What Would You Have Done?

Dear Readers,

This is a new feature of The NAJIT Observer. And it is written by YOU. Yes, you. We will submit a situation – real life on the trenches – and ask you to come up with solutions, suggestions, opinions or simply comments.The idea is to enrich each other’s repertoire of experiences and grow together. We already know we will not have enough time to commit every error or right move in the Book of Life. So, let’s learn together from one another.

This took place sometime ago, in a courtroom somewhere. It was a custody case involving a minor and her parents. The following characters were present at the hearing: Judge, Father’s lawyer, Father, Mother’s lawyer, Mother, Minor Child (four years old), Guardian ad Litem, Interpreter.

The Interpreter was told he would only be helping the Mother who would not be deposing, but needed to be aware of what was going on. Fine. The hearing was going as planned; they were arriving at the desired outcome when the Guardian ad Litem (GAL) was called to present his observations of the supervised visitations. That is when things got a bit frustrating for the interpreter.

Fact 1: The GAL did not speak the parents’ language, was not familiar with the parents’ culture, had a very strong bias towards one of the parents, and was really concerned with the child’s well-being.

Fact 2: The minor child had been living with the residential parent (father) and the visit subject of the GAL’s comments was the third visit with the child after a five-month hiatus.

The GAL commented that during the visit the Mother would not stop making physical contact with the child (touching the child’s hair, holding the child’s hand, smoothing the child’s clothing) and she found it disturbing. The GAL did not give any information regarding how the child reacted to the physical contact.

It so happens that in that family’s culture physical contact is a strong non-verbal form of communication and the parent’s behavior was more than acceptable in their culture, it was expected. However, the Mother’s lawyer, who happened to share the same cultural background as the parents, did not say a word and the negative observation remained in the Mother’s file with the court.

The interpreter spoke with the Mother’s lawyer after the fact, but the lawyer did not do anything and did not plan to do anything about that lack of cultural understanding on the part of the Guardian ad Litem and the resulting blemish in the Mother’s record.

1- Asked to speak as a Cultural Broker and enlightened the court and all present as to the cultural significance of the physical contact;
2- Spoken with the lawyer after the fact and left it alone, just as the interpreter in the case did;
3- Told the mother to speak up and ask her lawyer to allow her to defend herself;
4- Just interpreted and done nothing else;
5- [Fill in the blank]

Please use the comments field below and let us know your solutions and why.

Do you have an interesting situation you’d like us to publish in the next installment? Share it with us.


8 thoughts on “What Would You Have Done?”

  1. Odette says:

    Thought provoking scenario. As a court interpreter here is what I think: unless there is risk to life to any of the parties mentioned in the scenario, the interpreter is to refrain from explaing culture to counsel lest he/she be called as an expert witness for that culture. Also the interpreter is not to give any advise to the party concerned as this might jeopardize the interpreter’s impartiality, and might be misconstrued as giving legal advise, which is not within the interpreter’s role.
    It becomes solely counsel’s legal duty and responsibility to be aware of the client’s culture and watch diligently over his client’s interest .ul

  2. Gio Lester says:

    1- life and death situation would justify direct interference; outside of that, do nothing!
    2- only if called as expert Witness should interpreter voice any concerns
    3- never give “legal advice” to deponent/witness, anyone(!)
    4-leave it to the lawyer: that’s his/her role

    Is that it, Odette?

  3. Lee Roth says:

    Thank you for posting this situation, Gio?

    If I would have posted a situation like this, everybody would jump accusing me of posting controversial, although real, material.

    Unfortunately way too often, during my career as an interpreter, I came across of these kind of GALs with very limited foresight and understanding of other cultures.

    In this particular case, for the sake of fairness, I would have talked to the mother’s attorney in such a stern way that he would have to think twice before deciding to do nothing.

    I know, I know, everybody will jump on my case saying that I exceeded my authority! Well, so be it! For me, fairness and justice are the most valuable things in dealing with people.

    Thank you Gio,

    1. Gio Lester says:

      We intend to use this feature as a teaching tool. If the events are described with enough data to identify an issue and not enough data to identify individuals or where the event took place, they can be analyzed from the stand point of their educational contribution.

      As for your specific reaction, educating the lawyer is something I (personal remark) can live with BUT outside the courtroom, and definitely not so sternly to avoid antagonism and to improve the likelihood of a positive response.

      Lee, I can definitely relate to your emotional reaction, though. When I heard of the case, I was ready to run to that lawyer’s office and give him a piece of my mind.

      Our Code of Ethics help us keep our emotions in check and guide our actions. COEs are not expected to sanitize our emotional make up, but they prevent inappropriate actions.

      Thank you, Lee. And please share some of your cases with us. Not here, though. Send the emails to giolester@gmail.com (until we create an appropriate email address).

  4. Lee Roth says:

    Hi Gio,

    When I wrote that I would talk to the Mother’s attorney in a stern way, I meant to approache the mother’s attorney, outside the courtroom, telling him: “ I noticed that you did not object to the misleading report presented by the GAL. Are you planning to write a motion to suppress her statement based on lack of understanding of cultural differences?” That would have been my approach. Just let him know that you are aware he did not do his job, without entering in any confrontational arguments

    1. Gio Lester says:

      As in option number 2 above – maybe with a bit more emphasis! :o)

  5. Helen Eby says:

    I would have encouraged the Mother to go speak to the judge and I would interpret for her on the spot. Let it play out and see what happens.

    1. Gio Lester says:

      Hi Helen,

      That is acceptable in your state or is it because the interpreter was not there to directly serve the court but to serve the mother’s right to understand the proceedings?

      Based on what I read, the interpreter (1) did his part and interpreted for the mother as the actions were developing, so she was aware of the GAL’s lack of cultural sensitivity AND (2) he also called the lawyer’s attention to the fact.

      Wouldn’t counseling the mother put the interpreter in a lawyer-like position? Mind you, I do not know who was paying the interpreter in this case. Would that also make a difference?

      Interesting point! Thank you, Helen.

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