Remote legal hearings are now firmly embedded in our everyday transactions, though many people still struggle with confusing software and substandard hardware. But there is another problem that puts legal interpreters at a particular disadvantage during remote proceedings: the human factor.
The new daily routine of communicating via videoconferencing in all aspects of our lives is shaping online conversations in unexpected ways and causing us all to act differently as we navigate these still-developing social “norms”. For some people learning how to behave on video calls can be as much of an issue as finding out how to use the Mute button. Much has already been written about the etiquette of video calls, but for a legal interpreter, the pitfalls are as unique as they are challenging and are not limited to deciding whose turn it is to speak.
Where our interpreting services are required – even in face-to-face meetings – we are already juggling several factors: simultaneously translating between two or more languages, locating the right documents in two or more languages, as well as managing the interpersonal interactions between the witnesses and counsel.
Doing all of this remotely gives rise to a number of additional challenges in the realms of human behavior. Firstly, the absence of control over the speed of delivery when a person is speaking.
Secondly, the lack of time allowed for an interpreter to be thorough in our tasks. Last but not the least, being able to read body language or the nuances of a person’s speech.
Speed of delivery
In face-to-face meetings, we sometimes need to control the speaker’s delivery. For example when we need them to speak up or slow down or even stop so that we can translate accurately. We would usually employ a variety of subtle physical signals from a facial expression to a raised eyebrow or even gently touching an arm – all of which is accepted practice while performing our duties.
In remote proceedings, none of these options are available to us. All we can do is interrupt loudly and ask for clarification, repetition, etc. All of which is a disruption and can prolong the proceedings to the frustration of everyone involved.
No time to be thorough
Legal interpreters have an increased cognitive load during remote hearings, not least because for us everything is done at least twice – once in English and once in the second language. We have a duty of care to ensure that the non-English speaking participants understand what is going on and are not placed at any kind of disadvantage just because of the language barrier. We need additional time to process what is happening elsewhere to make sure the non-English speaking participant is keeping abreast. This is often overlooked by lawyers and judges – a classic case of being “out of sight and out of mind”.
Reading body language
A great part of a legal interpreter’s role is reading body language and our knowledge of nonverbal communication can be just as advantageous as our knowledge of different languages. The nuances of hand gestures, eye contact and facial expressions can help us avoid miscommunication. When you are observing someone through a screen and can only see their head and shoulders vital clues in their body language may be missed.
There is no doubt that remote hearings now constitute part of the legal landscape and no-one can predict when normal court-based activities will resume – if they ever do. My recommendation is that while we are all making the necessary adjustments the following is taken into consideration.
First, during their witness familiarisation sessions, lawyers should take account of the absence of control that legal interpreters have for example, by asking witnesses (or experts) to remember to speak slower or in shorter sentences than usual.
Second, counsel should recognise that remote cross-examination is bound to take longer than originally anticipated and request judges and arbitrators to allow extra time for longer and/or more regular pauses and breaks.
Third, the witness or expert needs to be warned in advance that the interpreter may need to interrupt them to ask them to slow down, stop or repeat themselves and for all speakers (not just witnesses) to watch their interpreter on-screen for any sign of technical difficulties.
Maintaining social distancing in legal proceedings has become a necessity but there is no reason why we cannot adopt these simple and practical measures that ensure legal interpreters can support all participants at remote hearings to the best of our abilities.
Article written for: CIS Arbitration Forum