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ALSO INSIDE: Sovereignty Symposium Highlights
Board of Governors Vacancies • Oklahoma Tax Legislation
Volume 90 — No. 6 — August 2019
Access
to
Justice
contents
August 2019 • Vol. 90 • No. 6
THEME: Access to Justice
Editors: Melissa DeLacerda & Jim Calloway
FEATURES PLUS
6 The Work of the Oklahoma Access 38 Taxation Law Section Note:
to Justice Commission 2019 Oklahoma Tax Legislation
By M. David Riggs By Sheppard F. Miers Jr.
10 The Oklahoma County Courthouse 44 OBA Nominating Petitions and
Access Clinic Board of Governors Vacancies
By Sara Murphy Bondurant 45 Photo Highlights: Sovereignty
16 Certified Courtroom Interpreters Symposium XXXII
By Debra Charles
22 Addressing the Court Reporter
Crisis in Oklahoma
By Shelley Phillips and Debra Charles
26 Using Online Dispute Resolution
to Expand Access to Justice
By Colin Rule
30 Tips on Delivering Limited Scope Legal Services
By Jim Calloway
34 The Crushing Reality of Why We Need
Plain Language Pro Se Court Forms
By Elizabeth Govig
DEPARTMENTS PAGE 38 - Oklahoma Tax Legislation
4 From the President
48 From the Executive Director
50 Law Practice Tips
55 Ethics & Professional Responsibility
58 Board of Governors Actions
66 Oklahoma Bar Foundation News
71 Young Lawyers Division
74 For Your Information
77 Bench and Bar Briefs
80 In Memoriam
82 Editorial Calendar
83 What’s Online
PAGE 45 – Photo Highlights: Sovereignty Symposium XXXII
88 The Back Page
From The President
Leave a Legacy
By Charles W. Chesnut
A PERSON WHOM I RESPECTED GREATLY when
I was growing up was a man in town who was very
well to do, but you would never have known it by his life-
those who choose to represent themselves,
court costs and filing fees can be a barrier to
obtaining justice. It can also be difficult to
style. He lived modestly, was rock solid in character, had a find information on simple procedural issues,
self-effacing sense of humor and was exceedingly generous like when and where to file a lawsuit and
in his giving to his community, his church and people in what rights you have in court.
need. He never talked about his giving, but later you could There are many ways to participate in
sometimes spot his tracks. Most importantly, he always increasing access to justice. Some attor-
gave sage advice. (Side note: On his bucket list, he told me neys choose to provide pro bono legal ser-
he had always wanted to fly in the cockpit of a jet plane, vices while others feel that working low
ride in a locomotive with an engineer of a train and ride in bono (providing services at a low hourly
the cab of a semitrailer. The only one he didn’t get to do rate) is right for them.
was ride in the semitrailer. Aren’t people interesting?) Nonlitigators can contribute by helping
He told me once that he didn’t understand why individuals through an administrative
people, when they wanted to do good works, didn’t do law maze, drafting simple legal docu-
them in their field of training. He thought people could ments, just giving some quality legal
accomplish the most good if they stuck to helping others advice or contributing to legal aid.
through areas in which they were specially trained. In Oklahoma, we have “Free Legal
I think that most of us enjoy reaching out and aiding oth- Answers,” which is an easy and convenient
ers in need. It makes us feel good about ourselves and can way to provide legal advice to those seeking
be a huge help to others who really need the assistance. answers to legal questions and issues.1
If we adhere to my friend’s philosophy, then as attorneys, we Talk about leaving a legacy. The people
can accomplish the most productive results by helping someone you help will never forget you. Your time and
resolve a legal issue that requires an attorney’s legal skills. talent will have solved a problem for them
We are all familiar with the term “access to justice.” It that they could never have solved on their
describes the ability of any person, regardless of income, own. Often, it really is not that difficult of an
to use the legal system to advocate issue to solve; it just takes a little of your time
for themselves and their interests. and effort. It also sows good seed.
It provides a means of leveling the If each of us tried to do just one legal
playing field so that everyone can have task a year for someone who could use our
their voice heard, exercise their rights, assistance but cannot afford it, think about
challenge discrimination or hold deci- all of the good deeds you could look back
sion-makers accountable. While the civil on in the course of your legal career. The
legal system can be a powerful tool for cumulative effect of thousands of us doing
remedying wrongs, it is also extremely that would be immense.
complex and can be difficult to navigate I encourage you to resolve to provide
without the help of a trained attorney. a legal service at least once each year for
For those unable to afford an attorney, someone in need at no or low charge. It will
access to the court system and the build a better you, a better society and a
justice it can provide are limited. better bar association.
President Chesnut practices in Miami. Lack of access to an attorney is not
charleschesnutlaw@gmail.com ENDNOTE
918-542-1845 the only access to justice issue facing 1. To access Free Legal Answers, go to oklahoma.
low-income individuals and families. For freelegalanswers.org.
4 | AUGUST 2019 THE OKLAHOMA BAR JOURNAL
THE OKLAHOMA BAR JOURNAL is a
publication of the Oklahoma Bar Association.
All rights reserved. Copyright© 2019 Oklahoma
Bar Association. Statements or opinions
expressed herein are those of the authors and
do not necessarily reflect those of the Oklahoma
Bar Association, its officers, Board of Governors, Volume 90 — No. 6 — August 2019
Board of Editors or staff. Although advertising
copy is reviewed, no endorsement of any
product or service offered by any advertisement
is intended or implied by publication.
JOURNAL STAFF BOARD OF EDITORS
Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair
content of their ads, and the OBA reserves Editor-in-Chief
the right to edit or reject any advertising copy johnw@okbar.org LUKE ADAMS, Clinton
for any reason. Legal articles carried in THE
OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor AARON BUNDY, Tulsa
carolm@okbar.org
by the Board of Editors. Information about
CASSANDRA L. COATS, Vinita
submissions can be found at www.okbar.org. MACKENZIE SCHEER
Advertising Manager PATRICIA A. FLANAGAN, Yukon
BAR CENTER STAFF advertising@okbar.org
John Morris Williams, Executive Director; AMANDA GRANT, Spiro
Gina L. Hendryx, General Counsel; Joe LAURA STONE
Balkenbush, Ethics Counsel; Jim Calloway, Communications Specialist VIRGINIA D. HENSON, Norman
lauras@okbar.org
Director of Management Assistance Program; C. SCOTT JONES, Oklahoma City
Craig D. Combs, Director of Administration; LAURA WOLF
Susan Damron, Director of Educational Communications Specialist SHANNON L. PRESCOTT, Okmulgee
Programs; Beverly Petry Lewis, Administrator lauraew@okbar.org
MCLE Commission; Carol A. Manning, LESLIE TAYLOR, Ada
Director of Communications; Robbin Watson,
Director of Information Technology; Loraine
Dillinder Farabow, Peter Haddock, Tracy
Pierce Nester, Katherine Ogden, Steve Sullins,
Assistant General Counsels OFFICERS &
Les Arnold, Julie A. Bays, Gary Berger,
BOARD OF GOVERNORS
Debbie Brink, Melody Claridge, Cheryl CHARLES W. CHESNUT, President, Miami;
Corey, Nickie Day, Ben Douglas, Dieadra
LANE R. NEAL, Vice President, Oklahoma City; SUSAN B. SHIELDS,
Florence, Johnny Marie Floyd, Matt Gayle,
Suzi Hendrix, Debra Jenkins, Rhonda President-Elect, Oklahoma City; KIMBERLY HAYS, Immediate Past
Langley, Jamie Lane, Durrel Lattimore, President, Tulsa; MATTHEW C. BEESE, Muskogee; TIM E. DECLERCK,
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Laura Willis, Laura Wolf & Roberta Yarbrough Oklahoma City; JIMMY D. OLIVER, Stillwater; MILES T. PRINGLE,
Oklahoma City; BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR.,
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THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 5
Access to Justice The Work of the Oklahoma Access to Justice Commission By M. David Riggs “EQUAL JUSTICE UNDER LAW.” This inspiring phrase is displayed on our United States Supreme Court building and is a promise which runs throughout our Constitution and other documents and writings of our founders. Historically, our American system of justice has been viewed as a leading model of fairness and efficiency. With rare exceptions, our courts have been remarkably free of outside influence and corruption. Our founding fathers strove to create an independent judiciary and the principal of equal justice under law, but is it a promise we have kept? Major barriers to truly equal impairment, hearing loss or establishing the commission, the civil justice have fallen, but only cognitive challenges are disadvan- court stated that due to “inad- recently have those remaining taged trying to navigate the legal equate funding and uncoordi- barriers begun to get the atten- system – as are those who are not nated efforts … many low-income tion they deserve. What are those proficient in English. Our court Oklahomans are unable to receive remaining barriers? To start with, system, with relatively few simple full representation on civil legal we must acknowledge the inher- forms and unusually complicated matters.” The court said the com- ent unfairness of an adversarial procedures, is often not seen as mission was created “to serve as system designed to find the truth “user friendly.” This is particularly the umbrella agency for all efforts where one side is represented acute in Oklahoma. to expand access to justice in civil by skilled legal counsel and the The National Center for Access matters in Oklahoma.” other is not. Today, as many as to Justice is a nonpartisan law and The court appointed seven vot- 70 percent of civil cases filed involve policy organization created to ing members to the commission, disputes where one side, sometimes develop a response to this growing provided for the attorney general both, cannot afford a lawyer. Most problem. It created the Justice Index to be an exofficio member, and for of these cases involve and affect which ranks the various states the governor, speaker of the House basic human needs such as child with respect to access to justice. and president pro-tempore of the welfare and child protection, home Oklahoma has not fared well in Senate each to appoint a nonvoting foreclosures, debt collection, wage this Justice Index, ranking 50th when member of the commission. garnishments, repossessions, preda- it was first created six years ago. The commission meets regularly tory lending and so forth. and has undertaken several major We lawyers have learned to OKLAHOMA ACCESS TO initiatives to address the problems navigate our courts, but for the JUSTICE COMMISSION which caused Oklahoma to be uninitiated, courthouses often In response, our Oklahoma ranked so poorly in access to justice. are frightening and confusing Supreme Court established the Some of the more notable steps places, especially if your family Oklahoma Access to Justice taken by the commission to improve or your home is at risk. People Commission (commission) on access to justice in Oklahoma with disabilities such as vision March 13, 2014. In its order include: 1) implementing a THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 7
statewide needs assessment survey OKLAHOMA LAWYERS 2) You can donate your time by
to measure and better define the CAN HELP IMPROVE answering legal questions
greatest needs of Oklahoma’s ACCESS TO JUSTICE for needy Oklahomans.
unrepresented litigants; 2) launch- There are many ways you, as OklahomaFreeLegal
ing OklahomaFreeLegalAnswers. an Oklahoma lawyer, can help the Answers.org provides
org, a statewide interactive website commission in its work and help a unique opportunity –
empowering volunteer lawyers your fellow citizens. Oklahoma lawyers can
to provide essential legal infor- register with the site to
mation to needy Oklahomans; 1) You can provide finan- anonymously answer simple
3) facilitating a change in court cial support. The newly legal questions from fellow
rules (District Court Rule 33) allow- created Access to Justice Oklahomans. Just click
ing lawyers to provide limited Foundation can receive the “Volunteer Attorney
scope services to clients who would tax-deductible financial Registration” tab. It is a rela-
otherwise be unrepresented alto- contributions to improve tively simple way to donate
gether; 4) preparing and securing access to justice. The your time on a limited basis.
adoption of licensed legal intern commission has no fund- You decide which questions
rule changes to facilitate greater ing sources other than you want to answer –
participation in the program; voluntary contributions by nothing is assigned to you.
5) assisting in securing funding people and organizations You provide these answers
for certification and training of who share the commis- only when your schedule
qualified courtroom interpreters; sion’s commitment to equal permits. The more volun-
6) facilitating our first Oklahoma justice. The commission’s teers we have, the more our
Access to Justice Summit, an event website okaccesstojustice. volunteer time commitment
which inspired and informed org has a link to the founda- is shared.
many Oklahoma lawyers; and tion’s online donation page. 3) Volunteer to serve on the
7) supporting and assisting Legal All lawyers who work in Oklahoma Bar Association
Aid Services of Oklahoma in its our justice system should Access to Justice Committee.
development of a single portal be willing to financially This committee often does
triage website for Oklahomans support the work of the research or legwork to assist
facing legal challenges. commission. You may soon the commission with its
Because the court has focused receive a letter from the projects. It can also make
the attention of many of Oklahoma’s Access to Justice Foundation recommendations to the
lawyers and judges on the access asking for your financial OBA Board of Governors.
to justice challenge, and because of support. Please do what you In 2018, this committee was
steps taken by the Access to Justice can individually and urge awarded the OBA Golden
Commission to address the prob- your firm to give priority to Gavel Award, which is pre-
lem, the most recent Justice Index the access to justice cause in sented to an OBA committee
now ranks Oklahoma 42nd in the its charitable giving. or section performing with a
nation – but more work remains. high degree of excellence.
OklahomaFreeLegalAnswers.org provides a
unique opportunity – Oklahoma lawyers can
register with the site to anonymously answer
simple legal questions from fellow Oklahomans.
8 | AUGUST 2019 THE OKLAHOMA BAR JOURNAL4) Share information. Not 6) Volunteer your services. Commission has opened my eyes
every lawyer you know Lawyers have a rich tradi- to the improvements that must
will take the time to read tion of pro bono support be made before all of our citizens
this article. You can engage representing the needy. If may truly have access to “Equal
them to improve their you do not know the best Justice Under Law.” Please join the
awareness of our state’s way to determine who effort we should all make to meet
challenges and access to is deserving, Legal Aid this challenge.
justice ranking. The OBA Services of Oklahoma will
Management Assistance pre-screen individuals
Program will provide a for you. The Oklahoma ABOUT THE AUTHOR
speaker for a limited scope Lawyers for America’s David Riggs is the senior partner
service CLE program for Heroes Program is always of Riggs, Abney, Neal, Turpen,
your county bar association. looking for volunteers to Orbison & Lewis, which has offices
5) Act locally. A county bar assist those who have hon- in Tulsa, Oklahoma City and Denver.
association may be able to orably served this country He was appointed to the Access
work with county officials and cannot afford to hire an to Justice Commission by the
on minor improvements attorney. Sign up to volun- Supreme Court when it established
that make a huge difference teer at okbarheroes.org. the commission in 2014 and was
when a citizen enters an chosen to serve as its first chair.
imposing courthouse for CONCLUSION
the first time and is con- I am proud to be an Oklahoma
fused about where to go. lawyer. I know many of our law-
We are starting to experi- yers already donate a lot of their
ment with volunteer court- time to assisting the underserved.
house navigators as one Serving as the first chairman of
possible solution. the Oklahoma Access to Justice
THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 9Access to Justice The Oklahoma County Courthouse Access Clinic By Sara Murphy Bondurant 10 | AUGUST 2019 THE OKLAHOMA BAR JOURNAL
A S THE DIRECTOR OF THE OKLAHOMA COUNTY COURTHOUSE ACCESS CLINIC,
I routinely witness the desperation of people walking the halls seeking legal help. It
is common for a pro se litigant to wander the courthouse hallways asking for help from
anyone that “looks” like a lawyer. These brave souls go from clerks and bailiffs to the law
library trying to solicit any legal advice while being turned away with only a packet of
paperwork often with outdated instructions. If the litigant even makes it to the courtroom,
more often than not they leave with no resolution to their matter.
After arguments and pleas of As a legal community, we have a A commonplace solution has
the litigants for the judge to alter responsibility to ensure access to been to provide limited legal
the legal requirements of which the courts to litigants like these. assistance through not-for-profit
they do not understand, judges We can and should do better.1 programs such as Legal Aid.4 These
often provide the time-honored programs have become the primary
request – “hire a lawyer.” Most CHALLENGES WITH CIVIL source of services to aid in the
often, as attorneys, we think ACCESS TO JUSTICE service gap to the poor. However,
this is the obvious answer – for these pro bono clinics have barely
the pro se to hire a lawyer. This In the United States scratched the surface in the unmet
assumption that a litigant refused Before discussing the pro se need for legal services among the
or forgot to hire a lawyer and now clinic, some context is necessary. poor. The gap is consistently grow-
can quickly remedy this error is The United States has one of the ing, and clinics are unable to meet
an apparent oversight to the much highest numbers of lawyers per the needs of the poor. Legal Services
larger problem they are facing. capita in the world, yet in 2019 it Corporation published studies in
The majority of these litigants ranked 99 of 126 countries in the 2005 and 2009 finding over 50 percent
either cannot afford an attorney or category of providing accessible of individuals requesting legal aid
cannot wait months for a pro bono and affordable civil access to the services did not receive aid due to
volunteer attorney. Their matters judicial system.2 In the measure insufficient resources.5 In 2016,
are urgent and life-altering. They of countries, the United States the number rose to 86 percent with
are so desperate for help that they has fallen 30 spots since its 2015 71 percent of low-income house-
are willing to attempt navigation ranking in this category.3 Not only holds experiencing at least one civil
of a system designed for them to is the court system designed to be legal issue that year.6
fail. Once they do fail, the message inaccessible and unaffordable to
of inequality sent to these litigants the average low income individ- In Oklahoma
makes them frustrated, angry ual, but a lack of education exists Oklahoma has mostly the same
and disillusioned with our legal among the underserved popula- challenges with civil access to
system. The judicial system is full tions which would create a rem- justice as the other states across
of barriers which disproportion- edy to the legal services gap. the nation. Yet, Oklahoma has
ately harm those without means. been slow to tackle the issues due
THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 11to lack of funding. The Oklahoma The distinction between other services, pro bono programs and
Supreme Court has taken a keen legal aid clinics and OCCAC is that technical tools to assist individuals
and timely interest in civil access to OCCAC is permanently housed unrepresented by legal counsel.
justice. In a 1990 landmark case for inside the courthouse where clients In its first three months of provid-
Oklahoma,7 the court indicated that have daily, immediate access to ing services, OCCAC volunteers
the Oklahoma Constitution affords attorneys and law student volun- assisted 114 families.15
due process to indigent individuals teers on a first-come, first-served
in civil litigation matters. basis. Attorney and law student Income Qualifications
Twenty-four years later in 2014, volunteers have assembled to com- Initially, the OCCAC clinic did
the Oklahoma Supreme Court bat a growing gridlock occurring not have rigid income qualifica-
established the Oklahoma Access in the probate and guardianship tion requirements for adult and
to Justice Commission that was docket. Due to complexities in the minor guardianship clients.16 The
designed to develop and imple- law such as the requirement for board’s reason was that if the pro
ment policies to expand civil legal three separate background checks se litigant was already attempting
services to low-income individu- for adult members of a household to navigate the courthouse with-
als. A commission website8 was for a minor guardianship proceed- out representation, legal advice
developed which provides infor- ing13 or the Department of Human from a clinician would streamline
mation on legal aid in Oklahoma. Services (DHS) referral of fami- the process and allow for less con-
The mission of the commission lies to obtain a guardianship in gestion in the courtroom. During
is to study successful clinics order to divert children from DHS the first months of the clinic, it
across the country and implement custody, pro se litigants are often became apparent while mostly uti-
effective programs in Oklahoma.9 confused and unprepared for their lized by client’s without means to
Primarily, the commission is seek- hearing dates. To complicate this retain an attorney, the occasional
ing programs that use inactive, situation further, with online and prospect attempted to circumvent
retired or attorneys licensed in dif- paralegal services, pro se litigants the need to hire an attorney while
ferent states to serve as pro bono are given a false sense of the “user having the means to do so. The
attorneys.10 The significant chal- friendliness” of the legal system. OCCAC board determined that an
lenges for Oklahoma for access to OCCAC’s purpose is to ensure income requirement was neces-
justice are lack of resources and civil access to Oklahoma County sary for all aspects of the clinic
lack of qualified volunteers. residents and those with current in order to preserve the delicate
cases in the Oklahoma County balance between pro se assistance
THE CLINIC District Court involving minor and and the attorney franchise.
To combat these challenges adult guardianships and probates.
and complexities of navigating the Attorneys and law students who Court Advisor Program
courthouse, attorneys in Oklahoma participate in the pro se clinic are If a client is unrepresented in an
County created the Oklahoma given an instructional manual uncontested matter and in need of
County Courthouse Access Clinic created by OCCAC. The manual legal guidance in an adult guard-
(OCCAC)11 on Feb. 1, 2019. OCCAC includes detailed instructions con- ianship, minor guardianship or pro-
is the first of its kind incubator cerning pro se filing requirements bate matter in Oklahoma County, he
project in the largest county in for adult guardianship, minor or she may seek the assistance of a
Oklahoma. The legal volunteers guardianship and probate matters.14 court advisor housed in the court-
assist with minor guardianships, The clinic utilizes multiple house.17 Attorneys with experience
adult guardianships and probates.12 resources including self-help in these areas are available during
a three-hour shift. Most attorneys
volunteer one or two shifts per
month in order to limit volunteer
fatigue rates. The attorney answers
questions, assists with pleadings,
provides legal advice, and may even
appear pro bono on behalf of the
individual. The attorney volunteer
has complete discretion regarding
courtroom appearance when the
attorney deems the appearance
12 | AUGUST 2019 THE OKLAHOMA BAR JOURNALappropriate. Each of the attorney to each party not meeting the represents herself or himself in all
volunteers is provided training with accounting requirements required other aspects but can receive legal
the possibility of MCLE credit. by statute in both adult and minor representation on a limited basis.
guardianship cases. Under this pro- The purpose behind these types
Court Navigator Program gram, attorneys would be allowed of agreements is to lower attorney
Under OCCAC supervising access to courthouse cases biannu- costs for the client while limiting
attorneys, the Court Navigator ally and provide notifications to the malpractice exposure for the attor-
Program was created to support appropriate judge of those cases not ney. OCCAC clients are required
and assist unrepresented litigants. meeting statutory requirements. to sign a limited scope services
Specially trained and supervised agreement before receiving clinic
nonlawyers called “court nav-
igators” provide general infor-
mation, written materials and
one-on-one assistance. Also,
court navigators provide moral
Limited scope agreements allow an attorney
support to litigants, help them
access and complete forms,
assist them with keeping
paperwork in order, help them to provide piecemeal services in a legal matter
access interpreters and other
services including explaining rather than requiring a traditional, full-service
what to expect and the roles
of each person in the court- representation agreement utilized by lawyers.
room. Court navigators are also
permitted to accompany unrepre-
sented litigants into the courtroom
in Oklahoma County. While these
court navigators cannot address OCCAC Awareness Program services. This agreement delineates
the court on his or her own, they OCCAC volunteers provide edu- what legal services are to be pro-
can respond to factual questions cation to attorneys, courthouse staff vided by the clinic and notes the
asked by the judge. Each court and the public about the clinic and clinic’s lack of responsibility for
navigator is required to attend at its services. Courthouse staff train- failures of the case outside of the
least three separate shifts with a ing is essential so individuals may clinic’s purview. When the clini-
licensed lawyer before assisting be identified and properly referred cian deems a matter too complex or
clients alone. The OCU School of to the clinic. Community education contested, he or she will refer the
Law recently granted an extern- is the means to empower litigants. client to a legal aid service that will
ship opportunity for its law The more education provided to be better able to meet his or her
students to volunteer as court nav- community members the higher needs. Comment 7 to Oklahoma
igators at the clinic while gaining the demand will be for appropriate Rule of Professional Conduct 1.2
course credit at the law school. legal services. states the limited representation
must be “reasonable under the
Judge Pro Tem Limited Service Agreements circumstances.”18 The clinician has
Modeled after a successful Rule 33 of the Rules for the a time limitation goal of 20 minutes
program in California, the judge District Courts of Oklahoma per client; therefore, complex and
pro tem (judge for a day) aspect authorizes limited scope services contested matters are not appropri-
of the clinic allows attorneys to agreements. Limited scope agree- ate for the clinic at this time.19
review filing requirements for ments allow an attorney to provide
certain matters and report to the piecemeal services in a legal matter Further Considerations
judge whether the requirements rather than requiring a traditional, Reports of the success of legal
have been met. Due to the volu- full-service representation agree- aid clinics should be viewed with
minous cases requiring account- ment utilized by lawyers. Types of a skeptic’s lens. Simply providing
ings in Oklahoma County, it is services could include legal advice, legal volunteers to answer ques-
nearly impossible for each judge document preparation or single tions and provide basic pleadings
to track, review and respond courtroom appearances. The client is based on a failed patchwork
THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 13system.20 While legal aid clinics are Volunteer, Journal Record 50 Most 16. Due to the inherent nature of probates
containing assets in which to retain an attorney,
intended to supplement the gap of Influential Women in Oklahoma all probate clients have required a referral from
inequality in the judicial system, recognition and OCBA Leadership one of the two Oklahoma County probate judges
since the clinic’s inception.
these pro se clinics can also be in the Law Award. 17. This is true assuming the client meets
viewed as imposing self-representation strict income and asset requirements of the
OCCAC.
with minor legal assistance on ENDNOTES 18. 5 O.S. §1 Rule 1.2 – Scope of
poor people. In order to empower 1. OCCAC would like to recognize and thank Representation and Allocation of Authority
Judge Richard Kirby and Judge Allen Welch in their Between Client and Lawyer.
pro se litigants, we must not only innovation and support for civil access to justice. 19. OCCAC has developed a referral source of
provide services, but we must Both judges recognize the barriers within their pro bono and low bono attorneys willing to accept
courtrooms and have taken a proactive approach referrals from the clinic.
educate and nurture access to the in implementaing various programs designed to 20. According to The Justice Index 2016, there
courthouse. Furthermore, pro se alleviate the legal services delivery gap. are 6,953 civil legal aid lawyers in the nation out
2. “U.S. Rank On Access To Civil Justice In Rule of 1.3 million lawyers. This translates to 0.64 civil
clinics alone are not the appropriate Of Law Index Drops To 94th Out Of 113 Countries,” legal aid attorneys for every 10,000 Americans
response to the Sixth Amendment National Coalition for a Civil Right To Counsel living 200 percent below the federal poverty line.
(Oct. 27, 2016), civilrighttocounsel.org/major_ This is an unsustainable system. “Measuring
right to equal protection under developments/217; See Agrast Et Al., “The World Access to Justice (2016),” justiceindex.org.
the law. Greater emphasis must be Justice Project,” Rule Of Law Index 175 (2016).
3. Id.
placed on streamlining pleading 4. By an act of Congress in 1974, Legal
processes, simplifying statutory Services Corporation was created to provide a
national program to provide legal services to the
requirements and eliminating poor. See Pub. L. No. 93-355, 88 Stat. 378 (1974)
vagaries in the judicial system. (codified as amended at 42 U.S.C. §2996 (1994).
Uniform and simple fill-in- 5. “Documenting the Justice Gap In America:
The Current Unmet Civil Legal Needs of Low-
the-blank forms must be cre- Income Americans,” Legal Services Corporation,
ated. Judges should be educated September 2005 (Updated June 2007 and
September 2009), www.lsc.gov/sites/default/files/
about the barriers caused by LSC/images/justicegap.pdf and www.lsc.gov/
unnecessary continuances and sites/default/files/LSC/pdfs/documenting_the_
justice_gap_in_america_2009.pdf.
appearances. They should also 6. “The Justice Gap: Measuring the Unmet
be free to provide instruction Civil Legal Needs of Low-income Americans,”
Executive Summary, Legal Services Corporation,
about resources available to pro se June 2017, www.lsc.gov/sites/default/files/
litigants and what information is images/TheJusticeGap-ExecutiveSummary.pdf.
7. In re: D.D.F., 801 P.2d 703, 706 (Okla. 1990),
necessary for the judge to make a the Oklahoma Supreme Court held that the rights
decision. Attorneys should not be at issue in a termination of parental rights case
were fundamental to the family unit and protected
satisfied with limiting the dis- by the due process clause of the Oklahoma
cussion of access to pro se clinics. Constitution, Art. 2, §7.
8. Oklahoma Access To Justice Commission
Instead, the legal community must sites.google.com/utulsa.edu/okaccesstojustice/
commit to creating a holistic, user- home.
9. Kyle Schwab, “Oklahoma Access to Justice
friendly system that accommo- Commission looking at new ways to provide free
dates all levels of litigants. legal help to the poor,” The Oklahoman, Jan. 29,
2018, oklahoman.com/article/5581221/oklahoma-
access-to-justice-commission-looking-at-new-
ways-to-provide-free-legal-help-to-the-poor.
ABOUT THE AUTHOR 10. Id.
11. The OCCAC clinic can easily be replicated
Sara Murphy Bondurant is a senior in other counties to assist with pro se litigants.
attorney at Graft & Walraven PLLC To discuss starting a clinic in your county please
contact the author.
in Oklahoma City and Clinton. 12. Probate clients must receive a referral
Her practice focuses on estate from an Oklahoma County probate judge to
be eligible for OCCAC services. This referral
planning, elder law, tax planning, system is designed to prevent nonincome eligible
probates and adult guardianships. applicants from wrongfully utilizing OCCAC
volunteer services.
Ms. Murphy Bondurant received 13. 30 O.S. §2-101 (OSCN 2019).
her J.D. from the OU College 14. The OCCAC instructors deliver the manual
to all attorney and law student volunteers.
of Law. She is a member of the Additionally, volunteers are asked to attend an
OBA Access to Justice Section orientation in which the manual is discussed. The
manual has been approved by both judges assigned
and Estate Planning, Probate and to the probate docket in Oklahoma County.
Trust Section. She has received The manual includes sample pleadings that are
distributed by the Oklahoma County Court Clerk’s
the OBA Outstanding Pro Bono Office and the Oklahoma County Law Library.
Service Award, Oklahoma Lawyers 15. Assistance includes in-office assistance
and email assistance.
for Children Outstanding Attorney
14 | AUGUST 2019 THE OKLAHOMA BAR JOURNALAccess to Justice
Certified Courtroom Interpreters
A Quick Guide to Oklahoma’s Program
By Debra Charles
T HE LANGUAGE USED IN THE COURTROOM can be confusing and difficult to
understand, and ordinary words or phrases often have unexpected meanings. Lawyers
often use a unique combination of legalese, acronyms, idioms and sports metaphors. For
persons who are limited English proficient (LEP), having meaningful language access
during their day in court can be challenging.
Qualified interpreters play an second highest level of credential. All candidates must also pass a
essential role in ensuring equal The process is cumulative – a background check and must be U.S.
access to justice and helping court candidate must first become regis- citizens or qualified to work in the
proceedings function efficiently tered, and then he or she may apply United States. There are currently
and effectively.1 To further this to take the examination to become 62 registered courtroom interpreters
important goal, the Oklahoma fully certified. The Oklahoma on the Oklahoma registry. 4
Supreme Court has approved a program utilizes nationally recog- The second level of credential is
credentialing program for inter- nized standards for training and a fully certified courtroom inter-
preters in the Oklahoma courts.2 examination.3 preter. This is the “gold standard”
Like attorneys, credentialed court Courtroom interpreting creden- and is widely recognized in most
interpreters have proven their skills tials are not easy to obtain. As with state court systems. While regis-
through testing and training, are official court reporters, these lan- tered interpreters have demon-
required to comply with continu- guage professionals are making the strated a basic level of proficiency,
ing education and are bound by official record for the court. It takes certification as a court interpreter
ethical standards. This article more than just being bilingual to indicates the highest skill level
discusses a few important areas qualify. The first step is to become and establishes the interpreter’s
for lawyers who might encounter a registered courtroom interpreter. competence as a language profes-
these interpreters in the courtroom: To do so, the candidate must: sional to accurately perform in all
credentialing levels, modes of inter- three modes of interpreting.
preting and interpreter ethics rules. 1) Attend an intensive The certification exam is chal-
Oklahoma two-day orienta- lenging, even for individuals who
CREDENTIALING LEVELS – tion training program; are highly proficient in both lan-
REGISTERED AND CERTIFIED 2) Pass a written English guages. Multiple cognitive functions
INTERPRETERS examination to verify are involved when an interpreter
Two levels of courtroom adequate proficiency and listens, comprehends, decodes and
interpreter credential for spoken understanding (including produces the interpretation with
languages are recognized in the legal terminology and the required speed and accuracy.
Oklahoma courts. “Certified court- interpreter ethics); and Practice is necessary for a candi-
room interpreters” hold the highest 3) Pass a basic proficiency date to develop the skills needed
level of credential, and “registered examination in the foreign to perform well in all modes of
courtroom interpreters” hold the language of expertise. interpreting. Similar to the certified
16 | AUGUST 2019 THE OKLAHOMA BAR JOURNALshorthand reporter exam process, For lawyers attempting to work Consecutive Mode
many candidates require more than with interpreters in the courtroom, Consecutive mode occurs
one attempt before passing the certi- understanding the three modes of when the LEP person is playing
fication exam. interpreting is essential. an active role in the conversation
In Oklahoma, the oral examina- and must speak or respond during
tion to become a certified courtroom Simultaneous Mode examination, cross-examination or
interpreter is administered by the Simultaneous interpreting occurs to the judge. During consecutive
Administrative Office of the Courts when the non-English speaker is not mode, the interpreter listens while
twice a year. There are currently actively a part of the conversation. the speaker completes a question or
eight certified courtroom interpret- This mode (sometimes called whis- answer and then converts what was
ers on the Oklahoma registry.5 per mode) is used whenever the said into the target language. There
LEP person (usually the defendant) is a pause after each question and
MODES OF INTERPRETING is passively listening to other speak- each answer to allow the interpreta-
Three modes of interpreting are ers, such as during witness testi- tion to go back and forth, between
recognized in the court interpreting mony, statements from the judge or English and the foreign language,
profession and have been adopted arguments of counsel. If someone is depending on who is speaking.
in federal and state courts: simul- speaking during that LEP person’s During consecutive mode, the inter-
taneous interpreting, consecutive day in court, then the interpreter preter is heard by other participants
interpreting and sight translation of should be quietly interpreting in in the courtroom, and the interpre-
documents.6 Each mode fits partic- “whisper mode” so the defendant tation into English becomes part of
ular needs and circumstances in hears what is going on. During this the court record.
the courtroom. Court interpreters mode, the interpreter is not heard
will switch between these modes by others in the courtroom.
during a proceeding as needed.
THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 17paraphrase anything. If the witness
uses poor grammar, crude language
or profanity, the interpretation
should convey that same content
and register. Interpreters should
The primary goal for court interpreters is not be admonished for being the
conduit for such utterances, as their
accuracy and completeness – to preserve the
rules and training prohibit them
from censoring or cleaning up the
speaker’s language.
language level, register, style and meaning of The rules require interpreters to
preserve the same level of speech
the speaker as precisely as possible. being used by the speaker. In court,
the interpreter must take care not to
make a defendant or witness sound
more educated, confident or sophis-
ticated than their own words con-
Sight Translation of Documents settings, skilled interpreters vey. It is important not to blame the
The third mode is sight trans- routinely summarize, simplify, interpreter, even if the interpretation
lation. Certified courtroom inter- embellish, rephrase and explain contains fragmented or incoherent
preters are tested for their ability in order to convey the necessary statements or improper grammar.
to read a document written in information between the parties. Similarly, if the judge or attorney is
one language while translating However, in the courtroom, the using sophisticated language, the
it orally into the target language. opposite is true. The primary goal interpreter should use that same
“Live” sight translation in court is for court interpreters is accuracy high level in the target language.
appropriate only for short docu- and completeness – to preserve Many idiomatic expressions
ments (one or two pages), such as the language level, register, style often used by lawyers have actual
an affidavit, medical record, police and meaning of the speaker as meanings very different from
report, foreign birth certificate, etc. precisely as possible. Rule 3 of the the literal interpretation and can
Interpreters are trained to ask for Code of Professional Responsibility cause major confusion. To be
a few minutes to quietly read the for Interpreters mandates that accurate, interpreters often must
document before attempting to “Interpreters shall render a com- figure out the linguistic equivalent
do a sight translation. Judges and plete and accurate interpretation or for a statement or concept. Some
lawyers are encouraged to allow the sight translation, without altering, examples include turn a blind eye,
interpreter a few minutes to do so. omitting, or adding anything to take the law into your own hands,
For lengthy documents, such as arti- what is stated or written, and par for the course, null and void,
cles or transcripts, the process will without explanation.”8 fine print, chip on his shoulder,
be much more accurate and efficient The mandate for completeness slap on the wrist, down to the wire
if the translation is completed prior means that everything should and throw in the towel. Qualified
to the live court proceeding. be interpreted for an LEP defen- courtroom interpreters are trained
dant, including arguments of that verbatim “word-for-word”
ETHICS RULES counsel, testimony of witnesses interpreting is not appropriate if
FOR INTERPRETERS and statements of the court. Even it distorts the actual meaning. If
The Oklahoma Supreme Court when the defendant is not actually there is no equivalent, the judge
has adopted the nationally rec- responding to questions, meaning- may need to instruct the attorney
ognized ethics code which gov- ful language access occurs when to rephrase the question.
erns courtroom interpreters.7 For everything that happens at the Another important ethical rule
lawyers and judges, understand- proceeding is interpreted for the governs scope of practice.9 The rule
ing some of these key concepts LEP litigant. Interpreters should provides that “Interpreters shall
is important when working with never be instructed to “stop inter- limit themselves to interpreting or
courtroom interpreters. preting” during the proceeding if translating and shall not give legal
Courtroom interpreting is very the LEP person is a party. advice, express personal opinions
different from interpreting in other Courtroom interpreters must to individuals for whom they are
settings. In medical or classroom not summarize, embellish or interpreting, or engage in any other
18 | AUGUST 2019 THE OKLAHOMA BAR JOURNALactivities which may be construed interpreters, they have demon- Speak directly to the party
to constitute a service other than strated their abilities through or witness, not to the
interpreting or translating while testing and training, they are bound interpreter. Do not tell the
serving as an interpreter.” by the ethics rules and they must interpreter to “ask him…”
When LEP defendants finally comply with continuing educa- or “ask her…”
meet their court interpreter, the tion requirements. A certified sign Construct questions using
interpreter may seem like a super language interpreter whose regis- straightforward language. If
hero – finally, someone who tration is current is eligible to serve possible, avoid double nega-
speaks their language has arrived! as a “qualified legal interpreter” tives or compound sentences.
This can lead to a barrage of ques- pursuant to the Oklahoma Legal Be mindful of interpreter
tions about the case, the judge, Interpreter for the Deaf and Hard- fatigue and allow for breaks
the plea forms, the prosecutor or of-Hearing Act.10 There are currently if the proceeding is lengthy.
the penalty for the offense being 10 certified sign language interpret- Interpreters are not
charged. However, the interpreter ers on the Oklahoma registry. immune to mistakes, slips
is permitted to convey legal advice of the tongue or memory
only while an attorney is actually TIPS FOR LAWYERS WORKING lapses. Errors should be
giving it. Courtroom interpreters WITH COURTROOM corrected as soon as pos-
are trained to avoid meeting with INTERPRETERS sible, hopefully without
defendants without the attorney Oklahoma’s district courts are causing undue embarrass-
being present. Interpreters should not funded for staff interpreter ment to the interpreter. If
not be asked to independently positions, and the courtroom you believe the interpreter
assist with preparation of forms interpreters on the registries are misunderstood the question
or explain court procedure. Judges not court employees – they are or answer, or made a mis-
and lawyers are encouraged to freelance professionals. Interpreter take, the best solution is to
protect interpreters from being scheduling for court proceedings immediately follow up with
placed into such positions. is handled by the local district court a rephrased question.
During the actual proceeding, or by the lawyers in the case (not Allow the interpreter to
the LEP person might not under- the Administrative Office of the converse briefly with the
stand what is going on or what is Courts). While the pool of cre- non-English speaker to
being asked. The scope-of-practice dentialed interpreters continues ensure understanding
rules prevent interpreters from to grow, it is not always feasible of accents, dialect or pro-
having an independent dialogue to secure a registered or certified nunciation differences.
with the LEP person to explain interpreter for every proceeding.11 Don’t ask the interpreter to
what someone meant or to rephrase Moreover, budget shortfalls limit independently explain or
questions. Instead, the courtroom the ability of the district courts to rephrase anything said by
interpreter should simply act as pay the costs for interpreter ser- the LEP person. Instead,
a conduit – interpreting the LEP vices in many instances. clarify by asking the LEP
person’s questions or confused Some practical tips for working person questions through
responses into English and allowing with an interpreter in the courtroom: the interpreter.
the attorney or the judge to clarify, If possible, allow the inter-
rephrase or add more explanation Position interpreters where preter to review helpful
for the LEP person to understand. they can see the participants exhibits or pleadings prior
and hear what is being said, to the hearing, to become
CERTIFIED SIGN including arguments of familiar with names, dates
LANGUAGE INTERPRETERS counsel at the bench. and technical vocabulary.
Oklahoma’s program also Speak clearly and slowly, Distribute copies of jury
includes certified sign language and avoid talking over instructions, plea forms,
interpreters. Although their cre- other speakers. etc. to the interpreter.
dentialing process is somewhat Allow pauses for interpreta- Don’t expect literal word-
different from spoken language tion during long questions for-word interpretations.
interpreters, Oklahoma’s certified or answers. Many witnesses Interpreters convey the
sign language interpreters have forget to pause, and inter- meanings of words and
also satisfied rigorous require- preters cannot retain detailed phrases, which is often
ments. Like the foreign-language lengthy narratives. different from the literal
THE OKLAHOMA BAR JOURNAL AUGUST 2019 | 19translation. Be mindful officers of the court, interpreters help ensure level of credential in this state, and registered
that such persons may enjoy equal access courtroom interpreters have the next highest
of idioms, metaphors and to justice, and that court proceedings and level. When good cause is shown and the
sports-based expressions, court support services function efficiently court has determined that it would not be
and effectively. Interpreters are highly skilled practical, within a reasonable time frame, to
which can be very confusing professionals who fulfill an essential role in secure the services of an individual certified
for non-English speakers. the administration of justice. under Sections 1701 through 1710 of this
2. The Supreme Court has approved detailed title, the court may utilize the services of
Interpreters are not attor- rules related to courtroom interpreting in the a registered courtroom interpreter. When
neys. They can interpret Oklahoma courts. The Code of Professional good cause is shown and the court has
Responsibility for Courtroom Interpreters in the determined that it would not be practical,
questions and answers, Oklahoma Courts is set forth at Title 20, Chap 23, within a reasonable time frame, to secure
but interpreters should not App I. The interpreter credentialing and continuing the services of a registered courtroom
education process is set forth in the Rules of the interpreter, the court may utilize the services
be asked to perform attor- State Board of Examiners of Certified Courtroom of a provisional interpreter or other person
ney-type work or explain Interpreters. Title 20, Chap 23, App II. Rules who does not hold a certified or registered
legal forms to LEP persons. governing disciplinary proceedings are set credential. If the Board establishes additional
forth at Title 20, Chap 23, App III. levels of qualified interpreters, the court
The State Board of Examiners of Certified shall follow the recognized hierarchy of
CONCLUSION Courtroom Interpreters provides oversight of the credential when endeavoring to obtain
interpreter credentialing and disciplinary program, interpreter services. For purposes of this
The Oklahoma Supreme Court’s with subject matter expertise, exam proctoring section, “good cause” means that due to
Interpreter Program is still rela- and program administration provided by the the nature of the hearing, and time being of
Administrative Office of the Courts professional the essence, the securing of a certified or
tively new, but a growing group of staff. The board is created by statute, and its actions registered interpreter would not be possible
qualified professionals is emerging are supervised by the Supreme Court and subject to due to the time, distance, or availability of a
approval by the court. See 20 O.S. §1701, et seq. certified or registered interpreter. The court
to provide language access in the 3. The court interpreter credentialing shall make a specific finding as to the good
district courts. These registered process developed by the National Center for cause for the emergency circumstances. In
State Courts (NCSC) is widely recognized as the addition, the non-credentialed person shall
and certified interpreters have industry standard for certification of courtroom have reasonably demonstrated to the court
worked hard to earn their creden- interpreters. Like most states, Oklahoma uses and the parties such person’s proficiency
these nationally recognized standards and the for the purposes of that hearing. It is also
tial. As freelancers, many of them NCSC examinations for its courtroom interpreter mandatory that the proceedings are audio
provide additional interpreting credentialing. taped, and in the event of deaf or hard of
4. The registries of courtroom interpreters are hearing individuals, audio and video taped.
services and would be eager to posted on the Certified Courtroom Interpreters The recording shall be labeled and remain an
provide language services for you – page of the Oklahoma State Courts Network, official part of the record.
www.OSCN.net (go to Programs > Certified
inside or outside of the courtroom. Courtroom Interpreters). Also, Rule 16, Title 20, Chap 23, App II states, in part:
If you are in need of a qualified 5. There is also a registry for “provisional
status” interpreters. This level of credential is c) The court shall endeavor to obtain the
interpreter, please remember to no longer available in languages where fully services of a courtroom interpreter with the
check the registries on OSCN. registered and/or certified interpreters are highest available level of credential prior to
credentialed in Oklahoma. The provisional accepting services of an interpreter with
process is intended for interpreters speaking lesser certification and skill.
more exotic languages to have their names listed d) As provided in 20 O.S. §1710, when good
ABOUT THE AUTHOR for possible use in the courts. A provisional cause is shown and the court has determined
interpreter has not achieved certification or that it would not be practical, within a
Debra Charles is general counsel registration but has met certain minimum reasonable time frame, to secure the services
for the Administrative Office of verified requirements. Provisional interpreters of a Registered or Certified Interpreter, the
do not possess an official certification and have court may utilize the services of a Provisional
the Courts and also directs the not achieved the higher levels of training and Interpreter or other person who does not hold
Supreme Court’s Language Access/ qualifications required of registered and certified a Registered or Certified credential. Whenever
interpreters. See Rule 2, Title 20, Chap 23, App. II. possible, any court proceeding interpreted
Certified Courtroom Interpreter 6. The certification process requires oral by a Provisional Interpreter, Registered
Program. She works closely with examinations testing the interpreter’s skills in all three Interpreter, or other person who is not enrolled
modes of interpreting. See Rules 4 and 11 of the as a Certified Interpreter shall be audio
the state boards of examiners for Rules of the State Board of Examiners of Certified recorded and the recording shall be made an
Oklahoma court reporters and court Courtroom Interpreters, Title 20, Chap 23, App II. official part of the record as required by 20
7. Code of Professional Responsibility for O.S. §1710 and Supreme Court Rule 1.410.
interpreters. She is a graduate of the Courtroom Interpreters, Title 20, Chap 23, App I.
OU College of Law. 8. Id. Rule 3.
9. Id. Rule 9.
10. 63 O.S. §2407, et seq. and Rule 12, Title 20,
ENDNOTES Chap 23, App I.
1. The Preamble to the Code of Professional 11. It can be challenging to obtain a qualified
Responsibility for Interpreters, at Rule 1, Title 20, interpreter in a timely manner. This issue has
Chap 23, App I, states: long been addressed in 20 O.S. §1710. This year,
SB489 amends §1710, to become effective Nov. 1,
Many persons who come before the courts 2019. The new version of §1710 states:
are partially or completely excluded from full
participation in the proceedings due to limited In district court proceedings, the court
English proficiency or a speech or hearing shall endeavor to obtain the services of
impairment. It is essential that the resulting a courtroom interpreter with the highest
communication barrier be removed, as far as available level of credential prior to accepting
possible, so that these persons are placed services of an interpreter with lesser
in the same position as similarly situated credential and skill. Certified courtroom
persons for whom there is no such barrier. As interpreters have the highest recognized
20 | AUGUST 2019 THE OKLAHOMA BAR JOURNALYou can also read
