01 Sep Cultural Alignment: The Value of Intercultural Brokering to Enhance Linguistic Comprehension for Legal Purposes Outside the Courtroom
By Armando Ezquerra Hasbun
“Do not omit, add, embellish, or change the register or tone of the message.” Although this mantra of court interpreters applies while interpreting in court, there are specific instances outside of court, such as in the case of medical interpreting, in which an interpreter may be utilized as a cultural broker. This is essential to achieve the common goals of all participants.
It may seem obvious to some, although maybe not to others, that an interpreter actually does intervene at times. The reality is that interpreters do intervene already, even in court. Requests to take a bathroom or rest break, to have a statement repeated, to look up or confirm an unknown term or an unknown use of a known word and to request that someone speak up or use the microphone are examples of times when intervening is not just allowed but perfectly valid.
The key to intervening without interfering is to make sure that no ethical guidelines are breached, that the adequate protocol is observed and that proper phraseology is used throughout.
Intervening is not acceptable in court lest it alter the outcome of an adversarial process, but when the nature of an exchange is to unite the parties behind one common goal, the interpreter, when aware of cultural blockages or subtexts, can request permission to contextualize.
In a proffer session, for example, the goal is to establish that the cooperation received is meaningful by offering clear, useful and complete information to the agents investigating the case. In a pre-sentence report interview, the goal is to help the probation officer assess the factors affecting sentencing guidelines by understanding the intricacies of a defendant’s socioeconomic background. In a client-attorney interview, the goal is or overcome cultural barriers in order to achieve and maintain a relationship of reciprocal trust, so that they can produce an effective defense strategy as a team.
In the above situations, if needed, and if permission is granted, the interpreter should verify and illuminate cultural content that words may not reveal.
Having a language professional equipped with cultural competence who can anticipate, make sense of, and help participants navigate cultural barriers can be an invaluable asset.
Often, it’s not just different languages that separate the parties for whom we interpret. The legal systems, with their procedures and rituals, can be as foreign and baffling for LEP defendants, witnesses and detainees as the words they cannot fully comprehend. The same applies in the case of attorneys, judges, probation officers and others who may not be able to fathom the customs, mindset, biases, cultural values and traditions that inform the behavior of those with whom they interact. Having a language professional equipped with cultural competence who can anticipate, make sense of, and help participants navigate cultural barriers can be an invaluable asset.
Good interpreters, mindful of the limitations of their primary role, but aware of adequate protocol and proper phraseology, can still help close the gaps in cultural perception that may turn a poor initial exchange into good rapport, mistrust into cooperation and confusion into understanding in order to achieve better outcomes for all. Pre-sentence report investigations, attorney-client interviews and proffer sessions are examples of interpreting assignments in which there exists no adversarial quality and in which all participants share one communication goal: full understanding.
Imagine a non-English speaker you will be interpreting for who has been recently detained, and who is naturally emotionally shocked and fearful about what might happen to him next. He may not trust his court-appointed defender because he cannot grasp that the prosecution and the defense, although parts of “the system” in the United States, are actually independent. A good attorney may benefit from the insight of a good interpreter who can provide clarifications to be able to communicate accordingly.
A foreign witness to be deposed in a civil matter may be remotely familiar with how a deposition unfolds, but may not be mentally prepared to be grilled for several hours by a team of attorneys who may pick apart his education record and provoke frustration that brings him close to tears, which in turn, can result in his revealing more information than his attorney would wish. A good attorney will engage a savvy interpreter during witness preparation so that the deponent is better prepared to cope with the psychological demands of his upcoming ordeal and to be aware of the nuances and strategies needed to deal with harsh questioning.
Another situation that would benefit from a cultural broker is the fact that an English speaker may read dishonesty in the shifting gaze of a foreign individual who is avoiding direct eye contact actually as a sign of respect, not as a giveaway marker of any mendacity.
Sometimes, when a claimant is not entirely forthcoming, it is not because of an effort to misrepresent the facts in a deposition over an accident at work, but rather because he may be undocumented, although immigration status is irrelevant in a worker’s compensation claim. The interpreter of record may not interfere with proceedings, but a privately retained interpreter could help the attorney to prepare for witness questioning.
Depositions offer the most fertile ground for deploying our intercultural expertise because, by their nature, they are unpredictable and can touch on many personal areas governed by cultural values. For example, going to see a faith healer when health insurance is not available simply corresponds to a different cultural tradition. Groups of co-nationals who pool money monthly so that a large sum is available for a big expense once a year is not exactly gambling and should not automatically be assumed to be illegal when properly put in cultural context by a knowledgeable interpreter who has received permission to illustrate a point of understanding for all parties.
A proffer session will be much more productive if the attorney is reminded to explain to his client how the process can help the defendant. By the same token, a savvy interpreter can make helpful suggestions when she perceives that her perfect sight translation of the proffer letter has indeed retained the high register, but has also kept the understandably uncooperative defendant in the dark.
Sometimes, even in court, the culturally knowledgeable interpreter may be well advised to intervene, always according to existing protocols, in order to help promote understanding. For example, at a deposition I interpreted for connected with a motor vehicle accident that took place after a celebration luncheon, the deposing attorney kept insinuating that somehow alcohol had been involved. The two Mexican deponents, at their respective turns hotly denied the notion, stated: “I had nothing (alcoholic) to drink; it was the tenth of May” or “They didn’t serve any alcohol, it was the tenth of May.” An interpreter familiar with the cultural landscape of Mexico could request to mention something off the record to all parties after verifying with the deponents. The tenth of May is when Mexicans celebrate Mother’s Day, a time when alcohol is unlikely to be imbibed.
Slang, used by drug traffickers or gang members, the symbolic meaning of some nicknames, and acronyms in the foreign language are all examples of information that may not reveal as much as when the knowledgeable interpreter, when allowed permission, puts them in context or illuminates their deeper meaning.
Intervening without interfering
In cases in which experienced attorneys hire an interpreter to include cultural alignment as part of their witness preparation, there are no great ethical pitfalls: the legal process and the role of each participant can be simply interpreted along with the usual warnings about waiting until the full question has been interpreted before attempting an answer, and then to only answer what’s asked without giving away too much information. In other settings, it is important to remember that cultural brokering is important but is still secondary to simply acting as a conduit.
Ethical restrictions imposed by the canon referring to “scope of practice” prevent an interpreter from taking over a task that is not theirs, but rather the attorney’s. In these cases, as at any other time when the interpreter opens his mouth other than to interpret, the first thing to be stated must be a request for permission to point out a situation, suggest a reminder or familiarize the English speaker with culturally relevant information so that they can decide how to best proceed.
There is a time, a place and a way to use cultural expertise to enhance the communication process so ideas can flow more smoothly, leading the way to greater human understanding.
[Armando is a federally certified court interpreter, a certified trainer for the nationally recognized Bridging the Gap medical interpreter training program, an adjunct professor of interpretation at La Salle University, conference interpreter, grader, lecturer, and consultant in the industry as a subject matter expert. He has spoken at many industry associations to present on the topic of medical interpreting, including the Society for Healthcare Consumer Advocacy (SHCA), the International Medical Interpreters Association (IMIA), and the Texas Association of Healthcare Interpreters and Translators (TAHIT). Armando holds degrees in psychology, international studies and Spanish language and literature. He has been published on various topics of interest to the language services profession and, as a recognized thought leader in the industry, is often engaged as a speaker.]
The views and opinions expressed are those of the author and do not necessarily reflect the official position of NAJIT.