BY BOB BERSHAD, ESQ.
A Spanish speaking client, or a client who is an undocumented immigrant, may bring with them issues that might surprise you. Knowing what to look out for will help you provide effective representation. Raphael Santini and Emmanuel Fishelman shared their vast experience representing these types of clients with fellow Maryland State Bar Association members at the Professional Excursion to San Juan on February 20, 2023. Santini and Fishelman focused their presentation on personal injury and workers’ compensation cases, but their lessons apply to other practice areas as well.
The Fear Factor
The fear factor can arise when a client is in the United States as an undocumented immigrant. To get to the United States, particularly via the southern border, an undocumented immigrant might have hired a person, called a “coyote,” to navigate the cross-border journey. It is a rough trek, and people they encounter along the way, including the coyote, may be unscrupulous, even dangerous. This experience can impress the client with a generalized fear of being duped or abused in the United States.
Due to their undocumented status, the client may also be fearful of the U.S. legal system itself and the people who work within the system, including even the lawyer—who only wants to help. They may have heard stories, unfortunately sometimes true, of lawyers taking advantage of such vulnerable clients. In Santini’s and Fishelman’s experience, an undocumented immigrant may be agreeable just to get along, even when they don’t understand or agree with what the lawyer is saying. Part of that tendency may be rooted in that generalized fear of the U.S. legal system.
An undocumented immigrant may also harbor fears that relate directly to their legal claim. For example, is it safe for them to pursue a worker’s compensation claim? They may believe such a claim would cause them to lose their job.
They may fear appearing in court or even asserting a legal claim to begin with, believing that they are not entitled to the protection U.S. laws offer. These fears can be especially heightened if an immigrant owes a coyote’s fee, which can be exorbitant. An injury on the job or a car accident could have catastrophic consequences. For example, if the client obtained the money from a loan on their parents’ house back home, the parents may lose the house.
The Language Ambiguity Factor
Language ambiguities arise from the fact that there are many Spanish dialects traceable to a client’s country of origin, or a region within that country. Some Spanish dialects have very little in common with the Spanish used in the U.S. legal system. Moreover, the same word may have different meanings depending on the dialect. For example, the word “espalda” can mean “neck” in one dialect but “back” in another. Even a Spanish-speaking attorney, or an interpreter, may have difficulty understanding their client and they may not even realize it. This impacts the ability of the client and their attorney to fully communicate.
Managing the Fear and the Language Ambiguity
To overcome fear and any language ambiguities, Santini and Fishelman offered the following advice, which is partially specific to worker’s compensation and personal injury cases:
It is a fundamental ethical requirement that an attorney fully understands what a client says and means (and vice versa). If you are not fluent in Spanish, you should retain a Spanish speaking interpreter on behalf of the client. Communication in writing must be translated. A Spanish speaking paralegal or legal assistant can also be helpful. The client may be accompanied by an English speaking family member, possibly a child fluent in American English, who can be helpful as you develop your client’s trust representation.
It is important to establish trust so that the client will tell you the whole story. If the client is un-
documented, then they may withhold information. To begin to gain a client’s trust, introduce yourself, explain your role, their role, and how the process works. Answer questions, answer your phone, and communicate in different forms (such as verbally and in writing), if needed.
When you establish trust, you will be able to ask about any immigration issues if you have reason to. If you suspect a client is holding back on immigration issues, ask if they were stopped when they entered the country and if so, did they go to court. If the answer to both questions is yes, then that means there is an immigration issue. You must be aware of all legal implications of your client’s immigration status.
From the first contact, probe the client’s statements to flesh out exactly what the client says and
means. Language ambiguity may distort intended meaning. Consider that the client may have an underlying fear, as detailed above, which affects what they choose to say. Make sure the client gives the whole story before the client talks to the insurance company. It is important to identify and cure the usage of words or phrases that are ambiguous. The insurance company may construe them negatively against your client. An even better alternative is to give the insurance company a written statement.
Ask the client if they received a check after they were injured, or signed a paper or electronic document. The client may have unknowingly released the tortfeasor from liability. Maryland law fortunately allows a recipient to rescind an accepted settlement offer within 30 days.
A new client may need hospital care immediately. Santini and Fishelman have found clients sometimes don’t want to go to the hospital for fear of large medical bills. But Maryland hospitals can write off the costs of services in certain situations and minors are always given free healthcare. Santini’s test for whether a client must go to a hospital is whether the client is able to exit a vehicle without assistance.
If you refer the client to a healthcare provider for an examination, send the client to one who speaks Spanish if possible for the same reason that it’s important for the client to see a Spanish speaking lawyer. Just like you did, the doctor should be able to fully communicate with the client in order to fully comprehend the nature and extent of the injury.
As you approach the demand stage, beware the client who says they’re fit to work. If they are undocumented, they may be driven by the pressure to work in order to pay back a coyote loan. Advise them to continue medical treatment, so that you can gain the full scope of damages.
If it takes a long time to reach the demand stage, the client may threaten to go to another lawyer who promises to advance the money. You can’t prevent that. All you can do is tell the client that that kind of financial arrangement is unethical and explain the process and why you are waiting.
In preparing for settlement, make sure there are no outstanding bills that the client doesn’t know about. The client may not have a fixed U.S. home and so may have seen physicians in scattered locations. Vet the client’s medical history thoroughly. To do that, ask the medical history questions repeatedly. It is important to do more than your English-language baseline inquiry. Reading medical records is helpful in this line of questioning.
If the case must go to court, note that venue is an important consideration. Potential jurors in different jurisdictions may have radically different cultural perspectives of Spanish-speaking plaintiffs.
When preparing a Spanish-speaking client to testify, advise the client to point out their body parts to ensure there is no ambiguity. Not only can the same word have different meanings as mentioned above, but Santini and Fishelman have seen a number of clients, often with lower levels of education, who use made-up words.
In court, you may encounter an interpreter who is translating inaccurately. If you don’t speak Spanish fluently, it is advisable to enlist the aid of a Spanish speaker who can flag an inaccurate court interpreter. You have an ethical obligation to notify the court of the problem and move for another interpreter. Judges can bring the matter to the Administrative Office of the Courts if need be. Interpreters have hard and taxing jobs. Both Santini and Fishelman have witnessed critical interpreter errors, such as translating that the client said he was turning “left” when in fact the client said “right.”
Some interpreters who are inaccurate may not necessarily be incompetent. Rather, the interpreter may be inadvisably trying to be “helpful.” In such a scenario, ask the court to order the interpreter to focus only on what is in fact being said.
It is a good practice to prepare the Spanish speaking client to answer questions in no more than two sentences. Short responses will make it easier to ensure the interpreter is accurate.
The Maryland State Bar Association was grateful to Raphael Santini and Emmanuel Fishelman for sharing their wisdom and knowledge in this challenging aspect of legal practice. Their 90-minute presentation only scratched the surface of their expertise. Contact them with questions and advice at rjsantini@comcast.net and efishelman@zagfirm.com.