Best Practices

How to select your Legal Translations Partner

Accurate and timely translation services are integral in today’s increasingly globalized legal landscape to ensure that clients involved in any international dispute, agreement, or transaction are best served by their counsel. The translation of foreign documents is a dynamic practice involving various factors, including an understanding of the target country’s legal system, an advanced knowledge of the specific legal terminology unique to the jurisdiction, and sensitivity to the cultural nuances of the language itself. Precision and clarity is key when legal translation services are implicated in any situation, and simple errors such as punctuation mistakes, spelling inconsistencies, and word choice can have serious consequences for both attorneys and clients. Working with an established translation partner such as LingPerfect can ultimately alleviate these risks and safeguard all parties against inaccurate translations as these needs arise in the course of practice.

The proverbial pitfalls of mistranslation have recently been animated in several situations spanning practice groups, subject matter, and national borders. In May, the Guangdong Intermediate People’s Court in China ordered an American company owning the popular shoe brand New Balance to pay $15.8 million in damages after selecting a Chinese trade name (Xin Bai Lun) that was already trademarked by a Chinese businessman. The company argued that there selected name was simply a translation of New Balance, the Court suggested that “Xin Pin Heng” would have been a more accurate representation of the brand, and that the company had used the pure transliteration “Niu Ba Lun” in the past. These considerations underscored the Court’s argument that there were variations in the trade name that would have prevented infringement on an existing mark, and ultimately shows the importance of working with an experienced translator with an in-depth understanding of the necessary linguistic nuances when translating brands.

Issues surrounding translation services have also been discussed in domestic litigation contexts, where US courts have explicitly looked at the procedural aspects of translation. For example, in 2012, the Supreme Court addressed whether a Japanese citizen who brought suit against a hotel for an injury that occurred in a hotel in Saipan (a US territory) could be held responsible for the $5,257.20 in costs for the translation of medical records after losing in court. Under federal law, a prevailing party can generally recoup “interpretation” costs, and the hotel argued that the translation costs should be included within the meaning of “interpretation” under the federal statute. The US Appellate courts were split on the issue of whether translation costs were recoupable under the statute, and the case was ultimately granted cert by the US Supreme Court. The Court ultimately held that translation costs are not recoupable under the statute, adopting a narrow reading of the term “interpretation” and limiting the “compensation of interpreters” does not include the cost of document translation.

Courts and arbitral tribunals have also addressed the practical considerations surrounding the procurement of languages services by attorneys and the ethical implications that inaccurate translations may have on a proceeding. For example, two California attorneys faced disciplinary action after attempting to capitalize on a purported mistranslation after trying to enforce a $489 million dollar award from a Nicaraguan court. The case was a toxic tort case filed by banana workers against The Dow Chemical Company and Shell Oil, as well as Dole Food Corporation, an entity that does not exist, but not the Dole Food Company, the agricultural concern in the initial complaint in the Nicaraguan court. Prior to the enforcement action, the plaintiff’s lawyers knew that no judgment could be enforced against Dole Food Company, as it was not an actual party to the original action. The lawyers relied on the mistranslation in the state courts, federal district courts, and appellate courts, and ultimately had to dismiss the appeal on the day before the appellate argument. The lawyers were eventually disciplined for their actions, and the misconduct stemming from this mistranslation animates the moral and ethical quagmire a practitioner may face when not working with a trusted language service provider to ascertain the accuracy of a translation.

There are also subtle nuances in legal terminology itself that can affect the meaning of projects with an international component. For example, the French word “contrat” generally includes agreements that would be considered “conveyances” or “trusts” by American lawyers, but excludes documents known as “contracts” in American-English. Furthermore, because there may not be synonymous terms in the source and target languages, certain phrases may be denoted by creating a imported hybrid term, such as the American concept of “due process” being translated into Japanese as “doo processu”. Finally, a term in the source language may have two different meanings in the target language, which may cause confusion and inconsistency in the translation. The Chinese, for example, have two different words for the English word, “before.” When you say a contract expires “before January 1” in Chinese, it could include January 1 or not include January 1, depending on which version of “before” you use. These specific instances animate the importance of working with an experienced translation partner to ensure that all generally understood meanings, alternative definitions, and cultural considerations are taken into account when procuring translation services on behalf of your client.

Although translation may be regarded as an imperfect science, attorneys can ensure quality and clarity by selecting a trusted translation partner to facilitate all linguistic services to safeguard the best interests of their clients in any international context. LingPerfect Translations is always available to assist with any translation, interpretation, or linguistic needs that may arise in the course of practice.

 

Issues in Legal Translation Services – Practical and Procedural Considerations
In the burgeoning language services industry, the legal translations market has been a sector of unparalleled growth in the past decade. While the development of technology such as machine translation and advanced e-discovery platforms has made complex international legal matters more manageable, the issues surrounding legal translations continue to be addressed by both practitioners and courts. The current discourse incorporates both procedural and practical considerations when foreign language documents arise in litigation and spans diverse practice areas in today’s increasing globalized legal industry.

In US jurisprudence, several recent cases have addressed the practical, common-sense considerations highlighted the importance of partnering with a trusted language services partner when foreign documents arise in the course of practice. A recent federal case in California in 2014 (In re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation) illustrated the importance of discretion and confidentiality when translating foreign documents. In this multi-district litigation, a legal translator working as a freelancer for an agency retained by the law firm representing the defendant Toyota Motor Corp. and uploaded hundreds of confidential and privileged documents for public access on the internet. U.S. District Court Judge James V. Selna issued a tentative ruling finding the translator in civil contempt for uploading 88 confidential documents she received after signing a protective order protecting the documents in the course of the MDL. Although the case was ultimately settled, the Court’s action highlights the importance of working with an established language services provider with strict confidentiality protocols to safeguard the sensitive documents implicated in the course of discovery.

Furthermore, the budgetary considerations involved with translating a large volume of foreign documents produced in the course of discovery has also been addressed by the U.S. Supreme Court in the 2012 case Taninguchi v. Kan Pacific Saipan. Ltd (132 S.Ct. 1997). In the majority opinion, Justice Alito examined whether 28 U.S.C. § 1920(6), the Court Interpreters Act, which allows courts to award a prevailing party the costs of oral interpreters, also permits a court to award for the cost of document translation. In this case, a Japanese professional baseball player suffered injuries on defendant’s property and sued, and sought to recover the costs for translating documents and medical records from Japanese into English. While noting the substantial expenditures incurred while translating the files, the Court concluded that fee stipulation in the statute only applied to oral interpreters and not document translation, ultimately rejecting a more expansive view of costs. This decision by the nation’s highest court animates the necessity of establishing the most cost-effective workflow when partnering with a provider on translation projects and ensuring budgetary considerations are taken into account from the outset of litigation.

Finally, a the Florida Supreme Court has recently addressed an issue in which non-English speakers who purchased a vehicle with an arbitration clause in the sales contract attempted to return the vehicle to the dealership. All of the agreements were in English, and the plaintiffs filed suit claiming fraud in the inducement and violation of the Florida Deceptive and Unfair Trade Practices Act, and the dealership attempted to enforce the arbitration clause. Ultimately, the Florida Supreme Court remanded the case on procedural grounds, but commentators have stated that the lessons learned from the case include providing that party with copies of the agreements that are translated in their native language would provide a defense to any claims that the agreements are unenforceable due to a language barrier. This intersection of law, public policy, and translation services is a unique combination of substantive and practical considerations, ultimately representing the importance of clarity and transparency in today’s diverse marketplace.

These limited examples highlight the major considerations when partnering with a language services provider – confidentiality, cost, and practicality –they by no means represent the full discourse in today’s legal translation market. The proliferation of global disputes and international business transactions in the increasingly complex business environment means that foreign documents will continue to be implicated in litigation at an increasing rate.

Both lawyers and corporations should have a trusted partner to facilitate these translation projects and become a snap-on solution for the management of foreign documents. With LingPerfect’s consultative approach, we are glad to become part of your litigation team and ensure all language support services are provided as discreet and cost-effective as possible.