Lost in translation – acting for a client whose first language is not English

In an ever-shrinking world, our society is becoming increasingly multi-cultural. This brings both benefits and problems, one of which is understanding each other! Inaccurate communication can have serious consequences, especially where it relates to the law… 

This substantial article offers a fascinating insight into the potential pitfalls a lawyer faces when acting for someone who is not a native English speaker. Originally published in APIL PI Focus Volume 21 Issue 7, it’s based on a talk given by John Kilmister (of our Bristol office) and his wife Anikó, an interpreter on 14 September 2010 to the APIL South West Regional Group meeting.

Who are we and what do we do?

I, John, am a solicitor specialising in personal injury work. Anikó is a professional freelance interpreter/translator. Originally from Budapest, her languages are Hungarian, English and Italian. Since late 2008, Anikó and I have operated a specialist Hungarian Unit from Pattinson & Brewer’s Bristol office, acting for Hungarian speakers pursuing claims as a result of accidents in England and Wales.

Assessing the client’s language abilities

The first thing to do is determine a client’s language abilities. That assessment is one that needs to be undertaken with a degree of care. For example it may seem reasonably obvious that if the potential client is confident enough to contact a lawyer without any form of support, then they have sufficient confidence with their own language abilities not to require any form of assistance in terms of translation.

But this is by no means decisive, as can be illustrated by some examples based on actual cases we’ve had. I’ve changed names and details in the interests of client confidentiality.

• Tundë – was injured in a car accident. She is a nurse living in Birmingham and had been in the UK for twelve years. She contacted me directly and it was immediately obvious that her level of English was very high indeed.
• Krisztina – was injured in a road traffic accident when, as a pedestrian, she was knocked down by a car in Exeter. An assistant in a coffee shop, she had lived in the UK for two years. She contacted me directly and spoke reasonable day to day English, but certain words she clearly did not understand. For example she didn’t know what the word “clipped” meant when referring to being struck by the car in question.
• Laszlo – was injured in a road traffic accident when he was cycling and was struck by a car. He had been living in the UK for just under three months and was working as a cleaner. He spoke minimal English and needed an interpreter for all communications. He contacted me via Anikó and the Hungarian language line that she administers.

These three represent the full range of clients that one is likely to meet where English is not their first language. The question is, which of these is potentially the most problematic? The correct answer is the middle one, Krisztina, without a shadow of a doubt!

The reason for that is that with the other two, you immediately know where you stand. Tundë spoke English fluently and without hesitation. She’d been living in the UK for a considerable period and was involved in a linguistically diverse and challenging job as a nurse. Laszlo was the other extreme. He couldn’t communicate effectively at all without an interpreter; indeed my Hungarian was actually better than his English! So it was clear from the start that professional linguistic support was going to be necessary.

My experience is that the extremes of Tundë and Laszlo are just that, and are very much in the minority. The vast majority of people you’ll encounter will fall into the much larger category occupied by Krisztina, and this is where an accurate initial assessment of the new client’s English language abilities becomes very important.

Where to start?

The first and most important piece of advice is do not be embarrassed to ask about their English language abilities. They may well be quite pleased that you have raised the question of an interpreter, if only for the initial consultation, as they may secretly be struggling to understand fully what is being said.

If they are ‘bluffing their way’ through the meeting, then that is potentially very dangerous. It might not be too serious if, in their own job, there is a misunderstanding and someone, say, gets a regular cappuccino instead of a large mocha. But when it comes to instructing a lawyer, providing details of an accident and answering their questions, even a small mistake could have very serious (and expensive) consequences.

This is exactly what happened with Krisztina, the pedestrian knocked down in Exeter. Speaking with her directly, I was not entirely happy with the description that she was giving of the accident and the answers to my questions put by way of clarification. So I arranged for Anikó to act as interpreter in a three-way telephone conference call, only to find out that what the client was calling a zebra crossing was in fact a pelican crossing!

It follows on from this that it is very important to not necessarily accept what the client says to you directly. Once again, look at it from their perspective. Very often you will be dealing with someone who is working in a job where their colleagues and supervisors will be asking and telling them things. In response they may well instinctively reply “yes” to avoid appearing ignorant or foolish, when in fact they only have a limited understanding (or perhaps not a clue) as to what is being said (come on, we’ve all done it on holiday).

This arose in a recent case which serves as a good example (and warning). Anikó was acting as interpreter, so fortunately it was academic, but what happened is that the client said to her that she thought she understood what I had said before it was translated. In fact she had recognised certain key words but misunderstood the whole meaning because she didn’t realise that I was in fact talking in the negative! As Anikó explained, at a lower ability level someone might understand and be prepared for ‘basic’ negating words such as “no”, “not”, “never” etc., but not be prepared for or understand words such as “unlikely”, “improbable” etc. (I was in fact advising on what items of special damage I felt could not be included as part of the claim).

I appreciate this all perhaps conjures up comical images of Manuel in Fawlty Towers, but if you think how expensive it might potentially be to act for Manuel without an interpreter under a CFA, then the point is made!

It follows from this that if you have any lingering doubts in terms of the English language abilities of a client, then avoid leading questions whenever possible.

Other factors

Other factors to take into account when assessing whether to deal with the client directly are:

• How long have they been in the UK?
• What is their job? This, in my experience, is a much better guide to an individual’s language abilities. The cleaner who is getting up at 4am in the morning may not see anyone, let alone speak to them in English. A word of warning, however. Just because someone is ostensibly dealing with the English-speaking public, it does not automatically mean they are going to have a broad base of English language skills. Someone working in a bar can probably get by with salutations, small talk, food, drinks, numbers, times and dates, but perhaps not much more. In other words, talking about an accident and using vocabulary outside of their ‘linguistic comfort zone’ might be a different matter.
• What did they do immediately after the accident? Did they report it themselves? Did they attend hospital alone etc.? These are also indicators of their actual confidence in terms of language, in other words at the sharp end when it really matters, as opposed to attending (and preparing for) a subsequent meeting to discuss it. Bear in mind, however, that if some time has passed since the accident then the client’s language skills might have improved considerably.

Language issues surrounding the accident

The first question is whether language might have been important within the accident itself. If it is a road traffic accident then probably not, but with a workplace accident it could be a different matter. There might have been training given which was not understood or signs/notices within the workplace that the client could not read properly. Were there any “language impairments” (as I call them)?

An example might assist. The client might well have excelled in the classroom when they were learning English and indeed within your quiet office, in a prepared environment, they might function quite well in English. What, however, were the conditions like when the accident took place? Was something shouted at them across a noisy factory floor, by a Glaswegian supervisor whose accent makes Rab C Nesbitt sound like a Radio Four presenter?

Also it is important to consider when the key events took place and what their level of English might have been then, rather than now as they are relating the account.

Over now to Anikó…

Dealing with an interpreter/translator

Let’s assume that the decision has been taken by the lawyer that language support, in terms of interpreting/translating, is required. Interpreting is verbal communication and translation is in a written format (although sometimes the verbs are used interchangeably).

Very often there will be different persons providing different functions – the interpreter may not be the same person as the translator. For example you might speak with a client through an interpreter, dictate a statement following that conversation, and then it is translated by someone else.

Interpreting

When it comes to interpreting, this is going to take place in the context of a face to face meeting or through a telephone conferencing facility (or its equivalent).

Obviously a lot depends upon the individual circumstances of the meeting/consultation and whether or not the lawyer is familiar with the interpreter, in terms of having worked before. Assuming not, then I feel that there are certain basic preliminaries which can very much help the meeting/consultation and it is worth the lawyer speaking with the interpreter beforehand:

• Is everything to be translated verbatim? Your initial reaction might be to answer “Of course, I want to know exactly what the client is saying!” In reality, however, is that going to be necessary? Obviously in a court setting it is a requirement. Also if there is a specific quote then again obviously verbatim translation is necessary, but in most day to day situations when speaking with a client (or witness), my experience is that verbatim translation is not necessary.
• How much to say? Normally it does not take too long for the lawyer and the interpreter to “synchronise”, but a lot does depend upon the interpreter, and this is one of the reasons I would recommend lawyers speaking with him/her in advance. For me personally two or three sentences at a time is fine, but this comes back to the point as to whether or not the conversation should be translated verbatim. In those circumstances it must be done a sentence at a time, and of course that makes the consultation quite a lot longer.
• “Bedside manner”. How does the lawyer want to deal with a client who continually goes off the subject or says manifestly irrelevant things? You may think this is a strange point to raise but you would be surprised how often it happens. Depending on the circumstances, the way that John and I deal with this is that we allow a client or witness a little bit of leeway, but of course there comes a time when he or she has to be politely interrupted and brought back onto the subject. You might gather from my emphasis of the word “politely” that I have heard some horror stories from clients!
• It may seem self-evident but clearly if there are documents which can be made available in advance to the interpreter this can be extremely helpful, for example medical notes, an accident report and so on.

Colloquialisms, sayings and good old-fashioned slang!

This is a frequent source of complaint; please be aware that this works both ways. There are phrases which the lawyer and the client/witness will use which cannot be translated literally. John, for example, quite often uses the phrase “hold fire”, which does not literally translate into Hungarian. When this happens it can understandably sometimes be a source of misunderstanding (even mistrust) when one of the parties says only a few words but the translated version is considerably longer (or vice versa), leaving one or both parties wondering whether something has been added in or taken away.

Translating

In terms of communications between the lawyer and the client, once again it is helpful to establish certain ground rules. What is the preferred method of written communication with the client? Is it letter or e-mail?

When writing to a client it is important to write in the first person, just as you would do when writing directly to an English speaking client. It is quite surprising how many times a letter is given to myself to be translated and says something such as “Would you please do a letter to the client and ask him if he has any…”!

In terms of translating a document into English, discuss with the translator what he or she should do in terms of annotations. My starting point is to translate a document in its pure format, unless told the contrary in advance, and then it is up to the recipient, the lawyer, to say whether or not he/she requires any annotations.

To give an example of this, I have recently translated a number of handwritten letters between Hungarians which contain local (Hungarian) references (nicknames, geographical, slang etc.). Naturally I could have translated them literally but those references would mean nothing to someone here in the UK. What I did, at John’s request, was put in where necessary clearly marked annotations to assist the lawyer (or anyone else) in understanding the documents.

Some general tips

John here again. Here are just a few tips and practical points which again may assist.

• Loss of direct communication is a very important factor which can be overlooked. As lawyers, especially acting (or deciding to act) under a CFA, we quickly learn the art of assessing the client. Very often statements are taken from clients (or witnesses) over the telephone, but even then we at least have the opportunity of being able to hear what the client/witness is saying and can form an opinion of them and how credible they might be. That is lost to a very great extent when acting through an interpreter. Therefore if dealing with an important witness consider a face to face meeting, as opposed to over the telephone, as then even though direct verbal communication is lost at least you will have the advantage of seeing their “body language”.
• Try and do as much as possible in one go! It sounds an obvious point but bear in mind that the interpreter will probably have a minimum charge time (normally about twenty or thirty minutes) and so it is going to be expensive, as well as inconvenient, to have to keep going back to ask further questions.
• Allow plenty of time. The argument I often face on a detailed assessment in these cases is that it is accepted that communications should take twice as long but no more. It sounds logical but in practice that is simply not the case and usually such communications take significantly longer. Anikó mentioned above about “bedside manner” and clients going off on a complete tangent. In that context she means clients who talk about overtly irrelevant matters, such as being asked about when they came to the UK and they launch into a speech about Hungarian politics or something of that nature. There are, however, many situations where the irrelevance is only appreciated by the lawyer. As lawyers we all quickly learn early on in our careers to politely interrupt clients saying irrelevant things. In a foreign language, however, you cannot do that as you have to wait for it to be translated before you appreciate that it is irrelevant!
• If court proceedings are required then be realistic in terms of time estimates, directions and the final hearing. Bear in mind that documents may need to be translated and that could have a profound affect in terms of the timetable for medical evidence or exchange of witness statements.

A final word of warning, unrelated to language – beware of pedestrians who have been injured and do remember to ask them which way they first looked when they crossed the road!

John Kilmister is a solicitor with Pattinson & Brewer in Bristol and can be contacted by e-mail at [email protected] or 0117 917 1100. Anikó Kilmister is an interpreter practising under the name Dynamic Linguistics and can be contacted by e-mail at [email protected] or on 07855 560 450.