Preparing for a Successful Interpreted Deposition
Finding an experienced deposition interpreter is the first step to a successful interpreted deposition. Another important step necessary to ensure a smooth and successful cross-cultural deposition for all involved is to set clear and understandable ground rules. Depositions can be intimidating and confusing even to English-speaking deponents, let alone to foreign language speakers who are wholly unfamiliar with the process. This is because many non-English speaking individuals raised in foreign countries have had little to no exposure to lawyers and may have little to no understanding of the American legal system. Before questioning begins, lawyers may want to instruct the deponents on the following ground-rules for ensuring a smooth and orderly deposition:
• Waiting for the interpreter to finish interpreting the question before answering it, even if the deponent understands the question in English;
• Not to engage in conversation with the interpreter or ask questions of the interpreter;
• To answer the question in the speaker’s native language only, not English, even though they may know some English;
• To notify counsel conducting the deposition if they do not understand a question being asked;
• To provide verbal responses (as opposed to nodding or gesturing);
• To informing counsel conducing the deposition when they need to take a break.
Once the deposition guidelines have been established and the deponent indicates that he or she understands them, there are a number of other considerations the attorney conducting the deposition should keep in mind.
First, the examining attorney should make a concerted effort to use simple sentences and as basic vocabulary as possible. This is often difficult for attorneys to do, but it is especially important when deposing someone who is testifying through an interpreter. The examining attorney should also try to avoid legal terms to the extent possible, as these terms are often completely unfamiliar and confusing to non-English speakers.
Another factor the examining attorney should keep in mind is that many English words and phrases do not have an exact equivalent in other languages. For example, it takes at least four Russian words to explain the concept of a “deposition” and at least five Russian words to say “deponent!” Attorneys should be mindful of the fact that it may take longer for the interpreter to ask the same question of the deponent, hence the importance of keeping questions as short as possible.
Second, attorneys should have a basic understanding of the idiosyncrasies of the deponent’s native language if they have never deposed individuals who speak that language before. For example, Laotians and Thais will often reply to yes or no questions by repeating the verb from the question. For example, instead of answering “yes” or “no” to the question, “Are you married,?” the deponent might simply reply “married” or “not married.” Likewise, when asked “Do you have any children?” the deponent might answer “have no children” instead of “no.” Attorneys should be mindful of these types of language differences before commencing a foreign language deposition in order to set expectations and reduce frustration.
Third, similar to the fact that a deponent may not answer a question in the manner the examining attorney anticipates, attorneys should be aware of the fact that the deponent may not answer the question at all. While it might seem counterintuitive, attorneys should be tolerant of a deponent’s non-responsiveness during foreign language depositions and understand that they may need to repeat or rephrase questions and terms that may be confusing. Many non-English speaking deponents become embarrassed when they do not understand a question, even if it is spoken in their own language, and may not want to admit that they do not understanding something, even if the attorney has instructed them to do so.
In other cultures, it is actually common to remain silent for a period of time before answering a question in order to process information and gather one’s thoughts; thus, the attorney should give the deponent the benefit of the doubt and be accepting of periods of silence rather than assuming it is due to the deponent’s evasiveness. Furthermore, when addressing sensitive topics that the deponent may be reluctant to discuss, the examining attorney may benefit from waiting to discuss sensitive topics later in the deposition rather than insisting that the deponent answer such sensitive questions immediately.
Fourth, examining attorneys should be sensitive to the fact that deposition interpreting is a complex process that requires high levels of concentration on the part of the interpreter. The interpreter must first hear, then understand, then analyze, and, finally, repeat the deponent’s testimony accurately and completely in another language. Long-winded questions from attorney and responses from the deponent can be taxing and exhausting for the interpreter. If the deposition proceeds for several hours at a time without any breaks, the interpreter can become fatigued and the quality of the interpretations may suffer. In order to prevent interpreter fatigue and ensure an accurate record, attorneys should strive to take regular, short recesses throughout the deposition.
Finally, attorneys preparing for a foreign language deposition should undertake efforts to obtain certified translations of foreign language evidence prior to the deposition. As previously explained, interpreters work with spoken words while translators work with written text. Therefore, the questioning attorney should have a legal translator translator translate the documents the attorney anticipates he or she will use as exhibits during the deposition before the deposition takes place in order to ensure that the deposition proceeds smoothly. Generally speaking, an interpreter should not translate documents during a deposition; translating documents written in English into a foreign language should be done beforehand. Similarly, an attorney representing a client who speaks a foreign language may need to review certain documents with the client before their deposition. In order to properly prepare the client for the questions the attorney anticipates might be asked of his or her client, along with the documents the client might be asked to review, the attorney will want to ensure that any relevant documents are translated into the client’s language before the deposition preparation meeting. This will allow the client to be well prepared for their deposition and the attorney to anticipate (and address), any problematic testimony before it occurs.