In depositions and trials involving non-English-speaking parties and witnesses, clients represented by bilingual counsel have the clear upper hand. The advantage a bilingual attorney has over a nonbilingual attorney cannot always be offset by the services of an interpreter at deposition or trial, given that even the most skilled interpreter can make inadvertent mistakes and, more importantly, cannot comment on material credibility indicia of non-English-speaking witnesses, such as their intonation or sarcasm, while testifying. Consider these scenarios:
A plaintiff in a deposition testifies in Spanish, but neither the plaintiff’s nor the defendant’s attorneys speak Spanish. Out of necessity, both attorneys must rely on the interpreter’s translation of the plaintiff’s testimony (particularly if the proceeding is not videotaped), although neither attorney can be sure that the translation truly captured the meaning of the testimony the plaintiff gave in Spanish. Regardless, the interpreter’s translation stands without contest and becomes the official record of the deposition or trial. Clearly missing in an even accurate, verbatim translation of the testimony is an assessment of the witness’s credibility. Neither counsel will know whether the witness used certain words in a sarcastic or skeptical tone which, if known, would have prompted counsel to seek clarification or conduct follow-up questioning.
Consider another scenario, but one in which only one of the attorneys speaks the plaintiff’s native language. For this example, assume the bilingual attorney is defense counsel in the deposition of a Spanish-speaking plaintiff. Defense counsel, as the sole bilingual attorney in the proceeding, understands the plaintiff’s testimony in Spanish and understands the interpreter’s translations of counsel’s questions and plaintiff’s answers. In this scenario, the bilingual defense counsel has the ability to effectively challenge the accuracy and completeness of the interpreter’s translations during the deposition. Plaintiff’s counsel, the nonbilingual attorney, is at a clear disadvantage, unable to challenge defense counsel’s objections to the interpreter’s translations. Worse yet, the nonbilingual attorney may not be representing the client well if he or she fails to object to inaccurate translations defense counsel did not challenge. Besides the bilingual counsel’s ability to understand the Spanish testimony and translations, the bilingual counsel has another advantage. The Spanish-speaking witness may be more candid, cooperative, or feel less anxious if the witness knows the questioning attorney is bilingual.
The effectiveness of the legal representation a client receives in litigation involving non-English-speaking parties or critical witnesses often depends on the ability of a party’s counsel to understand the non-English-speaking party in his or her native language not only to ensure that the translations are correct, but more importantly, to assess witness credibility. Counsel at a deposition or trial should not rely on an interpreter for this purpose.
Just as court reporters in trials and depositions must transcribe testimony verbatim and without injecting subjective commentary, such as a witness’s intonation or sarcasm while responding to questions, interpreters in depositions and trials involving non-English-speaking witnesses must also act in neutral capacities. Interpreters can provide only verbatim translations of questions posed and answers given at depositions and trials. Interpreters may not add their own subjective commentary to translations, such as whether in a narrative response a witness used a particular word in a sarcastic, surprised, or skeptical tone. It is the responsibility of counsel to make important credibility assessments of witnesses—whether English-speaking or not—to effectively proceed with the interrogation or defense of a witness during a deposition or trial. It goes without saying that in addition to a witness’s substantive responses, a witness’s credibility involves an assessment of intonation, sarcasm, body language, and emphasis on certain words while testifying, particularly in harassment, discrimination, and other employment-related cases. The bilingual attorney who speaks the same language as the witness can pick up on important credibility subtleties and nuances (such as sarcasm, skepticism, fear, hesitation, etc.) that are not captured in interpreters’ translations and may be missed by counsel who are not bilingual. At a trial where jurors speak the same language as a witness, a bilingual attorney is in the best position to instantly gauge juror reaction to a witness’s intonation or emphasis of certain words while testifying and adjust trial strategy as necessary.
Aside from credibility assessment considerations, the bilingual attorney has other advantages. In the heat of trial or deposition, the bilingual attorney can quickly use his or her judgment in deciding whether to: pursue alternate questioning if a witness’s intonation while testifying indicates hesitation, discomfort, sarcasm, or skepticism; let awkwardly translated answers stand to avoid disrupting the flow of questioning or wasting limited time; forgo objections to certain translations of technical words or slang because they cannot be translated with precision; question a witness about foreign-language documents produced during a deposition; conclude that although testimony was not translated verbatim, an interpreter’s translation captures the essence of a witness’s testimony; call for a break upon detecting that an interpreter is becoming bored or tired as evidenced by labored or confusing translations of questions; or object to translated questions or testimony because the translations are inaccurate or incomplete.
Counsel may opt to videotape a deposition to capture a witness’s non-English testimony and an interpreter’s translations of same. Counsel should not count on using the videotape to challenge inaccurate translations after the deposition is concluded. Aside from possibly waiving such objections because they were not made during the deposition, it may not be feasible to reopen the deposition to conduct follow-up questioning based on the witness’s actual testimony. Moreover, the deponent may attempt to use the videotape to make substantive changes to the deposition transcript based on his or her responses as reflected in the videotaped deposition.
Large percentages of employment-related litigation in the United States are brought by non-English-speaking plaintiffs, particularly in states such as California where Latinos comprise almost 40 percent of the population. Given these demographic realities and to effectively represent their clients, counsel must be prepared to address the challenges presented in depositions and trials involving non-English-speaking witnesses.