Saturday, February 14, 2009

Lost in Translation

I had to take the testimony of a Bosnian woman a few days ago. She speaks almost no English although she's been in St. Louis since 2002. That might seem odd until you consider the Bosnian community here has grown over the past decade to more than 50,000. A fairly large part of South St. Louis centered in the Bevo neighborhood has become “Little Bosnia” complete with stores, restaurants, a newspaper, doctors, social service agencies and mosques. As a complete coincidence on the same day of this case Merry and I had a crew of Bosnian carpenters at our house to build a new wood fence for our backyard. The contractor proudly informed us he hires Bosnians because they are dependable, hard workers.

I was not worried about the trial. As a claimant's attorney I'd participated in dozens of trials over the years where the claimant could not speak English including hearings with Spanish, Vietnamese, French Canadian, Polish and sign language translators. Because I considered myself pretty experienced I made no special preparation for the trial, just read the medical evidence and made notes.

It was not until I was on the bench that I realized my mistake. Unlike the trials in which I represented a non-English speaking claimant, this time I would be required to ask virtually all the questions. Use of a translator entails a stop after every sentence so the translator can repeat what I said, then another stop after the answer, and so on. My trials ordinarily last 45 minutes. If I conducted a normal hearing with all my normal questions this hearing was sure to run at least twice that long, if not longer – and I had three other trials scheduled for that morning.

The translator and my vocational expert arrived. Fortunately the translator, a middle-aged Bosnian woman with the oddest pinkish-orange hair I've ever seen, had participated in many Social Security trials. She knew the routine. She also knew the claimant's lawyer who, I learned, represents almost entirely Eastern European claimants and had a Bosnian speaking staff member along with him to help. We were off to a good start.

I summoned the claimant and her lawyer to the courtroom and began. I decided to cut the length of my questions in half - just the basics – in a hope that the trial could be concluded in an hour. I had not considered in advance how difficult this would be to do on the fly. Try it for yourself. Take any paragraph of simple dialogue and cut it in half before you know what the other person is going to say. Now try it with a person who is constantly in tears. Believe me, this work is not for the faint-hearted.

For example, I usually say this at the opening of every hearing:

“You're here because Social Security previously denied your claim and you asked for a hearing to present your case face to face to a judge. This is that opportunity. I'm going to hear whatever you have to say about why you can't work, then apply Social Security's rules to those facts and decided if you are disabled under Social Security's rules. I am not bound by the previous decision in your case. I plan to make an entirely new, independent decision based on the record as I see it.”

That paragraph became:

“I'm going to ask you some questions about why you're not working, then make my own independent decision about whether you could work according to Social Security's rules.”

I carefully made my way through a series of simple questions about her background and past work. I asked about her medical care then about her activities of daily living. Finally the direct testimony was over. I had a vivid picture of the claimant's condition and had made up my mind. Only 30 minutes had elapsed on the courtroom clock.

Now it was time for the claimant's attorney to ask questions. I started by asking him if he spoke Bosnian. He claimed to know a little, but would be using the translator. Of course, I know by heart the questions most lawyers would ask in this situation, so I usually cover them in my questioning. This means most claimant's lawyers only do a small amount of questioning to fill in any gaps. Not so this time. Because of his knowledge of Bosnian life in St. Louis he had a few entirely new questions to ask. “When did you last attend mosque?” “Have you been to a wedding lately?” “How does it make you feel to have your sons take care of you?” “Do you still sew?” “Do you own a telephone and can you use it?” I had asked about whether she could drive a car.

This was all very interesting until he started asking about her experiences during the genocidal war in Bosnia. I knew from her records that she lost a large number of family members and had lived in a refuge camp for a few years. I had chosen not to ask about these things because they were well documented in her psychological records. He waded right in. Before I could stop him he had reduced his client to uncontrollable sobbing. She softly told the translator she was about to be sick. I excused her and the lawyer's staff member helped her to the restroom.

Once she was out of the courtroom I bluntly told her lawyer to discontinue that line of questioning. I explained that I only have to decide if a claimant can work. In the questioning process I do what I can to assure all claimants maintain their basic human dignity. He said he was sorry. When his client recovered enough to return to court he had no further questions.

Now I just had to take some brief vocational testimony and I'd be done. The vocational expert [a VE in Social Security speak] testified the claimant couldn't do her past work. What did the VE think about the battery of tests she had been administered recently showing her job aptitudes and skills? Well, it turns out it is improper to administer these tests to a non-English speaker using a translator, so the results are invalid. OK, but even if I throw out these test scores can the claimant perform competitive work? No. OK, thanks.

The hearing was over. One hour exactly had elapsed. All the parties exited. I put my head down on the bench. I was really, really tired. After resting a few seconds, I sat up and called the next case.

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