Vol. VII, No. 4 - Fall 1998

The Pantomime Problem

have always viewed the neutrality required of interpreters as a boon, not a burden. But there is one recurring situation in which the neutrality I am sworn to maintain places me in a moral quandary. It occurs in the rare Examination-Before-Trial (perhaps one in twenty) in civil cases during which a lawyer for, or some family member of, the party being deposed sits across the table from me and signals answers to the deponent seated beside me.

The signals the lawyer gives his client are often simple head or hand motions indicating “no,” “yes,” or “don’t know.” Sometimes a lawyer mouths words and sometimes it’s a whole pantomime. The lawyers who cue their clients are not all equally brazen in their signaling and the deponents are not all equally adept at unobtrusively following those signals. To avoid arousing the suspicion of the inquiring attorney, the deponent sometimes looks away from his own attorney and misses a critical cue. Then there are times when I recognize the word being mouthed, but the deponent at my side, for whom it is intended, does not.

Last year one man was so frustrated that his message was not getting across to his wife, his face actually turned red and became contorted. I began wondering how strong his heart was and whether we would end up with a medical emergency. He finally released some of his frustration by looking at his wife with disgust and mouthing the Hebrew word for “stupid.”

With some, the cuing is subtle and intermittent; with others, it is very blatant and frequent. Should I do nothing when faced with the former but scream bloody murder when the latter occurs? Should I use tact and hint to the cheats that they better stop or I will expose them?

Almost always, the deposing attorney remains unaware of the silent drama being played under his nose. He is not, however, entirely at fault for failing to pick up the deception, since the prompter is often out of his sight-lines. Although use of peripheral vision could sometimes uncover the deceit, the deposing attorney cannot be expected to guard against it while he is concentrating on the questions and answers, perusing papers and busily taking notes in long hand.

I suspect that sometimes the attorney’s obliviousness is actually denial. He gets an inkling of what is going on and either dreads a confrontation with his out-of-control colleague or else finds it too shocking to be true.

I have often wished to counter the deceit with irony: “The interpreter requests that the deponent’s attorney stop signaling answers to his client because the interpreter finds it distracting.”

Whenever I have discussed these goings-on with the court reporter, who usually has an excellent view of these theatrics, she says it’s none of her business.

Often the first opportunity to tell the deposing attorney, in private, about the problem is when the deposition is over. But by then I am thoroughly disgusted and I make a bee-line for the door.

During one deposition I pleaded for an emergency run to the bathroom, intending to phone the deceived attorney from the outer office while he was still sitting in the conference room. But the deponent decided to stroll out of the room as well, and so I could not carry out my plan undetected.

Pointing out the irregularity can be problematic. The following are some possible scenarios:

• If it causes a cancellation of the deposition, the agency that sent me would blame me for it, saying I should have minded my own business. It may also never rehire me. The interpreting agency’s primary interest is the bottom line. It cares about lawyers’ integrity only insofar as it relates to their prompt payment of the agency’s invoices.
• If I expose the problem the moment it first occurs, in front of everyone, the deposing lawyer may well complain that I should have told him in private. He might say I caused an uproar which he, using his diplomatic skills, would have avoided.
• Once I point out the deceit, the dishonest lawyer will deny it and, not inconceivably, may sue me. If that happens, I think it unlikely that either the attorney I alerted or the agency that sent me will foot my legal bills.
• I could be attacked by both attorneys for pointing out the deceit. I do not want to malign the legion of hard working, conscientious lawyers out there, but among those attorneys hired to conduct depositions there is a small minority of hacks who care more about getting through the deposition (or, when they are paid by the hour, stretching it out), than about its integrity. Such an attorney might actually rebuke me, saying that I am imagining things and that, in any case, it is not my role to raise the issue of unethical conduct.
• It is also not unkown for lawyers on opposite sides to be in collusion. I have good reason to believe that in one case I worked on, the plaintiff’s attorney promised the opposing, insurance company’s attorney a kickback. In such a case I would be attacked by both attorneys since I would be jeopardizing their scheme.

I have been told that my distress is an over-reaction, especially since the witness and his attorney can concoct and rehearse falsehoods prior to the deposition. Deponents have also been known to take bathroom breaks during a deposition in order to ask their lawyers how to answer a question. If the deponent sits next to his own lawyer, the latter can even, conceivably, give “yes” and “no” foot signals, if the signals are coordinated beforehand.

I can try to console myself that the deposing lawyer might be a bigger rogue than his adversary, and that the deposing lawyer’s client will lie even more blatantly when it is his turn to testify.

I can try to blame the victimized attorney for not exercising caution by keeping the deponent’s lawyers within his line of vision.

I can blame the deceived lawyer for not barring from the deposition those who are not a party to the action. Their presence rarely benefits him and constitutes a needless additional risk. Surely it is not the interpreter’s moral obligation to advise an attorney how he should conduct the deposition.

But all these arguments do not extricate me from my quandary. While I cannot imagine keeping silent when a lawyer hires me directly, it would be an unthinkable betrayal of trust. What shall I do when, as is normally the case, I am sent to a deposition by an agency? To whom do I owe my loyalty? To the agency that hired me, to the lawyer who hired the agency that hired me, or to my conscience, which is not for hire?

Let me preempt a possible attack from any self-righteous reader who feels I should be reproached for my past silence. I have interpreted at more than 400 depositions in the last decade and have encountered the “pantomime problem” on perhaps twenty occasions. Extrapolate this to the number of depositions being held every year and it becomes clear that countless interpreters and court reporters are aware of this offense, as are numerous attorneys who have witnessed their co-counsels perpetrating it. To my knowledge no one has ever raised this issue in public.

Meir Turner is a simultaneous Hebrew-English interpreter who lives in New York City.