Translation For Lawyers

Document Translation, Attorney-Client Privilege and Foreign Companies in U.S. Courts

2008-05-14T14:57:29Z

Earlier we blogged about the role of foreign language translation in transnational litigation. When a foreign company is involved in U.S. litigation, regardless of whether it is against a U.S. company or not, there are several important factors to keep in mind. As an attorney representing the foreign company, of particular interest is the extent of attorney-client privilege. As both the U.S. and foreign country’s Code of Civil Procedure may apply – knowing when communications are privileged and to whom this privilege extends to is essential.

]]> According to U.S. case law, at times a court will simply opt not to apply U.S. law to attorney-client privilege. However, the majority of courts will take a comity approach to the issue, which holds that if the communication touches base with the U.S., U.S. laws will be applied. On the other hand, if the communications relates to matters only involving the foreign country, that foreign country’s laws will be applied. Aktiebolag v. Andrx Pharmaceuticals, Inc., 208 F.R.D. 92, 97-98 (S.D.N.Y. 2002); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 520 (S.D.N.Y. 1992).

This determination, of course, depends on the communication being understood. For this reason, having a foreign language translation of the communication in question is essential to determining as to which country it touches upon. Furthermore, as many foreign countries are involved in highly technical litigation, all foreign language translations should be done by translators familiar with both the language and the industry.

To read our legal translation blog post "Foreign Language Document Translation, and Using Foreign Law as Evidence", click here.

Language Translation and Interpreting Issues- Standards of Review when Challenging Ability to Communicate with Court

2008-05-12T08:46:25Z

A non-English-speaking defendant’s inability to communicate with the court can lead to an appeal related to foreign language translation and court interpreting issues. As the majority of jurisdictions mandate that a foreign language speaker be able to use a foreign language court interpreter in order to communicate with – and understand – the court, an appeal will be based on some issue related to the lack of or adequacy of the foreign language translation.

]]> The determining factor in deciding which of the two standards of review is applicable is whether or not an objection to the language interpretation was made at trial. If a timely and specific objection was made and is noted in the record, the courts will use an abuse of discretion standard. On the other hand, if an error is not objected to at trial, an appeal may still be sought using the plain error standard.

See Virginia Benmaman, Interpreter Issues on Appeal, Proteus: Newsletter of the Nat’l Ass’n of Judiciary Interpreters and Translators, Fall 2000, and State v. Santiago Calderon, 13 P.3d 871, 876 (Kan. 2000).

Foreign Language Translation and International Accounting Litigation

2008-05-08T16:07:47Z

Like many professional specialties – including the law, computer science and medicine – the field of accounting has many terms that are particular to the accounting profession. Although people within the accounting field understand these trade terms, these terms often do not translate easily outside the profession. This is particularly true when accounting documents need to be translated into a foreign language for transnational and cross-border accounting litigation.

]]> Correct foreign language translation of international accounting documents plays an important role. In fact, it is an essential component to avoiding litigation. In other words, without a foreign language translation that properly conveys the meaning of accounting term(s), detrimental problems in financial statements can be created – which will eventually lead to litigation.

With this in mind, it is essential that the foreign language translators who translate your international accounting documents are familiar with the accounting terminology and field. Skimping on professional translation services is really not a good idea.

To read our earlier legal translation blog post "Legal Document Translations in Light of Royal Dutch Shell Global Class Action and Collective Settlement Agreements", click here.

Determining the Unavailability of Foreign Language Translator/ Interpreter to Provide Expert Witness Testimony in Person- Telephonic Evidence

2008-05-06T17:00:00Z

Earlier we blogged about the admissibility of the telephonic expert witness testimony by a foreign language translator/ court interpreter. One key factor in a court’s decision to allow telephonic testimony is whether or not the witness is available. Thus, in order to admit foreign language translator testimony via telephone, a party must sufficiently demonstrate that in fact the foreign language translator/ interpreter is “truly unavailable”.

]]> According to the Federal Rules of Evidence pertaining to admitting telephonic evidence, a witness is truly unavailable when it is shown that he/ she is unable to attend the hearing. Although the trial court has great discretion in determining whether or not a witness is able to attend a hearing, a common theme in many rulings is that a witness is truly unavailable when he or she lives outside the jurisdiction, and the need to travel to the hearing would be unreasonably burdensome to the witness.

See Beltran-Tirado v. INS, 213 F.3d 1179, 1186 (9th Cir. 2000); In re S.B., 639 N.W.2d 78, 83-84 (Neb. 2002); State v. Rosengren, 199 Ariz. 112, 116 14 P.3d 303, 307 (App. 2000).

Admissibility of Telephonic Expert Witness Testimony by Foreign Language Translator/ Court Interpreter

2008-05-04T17:05:44Z

Although sometimes admissible, the use of telephonic expert witness testimony given by a foreign language translator or court interpreter is highly disfavored by the courts. In general, the courts are likely to apply the same standards of admissibility of telephonic testimony by a foreign language translator/ interpreter as they would to any type of telephonic testimony.

]]> The main issue that arises with using telephonic testimony is that of the Confrontation Clause found in the U.S. Constitution and many state constitutions. According to the Sixth Amendment of the U.S. Constitution, one has the right to confront a witness face to face.

However, for practicality reasons, the courts have generally held the right to confrontation is not absolute.

Specifically as to the relationship between telephonic testimony and the Confrontation Clause, the courts have ruled that according to certain public policies – such as the efficient use of court resources – the use of telephonic testimony may be compelled. This is particularly true when a witness is truly unavailable.

Although there is no set rule as to when telephonic testimony satisfies this public policy exception, in general it can be stated that the party moving to admit telephonic testimony must either:

a) Get a waiver of confrontation from the opposing party; or
b) Demonstrate that such testimony is necessary to further an important public policy and show the expert witness is truly unavailable as a witness*.

See State v. Jacob, 494 N.W.2d 109, 119 (1993); U.S. v. Jacobs, 97 F.3d 275 (8th Cir. 1996).

Document Translation, Trade Marks and the Doctrine of Foreign Equivalents

2008-04-28T17:01:28Z

Language translation issues often come up in the context of foreign language words in trademarks. In a case involving vodka, the TTAB clarified its definition of the Doctrine of Equivalents by refusing to register the mark Moskovskaya. The central issue was the definition of “the ordinary American purchaser” in reference to the applied for mark.

]]> Although it was Russian vodka, the vodka in question did not originate in Moscow. However, the term Moskovskaya is Russian for “from Moscow”. The applicant argues that the meaning is not geographic in nature because the average American purchaser would not translate the mark into English. The examining attorney, on the other hand, argues that “under the doctrine of equivalents, the ordinary American purchaser refers to the ‘ordinary American purchaser who is knowledgeable in the foreign language,’ and will translate the mark into its English equivalent.”

In its ruling, the Board ruled the applicant was taking the definition of “ordinary American purchaser” out of context and instead agreed with the examining attorney, refusing to register the mark. Thus, when applying for a copyrighted mark, it is essential to bear in mind that an exact foreign language translation will be used by the court.

See In re Spirits International N.V., 86 USPQ2d 1078 (TTAB 2008).

Translations, FTC and Foreign Language Complaints

2008-04-24T15:49:55Z

Translation issues often come up in the context of FTC hearings. As the Fair Trade Commission (FTC) handles many cases involving foreign language elements, it has developed specific rules to govern its hearing. All cases involving “foreign elements” – or matters where the complainant, respondent, investigated party, applicant or party requesting official interpretation of the law is a foreign enterprise – are governed by these guidelines.

]]> If a party has a complaint regarding a matter governed by the FTC, in order to file a proper complaint one must follow the guidelines. To file a complaint, the first step is to ensure the complaint is prepared in both the native language of the jurisdiction and a foreign language translation is provided into the language(s) of the jurisdiction where the transaction(s) took place, or the native languages of the foreign enterprise(s). The complaint shall include the name, age, gender, nationality, occupation and domicile of the filing party, along with the specific facts on which the complaint is being filed and evidentiary documents (with an accompanying foreign language translation as needed).

Guidelines for Handling Cases Involving Foreign Elements Nationals by the Fair Trade Commission by the 227th Commissioners’ Meeting.

Translating Multilingual Language Documents during e-Discovery

2008-04-18T20:57:59Z

The debate regarding human foreign language translation versus machine-based foreign language translation during foreign language electronic discovery is one that may never be decided. However, one issue that is rarely thrown into the mix is how these two approaches handle translation of mixed language documents, i.e. documents written in more than one foreign language.

]]> Although the majority of foreign language translation involves translating a document from a foreign language into the language of use, there are cases when a document may contain more than one foreign language that needs to be translated.

The problem with machine foreign language translation is that computers are often programmed to translate from Language A to Language B, meaning they are unable to recognize – or translate – a multilingual, or a mixed language document. Granted, the program can be reset for each foreign language, but this involves scanning the document and recognizing the language changes – which takes time. A more efficient approach to the multiple language documents is to use several human translators. This way you are assured to have all of the document’s foreign language text translated accurately and efficiently in a manner, whose accuracy and expertise can be easily proved in court.

Contact our legal translation firm to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Language Translation and Contract Interpretation: Foreign Language as Trade Use Evidence

2008-04-16T18:55:04Z

Depending on the quality of the original, source text, foreign language translations may sometimes be perceived as ambiguous. According to the Law of Contracts, one method for interpreting the terms of an ambiguously written contract is to look at any terms of trade used within the document. This refers to any terminology that has a special meaning within a given trade that is the subject of the contract. However, this can become an even more complicated task when the terms of trade are in a foreign language.

]]> The first issue the courts will look at is whether or not the foreign language term is made in the language regularly used in the respective trade sector. If so, then that term will be considered a term of use and, therefore, its meaning both will be considered to be understood and agreed upon by the parties. Once a foreign language translation of the term is completed, the meaning of the foreign language trade term will be read into the contract and given due consideration to usages and practices observed in the trade in question.

See Kamzimierska (1999 – 2000): Pace Review of the Convention on Contracts for the International Sale of Goods, referring to the Socks Case (1995).

Language Translations and Registering a Foreign Language Trademark

2008-04-11T14:41:35Z

When applying for a trademark that contains a foreign language term or word, certain issues as to the meaning of the term may arise. This may become an obstacle to successfully obtaining the trademark when the foreign language term has different meanings in different cultures.

]]> If the desired word is or contains in part a foreign language term, as a general rule, the applicant should include a foreign language translation. If a foreign language translation is not included with the record, the examining attorney will most likely inquire into the foreign meaning of the word. 37 C.F.R. Section 2.61(b); T.M.E.P. Section 809.

Further, when making an application for a trademark of a foreign language word, the applicant must specifically indicate whether or not the term has any special meaning in the foreign language. To do this, a foreign language translation made by someone familiar with the language and its day-to-day use should be used. 37 C.F.R. Section 2.61(b).

To read our earlier legal translation blawg entry "Patent Translations, and Protecting Your Client’s Intellectual Property Both Here and Abroad", click
here.

And to read "Probative Value of Foreign Language Website Evidence, and Foreign Language Translation", click here.

Language Translation and Validity of Real Estate Transactions Conducted in a Foreign Language

2008-04-09T23:42:59Z

We’ve already blogged about foreign language translations in the context of reverse mortgage loans. But when it comes to foreign language translation in the context of real estate transactions, it helps to remember that there are two basic steps in conducting a valid real estate transaction – creating a valid deed and properly filing the deed. More so, each step may be affected when a foreign language real estate deed is involved.

]]> Since a real estate transaction is essentially a contract for the buying and selling of real property, a real estate deed or mortgage written in a foreign language is valid, as long as both parties understand and accept the foreign language terms. If, however, one party speaks English and another a foreign language, than a foreign language translation will be required.

As to the second requirement, a foreign language real estate deed filed without a foreign language translation will not impart constructive notice. This fact has the potential of creating future problems in terms of enforceability of the deed and tracing a valid chain of title. In general, all recorded deeds must be in English. In other words, all foreign language real estate deeds should have a foreign language translation attached to the original document, with both the original and translation being filed, recorded and made part of the public record.

See, for example, Galaty, Fillmore W, Allaway, Wellington J, and Robert C. Kyle. Modern Real Estate Practice in Ohio. Dearborn: 2001.

Challenging Unfavorable Ruling Resulting from Unethical Use of Foreign Language Documentary Evidence

2008-04-04T17:31:52Z

Irrespective of the availability of foreign language legal document translations, various issues may come up in the context of foreign language evidence. What happens if an opposing party uses a foreign language document in an unethical manner and receives a favorable judgment because of it? Can the ruling be challenged, based on the unethical use of the document? If so, what is the standard of review?

]]> The answer to the above questions is yes, so long as the challenging party is able to demonstrate:

1) The use of the foreign language documentary evidence was in fact unethical, and

2) The use of foreign language documentary evidence played a substantial role in the court reaching its decision.

To demonstrate an unethical use of a foreign language document, the challenging party must turn to that particular jurisdiction’s code of ethics. As each state’s code varies greatly, what is unethical in one state may be completely ethical in another. If the action is unethical, then there are grounds for appeal. (See, in general, Rico v. Mitsubishi Motors Corporation et al., Super. Ct. No. RCV39233 2007)

The next step is then to demonstrate that the unethical use of the foreign language document in fact played a substantial role in the court’s decision. Typically this is framed as a “But For” question, or “but for the unethical use of the foreign language document, the Court would not have reached the same unfavorable outcome”. If it is shown the unethical use of the foreign language document was the deciding factor in the court’s unfavorable ruling, then there are grounds for appeal. (Sufficiency of Evidence or Plain Error Standard of Review)

To read our earlier legal translation blog entry " Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side", click here. And to read " Legal Document Translations, and Ethical Issues of Filing Privileged Foreign Language Documents: The Filing Attorney’s Side", click here.

Pharmaceutical Translations and the European Union’s Fast Track Approval Process for US Pharmaceuticals

2008-04-01T21:10:52Z

Recently the European Union issued a new, fast-track review process for approving foreign made pharmaceuticals to be sold in the European Union. Since the European Union operates under numerous languages, it is important that any application for pharmaceutical approval under the EMEA fast-track system be submitted with the proper foreign language translations. This becomes particularly important when trying to demonstrate the unmet need or improvement requirement under the Accelerated Assessment Procedure.

]]> The Accelerated Assessment Procedure is administered by the European Medicines Agency (EMEA). In summary, a US drug maker can apply for accelerated assessment, if they can show that their product responds to an unmet medical need or constitutes a significant improvement over the available methods of prevention, diagnosis or treatment of a disease. If this standard is proved, under the fast-track process approval can be granted in as little as five months.

Although English is acceptable, it is common practice to also include, at the very least, a French foreign language translation of the application. Further, it should be noted that not all European countries are under the auspices of the EU or EMEA. Notable exceptions include Norway, Switzerland and many Eastern European countries.

To read our earlier legal translation blog post "Patent Translation Costs To Drop as France Ratifies London Agreement", click here.

Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side

2008-03-28T19:28:52Z

Sometimes during multilingual discovery an attorney will inadvertently file a privileged document. This can happen with foreign language documents, especially when the English translation is not available. When this occurs, the receiving attorney has various ethical obligations as to how to handle the filing. However, every state has very different approaches to what these ethical obligations are.

]]> For example, some states hold an attorney can retain and actually use inadvertently produced documents reviewed and received in good faith. Other states require the attorney seek the guidance of the court. Yet other states require the attorney to return the document.

Of course, when the inadvertently filed document is in a foreign language, the receiving party often will not know of its privileged status unless a foreign language translation is done. Because the courts have ruled no ethical obligation arises until one becomes aware of the privileged nature of the foreign language document, an attorney should have a foreign language translation of the document and then, based on the translation, follow that particular jurisdiction’s ethical requirements.

See D.C. LEO 256 (1995); Maryland LEO 2000-04 (1999); In re Meador, 968 S.W.2d 346, 352 (Tex. 1998); Kondakjian v. Port Authority of New York and New Jersey, 1996 WL 139782 (S.D.N.Y. 1996); Brandt v. FDIC, 212 B.R. 386, 296 (Bankr. S.D. Fla. 1996).

Contact our legal translation agency to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Legal Document Translations, and Ethical Issues of Filing Privileged Foreign Language Documents: The Filing Attorney’s Side

2008-03-25T22:48:44Z

In the absence of English translation of foreign language documents filing mistakes can happen. During multilingual e-Discovery it is conceivable that privileged foreign language documents can be made available to the receiving party. Regardless of whether it is done inadvertently or on purpose, when privileged documents are disclosed during discovery, ethical issues not only rise for the receiving party but also for the disclosing party.

]]> According to the ethics codes of most jurisdictions, a disclosure of privileged documents or information is a violation of the attorney-client privilege, meaning an attorney can face disciplinary action for an unethical breach of the attorney-client privilege.

Unlike the receiving party of the privileged documents, the disclosing attorney does not benefit from the “knowledge requirement”. In other words, attorneys who disclose privileged foreign language documents cannot argue they were unaware of the documents’ privileged nature because the documents were written in a foreign language.

The reason for this is because an attorney also has an ethical duty to zealously represent his client. As stated in a previous legal translation blog entry, this requires an attorney to fully understand all aspects of communicating with a foreign language-speaking client. Thus, the attorney has an ethical obligation to obtain a foreign language translation of all foreign language documents. His or her failure to do this, and the subsequent filing of a privileged document, is therefore a violation of both the attorney-client privilege and the duty for zealous representation.

To read our legal translation blog post "Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side", click here.

Contact our legal translation company to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.