Translations as an adversarial device – Part 1

Every interpreter who has worked on a deposition will be familiar with lawyers using interpretation as a way to bargain. However, I hadn’t thought about this in the context of written translations before.

This guest post, by Dan Harris and first published at China Law Blog, started me thinking about this issue. Dan writes and speaks extensively on Chinese law.

I hope you will have lots of comments, because I think it’s a fascinating subject for discussion. I’ll be writing more about this in a  couple of weeks.

Over to Dan… (Note from WordstoDeeds: I selected the blockquoted & bold items, and the illustration)

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 this as a waste of time/money: I disagree.

He/she who 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 that 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 that 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 that I was pretty much able to nullify anything at all harmful my Swiss 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 it 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 that 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 [People’s Republic of China]. The other side was taking these depositions and they flew all of 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 reached an agreement that whenever either side had a dispute regarding the translator’s interpreting, they could object, at which point Steve and the Chinese lawyer 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 that each deposition took probably 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.

WordstoDeeds: Thank you Dan!

On another matter, exporting to China, see Dan’s thought-provoking post on the Hermès trademark here.

One thought on “Translations as an adversarial device – Part 1

  1. It’s an interesting topic. It’s more a matter of professional ethics. Providing professional translation services, especially legal translation, means to minimize the gap between the two languages and try to represent the meaning as much as possible. If the translator is not able to transfer all the meaning into the target language, the legal document would cause dispute. Personally I think first the translator should understand the source text completely. When putting it into a different language, try to be as clear as it can be, even if through repetition. Accuracy matters most in legal translation.

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