Article Marketing Tips for Attorneys: The Power of the Pen

Margaret Grisdela of Legal Expert Connections guest Business of Law blogger on the National Law Review provides some great tips on legal writing for maximum exposure for legal professionals. 

Writing an article on a newsworthy topic is an essential part of any legal marketing program. If the thought of public speaking causes you to break out in a cold sweat, a strategic article placement gives you long term business development benefits without the stage fright.

Speaking engagements, webinars, white papers, enewsletters, and blog posts are just a few of the many ways that the material covered in your article can serve as the basis for additional marketing communication campaigns.

Like many aspects of our “Courting Your Clients” approach to legal marketing, getting published is a process. Here are some guidelines to help you climb the learning curve.

Step 1: Select your topic. You can gain rapid visibility by focusing on emerging issues that challenge the status quo, like pending legislation or controversial industry trends.

Step 2: Spend some time researching current literature to identify the best “angle” for your article. Evaluate other articles written on the same topic and determine how your article can stand apart.

Step 3: Determine the approach that works best for the material you intend to cover. Here are a few article formats proven to capture audience attention:

  • Top 3 reasons to …
  • 10 mistakes to avoid …
  • 7 steps to achieve …
  • The pros and cons of …
  • An interview with …

Step 4: Select and prioritize three or four trade or legal publications for your article, focusing on those that you know welcome outside submissions. Write a friendly email to the editor of the most prestigious publication on the list, after reviewing their “author guidelines.” Describe the proposed article in no more than two to three paragraphs, and ask if they have an interest in publishing it.

If the first publication turns you down, or simply does not respond, move on to the next one sequentially. Editors usually want fresh material, so do not expect to publish the same article in more than one place. Once your article is accepted, you will usually be asked to sign an “Author’s Release” that identifies your reprint rights and other related matters.

If writing is not your strong suit, or you simply do not have the time, consider engaging the services of a ghostwriter to convert the outline of your article idea into a full-length composition. (Some publications do require the author’s original work, however.)

Once you submit your finished article, a good editor is likely to suggest some changes to your headline or copy. Do not be offended. If you feel strongly that any modifications will change the meaning of your message in a significant way, speak candidly with the editor. Most editors will give you a chance to rewrite a portion of your article if they feel it is unclear, but keep in mind that the editor’s decision is final.

Step 5: Upon publication (and not before), mail your article to clients and prospects as a means of staying in touch and reinforcing your reputation as an expert in your field. Proudly add your new article to your CV and post it on your website also, all in keeping with your reprint rights.

Any time is a good time to start or expand your publishing career. Young attorneys who start write articles on a regular basis will enjoy career-long benefits of visibility, an expanded prospect base, and possibly a faster track to the coveted partnership level.

© Legal Expert Connections, Inc.

You've Got Mail (and a Lawsuit): Mobile Communication Devices and the Wage and Hour Pitfalls they Present

From the National Law Review’s guest bloggers at Steptoe & Johnson PLLC – Thomas S. Kleeh provides more details on both the opportunities and the headaches for employers that smartphones provide: 

These days, it’s hard to imagine life without some form of mobile communication device attached to our ear, hip, or thumbs.  Blackberries, iPhones, Droids and the like are as much a required fashion accessory as a productivity tool nowadays.  As such, employees have long since abandoned the traditional complaints about being issued employer-required “cell phones.”  The texts, social networking, games and other apps — not to mention the distraction a properly loaded smartphone can provide for a fussy child in the backseat — make the “constant contact” with the office bearable.

However, that “constant contact” can lead to headaches for employers.  A variety of potential liability sources lurk around the corner after employees are issued mobile communication devices.  An easy example is the personal injury lawsuit that often follows when an employee negligently texts or talks on a phone while driving.  Another often overlooked concern, however, can be found in the wage and hour venue.

One of the best aspects of this era of Blackberries and iPhones is the instant communication it provides, allowing simple questions and responses to be dispatched with a few clicks of the thumbs.  But what if the person on the other end of that email, instant message, or text is a non-exempt employee entitled to overtime compensation for any and all hours worked beyond 40, or an exempt employee who otherwise performed no work during the workweek?  In those cases, each short email or text might eventually be costly.

Non-exempt employees who are required to carry a mobile communication device as part of their job duties and who use the device for job-related matters during non-work hours are arguably entitled to compensation for that time.  A City of Chicago police officer recently filed a purported class action lawsuit making that very claim.  Similarly, exempt employees who perform no work during a workweek generally are not entitled to receive pay for that workweek; but if an exempt employee is required to check e-mail during the workweek, that electronic activity might constitute working time, thus entitling the employee to receive his or her salary for the entire week.  Resolving litigation involving wage and hour claims (voluntarily through settlement or involuntarily at the hands of a jury) can be very expensive with liquidated damages and attorney’s fees at stake in addition to any unpaid wages.  Plus, the “paper” trail created through the email or text traffic can make a litigious employee’s claims easy to prove.

What can employers do?  One option includes establishing a policy prohibiting employees from using mobile communication devices for work purposes while off-duty.  (Of course, if an employee violates that policy, the time spent working must be compensated, but the offending employee can be disciplined for violating the policy).  Another (dreaded) option is to recall all those employer-issued fashion accessories – no matter how fussy employees’ children might get.  Regardless, employees’ use of their smartphones for work purposes needs to be on Human Resources’ and Risk Management’s radar.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

Hidden Assets: Finding New Business in Your Client List

This week’s featured Business of Law Blogger at the National Law Review is Margaret Grisdela of Legal Expert Connections. Margaret provides some great tips on how to do more which what you’ve already got – your client list. 

Your greatest source for new revenue in 2011 is likely to be hidden in your law firm’s client list. Increased business from current or past accounts tends to be more profitable, due to its lower cost of acquisition, higher degree of client satisfaction, and better return on your business development time.

Here are 7 legal marketing strategies to help you tap into this potential goldmine at your fingertips:

  1. Cultivate future Tier 1 accounts. You obviously have been successful in attracting and retaining today’s top accounts, but what about tomorrow? Even big accounts can leave unexpectedly for reasons beyond your control. Segment your current accounts into five tiers, and then devote a significant portion of your business development time to identifying and cultivating those Tier 2 current clients that have the potential to move into Tier 1 within five years. In the process, try not to get distracted by time-consuming small prospects.
  2. Increase client retention rates. If you lose 5 clients out of 100 every year, your retention rate is 95%. This means you need to find 5% new clients just to maintain the status quo. A concerted effort to add 1-2 points to your retention rate can fall right to the bottom line, even for transactional firms.
  3. Identify and protect “at risk” accounts.In any book of business, some accounts are in danger of leaving. You can identify these accounts by a decrease in billing patterns, news events, or less frequent communication. Proactive efforts to prevent these clients from jumping ship will improve your profitability and retention rate.
  4. Re-establish inactive accounts. It’s natural that over time some clients drift away. Identify these accounts and contact them to see what happened. Invite former clients to start using your law firm again or at least to refer others who might use your legal service.
  5. Ask for referrals. New clients await you; all you need to do is ask. Build the request for a referral into multiple stages of the fulfillment process. Natural asking points are the beginning and end of an engagement, as well as at key milestones. Track your referral sources, give them thanks, and reciprocate if appropriate.
  6. Stay in touch. No matter how many times you communicate with your clients, chances are they do not remember the full scope of your services. A monthly or quarterly newsletter will keep you top of mind with substantive content to make your clients more educated consumers of legal services. Social media marketing also offers a wide range of cost-effective marketing techniques.
  7. Up-sell and cross-sell legal services.At the attorney, practice group, or firm level, identify specific services that legitimately represent enhanced value to a client. Family law attorneys may up-sell clients on wills and estates, for example, while intellectual property lawyers can suggest trade secret protection through employment agreements. Compensation plans may complicate the effort, but the rewards can be worthwhile.

Here’s another secret to successful legal marketing: not every client is a good client. Create an “ideal client profile” and do not accept cases that you know from experience are not right for your law firm. Remember the five client tiers mentioned in the first tip above? It’s OK to fire your worst clients in the low level Tier 5.

Of course, all marketing and business development campaigns must be compliant with attorney advertising guidelines. Check with the state bar associations in those states where your practice or solicit business for specific requirements.

© Legal Expert Connections, Inc.

The Danger of NLRB Changes to the Union Election Process

This week’s featured guest bloggers at the National Law Review are from Steptoe & Johnson PLLC.  John Merinar Jr. highlights some of the issues with some of the changes the National Labor Relations Board (“NLRB”) is contemplating such as electronic voting: 

Now that the mid-term elections are over, conventional wisdom is that the “card check” bill – also known as The Employee Free Choice Act – is not going anywhere in Congress.  Employers are right to celebrate this news, and to feel a sense of relief that such a disastrous step on the part of our legislature seemingly has been averted.

However, the celebratory mood should be tempered somewhat by the realization that employers are not out of the woods just yet.  Instead of waiting for Congress, the National Labor Relations Board (“NLRB”) is contemplating making some changes of its own to the union election process, and the ideas the NLRB has voiced are cause for concern.

One of the changes that the NLRB has been contemplating is switching from the current method of voting by secret ballot to electronic voting and voting over the internet.  The problems encountered with electronic voting in general elections have been well documented over the last several years.   There is no reason to think that the NLRB would find it any easier to make the transition to electronic voting than the people who run general elections did.

More importantly, there is no real reason to take on the change in the first place.  The move towards electronic voting in general elections was driven by the desire to obtain faster and more accurate results where hundreds of thousands, and in some elections, millions of voters cast ballots.  The number of voters in union elections is so small in comparison that the same rationale for change does not apply.

More troubling is the suggestion that internet voting might be a substitute for the conventional method.  As proof, look no further than the situation where an employer wins an election by an overwhelming margin.   In that situation, it would be apparent that many employees who signed authorization cards prior to the campaign actually voted for the employer when they had the benefit of confidentiality.  Undeniably, one of the reasons for that was the fact that these employees would cast votes at an independent polling place monitored by the NLRB.  They would vote in a booth protected by a curtain, fold the paper ballot, and stuff their folded ballots into the ballot box.  In short, they are given every assurance that their votes will be secret.  Without a secret ballot election, employees might end up with a union which they did not really want.

For example, if electronic voting were adopted, it’s not hard to imagine union organizers looking over voters’ shoulders as they vote on line.   Worse, it’s also not hard to imagine union organizers working hard to defeat passwords, disrupt service, and otherwise work to frustrate the right of every voter to have the opportunity to cast one ballot, and to do so secretively.

Sometimes the elaborate steps which NLRB representatives take to assure an employer, employee and union that the conventional method of voting is absolutely secret and not susceptible to tampering seem overdone, but the truth is there is no substitute for the confidence those steps give to everyone participating.  Employers depend on that level of confidence because only then can employees freely express their positions.  Employers should be very, very wary of suggestions from the NLRB that the time has come to consider alternatives which do not inspire that same degree of confidence.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

The Legal Implications of Employers Providing Employees Smartphones

Whether employees want  phone and mobile access to email and  the internet  or employers want their employees to have access, smartphones seem to be the ‘must have’ business accessory these days.   As with many technologies, the lawsuits come in quicker than companies can draft and enforce policies related to the technology. 

Lately we’ve been seeing a whole wave of Employment / Privacy Right Smartphone articles at the National Law Review.

For a General Overview of the Human Resource / Risk Management Issues Related to Smartphones:

You’ve Got Mail (and a Lawsuit): Mobile Communication Devices and the Wage and Hour Pitfalls they Present by Thomas S. Kleeh of Steptoe & Johnson PLLC.

Are You Calling, E-mailing or Texting Employees While They Drive? You May Want to Reconsider by David J. Carr of Ice Miller LLP

For Department of Transportation / State Law Guidelines Related to Texting While Driving or Distracted Driving:

Department of Transportation Prohibits Drivers of Commercial Vehicles From Texting While Driving by David L. Woodard and Louis B. Meyer III of Poyner Spruill LLP.

Distracted Driving Policies: Improve Safety and Limit Exposure by Anne B. Ellison of Dinsmore & Shohl LLP

New Kentucky Law Bans Texting While Driving by Michael J. Henry of Dinsmore & Shohl LLP

For Overtime Pay Issues and the Fair Labor Standards Act (FSLA) Issues Related to Smartphones:

Company-Issued Smartphones and the FLSA: Keeping Employees Connected May Have Its Price by James R. Carroll and Shawn M. Staples of Much Shelist Denenberg Ament & Rubenstein P.C

Curtailing the After-Hours Use of Blackberries by Non-Exempt Employees by Trent S. Dickey and David H. Ganz of Sills Cummis & Gross P.C.

Overtime Lawsuit for Use of PDA’s Hi-Lights Potential Liability for Off-Duty Electronic Communications by David J. Lampe of Dinsmore & Shohl LLP

For the Use of Smartphones and Employer  Liability Related to Eavesdropping:

Beware the Allure of Smartphone Technology: Recording Others without Consent May Get You in Serious Trouble by Anne E. Larson of  Much Shelist Denenberg Ament & Rubenstein P.C

Georgia Voters Approve Dramatic Changes to Employment Restrictive Covenant Laws

This week’s featured blogger at the National Law Review is Jon M. Gumbel of Ogletree Deakins.  Jon writes about how this month’s elections in Georgia approved a measure which would amend the Georgia constitution to dramatically alter the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. 

The long-awaited and often debated results are in! On Tuesday, November 2, 2010, Georgia voters decided (quite convincingly) to amend the Georgia Constitution, which allowed for the previously passed House Bill 173 to become law (now O.C.G.A. §13-8-50, et seq.). This new statute dramatically alters the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. The new law became effective on November 3, 2010 and as such, is deserving of prompt attention by Georgia employers.

Until November 2, Georgia’s restrictive covenant laws were governed by published court decisions issued by a wide variety of Georgia judges and based on an even wider variety of specific factual situations, creating a somewhat muddled, very complex and highly unpredictable area of the law. Furthermore, as this case law developed over the past 60 plus years, Georgia courts applied an increased level of scrutiny to employee restrictive covenants, making Georgia one of the most difficult states in which to enforce such covenants. For example, Georgia courts previously required employers to undertake the extremely challenging task of tailoring restrictive covenants executed at the onset of the employment relationship to the employee’s post-employment competition restrictions. In addition, Georgia courts would automatically invalidate a customer non-solicitation provision upon the finding of one technical problem within a noncompete covenant and vice versa. Finally, Georgia courts would not, under any circumstances, modify an otherwise unenforceable covenant so as make it reasonable in the court’s eyes and therefore, enforceable (the “blue penciling” process).

The new statute specifically states Georgia’s new public policy favoring enforcement of these agreements and provides specific guidelines for drafting enforceable agreements. For example, the new statute expressly authorizes a more general description of prohibited, post-employment activities, thus mitigating the requirement that such covenants be narrowly tailored at the onset. The new statute eliminates the prior rules invalidating one covenant based on the unacceptable language of another separate covenant within the same contract. Perhaps, most significant is the new statute’s specific approval of blue penciling, the practice by which Georgia courts are allowed to modify and enforce an otherwise unenforceable covenant.

It is important to note that this new statute only applies to restrictive covenants executed on or after the date the statute was passed – November 2, 2010. The previous, more rigorous legal standards will still apply to agreements entered into before that date. Re-drafting restrictive covenants in line with Georgia’s new statute may be the best option for many Georgia employers. However, Georgia employers should consult with counsel to determine whether they can benefit from this new law. This is especially true when it comes to covenants contained in more complex management and executive agreements that are tied to more generous severance or other compensation plans or those associated with the sale of a business.

Update! For more recently posted information about this topic, please see:  Important Notification Regarding the Effective Date of The New Georgia Restrictive Covenant Statute

© 2010, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

About the Author:

Jon M. Gumbel has concentrated his practice in the field of management labor and employment law since 1987.  He has represented employers with respect to litigation and other employment law disputes involving race, gender, age, religious, and disability discrimination claims under Title VII, the ADEA, the ADA, the FMLA, and comparable state laws.  Jon has also represented employers with respect to their employment litigation matters involving pregnancy discrimination, breach of compensation agreements, breach of non-compete agreements, breach of fiduciary duty, joint employment, wage and hour matters, OSHA citations, and wrongful discharge laws.  Finally, Jon has represented numerous employers with respect to ERISA claims/litigation including those involving health, disability and pension claims.  404-881-1300 /www.ogletreedeakins.com

 

All About Financing the Startup Company -Starting a New Company These Days in Quite The Headwind…..

For those who may know and love us – The National Law Review is all about the start-up company as we were founded by a few “recessionaires” a few years back with elan resources and an ever growing brood of kids. 

In a world where folks are encouraging you to live your dreams and be all that you can be, we’ve come across very few concrete, actionable resources for small business financing.   We attended the SBA Workshops and even some financing resources designed for women entrepreneurs- while these resources offer much information – it’s somewhat disheartening when more than once it’s been suggested that you should be volunteering to teach there.

Accordingly, we’d like to give a shout out to some of the better resources we’ve come across recently which go beyond  having a balance sheet a marketing plan- for those who may be into that sort of thing:

National Law Review's Student Legal Writing Contest Deadline is Friday November 12th

Everybody’s talking about how abysmal the job market is for law students – why not build your resume while still in school?  Young lawyers are under increasing pressure to start thinking about business development activities earlier in than ever in their careers.  One tried and true way of building one’s professional reputation is by publishing.  One sure way to get noticed and to help others is to write  in a style which is helpful and educational to prospective clients.  The National Law Review is one of the nation’s premier resources for secondary legal analysis for businesses and twice a year we offer students the opportunity to submit consumer-friendly articles for publication.

The winning articles will be published online starting in Mid November 2010. The top article(s) chosen will be featured on the NLR home page. Up to 5 runner-up articles will also be posted in the NLR searchable database.

Please note that although students are encouraged to submit articles addressing Labor & Employment Law, the featured topic for the November issue, they may also submit entries covering current issues related to other areas of the law.

 

Why Students Should Submit Articles

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For more Information and contest rules, please click here.

Registration Symbol Misuse As Trademark Fraud?

Featured Guest Bloggers this week at the National Law Review are from our friends up north in Minneapolis at Winthrop & Weinstine.  Steven Baird discusses appropriate times to use the “Registered” symbol.

Trademark types frequently encounter brand owners and managers with substantial misunderstanding and confusion about when use of the federal registration notice symbol is lawful. Most of the time a misuse or technical violation results from an honest mistake, but sometimes the misuse is, and starts out intentional, or perhaps the misuse begins to look intentional if it isn’t promptly fixed or corrected upon learning of the misuse.

Section 906 of the U.S. Patent and Trademark Office’s Trademark Manual of Examining Procedure (TMEP) answers some of the most common questions regarding misuse with this guidance:

  • The federal registration symbol should be used only on or in connection with the goods or services that are listed in the federal registration.
  • The federal registration symbol may not be used with marks that are not actually registered in the USPTO.
  • Even if an application is pending, the federal registration symbol may not be used until the mark is registered.
  • Registration in a state of the United States does not entitle a person to use the federal registration notice.
  • A party may use terms such as “trademark,” “trademark applied for,” “TM” and “SM” regardless of whether a mark is registered. These are not official or statutory symbols of federal registration.

This information and guidance, however, begs the question of whether misuse is a serious violation and the possible consequences of misusing the registration symbol? As you may recall, we’ve talked a bit before about possible false advertising claims against the trademark owner who misuses the symbol and a possible unclean hands defense in favor of the trademark owner’s enforcement target, especially when the misuse is accompanied by a bad faith intent to deceive.

As it turns out, we really need to add another important potential consequence to the list, one that I fear will be abused and used for pure tactical advantage in trademark enforcement efforts, namely, assertions of trademark fraud, despite the current heightened standard of fraud, with the Court of Appeals for the Federal Circuit now requiring a specific intent to deceive the Trademark Office. Actually, registration symbol misuse is not really a new ground of trademark fraud, but it has been rather uncommonly and infrequently alleged, at least in recent years.

One of the reasons for my concern of abuse stems from a recent TTAB decision permitting this rather conclusory and bare bones trademark fraud claim to survive a motion to dismiss:

Applicant knowingly and willfully used the ® symbol in connection with the term … in an attempt to deceive or mislead consumers or others in the trade into believing that the mark was registered.

A pdf of the TTAB’s decision with scant analysis — from about six weeks ago — inNorth Atlantic Operating Co., Inc. et al v. DRL Enterprises, Inc. Opposition No. 91158276), is linked here.

Relying only on the above-quoted allegation, the TTAB decided: “We find that the allegation set forth above includes the necessary pleading of intent, and specifies that applicant’s misuse was knowing and willful, and an attempt to deceive or mislead consumers.”

In contrast to most trademark fraud cases where various false and misleading statements — relied upon by the Trademark Office — are the focus of the fraud challenge, in North Atlantic Operating Co., the focus was on an alleged intent to deceive the public, as opposed to the USPTO.

The Federal Circuit has held: “The improper use of a registration notice in connection with an unregistered mark, if done with intent to deceive the purchasing public or others in the trade into believing that the mark is registered, is a ground for denying the registration of an otherwise registrable mark.”Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295 (Fed. Cir. 1991). Presumably, the same conduct would sustain a petition to cancel as well. Although, the statutory support for the broader focus is unclear, it appears that an intent to deceive the USPTO is not required, so long as there is an intent to deceive the relevant public regarding registration.

Another reason for my concern stems from the apparently satisfactory yet conclusory fraud allegation. There are simply no details regarding the who, what, where, why, and when, of the alleged trademark fraud, and this failure appears to contradict recent TTAB case law confirming that fraud must be pled with particularity under Fed. R. Civ. P. 9(b). Indeed, our friend John Welch over at the TTABlog has reported multiple times on the TTAB tightening up the pleading requirements for trademark fraud claims, following the Federal Circuit’s landmark decision in In re Bose, here, here, and here.

Finally, the Federal Circuit’s Copelands’ Enterprises decision makes clear that how quickly a trademark owner corrects a misuse of the registration notice symbol after learning of the misuse, will impact the determination of whether the trademark owner is charged with an intention to deceive the public. If we couple that guidance with the current uncertainty of whether the requisite intent may be established with a reckless disregard for the truth, trademark types and the brand owners and managers they represent, are all well-advised to pay more attention to what many previously have written off as honest mistakes and technical violations with no real or significant consequences.

Only time will tell whether the registration notice symbol misuse type of trademark fraud claim will remain uncommon or gain traction in our Post-Bose world.

© 1994 – 2010 Winthrop & Weinstine, P. A.

Law Firms Guarantee your ROI When Hiring an Interpreter

The National Law Review’s Business of Law Guest Blogger is Maria Cristina de la Vega who provides some great insight for legal professionals  on what to look for when hiring an interpreter. 

Interpreting/translating is a relatively young industry in the U.S. and it is currently unregulated.  Interpreters are not legally required to have an accreditation unless they are hired directly by the court system and are being paid with taxpayer dollars. Because it is relatively easy for a bilingual individual to hang out his shingle, the consumer, especially attorneys, need to know what to look for in a language professional to ensure that interpreted testimony faithfully follows the source language. Most cases rely heavily on testimony to decipher the facts at issue and to form an understanding of a witness’s credibility and motivation.  A misinterpretation or a nuance that is not conveyed properly can impact the outcome of a case.  To avoid this from happening, ask your language provider for his/her credentials.

Whereas an interpreter is bilingual, a bilingual individual is not necessarily an interpreter.  It is one thing to speak two or more languages, but quite another to be able to professionally interpret from and into those languages.  This fact may not be apparent in casual conversation and may not become evident unless the attorneys and/or parties involved speak both languages, know the specific terms used in the case and are able to recognize them.  In some situations, those listening may not speak one of the languages well enough to judge the quality of the interpretation.  Attorneys and clients in general are not set up to screen language providers to verify their proficiency, nor should they have to.  The best way to do this is to retain the services of an established agency or Language Services Provider (LSP).  The best ones to partner with are those that have experience in the industry, that source their interpreters from existing professionals and from reputable university-level language programs, that require accreditation from the interpreters they employ even if it is not yet mandatory, and that regularly strive to develop their personnel through continuing education.    These firms make sure that the interpreters they send you have the training and credentials to carry out your assignments at a specialized level. Available 24 hours a day 7 days a week to schedule interpreters for you anywhere in the U.S. as well as abroad, they can also provide you with written translations as well as certified linguists to render expert witness testimony on language issues.

What credentials should an interpreter have?

When an attorney needs an interpreter for a legal proceeding, he should first verify whether the interpreter holds an accredited certification, assuming there is one for the needed language combination. In the United States, there are several certification programs. The most common is the standardized interpreting examination offered by the Consortium for Language Access in the Courts at the National Center for State Courts.  There is also the Federal Court Interpreter Certification Exam which is currently being offered only in Spanish.  The National Association of Judiciary Interpreters and Translators (NAJIT) offers another certification, as does the State Department.

If the candidate in question has the required proficiency as indicated by a recognized certification, some of the main skills he should possess and which are acquired from experience are: sight translation, a trained memory supported by note-taking skills to render testimony faithfully, a knowledge of specialized terminology, colloquialisms and slang in order to interpret in the correct register, and how to control the speed at which the attorney and the witnesses speak, if necessary, in order to have the opportunity to accurately interpret everything that is being said. It is difficult to interrupt witnesses giving testimony laden with emotions so it is critically important to have a professional interpreter that can render long statements, doing the interpretation.

Another useful indicator of the interpreter’s professionalism is membership in an industry association such as NAJIT or ATA  (American Translators Association) that have Codes of Ethics governing the profession that members must adhere to.  In addition, these organizations keep members abreast of developments in the field.

How to work with an interpreter

It is equally important for attorneys to know how to work properly with an interpreter. Unfortunately, interpreters are sometimes considered a necessary evil that must be borne and many attorneys subscribe to the myth that, because you are an “interpreter,” you are a walking dictionary who is able to communicate any terminology, notwithstanding the level of complexity, into another language.  Interpreters regularly work in diverse settings for widely differing industries and yet we are not specialists in these industries to the degree that our clients are. Hence, it is important when dealing with complex and/or technically challenging cases, that the interpreter be given an opportunity and sufficient time to acquaint himself, at a minimum, with the pleadings in the case and with any pertinent documents or prior testimony that will be discussed at the proceeding for which he is being scheduled. This is so that we may prepare a bilingual glossary of specialized terms to study, which will result in a more polished, professional interpretation.  In addition to our responsibility as officers of the court not to discuss the cases we work on, we also stand ready to sign confidentiality agreements to assuage any fears regarding sharing of information. To avoid unforeseen difficulties, the scheduling coordinators of established LSPs regularly ask how long proceedings are expected to take and what sort of testimony will be presented to ascertain who the best interpreter is for the assignment, based on experience, and whether he will have to study, for example, dedicated medical terminology or engineering language, among many possible specialties. Whenever possible, book services well ahead of time as good interpreters are in high demand. Check the reputation of the LSP in language-dedicated sites such as Proz.com or ask your colleagues in the legal community about their dealings with the firm being considered.

Guidelines to Working with an Interpreter

  • Ascertain the interpreter’s credentials
  • When relevant, give the interpreter case documents to prepare
  • Verify whether team interpreting is required
  • Address witnesses with direct speech as if the interpreter were not present.

Other useful tips to keep in mind are to use direct speech when using the services of an interpreter.  Address the witness in the first person, as if there were no interpreter present, to safeguard the integrity of the transcript.  Avoid using proverbs i.e. “Where there’s smoke there’s fire” because although it may translate, there may be no direct translation, or worse yet, there may be another cultural equivalent to the sense behind the saying and the witness could end up giving an answer that is framed in very different terms from what you asked.  Furthermore, you would be adding unnecessary stress to the interpreter’s job by asking him to do mental gymnastics  in a matter of seconds to come up with a viable interpretation of an artistic/literary term  When working with consecutive interpretation (speech followed by a pause to allow for interpretation), attorneys and witnesses should pause when a complete thought or phrase has been rendered.  The speech should not be so short that the sense is unintelligible nor so long that the interpreter cannot possibly remember it to give an accurate interpretation.  An experienced interpreter will quickly establish the required rhythm among the parties involved in the taking of testimony so that the process will be smooth.  It is important that only one person speak at a time for the same reason that a court reporter requires it, so that both the full question as well as all testimony is interpreted and taken down.

The length of time involved in an interpreted proceeding brings up another key point that is often overlooked, which is interpreter fatigue.  According to a NAJIT position paper on the topic,http://www.najit.org/documents/Team_Interpreting.pdf,team interpreting “should be used for lengthy proceedings as a quality control mechanism to preserve the accuracy of the interpretation.”  The way this works is that two interpreters substitute one another approximately every half hour.  It has been found in scientific studies, among which is one at the University of Geneva in 1998, that after a certain amount of time working, an interpreter reaches a saturation point as mental circuits become overloaded and this condition leads to errors.[1]

If the interpreter is going to be interpreting a proceeding simultaneously to the witnesses rather than interpreting from the witness stand, it is important that the interpreter be located in a position to properly hear and have visual contact with the parties speaking.  Sound equipment (earphones, a microphone and a transmitter) should preferably be used to interpret the event, transmitting to receivers worn by the parties requiring the interpretation. That way, the interpreter can avoid the additional stress, inconvenience and disruption caused by having to stand close to one or more individuals to whisper an interpretation of what is going on. Many courts have this equipment installed in their courtrooms; otherwise, the LSP can be asked to have the interpreter bring a portable system.  LSPs always have units available for their interpreters to use.

If the language at issue is not one for which there are interpreters readily available in your area or there are many dialects of the language, it is advisable that the interpreter selected speak with the witness in advance to ensure that they can understand one another well.  Lastly, explain to the witnesses the role of the interpreter.  That the interpreter is a neutral party and an officer of the court.  That witnesses cannot have private conversations with him while they are testifying, That they should expect that the interpreter will render everything said to him on the stand into the language of the Court (English) but in turn, the interpreter will keep any information gained in the course of his work outside of court, confidential. Parties/witnesses should also know that the interpreter is bound to report any ethical breaches to the appropriate authorities.

Awareness and adherence to these simple guidelines will go a long way towards making sure that you have a positive, productive experience every time you retain the services of an LSP. NAJIT has formed a working group entitled the Bench and Bar Committee to disseminate this information among the judiciary and practicing attorneys. Our objective as interpreters is to be an asset to attorneys in assisting you to present testimony in a seamless, professional manner that you can depend on.

[1] Moser-Mercer, B., Kunzli, B., and Korac, M., 1998  “Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” University of Geneva, École de Traduction et d’ Interprétation. Interpreting,Vol. 3 (1), p. 47-64. John Benjamin Publishing Co.

 

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About the Author:

Maria Cristina de la Vega holds an M.B.A. and has more than 35 years of experience in court interpreting.  She is a federally certified Spanish interpreter and is also certified by the State of Florida in that capacity. She is a regular contributor to publications that deal with language issues and she is a member of the Bench & Bar Committee of the National Association of Judiciary Interpreters and Translators (NAJIT).  Ms. De la Vega  has done work for prominent law firms including Greenberg Traurig and Holland and Knight.  ProTranslating provides interpreting, translation services and linguistic solutions to individuals, law firms, and corporations worldwide. It offers a team of more than 100 qualified in-house linguists and a worldwide network of another 3,000 freelancers working in more than 100 languages. 888-532-7887 /www.protranslating.com