Your deposition arrangements should allow a witness to follow the proceeding, not merely answer isolated questions. For a Deaf witness, access also includes objections, discussions of exhibits, and communication with counsel. Plan for those exchanges in advance rather than requesting interpretation services at the last minute.
Selecting an ASL legal interpreter is part of that preparation. The appointment should reflect the person’s language, the demands of sworn testimony, and the format of the legal proceeding. A service suitable for an ordinary conversation may not be suitable for an examination that becomes part of the trial record.
Deaf Accommodation Is Not a Spoken-Language Request
American Sign Language is a complete language with grammar distinct from English. Meaning comes through hand movements, body positioning, and facial expressions. ASL is also not universal; other countries and communities use different signed languages.
Disability access, therefore, cannot be reduced to identifying a foreign language. Some Deaf and hard-of-hearing people use ASL, while others communicate through spoken English, captioning, assistive listening devices, or other methods. Communication Access Realtime Translation (CART) provides live text and may suit someone who does not sign. It is not automatically an effective substitute for ASL.
Before you depose a person who is Deaf or hard of hearing, ask which communication methods work for sustained legal discussions. Do not infer that someone who speaks, exchanges emails, or reads lips can participate equally in a deposition without assistance.
What Does the ADA Require of Law Firms?
Private law offices are public accommodations under Title III of the Americans with Disabilities Act. Under 28 C.F.R. § 36.303, they must provide appropriate communication aids when necessary for effective communication. The assessment considers the individual’s communication method and the nature, duration, and difficulty of the exchange.
Your firm should consult the person whenever possible. Although Title III leaves the final selection to the firm, the chosen method must be effective and protect the person’s privacy and independence. The obligation extends to legal services outside the deposition itself.
A 2006 Justice Department settlement with a New York law firm addressed failures in the preparation for a Deaf client who was involved in a deposition and in settlement discussions. The government also challenged reliance on the client’s mother as an interpreter. The firm agreed to provide appropriate aids without passing their costs to the client.
Do not ask clients to supply their own interpreters. Reliance on accompanying adults is permitted only under narrow regulatory exceptions, not because a relative knows sign language.
Who Pays for Communication Access?
For accommodations your firm must provide, the client cannot receive a disability-related surcharge. Section 36.301(c) prohibits shifting required auxiliary-aid costs to that individual. Treat those expenses as an accessibility obligation, not an ordinary disbursement automatically deducted from the client’s recovery.
An undue-burden defense requires significant difficulty or expense, assessed against the business’s resources and circumstances. The fee earned on one case does not determine the answer. Even when a particular aid creates an undue burden, the firm must provide an available alternative that affords access to the maximum extent possible without that burden.
Sign language interpretation in court involves separate responsibilities. State and local courts operate under Title II, which requires effective communication and primary consideration of the individual’s requested aid. These protections extend to witnesses, litigants, jurors, and potential jurors. Courts cannot impose a surcharge for required access services.
Federal courts follow a separate Judicial Conference accommodation policy. It provides interpreters or other appropriate aids at the Judiciary's expense for participants with communication disabilities, including witnesses and qualified jurors.
For a privately arranged deposition, check the governing discovery rules and any applicable order before deciding which party pays. Nebraska’s Rule § 6-330(b)(5), for instance, places arrangement and payment on the party noticing the deposition unless the parties stipulate otherwise or the court orders otherwise for good cause. That is a jurisdiction-specific rule, not a nationwide ADA allocation.
Choose an ASL Legal Interpreter for the Assignment
The ADA requires qualified interpreters who can interpret accurately, effectively, and impartially in both directions, including the vocabulary needed for the assignment. Conversational fluency alone does not establish that qualification.
Certification also requires closer examination. The Registry of Interpreters for the Deaf (RID) offers the National Interpreter Certification (NIC), a general credential. Its Specialist Certificate: Legal demonstrates specialized knowledge of legal settings and greater familiarity with the language used in the legal system. RID stopped awarding it under a moratorium in 2016. Existing SC:L credentials remain recognized.
Do not describe every certified interpreter as legally certified, or reject every interpreter without SC:L. Check state court certification requirements, licensing, and court-roster rules alongside legal training and deposition experience. Wisconsin’s court program, for example, distinguishes general credentials used for provisional status from credentials accepted for its certified ASL roster.
Ask prospective ASL interpreters about their work in legal settings, including interpreting oaths, preserving the meaning of leading questions, handling unfamiliar legal terminology, and correcting an interpretation on the record. Review conflicts and confidentiality procedures, and provide approved background materials through a secure channel. Establish that the assignment is to convey the exchange, not explain the law or improve a witness’s answer.
For language needs not adequately served by a hearing ASL-English interpreter alone, discuss whether a Certified Deaf Interpreter should join the team. This is an individualized communication decision, not an automatic requirement for every Deaf witness.
When Inadequate Interpretation Leads to an Appeal
To protect Deaf witness rights, establish the interpreter’s qualifications and identity before substantive questioning. In federal proceedings, Evidence Rule 604 requires interpreters to be qualified and to take an oath or affirmation to provide a true translation. Rule 30(c)(1) of the Federal Rules of Civil Procedure generally applies the Evidence Rules during an oral examination, subject to specified exceptions.
The appellate risk involves actual access failures, not merely a missing credential. In State v. Jones, 2007 WI App 248, the defendant challenged his ability to communicate with counsel despite having interpreters at trial. Wisconsin’s appellate court reversed the denial of post-conviction relief and ordered an evidentiary hearing. A new trial depended on the findings after remand.
Jones was involved in criminal representation, not a civil deposition. In federal civil litigation, Rule 61 requires courts to disregard errors that do not affect substantial rights. Inadequate interpretation can support a challenge, but a credential dispute does not automatically invalidate testimony or require reversal.
Raise any objection to an interpretation promptly and identify the affected question or answer. Give the interpreter an opportunity to correct the record and seek appropriate court relief when the problem cannot be resolved.
Position Participants for Visual Communication
For an on-site deposition, set the room with the deponent and interpreter rather than assigning seats solely around counsel’s preferences. Provide an unobstructed view between them, sufficient space for signing, and lighting that does not leave either person silhouetted. Arrange for the questioning attorney to be nearby so the witness can shift attention without repeatedly turning away from the interpreter.
Keep monitors, exhibit binders, and microphones out of the signing area to avoid obscuring visual cues. Address the witness directly rather than asking the interpreter to “tell” or “ask” the witness something. Agree on a visible signal for requesting a pause before the examination starts.
Test Remote Access Before Going on the Record
Video remote interpreting (VRI) has specific ADA performance requirements under § 36.303(f). These include full-motion video without disruptive lag, images large enough to show facial expressions and arm, hand, and finger movements, audible speech, and staff trained to operate the equipment.
Apply those requirements to the actual deposition setup. During a rehearsal, check the following:
Keep the interpreter and witness visible throughout the exchange, including when another participant speaks
Frame each signer broadly enough to capture the complete signing area
Test screen sharing without covering or shrinking the interpretation beyond usability
Confirm a backup communication method for reporting a frozen picture or lost connection
Ask the witness and interpreter to assess the setup from their own screens. Do not rely solely on the host’s view. Suspend questioning when technical problems prevent effective interpretation and arrange in-person service when remote interpreting cannot meet the person’s needs.
Pace the Examination Around Visual Attention
Discuss the interpreting mode with the provider before questioning begins. Simultaneous interpretation conveys a message in real time with a brief processing delay. Consecutive interpretation follows a completed segment of speech or signing.
Allow the interpreter to finish conveying the question before expecting an answer. Then allow the signed response and its spoken interpretation to finish before continuing. Require one speaker at a time, including during objections and attorney discussions, so the witness receives those exchanges too.
Keep the exhibit review separate from questioning. Let the witness finish examining the document, then draw their attention back before asking about it. The witness cannot read a page and watch signed questions at the same time.
Discuss breaks and staffing when booking interpreting services. A team arrangement may be appropriate for a lengthy examination; do not assume one interpreter can work continuously. Account for the witness’s need for visual rest and the interpreters’ workload. RID recognizes team interpreting as an arrangement in which interpreters support one another and may rotate responsibilities.
For federal depositions, address additional time through agreement or an appropriate court request rather than compressing interpretation into the ordinary schedule. Rule 30(d)(1) requires additional time, consistent with discovery limits, when necessary for a fair examination.
Preserve the Signed Testimony
An English transcript captures the interpretation delivered orally, not the original signs. Arrange a video record that includes the witness’s signed answers and the interpreter’s signed questions, together with the spoken exchange. This permits later comparison of the original communication with its interpretation. Nebraska’s commentary to its deposition rule specifically recognizes the value of an original-language recording when challenging interpretation accuracy.
Coordinate the recording method prior to the deposition. Under Rule 30(b)(3), the deposition notice must identify how testimony will be recorded, and an additional recording method requires prior notice. Do not assume that admitting someone to a video meeting establishes the required recording arrangement.
State-specific notice rules also deserve review. Nebraska’s § 6-330(b)(1)(D) requires notice of planned interpreter use and directs parties to state the language that will be interpreted or the type of interpretation.
Test the saved recording, not only the live display. Confirm that it retains both signers during questioning and exhibit use and identify who will retain the original files.
Arrange Interpreting Support for Sign Language with NAEGELI Deposition & Trial
Partner with NAEGELI Deposition & Trial for ASL interpreting, court reporting, legal videography, transcript summaries, and remote deposition support.
Call (800) 528-3335 or email schedule@naegeliusa.com to coordinate these litigation support services around your witness’s communication requirements. When scheduling, share the anticipated duration, location, and recording needs. You can also click “SCHEDULE NOW” or live chat for litigation support services.