Deposition Interpreters Are
Critical When Deposing
a Non-English Speaking Witness

Deposition Interpreting Services Your Law Firm Can Count On

As our world continues to become increasingly interconnected on a global scale, it is also increasingly more common for non-English speaking individuals to play key roles in legal disputes, both as parties or as third parties in possession of crucial information. Taking or defending the cross-cultural deposition of a non-English speaking witness, when done correctly, should create a clean and usable record of the witness’s testimony, which can be used in future proceedings, to aid settlement or mediation discussions, or, ultimately, as evidence at trial.

However, working with non-English speaking witnesses can create some unique challenges that may pose difficulties for attorneys who are not familiar with the use of a deposition interpreter in this setting. This article provides an overview of some of the basic considerations counsel should be prepared to address when using a legal translator during a deposition.

1. Understand the Legal Translator’s Role

Similar to the stenographer and/or videographer, who has been hired to assist with the administration of the deposition proceedings and who acts as an extension of the court in those proceedings, the deposition interpreter should be an impartial, disinterested individual, with no cognizable ties to any parties, witnesses or counsel. Depending on the perceived importance of the deponent’s testimony, and the extent of the language barrier between the deponent and counsel, it may be wise for counsel to utilize their own translator to assist with deposition preparation, to help the deposition run smoothly and limit miscommunications. If the deponent is represented by counsel, he or she should be reminded that the translator should be seen as a court official, rather than a friend, and that the attorney-client privilege does not extend to conversations had directly with the translator.

2. Coordinate with the Court Reporter or Videographer

Although more experienced court reporters and videographers have likely attended depositions where the deponent required a translator, counsel should not assume a high level of familiarity with this process. When booking the deposition with the court reporting service, counsel should note that a translator will be used, and counsel should have a brief conversation with the reporter and opposing counsel prior to beginning the deposition. Counsel is well-advised to remind the court reporter that the translator’s words should be treated as though they are the witness’s, and should therefore be recorded with the same accuracy and attention to detail. The reporter and translator should be instructed on how to record instances where the translator may need to speak for himself/herself during the deposition (such as when the translator has difficulty understanding a question, or needs to ask the deponent for clarification). Typically, any substantive discussions regarding translation should be held off the record, and preceded with a mention that the translator has a question or problem.

3. Identify and Correct Translation Errors

Minor errors in translation are common and sometimes unavoidable, given the complexity of topics deponents must address, and the types of questioning posed by counsel. In anticipation of this, counsel should discuss what procedure they will use for correcting errors in the transcript that are caused by an incorrect translation. A format akin to an errata sheet may be most useful. During the deposition, if counsel perceives that the translator may have misinterpreted testimony or misunderstood a line of questioning, counsel should interject with an objection on the record. If one side identifies an error in the translator, through the use of a privately-retained interpreter or by conferring with the deponent, if the deponent is that attorney’s client, counsel should notify opposing counsel, and attempt to come to an agreement regarding the actual testimony that was given. In the event the parties cannot agree on a correction, preference will be given to the written transcript, and the original translation contained therein.

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