LEGAL T&I
AUSIT’s recent past president J. Angelo Berbotto is both a translator and a solicitor. As such, he read Victor Xu’s article ‘Translation and sight translation for family law cases’* in the Winter 2024 issue of In Touch with interest, and has written the following commentary from the legal practitioner’s point of view, to supplement Victor’s reflections.
* You can read Victor’s article here.
… more than once I’ve had to remind an interpreter that I’m in charge of the conversation …
In family law cases, the main written evidence given by each party is in the form of an ‘affidavit’.
An affidavit is a statement made under an oath or affirmation that it’s a true account, and this means you can be liable to be prosecuted if any of the information you include is intentionally false or misleading.
It usually takes several meetings with a client to complete an affidavit. It takes time for several reasons: there may be a lot of information to cover; recalling the events involved may be distressing for the client, in which case frequent breaks are needed; and the client’s way of recounting those events may not be direct and to the point.
Some affidavits support an initial application (to start a case in court) – explaining the story behind a party seeking a particular outcome – while others respond to an application made by another party. Further documents – ranging from letters to WhatsApp texts, medical certificates and so on – may be attached to an affidavit to support the claims made in it. These are called annexures.
When a client doesn’t speak English, or is not fluent, it’s really important to seek the assistance of a competent interpreter to assist with the process of taking instructions from the client to draft the affidavit. By competent, I mean an interpreter who is certified/recognised by NAATI, understands and applies the AUSIT Code of Ethics, and is skilled in interactional management.
It’s very frustrating when I need to go through a 10-page affidavit in one hour, the clock’s ticking, and there are conversations occurring between my client and the interpreter from which I am excluded. In such situations I don’t hesitate to interrupt, and more than once I’ve had to remind an interpreter that I’m in charge of the conversation, and that they shouldn’t be taking part in it, only interpreting it. Experienced interpreters do this effortlessly and direct the client’s attention back to me.
The conversation is between the client and myself, the client’s lawyer; the interpreter is there because we don’t share a common language. If my client asks a question, I expect the interpreter to interpret it, so I can then answer it. It’s not good practice for the interpreter to answer the question, unless it’s information that I’ve already covered. Interpreters need to be wary that they aren’t stating their own opinion. In doing so, they may be saying something that may prejudice my client’s case – and even worse, I may never discover this has happened.
If my client has been granted legal aid, the amount provided for interpreting is limited, so I have to be strategic about how I use it. I hire the services of a (NAATI-certified) interpreter for the last check and changes, while ‘settling’ the affidavit.
Settling is the final step in the process – a final reading takes place, some changes may be made, then the client who is making (deposing) the affidavit signs it in my presence, as a prescribed witness. (A lawyer or JP can witness the signing.)
In such situations, my practice is to email the draft affidavit, in English, to the interpreter in advance of the settlement meeting, on the condition that they will only use the draft for the purpose of preparing for and carrying out the sight translation, and will delete the copy afterwards.
I must be able to trust the interpreter, as the affidavit can contain highly personal and confidential information about my client’s life and affairs, so I can only work with ethically sound interpreters.
This is why having a good reputation is key for an interpreter. Lawyers frequently ask each other to recommend interpreters, and I only recommend practitioners I’ve worked with, and for whose quality of work I can vouch, as my professional reputation is also at stake.
It’s important that the affidavit is written in a way that reflects the voice of the client. For example, if the client has limited education, I expect the document to be in simple language – it’s really important that the interpreter doesn’t render the client’s English in a higher register than the register they use in their LOTE (language other than English). Anyone who makes an affidavit can be asked questions about it in court, and if there is a significant discrepancy between the expressions used in an affidavit and what the deponent (the maker of the affidavit) actually says in the witness box, this can be problematic.
Receiving the draft affidavit in advance means that the interpreter can check any unfamiliar, technical or complex language used, and be ready to sight translate it for the client at the settlement meeting – that is, to read it in English in their head, and transfer it out loud into the client’s LOTE, sentence by sentence or paragraph by paragraph, so the client can check it’s a true and full account of their experience.
When the interpreter is ready to start the sight translation, I instruct the client to listen carefully, and while doing so, to make notes of anything they think needs to be added or corrected. I prefer this method – rather than the client interrupting the flow of the sight translation – as something they initially think is missing may turn out to be in the affidavit after all, in a later sentence or paragraph. After the sight translation, the client and I can go through the notes they’ve made, and I can deal with any questions and make any adjustments that do turn out to be necessary.
Remember that affidavits are usually drafted by lawyers with considerable experience. We know how to organise the information in a particular way (usually either chronologically or by topic) so that the final document only requires one reading by the judge and parties involved to absorb the facts and understand the position of the deponent. An inefficient affidavit has no order and/or internal logic, so one has to read it several times or go back and forth to understand it, and this can cause judicial irritation!
Once the affidavit is settled, the interpreter must certify that they’ve carried out the sight translation – so in theory, if a discrepancy is later identified between what appears in the affidavit as filed with the court and the original document that the interpreter has sight translated to the client, the interpreter could be called to give evidence about their sight translation.
If you, as an interpreter, are in the middle of sight translating a passage in an affidavit and there’s something you don’t understand, or you need more information – for example, you need a gender marker because the word ‘partner’ is used and the context doesn’t specify male or female, but the LOTE requires this – just ask … never assume! Assumption runs against accuracy, and your job is to be accurate.
If you perform a sight translation well, then the lawyer who hired you will do so again when they need, as lawyers are generally creatures of habit … plus they won’t hesitate to pass on your details to colleagues who ask ‘Do you know a good interpreter of [your LOTE]?’
J. Angelo Berbotto holds a degree in law with first class honours from UTS, Sydney and master’s degrees in law from the University of Rome ‘La Sapienza’, the University of London and the Complutense University of Madrid. In 2023, he obtained a graduate diploma in T&I from UNSW. Angelo is admitted to practise as a solicitor in Australia (2005) England (2010), and is also a NAATI-certified translator from Spanish, Portuguese, French and Italian into English, plus English into Spanish. He served as AUSIT’s National President from 2022 to 2024, has since been heavily involved in the organisation’s push to ensure the role of interpreters working in courts and tribunals is better understood and respected, and is also involved in expanding AUSIT’s Language Divisions.
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