where judicial discretion will serve the interests of justice much better than a bright-line rule in the long run.
LikeLike
Wow, what a thoughtful and compelling article. I practice in Juvenile Court, and we face similar language issues on a routine basis. I think professional interpreters are essential (as opposed to family and friends), particularly when normal everyday words take on special meanings in a legal setting. Professionals, paid by the Court or perhaps the AOC, can be trained and become very efficient in particular areas. Like almost everyone, the biggest headache I have when using interpreters is the interruption to the “flow” of a trial, for both sides. In due time, technological advances will solve that problem for us, but we can and should be more proactive now, even though our attempts will someday look pretty rudimentary. 🙂 This issue won’t be going away, and, in fact, will probably only increase, so thank you for starting a much-needed conversation. (And, on a personal note, all my best to you and yours!)
LikeLike