Following on from my February post about the US Supreme Court case differentiating translation costs and interpretation costs, today we have a second thought-provoking guest post from Tony Rosado (see his earlier post here). In addition to discussing the outcome of the case, he also gives some very good advice on how to deal with its aftermath.

Tony has been a freelance conference interpreter for almost 30 years and is Federally, Colorado, and New Mexico certified. He also qualified as an attorney from the Escuela Libre de Derecho in Mexico City. You may also be interested in his English/Spanish blog. Tony runs Rosado Professional Solutions in Chicago.

“After watching many of our colleagues celebrating because the U.S. Supreme Court reaffirmed the definition of an interpreter in the Taniguchi case, and more importantly, after reviewing the briefs, oral arguments, full written decision, and the dissenting opinion by Justice Ginsburg, I wonder if this decision should be cause for joy or grounds for concern.

The first thing we must do is to put this decision in perspective. The Court decided a case about court fees. The question before the Supreme Court was about the right that a prevailing party has to recover court fees from the losing party.  The Court had to decide the extent of this right and clarify if it covered translation fees or not. To decide this controversy, the Court looked at many legal arguments and also took into account the “…ordinary and technical meanings of interpreter…”   Yes, the majority concluded that interpreters “speak” and translators “write”, but is this what judicial interpreters and translators needed from the Court?

In my opinion, there are two crucial points that we must consider before we answer this question:

(1) Does the express exclusion of translation services from those that can be considered recoverable as court fees advance the interest of justice?   To say yes to this question, we need to consider that the interpretation services during a judicial process are more important than the translation of documents, statements, records, statutes, case law, etc.  This is a dangerous path.  As an interpreter, translator, and in this case, as an attorney, I cannot imagine a well-prepared attorney who has not reviewed the foreign language contract subject matter of the litigation, or a good extradition lawyer  who does not bother to read the foreign country statute because it is written in another language.  This would be a violation of the client’s constitutional rights and would constitute disciplinary grounds against the attorney.

(2) The second point to consider has to do with the following question: Will the Court’s decision have a chilling effect on private attorneys who will now pause and consider translation costs over translation quality? If the answer to the first point was, as it is in my case, that interpretation and translation services are of the same importance for a case, then the lawyers would have to “chance” the outcome of the case and retain a translator. However, “just in case” the jury were to decide for the other party, attorneys may want to consider a less expensive translator, even if the credentials or reputation are not as good as those of the translator they used to hire before the Taniguchi decision. This could harm the client, and it will definitely hurt the translators’ market.

On her dissenting opinion, Justice Ginsburg did not question who “speaks” or who “writes”, she argued that “…many dictionaries’ definitions of “interpreter” included the translation of written documents…” She pointed out that several federal courts also used similar definitions, and that courts have awarded the costs of translating documents for decades. Justice Ginsburg emphasized the importance of parties’ access to translated documents, and that the line between translated and interpreted communications was not a clear one.  She read the briefs, listened to the oral arguments, checked the technical definitions, and then tackled the two points that I have inserted above. Her answer, and that of the two other dissenting Justices: Breyer and Sotomayor, was that translating and interpreting services are both essential for the administration of justice, and for that reason alone, the risk of having to disburse a considerable sum of money to pay for  translation fees should not be part of the decision-making process. The majority decided to exclude translation services exclusively because of their traditional strict interpretation of the constitution and the law. They did not consider anything else.

This is why, after reading all the materials, letting myself rejoice for a moment as an interpreter, and analyzing the full decision using my training and experience as an attorney, I think that the Alito decision will cause more harm and confusion than ever before.

After dealing with the bigger issues affected by the Alito decision affirming the definition of an interpreter in the Taniguchi case, I now direct your attention to the more practical consequences of the decision. First, this was a decision by the United States Supreme Court about the court fees in a case involving legal translation. In other words, it does not affect anything outside the U.S., it does not affect any interpreters and translators in non-judicial settings, and it does not directly apply to any court interpreters and translators at the state and local jurisdictions.  Of course, the points I have indicated above will stop nobody from bragging about the affirmation of the interpreter concept by the Supremes.

It is really our legal interpreter and translator friends and colleagues who will be dealing with the aftermath of the decision. The parties in federal civil cases will be more reluctant and careful when retaining the services of a legal translator.  Private Law Firms will demand lower translation fees.  The answer to this situation should be a professional and aggressive legal translator who will not give in to the desired adjustment.  We have to keep in mind that private law firms charge substantial fees for civil litigation, and they charge all costs separately from their fee. In other words, the translator will be paid with the client’s money, not the attorney’s. It is also a good idea to ask for a down payment and to draft a contract that clearly states that translation services shall be paid upon presentation of the invoice, regardless of the attorney’s plan to “recover” from the other party. That is the lawyer’s problem, not the translator.

When the attorney requesting translation services is a CJA, the interpreter must ask him to first obtain approval from the trial judge. Once the judge has signed a minute order, the translator can provide her services and then submit her invoice to the court for payment.  In all other criminal cases when the court hires the translator to translate court documents such as presentence investigation reports or plea agreements, the translator should not worry. These services are covered by the law as it is part of the defendant’s right to actively participate in his defense and the right to access to the courts. This is important to keep in mind, as there will probably be cases when the Alito decision may create some confusion as to the services that have to be paid by the court.  Remember, in this case it is the judiciary who is paying for the translation services, not a private party who has paid, and now seeks that the judge order the other party to reimburse him the fees.

It is also important to keep in mind that as a practical matter, translation services, and transcription services, can be provided and paid by the government as expert services.  Please keep handy a copy of 18 U.S.C. § 3006A(e)(1) and 28 U.S.C. § 1920(6) in case you have to argue the law with a client.   Finally, keep in mind that for some time attorneys, judges, and private citizens will be extra careful when it comes to translation services, even interpretation services could be affected by this decision of the Court.  Protect your clients, work with them; a good potential solution could be a sight translation of the voluminous documents so the attorneys can decide what it is that they really need translated. A summary translation (like the ones prepared by our military translator colleagues) can also be an option, as it will help the attorneys decide what to translate.

Be very careful, be alert, remember, if you are a court interpreter, legal interpreter, legal translator, linguistics expert witness, or legal foreign-language transcriber, the Alito decision could affect your market. I invite you to share with us any strategies that you may be following to minimize the effects of the Court decision.”

Tony and I would be really interested in comments from you all on this one – whether as a lawyer, a translator or interpreter, or in another role.