Our country and many of the communities in which we live and work are home to individuals who speak different languages, whether that means they speak several languages, including English, or speak other languages with the exception of English. Due to the vast number of languages spoken in the United States and in Wisconsin, it is vital for attorneys to be aware of the issues that can arise with translations and interpretations, even when there is a native or fluent speaker translating or interpreting. It is important to be aware of these matters in communicating with a client or a potential client and in reviewing documents, such as statements to insurance companies and medical records, because many interpretation-translation errors arise when the best interpreter-translator is not used.

The U.S. Is a Multilingual Nation

From 2009 to 2013, the U.S. Census collected data on the language spoken at home and the ability to speak English for individuals 5 years old or older.¹ Of around 291.5 million people surveyed, almost 60.5 million people reported that they spoke a language other than English at home, and about 25 million reported speaking English at a level less than “very well.”

In Wisconsin, during the same years, of around 5.5 million people surveyed, about 500,000 reported that they spoke a language other than English at home, and about 174,000 reported speaking English at a level less than “very well.” From the more than 200 different languages spoken, the second-most common in both Wisconsin and the U.S., after English, was Spanish.

In addition to the languages documented in the Census, variations may exist in any one language. For example, Spanish is the official language of approximately 20 countries, and each country and regions within a country might have their own dialects and slang vocabularies.

Not Speaking the Same Language; 4 Considerations for Attorneys

As with many other situations, who, what, where, why, and how are important matters to think about when talking to potential clients or representing clients who speak another language. Keep the following points in mind:

1. Pick the Correct Person to Ensure the Best Translation-interpretation Possible. To begin, it is important to think about who is serving as the translator-interpreter and for whom they are serving as the translator-interpreter. For example, does the person who is serving as an interpreter-translator have a personal interest in the matter that is being spoken of or are they a neutral party? Are they knowledgeable about the matter at hand? What is their level of proficiency in both languages?

Many individuals who know they will need interpretation-translation services will bring a friend or a family member to serve as their translator-interpreter. In a situation in which the attorney does not speak the same language as the client or potential client, it is imperative that the translator-interpreter is able to accurately communicate what the attorney and the potential client intend. Therefore, it is important to determine whether the translator-interpreter has or could have a personal interest in the matter at hand, what their level of knowledge on the matter is, and their level of proficiency in both languages.

An individual translating or interpreting in a matter in which they have or might have an interest might not be the best individual to use; there is an added danger of miscommunication or misinterpretation because of that person’s own interest. This issue may also arise after the interpretation-translation has been completed, so it is important to take any interest(s) of interpreter-translators into consideration. For example, one may want to dig deeper in a worker’s compensation claim if the employer served as an interpreter for the injured worker at an emergency room visit and communicated that the injury did not occur on the job, contrary to the injured employee’s statements.

2. Interpreter-translator Has Knowledge Necessary for Accuracy. The topic of discussion is also an important consideration. An interpreter-translator who has knowledge of the topic at hand and a high level of proficiency in both languages, such as a paralegal or legal interpreter, will serve a case best because not only are they more likely to know words that are specific to the field, but they also will be able to convey that word or idea in the other language. This is especially true when legal terms, for example “voir dire” and “adjournment,” are part of the discussion. Someone not familiar with the legal system might not be aware of what legal terms mean in English and therefore might not have the ability to correctly communicate them in another language.

An individual who is able to speak Spanish or English with their family about household and basic life matters might adequately interpret the way a car accident occurred but might not be able to translate the terms included in a representation agreement or explain the timeline of a case.

Even when the interpreter-translator is fluent in both languages, it is important to remember the existence of dialects and slangs within the same language and the fact that sometimes there is not a direct translation in another language of a message a person hopes to convey.

Examples of this in an English-to-Spanish translation include the following:

• There is no direct translation in Spanish for “pat down,” as in a police pat down. Translating the term on Google gives the response “palmadita abajo,” which means “palm below” or “palm under” and might make a Spanish-speaking person think of the game often played with children instead of a police officer searching for weapons.

• A more general example is the translation of the phrase “to love.” In Spanish there are several translations for this phrase, “te quiero” and “te amo,” and they are used in different settings. “Te amo” is used in more romantic settings, so using “te quiero” instead of “te amo” or vice versa can dramatically change the meaning of what a person is trying to convey.

• Personal injury and worker’s compensation attorneys should be aware of the use of the word “doctor” or “doctora” for people who are not physicians. This was something I recently learned as one of my clients continued calling me “doctora. When I realized I was not imagining this, my client explained that Columbian people often used this word to address non-physicians, and the word more often used for physicians was “medico.”

As exemplified above, these phenomena can cause confusion and misunderstanding, which magnifies the importance of the person serving as a translator-interpreter. It also highlights the importance of communicating to the translator-interpreter, whether a hired legal translator or the bilingual paralegal at the firm, that the translator-interpreter should inform you when they may not understand something. It is better to notice the problem and figure it out than to give the incorrect translation-interpretation.

3. Different Scenarios and Different Needs. Where and how will the interpretation-translation take place? Will the translator be translating a representation agreement at their own leisure? Will they be speaking to an individual on their own and then conveying information back and forth, or will they be interpreting a live conversation word for word?

Taking into consideration the specific situation can help an attorney anticipate potential problems and find solutions. For instance, you might be comfortable touching base with the interpreter on how often they need you to stop speaking so they can interpret as accurately as possible or informing the interpreter of the key points you need to get across and allowing them to have more of a communication with the other person as opposed to directly interpreting. On the other hand, you might decide that a person you have used in the past for translations is not comfortable with the faster pace a live interpretation entails.

4. Importance and Difficulty of the Translation-interpretation. Furthermore, considering the reason for the translation-interpretation is also crucial and intertwines with the other considerations: who is translating or interpreting, the topic of the translation-interpretation, and whether it will be a live interpretation or a document translation.

If the interpretation-translation is needed because the attorney is trying to learn from the client or a written document how a simple rear-end car accident occurred, someone with a basic fluency in the languages and no legal experience may be able to convey the information properly. In contrast, if the information being translated is a settlement agreement full of legalese and byzantine terms (like “byzantine”), someone with basic fluency and no legal experience probably will be inappropriate and the person interpreting or translating probably should be an attorney.

Ethical Considerations

When practicing law, Wisconsin attorneys are required to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation.”² This can be a hard task to complete when there is no language in common and when the lawyer is relying on someone else to convey the information we intend to communicate.

Essentially, being aware of issues with translations and interpretations and preparing for representation of clients or conversations with potential clients who do not speak the same language as we do is vital to ensuring that we are fulfilling our duties as attorneys and serving our communities as best as possible.

Endnotes

¹ U.S. Census Bureau, Detailed Languages Spoken at Home and Ability to Speak English for the Population 5 Years and Over: 2009-2013, (last revised Oct. 6, 2020).

² SCR 20:1.4.

» Cite this article: 94 Wis. Law. 47-49 (March 2021).