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Switzer: In Re: Accurate, Quality Court Interpretation

By Kenneth M. Switzer

Thursday, November 18, 2021 | 0

The Tennessee Bureau of Workers' Compensation’s annual educational conference took place two weeks ago and always produces several hidden gems. One that I found most intriguing was the session on interpretation.

Judge Kenneth Switzer

Judge Kenneth Switzer

Interpreters have become an important part of the Court of Workers’ Compensation Claims over the last seven years. During that time, the need for in-court interpretation has increased. And the increase is not only related to one language, but several across the state.

Throughout Tennessee, the population of those with limited English proficiency, or “LEP,” has grown. That growth stretches the availability of quality interpreters.

In a session entitled “Language Access and Working with Interpreters,” we listened to Prof. Sherley Cruz from the University of Tennessee College of Law and Assistant Dean Spring Miller of Vanderbilt University speak on the issue of quality courtroom interpretation. (By the way, if you’ve registered and paid, the conference can be viewed on demand through Dec. 3, if you want to watch this session or any others.)

But before I get to their recommendations and our response, let’s clarify the terminology. To “interpret” means to convey/communicate/translate/convert the spoken word from one language to another. To “translate “means to convey/communicate/translate the written word from one language to another.

Now with that understanding, let’s talk about interpretation in the court.

To begin with, interpretation is necessary because many injured workers have limited English proficiency. Interpretation matters because it’s a fundamental part of fairness and legal due process. Interpretation is a professional role that we should respect.

We should all recognize that it’s not easy. In fact, it’s pretty hard, especially in our setting. In workers’ compensation, we use many terms that might not have a direct legal equivalent in other languages. Concepts like maximum medical improvement, impairment rating, initial benefit period, preponderance of the evidence, etc., are hard to explain. And, we can translate our documents into only so many languages and dialects.

Next, the way the judge directs the interpretation process affects the understanding of the LEP individual. For instance, allowing a long discourse to occur before permitting interpretation increases the risk of confusion, forgetting what was said, and misinterpretation. And, from the court’s perspective, a long interpretation of a seemingly short question raises a problem all its own. What exactly did the interpreter say to the LEP individual? Is she giving advice or making suggestions? And we’ve all seen the long discussion between the interpreter and the LEP person, where the interpreter turns to the judge and says simply “no.”

So, with these concerns in mind going forward, we should all strive in an interpretation setting to do the following:

  • Use professional interpreters only. No more family members, co-workers or paralegals interpreting — not even for settlements, status hearings and motions.
  • Ensure full interpretation by waiting for each sentence to be interpreted. This will take longer for sure, but we can be patient.
  • No simultaneous interpretation will be permitted. This is where the interpreter whispers into the LEP person’s ear while the trial is ongoing. It’s just too hard for the interpreter and the LEP person to process all the information, and it’s distracting to the others in the courtroom.
  • Review protocols with the interpreter and counsel beforehand. The judge will instruct the interpreter to convey exactly what is said. The interpreter will ask the judge or speaking party to explain a question or statement if the LEP person needs an explanation before answering. Also, the interpreter will not provide an explanation on her own.
  • Provide training to interpreters on workers’ compensation law. We have our own peculiar language and processes. This will make them better interpreters.

This last point is one the bureau is currently pursuing. We’re developing a training session for interpreters on the language and process of our system. Look for a future blog post about the specifics.

We’ll also seek training for the judges on interpretation best practices.

So, let’s all be more mindful of the importance of interpretation in our courts. Not only is it about fundamental fairness and due process, it’s just the right thing to do.

Kenneth M. Switzer is chief judge in the Tennessee Court of Workers' Compensation Claims, Nashville. This entry is republished with permission from the court's blog.


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