Inns of Court: Legal Demeanor/Interpreters
On November 12, 2015, the Robert G. McGrath American Inn of Court had their last meeting of the 2015 calendar year. Judge Ed Weil’s group starred Delia Esperanzu, Amy Foscalina, Mukesh Advani, Eliza Jasinska, David Simon, Michael Beuselinck, Julia Hunting, Steven Derby and retired Commissioner Don Green. Their presentation was on legal demeanor and basic congeniality, especially for newer attorneys.
In the first vignette, Julia Hunting played the attorney character Be Cool. She was the boss to Eliza Jasinska’s associate Nervous Newbie. They represented Humpty Dumpty, who was suing Stonewall Construction for negligent construction.
Here, Be Cool asked Nervous Newbie to cover a hearing on short notice. This caused Nervous Newbie to, you guessed it, become extremely nervous. At the court hearing, with Comm. Don Green as the judge, Nervous Newbie failed to even accurately name her client.
The group discussed how an attorney can best prepare for these types of situations. Just between you (the public readership of this magazine) and me, at my first ever hearing about a decade ago, I failed to name my client, so I know how that feels!
In the next skit, Humpty Dumpty was divorcing his wife, Yumpty Dumpty. Michael Beuselinck was the attorney representing Ms. Dumpty. Humpty was requesting increased spousal support, given his current financial difficulties. However, he apparently lived with his girlfriend, which could decrease his spousal support. Here, Nervous Newbie failed to respond to the judge’s direct questions to assist her client in the hearing. The takeaway was that effective oral advocacy requires answering a judge’s questions.
In the next skit, Michael Beuselinck, who also had been hired as attorney for Stonewall Construction, was arguing with Nervous Newbie over discovery. Stonewall was seeking production of Humpty’s first grade report card. Stonewall’s attorney was trying to argue that Dumpty’s head was scrambled well before the fall and that the report card proved this.
However, Nervous Newbie kept interrupting the judge and arguing with the defense attorney. The Inns group discussed the importance of respectful discussion in any court proceeding. My experience is that judges generally have a dim view of interruptions.
This Inns group showcased how not to act in front of judges. They had the interrupting skit as noted above and another where Amy Foscalina played a self-represented plaintiff and David Simon was an attorney representing the defendant. The plaintiff kept referring to the judge as “Your Majesty.” Alternatively, she would curtsy to the judge.
Defense counsel made rude comments directly to plaintiff regarding her lack of knowledge about the law. Whether you are being extremely rude or extremely obsequious, judges do not really need either and will often require all communications be directed towards them.
What other bad things could one do in front of a judge? Violate a judge’s orders on motions in limine, of course! In the Humpty Dumpty v. Stonewall Construction trial, the judge issued a motion in limine precluding Stonewall’s attorneys from discussing Humpty’s early 90s theft conviction.
However, the Stonewall CEO really wanted his attorneys to inform the jury about the conviction. Therefore, in closing argument, Stonewall’s attorney stated that Stonewall and its CEO “are not convicted thieves” to not so subtly compare them to any other parties to the matter who might be convicted thieves. The Inns group had a discussion regarding whether this was ethical. The closing may not have violated the letter of the motion in limine order, but fundamentally breached the spirit of the order.
Next, we were on appeal. Here, the Inns group focused on two situations for advocacy in an appeal: What to do if contrary case authority is published shortly before your oral argument, and how to respectfully raise the issue of trial judge bias against your client.
In the first instance, David Simon was an attorney trying to argue in light of an indistinguishable Supreme Court decision issued on the eve of oral argument. He just stammered and made very general and useless comments about the circumstances.
In the second instance, the appellate attorney made very personal, ad hominem attacks against the trial judge. In both of these instances, the Inns group highlighted what not to do, then focused on what to do instead. For the first instance, the best practice may be to argue any distinguishing fact, law or public policy. For the second instance, it is important to avoid ad hominem attacks and diplomatically point out differences between the trial judge’s rulings and the law.
On January 14, 2016, the Inns of Court held its first meeting of the 2016 year. Commissioner Lowell Richards’ group (starring Patricia Kelly, Bonnie Johnson, David Ginn, Robin Thornton, Wally Hesseltine, Harpreet Sandhu, Tom Matteson, Jennifer Sommer and Aaron Langberg) put on a presentation regarding the law surrounding interpreters.
This presentation started off with a translation challenge from English to English, by playing movies with legal language and having the audience try to speak along word for word. Even just repeating the very words we were hearing on the screen proved extremely difficult, let alone trying to keep track and translate those words into another language. Needless to say, I was pathetic at this particular exercise. We found it easier if the speakers in the videos used shorter words and spoke slowly.
In their presentation, the group used skits to elucidate their points on interpreting. For example, in one skit, David Ginn played an Eastern European man being deposed. Pat Kelly was the interpreter with Jennifer Sommer asking the questions.
David Ginn would speak for 30 seconds, but Pat Kelly’s interpreted answers would be monosyllabic. The interpreter cannot provide their own analysis of the answer and have to provide the clearest interpretation of the answer without any opinion or analysis.
In another skit, the interpreter was clearly doing a bad job of interpreting. We learned that you can actively object to an interpreter and can request supplemental information on their qualifications. You can make a record of their incompetence, which is a sentence that I hope is never applied to me.
Pat Kelly also spoke regarding fatigue for interpreters. As noted previously, interpreting is hard. Generally, interpreters go about 30 minutes without taking a break. This can create strains on the court system, especially in the criminal system. Co-defendants are entitled to have their own interpreter. In cases where there are multiple co-defendants, you have to have multiple interpreters who all get their own opportunities to break for fatigue.
Next, Harpreet Sandhu spoke regarding ways that speakers can assist the interpreter. They can speak slowly and loudly, allow time to interpret and can wait for the interpreter to finish before moving on.
What is interesting is that the interpreter cannot clean up the language and has to interpret to the closest language the speaker is using, even if they use foul language.
They showed a movie where Danny DeVito was being grilled at a congressional hearing. He was using the sort of foul language you might see on the Fox Network during one of “In Living Color’s” more ribald sketches, and the sign language interpreter had to use the exact same foul language in hand signals.
Commissioner Richards is apparently a large fan of didactic movies, because the group included a clip from “I Love Lucy” about relay interpreters. Relay interpretation is a situation where you do not have, for example, an English to Spanish interpreter. However, if you have English to French and French to Spanish, you might be able to hold a reasonable conversation.
In the clip, there was a French to German, German to Spanish and Spanish to English interpreter allowing a French policeman to interrogate Lucille Ball. It does not appear that relay interpreters are used in the court system, although sometimes it could be helpful to have an in pro per to English, and English to legalese relay interpretation plan.
These two Inns of Court events were great ways to finish off one year and start another. The next meeting is scheduled for April 14, 2016, which is perfect if you want to procrastinate on your taxes.
If you are interested in applying for RGMAIOC membership, please contact Patricia Kelly at [email protected].