Lost in translation

I started out this week thinking what a pain it was that we would have to endure the interpreters all week. It’s one thing to have an interpreter outside court, or sat inside court whispering to your client, and quite another to have the full blown interpretation experience – with every last mundane detail and trip of the tongue faithfully rendered in somali or french or thai. “Spoils the flow”, agreed myself and my opponent earlier in the week. But in fact (and although I say that at the start of every interpreted hearing) there are advantages.

One can’t ask a punchy question and move in swiftly for the kill when interpreters are involved. A witness can spot you coming, has time to work out what you are leading up to. You need to get used to the timing, the shift of gear. But one can take a tolerably good almost verbatim note and – more importantly – is able to formulate staged questions at a measured pace without risk of the witness leaping in mid question. It is in many ways a facilitator of well constructed, responsive cross examination – because there is inbuilt thinking time : I know I must get from A to C via B, I can pause and construct my sentence whilst my last phrase is being interpreted.

It works like a charm. Slow motion cross examination. Forget those killer questions. Paced, measured and methodical cross examination can be very effective. As long as the interpretation is skilfull and accurate, the addition of an interpreter promotes structure rather than chaos.

22 thoughts on “Lost in translation

  1. If it’s borderline as to whether a client needs an interpreter my preference is for them to have one. I find that witnesses give better and more careful answers through a third person

  2. Remember being interrogated by a Japanese investigator – a formal interview not in court (and for a mundane suspicion) and choosing to use an interpreter for the reasons you suggest above. Gave myself time to think.

    His use of tense changes to get me to alter my story about when I was aware of something was very instructive in slow motion. Didn’t have the effect that I am sure it had when done rapid fire – near to browbeating.

    He couldn’t change his approach – though if the alleged offence had been serious then I really would not have like to be in the situation. It allowed me the chance to use a line of such pomposity that I’ll be forever ashamed: ‘I am a law-abiding citizen’.

  3. This ‘Shark’ or ‘Law and Order’ approach to family law cases is a concern.

    It’s suited to the criminal courts where there is ‘beyond reasonable doubt’, open court allowing public scrutiny, CPS, legal aid etc

    However, in the family courts where the witnesses are baffled by a less than half-cocked secret process, many times without decent representation or none at all, far lower threshold for findings, evidence missing, made up as you go along many times etc – It has little to do with justice….

    If there are allegations of a serious nature, take them out of the shockingly inadequate family law system and have them dealt with in the criminal courts.

    Otherwise it really is a continuing charter for prejudice and appalling poor practice on an epic scale.

    • Well actually Chambers I was rather thinking of the cross examination of professional witnesses more than the cross examination of parents. But it is part of the process of testing evidence – it is often necessary and entirely appropriate to make effort through cross examination to demonstrate the falsity of someone’s position – if a witness agrees A and agrees B then position C cannot be true. For example when testing and attempting to disprove false allegations of domestic violence that don’t stack up, or to establish who the chronology and facts in order to identify the perpetrator of a non-accidental injury. I don’t think that warrants the use of the pejorative “shark” descriptor, which I thought was rather cheap.

  4. If there are allegations of domestic violence or the possibility of non-accidental injury to a child, they are better looked at in the criminal courts where there are checks and balances.

    The penalties for being found to be a domestic violence perpetrator or a child abuser are many times extremely severe e.g. the removal of a child from a relationship with a parent (nothing more important for the vast majority of parents)

    If someone is making false allegations maliciously within the criminal courts actions against perjury are a real possibility. Whereas in the family law system perjury on an industrial scale takes place with little or no possibility of real sanctions.

    The family law court system is wholly inadequate for determining judgments regarding allegations of a serious nature, with a haphazard and cavalier approach in comparison with the criminal courts (even with all their faults).

    As for the argument that to protect vulnerable persons you need to use the ‘balance of probabilities’ threshold which comes up, well it does not stack up.

    First of all, many times it is the vulnerable and innocent who are the victims of false allegations in that the innocent have findings made against them on the flimsiest or no evidence (just the other parents word before a single judge who is trained/inducted to expect one gender are overwhelmingly the victims (despite the research that shows this is a nonsense) and/or one gender should be given the benefit of the doubt); and children are many times left in the care of a parent who will make false allegations of a serious nature and will themselves be perpetrators.

    I’m sorry you took affront to the tv series ‘Shark’ comparion, I could just as well have used the series ‘Silk’.

    • Chambers, I had not twigged you were referring to the tv series shark – so perhaps it was a slightly less direct dig than I had taken it to be 😉

  5. Northern Lights

    Chambers,

    Are you suggesting that evidence should not be rigorously tested? If you knew your child was being abused or harmed, would you advocate that the child remained with the abusive parent, unless that abuse could be proven to the criminal standard? (Remember that a “Not Guilty” verdict is not a declaration of innocence) That appears to be what you are suggesting and shows a cavalier contempt for the welfare of children, rather like that of the SS “baby snatcher” conspiracy theorists.
    I can understand that, within the insular world of fathers’ rights activists, it appears that all those wrongfully accused are fathers and that allegations of abuse should be dismissed but the real world is not like that; neither is the practise of law reflected in US dramas like “Shark” and “Law and Order”

  6. […] leading family law bloggers I read.  First up is Lucy Reed of Pink Tape.  Two posts caught my eye: Lost in translation where Lucy considers the advantages of interpreters in court and Gold Band : Gold […]

  7. Chambers, I think you fundamentally misunderstand the point of cross-examination. All witnesses—all people indeed—be they lay/professional, young/old, educated/not, are inherently unreliable as sources of information. It is true of everyone—including, I must add, lawyers—that we aren’t video/audio tapes. The memory is selective, our perceptions narrower than we might think.

    On TV, cross-examination is about separating what the witness saw from what the witness is deliberately lying about. In reality, it is about separating what the witness actually saw & heard from what he believes he saw and heard.

    In real life, “common-sense” assumptions and unconscious confirmation bias creep into our memories. If a witness sees event A and event C, and common sense tells him that event B is usually a premise of event C happening when you have event A, the memory will start to look for things that indicate it has “seen” event B happening. Unconsciously, the witness starts to honestly believe he has perceived event B. In fact it is an unconscious assumption.

    The aim of cross-examination is often to reveal the assumptions, and to demonstrate how the pieces of perception that the witness has pulled together to arrive at the conclusion that event B has happened are capable of bearing other conclusions—and to show that if the witness wasn’t unconsciously trying to make sense of the situation as he or she perceived it then the conclusions drawn would have been different.

    You may regard this as “shark” like, and no doubt it is an uncomfortable experience having one’s subjective experience of a series of events subject to the kind of scrutiny that cross-examination necessarily entails. However, the only alternative is to leave every witnesses subjective experience “in” as evidence. While any re-enactment of an event or series of events after-the-time is inherently a poor way to attempt to find the truth, I would suggest that you have a better chance of doing so if you attempt to remove as much of the subjective as possible.

    I think people’s discomfort with this stems from an inherent tendency to believe that the world as you experience it is the world as it is.

    Ironically, it’s this belief in the “Law and Order” approach to cross-examination that causes so many LiPs to be so chronically bad at cross-examination.

  8. Northern Lights,

    Please try and keep up (reading my posts might assist you understand them). I can fully understand in the insular world of a provincial trainee solicitor you might wish to skip through posts as you do the photo-copying but it really is worthwhile persevering before responding.

    I am saying that the secret world of family courts are wholly unsuited to ‘rigorous testing’ of allegations, the criminal courts are far more suitable for those of a serious nature. These are cases where some of the worst kind of punishments are visited on those who have findings made against them e.g. the removal of their children. Should there be ongoing concerns then the relevant authorities can remain involved in a monitoring/supportive capacity.

    The “killer question” and “moving in swiftly for the kill” as per the original article are US and British legal drama’s stock in trade. Well done for working out they are not like real life, very impressive.

  9. Jim Nateley,

    Thank you for your post and I agree with much of what you say regarding cross-examination.

    However, it has little to do with the point I was trying to make that allegations of a serious nature are routinely inadequately dealt with in the family courts and criminal law proceedings would be far more appropriate, for the reasons provided already.

    P.S. As per familoo’s post I was talking about the US tv legal drama ‘Shark’.

  10. familoo,

    I’m sure your approach at court is excellent and best practice. I meet barristers every week and some solicitors who can be very helpful in terms of an overall positive outcome. They play fair despite their client perhaps wishing for a different approach. They are a big plus in the court system for all involved.

    Sadly there are also plenty of lawyers who would sell their grandmother to win a case, they are usually the more dim-witted and disorganised. They deliberately or just through incompetence ratchet up unnecessarily the conflict between the parties without a care for the effect on those involved and their children.

    • So, the “shark” approach is ok as long as not it’s deployed by a shark? It now sounds as if your complaint is about individual lawyers whose practice is substandard or unethical. Not, I think, a reason for ditching the approach to contested evidence in any type of proceedings, but a reason for beefing up the regulation and in court judicial management of advocates?

  11. Let’s not confuse the issues and play the killer question game….

    Point 1 – Allegations of a serious nature should be dealt with in the criminal courts (per earlier posts)

    My last post #12 had nothing to do with cross-examination (Shark or otherwise) but about the bulk of what happens in private family proceedings i.e. negotiation / presentation to the court of a case

    A constructive approach rather than destructive.

    • I don’t play killer question, it’s not really my style. I’m not confusing the issue, I went back to the original post and your original comment – which was about the “Shark” approach to x.x. We can agree to disagree on point 1. Again, if your complaint is about the attitude / general conduct of family advocates it has little to do with the original post which was about the practical ramifications of an interpreter to the process of xx.

  12. Agreed, we can disagree on point 1.

    I merely made observations about the attitude/general conduct of family advocates, plenty positive and plenty negative.

    You’re quite correct, off-topic.

  13. Northern Lights

    Chambers,

    Your posts simply repeat the same erroneous presumptions of the untrained.
    It has been explained to you on a number of occasions why you are wrong and I posted a question to you in terms you could understand as to why allegations of abuse cannot, from a child welfare point of view be dealt with satisfactorily under the criminal burden of proof.
    The question is in my previous post. Can you answer it? It shows exactly why you are wrong
    As with your other posts, you canoot give validity to a flawed argument by repeating it endlessly.

  14. Northern Lights,

    I think you will find it is your good self who is excessively repetitive, it’s a common fault of trainee’s who get overly excited when they think they have an interesting point.

    I’d suggest you re-read my posts along with your supervisor who will explain my comments to you. Your supervisor will also explain that just because you don’t agree with or can’t understand someone else’s view does not mean it’s invalid.

  15. Chambers,

    The issue with your suggestion that allegations of domestic violence & NAI cases should require the criminal standard of proof is at the end of the day a policy concern. Your suggestion would leave children with people for whom it can be shown that they are more likely than not to have used violence in the family setting, but it cannot be shown beyond a reasonable doubt.

    That it is in the interests of the child for him/her to remain with a parent who is probably, but not certainly, violent.

    I don’t agree with that, but its a value judgment. You’re entitled to your own.

    The interesting point that does flow from this is a question of whether criminal charges ought usually to flow from a DV or NAI allegation. (I suspect in most NAI cases it does). Given the CPS charging standard is in practice lower than the civil burden of proof, there is a sound argument that allegations of DV should normally be supported by a complaint, the suspect interviewed by the police under caution, and in appropriate cases the CPS should charge and prosecute.

    There is an argument, which in principle at least I find appealing, that the civil courts ought to be wary of DV allegations where there aren’t ongoing parallel criminal proceedings. Practically, I suspect the realities for DV victims don’t necessarily lend itself well to this, although I have no experience with the victims of DV whatsoever.

    I think though, you forget that the consequence of such a requirement may well be that more victims of low-level DV—who would settle for various orders under Part IV FLA—will have to see the alleged perpetrator charged. Net result might be an uptick in low level offences against the person charges running parallel to family proceedings. I’m not sure this is entirely the end result you were aiming for—you’re bringing the power of the police & CPS to bear.

    On your second point (re: negotiations), my experience is that counsel–counsel negotiations tend to take the heat out of negotiations. Both the negotiators have a realistic idea of what a judicial determination is likely to be, and can work to find an outcome that works best for both parties.

    Counsel–LiP negotiations, however, have the potential to be shambolic. When one side can give you a good prediction of the likely outcome and the other can’t there is less of the “trying to find a solution in the window of options we have” negotiation because one side doesn’t believe that window is as small as it is.

    No doubt there are a few barristers out there who play hardball & take an unnecessarily aggressive position at first. However, generally the solution seems to be to try to get in front of the judge early for an initial indication—if that indication supports what counsel have previously told the LiP to expect then it ought to be possible to wrap up negotiations fairly swiftly (and, ironically, usually on terms more favourable to the represented party than would have been the case if the LiP had been a little more pragmatic at the start).

  16. Northern Lights

    Chambers,

    Rather than attempting to be witty, can’t you just answer the question posed?

  17. Jim Nateley,

    again I agree with much of what you have posted regarding allegations/DV although our value judgements differ.

    I support the involvement of the Police and CPS in any allegation of domestic violence, as all instances of potential harm should be investigated thoroughly.

    The Australians and other jurisdictions also make it a criminal offence if false allegations are made during family court proceedings. This is necessary in England & Wales.

    The point regarding counsel – counsel negotiations is that they can be useful but it is dependent as always on the abilities involved and obviously their client’s stance and how fixed it is.

    Some of the very experienced and/or skilled barristers I know will be forthright in their advice to clients and dealing with the other side. Some others merely take instructions and/or like to string things out for as long as possible (depends if they are reliant on the continued business of their client).

    Counsel – LIP negotiations do have certain difficulties and need to be approached in a different manner. Some barristers are very successful in adapting their approach depending on the LIP and circumstances and if they want to reach agreement of a kind, it is very probable. Some lawyers have little or no intention of brokering an agreement if they can help it and through their manner either deliberately or not raise the hackles of LIPs. Of course some LIPs simply don’t want to negotiate as do some clients of lawyers.

    I agree that getting in front a judge early is usually best if there is little or no movement in positions, which should be apparent very quickly. I don’t agree that represented parties get more favourable terms generally from the Judge than they would have in negotiations outside of the chambers.

  18. P.S. I think the use of the balance of probabilities in family cases is undermining child welfare as explained in earlier posts.

    Allegations of abuse/neglect which might affect contact and residence decisions should be heard in the criminal courts. Should there still be ongoing concerns then the relevant authorities can remain involved in a monitoring/support capacity.

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