Certified legal document translation services are indispensable in international litigation. Hearings or trials of legal disputes with international dimensions should be no different than a trial involving a purely domestic dispute. After all, this is one of the fundamental tenets of the US Constitution’s promise of fundamental, procedural, and substantive equality of treatment of litigants. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) (“foreign litigants cannot be subjected to a legal regime unfairly different from that applied to domestic litigants simply because they are foreigners”).
Of course this is not to say that there are not significant differences and special challenges in the trying of an international controversy. In fact, in a trial involving an international dispute there are often many special considerations beyond those that typically arise in litigation. Many of these issues concern the admission of non-US, or foreign, records and testimony, as well as the use of foreign language translators and interpreters for testimony and evidence that is presented in languages other than English. More so, in some cases special concerns arise from the need to prove non-US law to the court hearing the matter, while in other cases there are particular issues that arise from witness unavailability and therefore the need to introduce foreign language translations of deposition testimony instead of live interpretations of the testimony at the trial.
To start with, let’s look at the issue of translation of documents and non-US records in an international dispute. In such situations, is there a duty to translate? On this question, some courts have held that a producing party does not have a duty to translate documents that are regularly kept in a language other than English. Grundstad v. Ritt, 1998 U.S. Dist. LEXIS 5111 at 7 (N.D. Ill. 1998) (the producing party is not obligated to translate foreign documents into English. The documents must be produced as they currently exist, and the opposing party will have to bear any cost of translation if necessary). In a similar case the court ruled that “defendants are not obligated to provide English translations of the documents if such translations do not exist in the documents produced to the government entities. Re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation, 2010 U.S. Dist. LEXIS 62393 (C.D. Ca. 2010).
The use of a foreign language interpreter at the trial is also a regular issue, as international lawsuits in US courts frequently involve testimony by witnesses who cannot speak English and may need an interpreter to translate counsel’s questions and witness’ replies. Both civil and criminal rules of procedure allow the court to appoint a foreign language interpreter and set reasonable compensation. Fed. R. Civ. P. 43(d) and Federal Rules of Criminal Procedure Rule 28. Interpreters are usually required where a witness does not speak English well enough to enable a jury to understand the testimony, or where a criminal defendant cannot speak English well enough to communicate with counsel and comprehend the proceedings.
The foundation for this right is that courts in civil cases have emphasized that jury’s need to hear and understand the testimony and the requirement that court reporter produce a complete and accurate transcript. This is especially true where an individual’s fundamental rights are at stake. It is this foundation that led to the establishment of the Court Interpreters Act, which commissions the Director of the Administrative Office of the United States Courts to establish the use of interpreters, either sua sponte or on the motion of a party, for individuals who speak only or primarily a language other than English. It allows for making court interpreters available for trials and having their qualifications certified. 28 U.S.C.A. § 1827. Thus, a trial court has wide discretion in deciding if an interpreter is needed when it learns a party or witness has trouble with English. More so, a translation usually does not contribute to the hearsay of the underlying testimony since the interpreter simply functions to transmit language.
The other requirement is for the court to determine that the foreign language interpreter has adequate translating qualifications, and this assessment must be based on something other than the interpreter’s own self-evaluation. United States v. Rodriguez-Hernandez, 2007 U.S. App. LEXIS 1263 (9th Cir. 2005).Fed. R. Evid. 604 requires an interpreter to satisfy the rules of evidence relating to an expert witness as set forth in Fed. R. Evid. 702, which in turn requires that by reason of knowledge, skill, experience, training, or education, the interpreter is able to provide a true translation. Accordingly, before an interpreter is permitted to function, a court may first have to make or allow a preliminary inquiry into the interpreter’s competence.