The skillful interpretation
of languages is both a craft and an art. In the 1964 Cold War drama,
“Fail-Safe”, Henry Fonda plays a U.S.
president who must avoid all-out nuclear war by convincing the Soviet
premier that U.S.
bombers have been mistakenly sent to attack Moscow
with nuclear weapons. By his side at the hotline is his Russian interpreter,
a young Larry Hagman. As Fonda prepares
to make the call, he briefs his interpreter:
Sometimes, there’s more in a man’s voice than in
his words. There are words in one language that don’t carry the same
weight in another ... . So, I want to know not only what he’s saying,
but what you think he’s feeling - any inflection in his voice, any
tone, any emotion that adds to his words - I want you to let me know.
Attorneys sometimes trade gloomy stories of testimony
by foreign-born witnesses. A common complaint is that following a
long verbal exchange between the witness and the interpreter, the
interpreter turns toward the attorney and solemnly declares, “The
witness said, ‘Yes.’”
Today, almost one in five Americans speaks a language
other than English at home.1 Therefore, it is no surprise that many
non-English-speaking witnesses appear daily in depositions nationwide.
This article addresses ways of overcoming some challenges
of a cross-cultural deposition. For purposes of this article, a cross-cultural
deposition is one in which the attorney is English-speaking (generally
American-born), and the deponent is foreign-born and speaks limited
or no English.
THE
INTERPRETER’S ROLE
There are two categories of language
experts. Although the terms “translator” and “interpreter” often are
used interchangeably in English, there is a clear distinction between
them, as they refer to members of two different professions. Translators
deal with the translation of written materials. Interpreters translate
orally from one language to another.
There are relatively few formal guidelines
governing interpreters. The Court Interpreters Act of 1978 and the
subsequent 1988 amendments mandated that a national certification
exam be developed for certifying interpreters qualified to interpret
in federal courts.2 Currently, federal certification programs exist
in only three languages: Spanish, Navajo, and Haitian-Creole.3 The
Administrative Office of the U.S. Courts classifies three categories
of interpreters: (1) “certified” interpreters, who have passed the
Administrative Office certification examination; (2) “professionally
qualified” interpreters for languages other than Spanish, Haitian-Creole,
and Navajo; and (3) “language skilled” interpreters.
The National
Center for State Courts
has established a consortium of states to develop court interpreter
proficiency tests. Currently, 30 states are members of the consortium
for state interpreters.4
A court interpreter’s role is to “translate exactly
what is said and at the same level of discourse the speaker uses.”5
An interpreter in a deposition should not summarize, paraphrase, explain,
or verbalize his or her personal opinions. Instead, the interpreter
is charged with the task of relating exactly how something is said
by counsel and by the non-English-speaking deponent to properly convey
the style and form of the message.
INTERPRETATION BY INTERESTED PERSONS
Untrained, nonprofessional interpreters
often misunderstand the fact that the interpreter is required to be
neutral when interpreting in a legal setting. As a result, they may
side with a deponent and translate what the interpreter believes to
be favorable rather than what is accurate.6 Interpreters who personally
know the defendant or have some interest in the case may have a serious
problem in accurately rendering a
deponent’s testimony, which defeats the purpose of the interpreter
in a deposition.
There often are clear signs at the beginning of a
deposition that an interpreter is incompetent or noncompliant with
the Interpreter’s Code of Professional Responsibility. Untrained interpreters
commonly fail to use the same grammatical tense as the deponent for
whom they are interpreting. For instance, if the deponent says, “I
do not recall,” the interpreter should repeat, “I do not recall,”
rather than, “He said he does not recall.”
To ensure an accurate record, it is equally important
for the deposing attorney to address the deponent directly. If appropriate,
the attorney should maintain eye contact with the deponent, as if
the interpreter were not present. For instance, counsel should ask
the deponent through the interpreter, “Where were you born?” Counsel
should not say to the interpreter, “Ask him where he was born.”
When in doubt regarding the professionalism of an
interpreter retained for a deposition by the opposing counsel, an
attorney may consider hiring an impartial and qualified “check interpreter.”
To ensure an accurate record, the check interpreter will speak up
only if the main interpreter fails to provide an accurate interpretation
of a given statement.
“LIMITED
ENGLISH” DEPONENTS
When deponents speak some English, but are not fluent,
it is not advisable to have them testify in English. Some attorneys
are tempted to have an interpreter present, but to let deponents with
limited English testify in English when they understand the question
and then use the interpreter only when the deponents do not understand
what is being asked.
On the whole, it is better to have an interpreter
deliver all questions to such deponents and to have deponents provide
all answers in their native tongue. Deponents with limited knowledge
of the language can become confused if they are not certain of the
meaning of questions. The deponents might start guessing or mixing
English words with foreign words during the testimony, which would
make it difficult for the court reporter to produce an accurate record.
SPECIALTY
AREA INTERPRETERS
In a complex civil case involving technical specialty
areas, the lawyer who will be taking the deposition may want to select
an interpreter with expertise in the relevant discipline.
Translation companies may have such experts available locally,
but an expert interpreter may have to be brought in from another state.
Thus, if the case involves a specialty area, it is advisable to start
looking for an interpreter well in advance of the deposition.
Scheduling is only one aspect of careful deposition
planning. To allow the interpreter to prepare properly, counsel should
provide him or her with a copy of the complaint and other key pleadings,
documents, or exhibits. By way of example, in a patent case, counsel
should provide the interpreter with copies of the patents in controversy.
In a product liability case, if the product catalog will be an exhibit,
counsel should give a copy to the interpreter.
LANGUAGE
AND DIALECT
Counsel should determine the language or dialect
the deponent speaks. In selecting an interpreter, it may be necessary
to take into account the deponent’s national origin. For example,
Arabic interpreters sometimes are automatically called to interpret
for deponents from anywhere in the Arab world.
However, if the deponent is from North Africa,
he or she may be more comfortable with a French interpreter.
A professional interpreter may be fluent in a foreign
language without knowing all of the dialectal differences within the
language. For instance, it is not enough to request a “Chinese” interpreter.
There are eight dialects in China,
and one Chinese dialect may be practically unintelligible to someone
who speaks another dialect. Mandarin is spoken in northern China
(Beijing), Taiwan,
and Singapore;
Cantonese is used in Southern China and Hong
Kong and is spoken by many Chinese immigrants to the United
States. Knowing in advance the language
or dialect in which the deponent is fluent before hiring an interpreter
can prevent confusion and delays.
DEPONENT’S
BACKGROUND
Cultural archetypes, or the “deep-seated collective
attitudes and values formed by a culture,”7 are the “eyeglasses” through
which people look at the world. People evaluate, assign priorities,
judge, and behave based on how they see life through those lenses.
Culture influences the communication process in significant ways,
such as the selection of language, thinking patterns, interpretation
of verbal and nonverbal cues, the role of silence in face-to-face
interaction, perception of time and personal space, and concepts of
respect and politeness.
Before the deposition, the attorney might want to
learn more about the deponent’s culture to gain an understanding of
the potential communication issues that may arise. Nonetheless, it
is important to avoid stereotyping; beliefs about the deponent’s background
and expectations about the testimony may prove to be inaccurate. Even
though someone’s background is not necessarily indicative of anything,
it may provide a glimpse into their psychological mindset. Consider
the following hypothetical.
An older Russian male is asked to recall the date
of an automobile accident in which he was involved four years earlier.
He states that he cannot recall that date. When the deposing attorney
gives him the date on which the accident allegedly occurred, the Russian-speaking
witness immediately agrees. When asked how he suddenly remembers what
he could not recall a minute ago, he replies, “Because you have just
told me that your paper says so.” The deponent has resorted to a familiar
behavioral pattern of unquestioningly submitting to authority - in
this instance, represented by the American attorney.
To understand this behavior, the attorney needs to
remember that Russia
only recently emerged from a culture dominated by a totalitarian political
system. In that environment, the predominant motivation for behavior
was fear and avoidance of retribution by representatives of the totalitarian
regime. This mindset still might be deeply rooted in the psyche of
the ex-Soviets of the older generation. In the above example, where
the attorney provided the date of the accident, the witness potentially
compromised his credibility by bowing to authority.
CULTURE-SPECIFIC
MANNERISMS
Attorneys should be mindful that cultural differences
can affect nonverbal communication. Behavioral patterns of a deponent
from a foreign country may appear suspect to a native-born American
attorney if they do not fall within the common cultural experience
of that attorney. In American culture, looking someone straight in
the eye is a statement of open and honest communication. In some other
cultures, looking a person in the eye is a sign of disrespect. In
the author’s view, that explains why some Asian deponents would rather
stare at the table instead of looking at the deposing attorney, even
when they have nothing to hide.
Gender also may play a role. The author has been
advised that sometimes, when a witness from the Middle East is deposed
by an American attorney of the opposite gender, he or she is likely
to avoid eye contact with the deposing attorney. This is not because
the deponent has something to hide; the action is based on an understanding
of the cultural dynamics of male-female communication and is a sign
of polite respect or modesty. That deponent is more likely to look
a deposing attorney straight in the eye when the attorney is of the
same gender as the deponent.
People learn to express emotions based on their cultural
archetypes and in ways that may be unfamiliar to outsiders. For example,
some Asian cultures use a smile as a mask when dealing with unpleasant
situations.8 Thus, an Indonesian-speaking deponent from a rural area might
smile when discussing sad or upsetting matters. In Indonesian culture,
“smiles do not necessarily imply delight, amusement, friendliness.”9
People from Mediterranean cultures and Eastern European
Jews, on the other hand, often tend to be very facially expressive
and use frequent gestures.10 Before attempting
to interpret deponents’ body language, the deposing attorney may want
to observe their personal style and “baseline” body language in a
context of a non-stressful conversation.
ETHNIC
IDENTITY
Attorneys sometimes are careless and confuse the
country of origin, native language, or ethnic identity of the deponent.
For instance, perestroika put an end to several decades of forceful
“russification” of areas with predominantly
non-Russian populations. Having become independent states, the former
Soviet republics elevated their national languages to the status of
official languages. Several former Soviet republics, such as the Republic
of Moldova and the Republic of Uzbekistan, even rejected the Cyrillic
alphabet and Latinized their writing. To avoid alienating deponents
from countries such as Lithuania,
Armenia,
or Tajikistan,
deposing attorneys should not refer to them as “Russians.”
By the same token, all the Spanish-speaking countries
today are independent states. Therefore, it likely will be puzzling
- if not offensive - for a Spanish-speaking deponent from Costa
Rica or Uruguay
to be referred to as Mexican.
DEPOSITION
GROUND RULES
Even
to an English-speaking person, a deposition can be a confusing experience
with a language and rules of its own. Most non-English-speaking individuals
who were raised in foreign countries have never been in contact with
lawyers, lack knowledge of the American legal system, and have different
perceptions of private property and dispute settlement procedures.
For such deponents, a deposition can be intimidating.
Sometimes, non-English speakers try to use a deposition
as a venue for making lengthy and evasive statements about their case,
feeling triumphant that they finally have an opportunity to be heard.
They may ramble, answer a question with a question, and easily forget
or disregard instructions given to them by counsel.
Attorneys involved in a cross-cultural deposition
would benefit by establishing clear ground rules from the start. Counsel
might advise the non-English-speaking deponent regarding:
If the witness starts providing long-winded responses
to the questions, counsel can allow the interpreter to use a hand
signal to alert the deponent that he or she is talking too fast or
too long. By raising a hand, the interpreter will ask the deponent
to pause and let the interpreter convey the uttered statement.
SELF-DISCLOSURE
AND FEEDBACK
Some attorneys rarely give verbal feedback during
depositions. They stay busy with their notes, flip through documents,
and rarely look at the deponent. Such behavior can stimulate mistrust
and defensiveness in a deponent.11 For example, building respect is
very important when deposing male deponents from Turkey or Iran. The
deposing attorney’s stern or business-like manner, lifted eyebrow,
or raised voice often are perceived by such deponents as criticism
of them and, therefore, as an insult to their pride. When this happens,
the attorney has lost the opportunity to obtain open, candid responses
from the deponents.
Trial lawyers often use self-disclosure effectively
to develop rapport with jurors during the jury selection process.
This tactic may be equally effective in establishing rapport with
a non-English-speaking deponent in a cross-cultural deposition based
on the simple principle, “if you want a clear view of another person,
you must offer a glimpse of yourself.”12 Before going on the record,
the opposing attorney might offer the witness a drink of water and
indulge in a little small talk with the deponent to put him or her
at ease.
Positive feedback plays an important role during
the course of the deposition in encouraging the non-English-speaking
deponent’s responses. When positive feedback is given, using simple
phrases such as, “I see,” “Thank you,” and “I appreciate it,”13 people
speak more readily and state their answers more freely. When the deposing
attorney does not make value judgments about the testimony and is
neutral or positive, the non-English-speaking witness is likely to
“feel more accepted and be more comfortable.”14 As a result, there
is an increased likelihood that he or she will be forthcoming when
providing testimony.
CULTURAL
RELATIVISM
Lawyers involved in cross-cultural depositions are
likely to create communication misunderstandings if they view or treat
people from different cultures as being “generally more similar to
themselves than dissimilar.”15 This behavior is termed “assumed similarity.”16
Assumptions about the meaning of similarities may cause a deposing
attorney to stereotype and misjudge a deponent. Consider the following
hypothetical.
An American attorney is deposing a well-dressed,
middle-aged, non-English-speaking woman in a civil lawsuit. The woman
is originally from a small, male-dominated village. She states that
she has held several jobs since moving to the United
States. However, she does not know
what her articles of clothing cost because her husband makes all the
purchasing decisions in the family. Because the deponent is employed,
the attorney may assume some similarities between the deponent and
her American counterparts. Nonetheless, her working status does not
make her independent - financially or otherwise - from her husband,
who continues to make all of the important decisions.
While deposing a non-English speaking witness, lawyers
likely will benefit from being more “culturally relative,” which is
the opposite of ethnocentric. Instead of viewing the whole world through
the prism of the American cultural archetypes, it helps to remember
that more than one meaning may exist for verbal messages communicated
between people from different cultures. Thus, in the example above,
in the deponent’s cultural worldview, it is common for a woman to
have a job and still let her husband make all of the financial decisions
for her. In the American deposing attorney’s cultural worldview, however,
this is not a consideration.
CULTURAL
TABOOS
During cross-cultural depositions, it is easy to
inadvertently delve into areas of cultural taboos, which represent
beliefs that make discussion of certain topics forbidden or discouraged.
For example, most American attorneys might not anticipate that questions
related to loss of consortium in a personal injury case are likely
to arouse animosity in Russian-speaking deponents of either gender.
Only a decade ago, in Russia,
discussing one’s sex life in public was a cultural taboo.
Deponents from many cultures would find questions
embarrassing if they pertain to intimacy, certain medical conditions,
human anatomy, and bodily functions. Attorneys should be aware of
this possibility and prepare the deponent prior to verbalizing a sensitive
question by saying, for instance, “I know that it may be uncomfortable
for you to answer questions like the one I am going to ask, but I
need to ask it.”
VIRTUE
OF SIMPLICITY
An examining attorney should use simple sentences
and basic vocabulary during a cross-cultural deposition. Counsel should
avoid legal terms when possible; they frequently are unfamiliar and
confusing, even when expressed in the witness’s native language. If
the need arises to ask questions containing legal terms, the examining
attorney will benefit by asking the interpreter’s advice on ways to
phrase the question. An effective interpreter may anticipate problems
with some questions based on differences in attitude or culture that
could hinder the deponent’s understanding of the question. In such
situations, the interpreter may ask the attorney to rephrase the question.
Counsel also should be aware that many English words,
including legal terms, have no semantic parallel - and sometimes no
conceptual equivalent - in other languages. For example, it takes
at least four Russian words to convey the concept of a “deposition”
and at least five Russian words to say “deponent.” Therefore, the
interpreter often may need to use some descriptive terms, which would
take longer than the counsel’s familiar way of speaking.
A basic understanding of the idiosyncrasies of the
deponent’s native language also will help counsel in a cross-cultural
deposition. For example, Laotians and Thais often reply to yes/no
questions by repeating the verb from the question. Therefore, when
asking a simple question such as, “Are you married?” the deposing
attorney might hear “Married” instead of “Yes”; when asking, “Do you
have other relatives in the U.S.?”
the answer might be “Have no other relatives” instead of “No.” Knowledge
of this fact will allow counsel to avoid the frustration of insisting
that the witness reply to his or her question with a clearly stated
yes or no, or blaming the witness for being evasive.
NONRESPONSIVENESS
Many non-English-speaking deponents are embarrassed
to admit that they do not understand a question, even when the question
is spoken in their own language. If the deponent appears nonresponsive
or evasive, the deposing attorney might want to clarify whether the
question might have been misconstrued. The deponent’s nonresponsiveness
may be “nothing more than a bump in the conversational road”;17
with a few additional questions, the attorney may be able to easily
get the required information.
On the other hand, attorneys need to recognize that
many people from other cultures find it “insensitive and rude” when
someone insists on discussing an issue that “they have plainly tried
to avoid.”18 Instead of alienating the deponent by pursuing further
questions in the area that the deponent appears reluctant to discuss,
it may help to try another approach later.
Finally, many Americans are uncomfortable with silence.
In some cultures, it is common to remain silent before answering
a question. Silence allows time to process information and, as such,
may be viewed as part of a person’s cognitive process. It will be
to the attorney’s benefit to allow for silence without assuming it
is due to the deponent’s discomfort or evasiveness.
RECESSES
Interpretation is a complex process involving a high
degree of concentration as the interpreter attempts to first hear,
then understand, analyze, and, finally, express ideas coherently in
another language. Compound questions by an examining attorney and
long-winded responses by a deponent require great focus on the part
of the interpreter. Non-stop interpretation for several hours at a
time can lead to the interpreter’s fatigue, which impairs attention.19
Short recesses are recommended to combat the interpreter’s fatigue
factor and to ensure an accurate record.
CONCLUSION
Admittedly, no civil or criminal case
is likely to rise to the level of dire emergency that the U.S.
president faced in the movie “Fail-Safe.” Nonetheless, attorneys can
maximize their chances of having a relatively smooth and, perhaps
more revealing, deposition. By understanding some of the intricacies
of cross-cultural depositions, counsel can adjust their preparation,
actions, and style to prevent inexplicable surprises in the deposition
process.
NOTES
1 Frey, “Multilingual America,”
24 American Demographics 20 (July/Aug. 2002).
2 18 U.S.C. ¤¤ 1827-28.
3 See www.uscourts.gov/interpretprog/infosheet.html.
4 See www.ncsconline.org/wc/publications
5 Rainof, “How to Best
Use an Interpreter in Court,” 55 Cal.St.B.J.
196, 198 (1980).
6 Committee on the Legal Needs of the Poor, “Equal
Justice and the Non-English Speaking Litigant: A Call for Adequate
Interpretation Services in the New York State Courts,” reprinted in
49 Record of the Assoc. of the Bar of the City of New York 306, 312
(April 1994).
7 Rapaille, 7 Secrets of
Marketing in a Multi-Cultural World (Provo, UT: Executive Excellence
Pub., 2001) at 20.
8 Mogil, “I Know What You’re
Really Thinking”: Reading Body Language Like
a Trial Lawyer (Bloomington, IN:
1stBooks, 2003) at 63.
9 Heryanto, “Politically
incorrect smiles: Bali incident,” Jakarta Post
(Nov. 25, 2002); database: Business
Source Premier.
10 Mogil,
supra, note 8 at 8.
11 Morris, “Effective Communication
with Deposition Witnesses,” 36 Trial 70, 78 (2000).
12 Dimitrius and Mazzarella, Reading
People: How to Understand People and Predict Their Behavior-Anytime,
Anyplace (New York, NY: Random
House, Inc., 1998) at 10.
13 Morris, supra, note 11 at 77.
14 Id.
15 Haskins, “Pitfalls in Intercultural
Communication for Lawyers,” 16 Trial Diplomacy J. 71, 74 (1993).
16 Id. at 73.
17 Dimitrius and Mazzarella, supra, note at 147.
18 Id. at 148.
19 Vidal, “New Study on Fatigue Confirms Need for
Working in Teams,” VI(1) Proteus (1997),
available at http://www.geocities.com/paschmcc/TeamingFatigue.pdf.
NINA IVANCHVILI is CEO of www.LanguageAlliance.com,
a firm specializing in legal translation and interpretation in over
80 languages. (303) 470-9555; translate@languagealliance.com
