Good start, now needs follow through.
Harris County’s district and county courts unveiled an updated plan Wednesday for expanding interpreter services for those navigating the court system, but said they will need millions in additional funding to sustain the effort.
The revamped plan calls for increasing the number of available interpreters, training judges and staff around language access and posting the availability of interpreters online and in the courthouse. The plan also calls for additional notice and signs about individuals’ rights to interpreter services.
The announcement comes three months after Harris County Commissioners Court bolstered the courts’ funding by $725,000 to help increase the number of publicly-funded courtroom interpreters in district and county civil courts.
The county long has provided free interpreters to people navigating the criminal courthouse, but does not always offer the same to those involved in civil cases.
Some lawyers say the denial of publicly-funded interpreters in local civil courts has become so routine they rarely bother to submit requests.
The cost of interpreters can run to hundreds of dollars per hearing, which advocates say can create an unnecessary barrier for lower-income non-English-speaking residents trying to understand and participate in their own court proceedings.
Even with the additional funding from the county, District Judge Latosha Lewis Payne, who also serves as the local administrative judge for Harris County’s state district courts, said there is no way the courts can “adequately and timely” provide interpreters with current staffing levels.
“We will definitely need funding in order to make sure that this plan is successful,” she said.
See here for the background, and read the rest for more. As the story notes, some 145 languages are spoken in Harris County, so this is a significant issue that will require a steady and sizeable funding source. Ideally, there would be some kind of state or federal grant to help with that – this is, at some level, a human rights issue, and that’s not something that should be left up to a local government to guarantee – but for obvious reasons one shouldn’t expect much there. We’ll see what plan the county develops.
WHEN IS THAT NEEDED AND WHO SHOULD PAY?
“The cost of interpreters can run to hundreds of dollars per hearing, which advocates say can create an unnecessary barrier for lower-income non-English-speaking residents trying to understand and participate in their own court proceedings.”
Comment: What CAN happen is one thing, what actually DOES happen is something else. And for public policy purposes, the size (pervasiveness) of a problem is obviously a relevant consideration. So, what civil cases and litigants are we talking about, and when is oral testimony even needed? Why should it be paid for by the public?
BARRIERS: LEGAL REPRESENTATION IS THE MAIN BARRIER
The cost of attorney time (typically billed in in 10min or 1/4 hour increments) is much higher than that for interpreters and much more pervasive. Granted, it’s not the same thing, but if the concern is with costs as an access-barrier (the presumption typically is for plaintiff seeking to vindicate a claim of their own), attorney availability is the principal and most pervasive problem, except in contingency fee cases (personal injury cases, for the most part, where the fee is taken from the recovery). But in those cases, if the testimony of a non-English-speaking witness is essential, it will be worth paying for it from the settlement or recovery by judgment. Note also that the non-English speaker is not always a party. It can be a person with relevant knowledge as to the occurrence/accident that gives rise to a legal claim.
TORT ACTIONS
If it’s a high-value cases and foreign-language testimony is critical, it makes sense to do depositions and also record them, so there is a way to check on the accuracy of translation and to correct errors and misunderstandings, analogous to written translations under rule 1009 of the Texas Rules of Civil Procedure. Consider that, if a witness does not speak English, they will have many other comprehension problems involving cultural differences and court procedures. Doing the out-of-court deposition will also provide a better basis for valuing the case and reaching settlement. As for costs, it is standard practice that depositions are paid for up front by the party/law firm that schedules and conducts it. The expense for the court reporter (quite high actually) is later typically taxed as court costs to the party against which/whom judgment is rendered. If a case is deemed worth taking depositions, it’s very likely worth also retaining an interpreter/translator if foreign-language testimony is needed or possibly beneficial. So this litigation scenario doesn’t support the use of public fundings.
PRO SE PLAINTIFFS
As for self-represented litigants bringing their own case, you almost always lose anyhow and it has nothing to do with how well you speak English. That’s because there is a pervasive disdain for pro se litigants even if they are knowledgeable about the law. Judges will go out of their way to rule against pro se litigants when the other side has an attorney and will sometimes sanction (punish) them or threaten to do so.
In these cases, the barrier is the status of the plaintiff (pro se equates to lower caste/pariah), not any communications problem. Those may exist (with respect to legalese and proper procedure and rules of evidence), but that will be cumulative of the basic problem: And that basic problem is that plaintiffs without lawyers are regarded as nuisances to be abated.
DEBT SUITS
Statistically, one of the most common type of civil lawsuits are debt collection suits, especially in the Civil County Court of Law (CCLs) and Justice (JP) Courts (the latter now up to $20K which covers most credit card debt except high-end American Express card defaults).
Interpreters are irrelevant in those cases because virtually all of them end in a disposition that does not involve a trial or hearing and therefore dispense with need of anything oral, namely: dismissal for want of prosecution (wrong address, defendant can’t be found or not fast enough), default judgment (defendant is served with citation but never does anything to fight the lawsuit), agreed judgment (defendant contacts the collection law firm and is made to sign payment plan typically), nonsuit with prejudice (after defendant has paid lump sum, perhaps with a little discount or waiver of attorney fees), summary judgment (judgment without trial after defendant files an answer or a woe-me-I-got-no-money letter that is taken as an answer).
The number of actual trials in these collection actions is minute and if one takes place, it takes only a few minutes. Oral testimony is largely irrlevant because the creditor relies or billings statements or similar evidence of the delinquent account and often doesn’t even produce the contract or proof that a standard agreement pertains to the particular account on which suit is brought. In the vast majority of cases, debt defendants don’t prevail (which would be in the form of a take-nothing judgment). If for whatever reason the creditor drops (nonsuits) a case or it is dismissed for want of prosecution (undue delay in moving for judgment), it can be refiled as long as limitations has not run (typically four years, sometimes six).
FAMILY CODE CASES: DIVORCES AND SAPCR (Suits Affecting Parent-Child Relationship including parentage, CPS, and parental rights termination cases)
There are many pro se litigants in the family district courts, but the key barrier there is no money for an attorney. The case for publicly-funded interpreters is most persuasive in these courts (especially Spanish) because many ordinary folks are involved including many immigrants, whether bestowed with legal status or otherwise.
At issue is not just money (as in debt suits), but the “best interest of the child/children”, and that requires oral narratives to bring relevant facts to bear on judicial decisionmaking. Even an uncontested divorce without children requires a minimal amount of testimoney (“prove-up”).
The vast majority of civil cases never go to trial. People tend to hire attorneys who speak their language, and those attorneys also serve as interpreters.
If we have a little extra money, let’s build a part of a barrera, a barrier, along the Rio Grande River. We could also spend some money on interpreters at the county level.
Oops … post-academic hobby-nonlawyer-court-researcher-and-judiciary-critic WPHDM screwed up.
NOTA BENE: The Texas rule governing translations is in the Rules of Evidence (TRE), not the Texas Rules of Civil Procedure (TRCP).
Rule 1009 – Translating a Foreign Language Document
(a) Submitting a Translation. A translation of a foreign language document is admissible if, at least 45 days before trial, the proponent serves on all parties:
(1) the translation and the underlying foreign language document; and
(2) a qualified translator’s affidavit or unsworn declaration that sets forth the translator’s qualifications and certifies that the translation is accurate.
(b) Objection. When objecting to a translation’s accuracy, a party should specifically indicate its inaccuracies and offer an accurate translation. A party must serve the objection on all parties at least 15 days before trial.
(c) Effect of Failing to Object or Submit a Conflicting Translation. If the underlying foreign language document is otherwise admissible, the court must admit-and may not allow a party to attack the accuracy of-a translation submitted under subdivision (a) unless the party has:
(1) submitted a conflicting translation under subdivision (a); or
(2) objected to the translation under subdivision (b).
(d) Effect of Objecting or Submitting a Conflicting Translation. If conflicting translations are submitted under subdivision (a) or an objection is made under subdivision (b), the court must determine whether there is a genuine issue about the accuracy of a material part of the translation. If so, the trier of fact must resolve the issue.
(e) Qualified Translator May Testify. Except for subdivision (c), this rule does not preclude a party from offering the testimony of a qualified translator to translate a foreign language document.
(f) Time Limits. On a party’s motion and for good cause, the court may alter this rule’s time limits.
(g) Court-Appointed Translator. If necessary, the court may appoint a qualified translator. The reasonable value of the translator’s services must be taxed as court costs.
Tex. R. Evid. 1009