Translation For Lawyers

All foreign-language documents submitted in federal court proceedings must be translated into English. If the parties can't agree before trial on the accuracy of a document translation, and the disputed portions of the translated document(s) are material to the issues in the case, the translators may end up as witnesses at trial.

Fed. R. Evid. 604 states that "(a)n interpreter is subject to the provisions of these rules relating to qualification as an expert . . . ." Even though this rule explicitly applies only to interpreters (who translate spoken language), as opposed to translators (who translate written language), no less an authority than Prof. Edward Imwinkelried says, without qualification, that translators are expert witnesses (The Taxonomy of Testimony Post-Kumho: Refocusing on the Bottomlines of Reliability and Necessity, 30 Cumb. L. Rev. 185, 211, fn. 150 (1999-2000)), and the courts generally treat them as such.

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Admissibility standards for the use of written translations of foreign-language documentary evidence in court vary.  The determination of whether to grant a preliminary injunction, for example, is to be based on "evidence that is less complete than in a trial on the merits." Univ. of Texas v. Camenisch, 451 U.S. 390, 3951981). For this reason, the court may consider otherwise inadmissible evidence in making its determination as to the preliminary injunction. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure sec. 2949 (2d ed. 1995).

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Professional foreign language translation and foreign language interpretation services are essential for successful operation both within set international law and between various foreign information operations.  From foreign language interpreting during negotiations to reading and understanding potential cyber security threats worded in a foreign language, foreign language translations are a vital part of international information operations.  As the Internet has no borders, any law that attempts to govern or protect cyberspace is invariably
going to involve international law.
 

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Earlier we've blogged about the role of professional document translation and legal translations and court translations in enforcing U.S. judgments in Europe.  Although in general legalese the concept of enforcing a judgment and executing a judgment is viewed as one and the same, this is not often the case when it is applied in the arena of international law. As clearly defined by the Convention of the Settlement of Investment Disputes Between States and Nationals of Other States (CSID), an enforcement of a judgment is used within the territory of each signing party, whereas an execution on a judgment is governed by the laws of the jurisdiction where the execution is to be made (Article 54).

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Earlier we've blogged about legal document translation in the context of enforcing U.S. judgments in Europe and in the context of cross-border litigation.  Professional written translation services certainly play an important role in defining punitive damages in the EU.  The European courts consider punitive damages contrary to public policy and, thus, do not allow them. This is because, according to customary European civil practice, the purpose of a civil suit is to seek compensation, not punishment. This becomes an issue in cases where a U.S. court awards a judgment of punitive damages against a European defendant and where the plaintiff, unsuccessfully, attempts to have the judgment enforced in a European court.

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As more and more people move abroad, many couples will face divorce in a foreign court. Such situations will require professional translation services. But dealing with professional language translators and court interpreters will not be as challenging as having the foreign granted divorce recognized by a U.S. court - if the marriage occurred in the United States. Typically this becomes relevant when one or both of the parties moves to the U.S. and issues regarding support or custody arise.

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Earlier we blogged about language translation in the context of products liability claims in the presence of the English only warnings. Foreign language translation becomes even more relevant in product liability cases when the issue of foreign regulatory evidence arises in pharmaceutical lawsuits, mainly due to the international scope of pharmaceutical sales.

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Foreign language barriers, which are easily overcome with the help of competent medical interpreters, can cause various problems when they are ignored in a medical setting. According to medical malpractice theory, a physician may be held liable if his inability to adequately communicate with a patient prevents him from obtaining proper informed consent. This line of legal liability stretches from the Quintero v. Encarnacion case. In this case, the patient was only able to communicate using a few Spanish words.

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When a party relies on a piece of documentary evidence written in a foreign language, they must have the document translated into English and file an affidavit attesting to the accuracy of the translation.

So what happens when both parties submit separate affidavits by two different document translators attesting to having submitted an accurate translation?

Continue reading "Certified Language Translator's Affidavit, and Professional Translation & Interpreting Services for Litigation, Court Proceedings & Arbitration Proceedings" »

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.

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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.

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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”.

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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.

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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?

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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.

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