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 sees this as a waste of time and money:

Really? Dueling translations? I know Randy Mastro and James Tyrrell are top lawyers at major law firms, and that this is extremely high-stakes litigation, but I would humbly 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 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 witnesses from the PRC. The other side flew the witnesses to Hong Kong for deposition and flew in a court reporter from New Zealand. But their 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 from my law firm who is both completely fluent in the deponent’s language and someone I completely trust to watch over the translating.

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 my translator and the Chinese lawyer on the other side would seek to reach 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 — see the “beer summit” suggestion above) we would defer the argument for the court. Each deposition took nearly twice as long as it would have taken had the other side brought a decent interpreter in the first place

I could go on and on.

Bottom Line: the translation matters.