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Dueling Translations

Dueling Translations

Blog post at Letters Blogatory, entitled, Dueling Translations, expresses surprise/concern over how both parties in an ultra-high stakes international litigation matter “actually submitted dueling certified translations of the Ecuadoran appellate court’s decision. The post questions sees this as a waste of time/money:

Really? Dueling translations? I know that Randy Mastro and James Tyrrell are top lawyers at major law firms, and that this is extremely high-stakes litigation, but I would like humbly to suggest that the two of them sit down for a beer summit and see if they can find some way to reduce what has got to be the awe-inspiring litigation budget.

I disagree. The party that controls the language can control the case. The following spring to mind:

1.  Whenever the other side in a case submits a translated document, I almost always move to strike it unless the translator has attached a declaration/affidavit regarding the translation. Even with that, I virtually always have someone on my side confirm the translation is accurate. About 85% of the time the translation is “accurate”, but about 99% of the time, it has been translated in a way that favors the side doing the translation. This needs to be pointed out to the court. Just by way of example, there are languages where the same word can be translated either as “shall” or as “should.” Those are two very different meanings.

2. Finding a good translator for depositions is very difficult. In Seattle, there is a Russian translator who everyone knows is fantastic and it is pretty common for both sides in a case to agree she will be the only interpreter for the entire case. I know of no such translator in any other language here. I once had a case where the French translator was so bad I was pretty much able to nullify anything at all harmful my French-speaking client said at her deposition, simply by pointing out how bad this translator had done overall. It was not so much that the translator’s English was so bad (he was French) it was that this was his first job translating at a deposition and he simply did not know what his role was supposed to be. He did not realize legal translation means translate, not help with the questions or the answers.

3. I had another case which involved depositions of around 8-10 witnesses from the PRC. The other side was taking these depositions and they flew all the witnesses to Hong Kong for deposition. The other side also flew in a court reporter all the way from New Zealand. But their big mistake was using a Hong Kong based interpreter whose first language is Cantonese, not Mandarin. She was terrible.

As I always do for depositions where the deponent speaks a language other than English, I brought along someone both completely fluent in the deponent’s language and someone I completely trust to watch over the translating. In this case, it was my co-blogger Steve Dickinson.

The other side brought along a Chinese speaking attorney as well. What ended up happening is that both parties essentially agreed that whenever either side had a dispute regarding the translator’s interpreting, they could object, at which point Steve and the Chinese lawyer on the other side would seek to reach an agreement. If an agreement could be reached, the correct/better translation would go on the record. if no agreement could be reached (which was surprisingly seldom) we would defer the argument for the court. All this meant each deposition took nearly twice as long as it would have taken had the other side brought in a decent interpreter.

I could go on and on, but you probably already have gotten my drift. Bottom line, the translation matters.

What do you think?

7 responses to “Dueling Translations”

  1. In law… language is power. I minored in Mandarin, and I’ve made continuous and deliberate efforts to use and improve my linguistic abilities. In this ever flattening world being bilingual is just yet another weapon in the arsenal you must deploy against the opposing side.
    If we’re being honest about the business of law, then we must admit that you often can’t trust the opposition. Its only made all the more difficult when you’re relying on a third party to tell you what the oppositions said.
    As it concerns China, an interesting development in the utilization of international law and linguistics, is the need for lawyers who can translate among the same language. Its often you see a young associate in China translating ‘Chinese English’ to English that would be acceptable on any natively written document. Something I commonly struggle with is the ability to not only speak the language, but to understand its connotations. If you speak a language fluently, but you fail to grasp the intricacies of its culture, then often you can correctly translate the words, but completely misinterpret the meaning.
    As we prepare for a world that demands less misinterpretation, the language of law is going to become an ever more complicated issue.

  2. Since I am a translator,I would like to share my thoughs on this. Top-notch translators, as you point out, is VERY hard to find because discussions or negotiations always involve subjects like IP&Trademark, company law and so on. From the perspective of translators, it is one thing to understand how to translate ,it is sometimes quite another thing to actually monitor both parties’ concerns and convery them in a neutral manner. This is critical to the successful discussion because always millions of dollars are at stake here. I also agree with you that it is better to have a local legal counsel present because he or she will monitor(some of them speak very good English) and point out the mistakes or inadequacy of the translation.

  3. Dan, thanks for commenting on the post. I agree with the gist of your post, and of course we’re always careful in our cases to confirm an opponent’s translation. If I can add another practical point on using translations: when serving interrogatories on foreign parties not fluent in English, consider providing your own translation of the interrogatories rather than relying on your opponent to translate them for her client.
    The motivation for my post was not so much the dueling translations themselves as the excessive costs of the litigation. I recently read some PR from the Ecuadoran plaintiffs that claims that Patton Boggs has billed Chevron $250 million per year over the last two years. Just to put that in perspective, Ecuador’s GDP in 2010 was about $58 billion. And this is only one side of the litigation budget (though it’s probably fair to assume that the Ecuadorans are spending less than Chevron)!
    In the Chevron litigation, the Ecuadoran court’s judgment is dated Jan. 3 and is 15 single-spaced pages of Spanish. The parties submitted their translations to the Second Circuit on the 6th and the 7th. Perhaps this will turn out to have been justified expedition. But my guess, based on nothing more than a year of observing this take-no-prisoners litigation, is that the parties rushed to get certified translations because economizing simply is not the name of the game in their fight.

  4. This kind of things is a huge headache in patenting where very often the meaning is not even clear when the documents are in English. At the prosecution stage there is way too much reliance on machine translation both by the patent office and by applicants, although the use of machine translation is unavoidable given the way in which multiple documents from different corners of the world can be cited as referencesagainst patentability, and given the tight deadlines involved. Throw in the fact that many of applicants are not working in their first language, and that even the people at the USPTO (let alone the EPO) do not always speak English at a native level, and you have a recipe for endless dispute about whether documents were translated or interpreted correctly.
    The time I spent a good page demonstrating to a USPTO examiner that “writing X and Y in sequence” used in a particular context meant “first writing X, then writing Y” and not “writing Y in the space after X” was a particular low point. The time I spent an hour arguing about the implications of the placement of a comma with a colleague another. The best that can be said is that I won both arguments and the client benefited from me doing so.

  5. This is exactly why China lawyers must have a good grasp of both spoken and written Chinese (Mandarin). Anything else is just ridiculous. I see that nearly half of your firm’s lawyers are fluent in Mandarin. Very cool.

  6. I certainly understand your point. However, certified translation services are not necessarily a big problem Finding someone that understands the the English and Mandarin legal language is a bit more difficult. I solved the problem by hiring an executive assistant that had a Chinese law degree and is English fluent. You wouldn’t believe what I pay her (very inexpensive). That solves my problem

  7. Just a couple of thoughts on this very interesting discussion. So “shall” and “should” also matter in context such as whether this is a contract dispute or a matter subject to treaty or convention where “should” might be more operable; whether the jurisdiction will be in the PRC where the courts obviously have a very different role than in the US; and vocabulary where, as was pointed out above, a word such as “lien” that has a deep history in common law, has simply not existed in Mandarin. With “shall” and “should” we are talking not only about tense, but also usage easily understood in common law, but not necessarily elsewhere.
    With this in mind, the suggestion for each side to have a translator to check is excellent. I would just refine it to say that what is spoken should also be checked for what is written concurrently if there is any doubt. I know this sounds tedious, but I imagine on most occasions it would not be a big deal. Culturally, though, some may nod agreement when not really sure what they are agreeing to in writing.

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