Certified Translation of Foreign Language Documents Translated during e-Discovery
We’ve blogged about legal translation services for the discovery stage of litigation and how important it is for a litigator to develop a strategy and procedure to ensure that all foreign language litigation documents are properly translated. This is essential as, without a proper strategy, one risks not being able to admit the document and/or its foreign language translation, into evidence.
To recap, our key advice for the discovery phase included:
• Always use a professional foreign language translation service.
• All translations must include a declaration or affidavit attesting to the professional translator’s qualification and certifying the accuracy of the English translation.
• Include both the original and foreign language translation in deposition exhibits.
With this in mind, we now turn to the topic of admitting your foreign language documents as evidence at trial.
List Foreign Language Evidence in the Trial Exhibit List
The starting point is always the trial exhibit list, and here you should always list all foreign language evidence you intend to introduce at trial. This includes everything, including foreign language emails. More so, you should also list the English translations of these foreign language documents, along with the accompanying Translator’s certification or affidavit as previously discussed above. The easiest way to organize all these individual yet related documents is to, for example, list the original document as item 1, the translation as 1a and the certification as 1b, etc.
The beauty about organizing yourself this way is that it is an excellent tactic for forcing the other side to make any objections to the translations before trial – thus allowing you to avoid complicated arguments over the foreign language translation in front of a jury.
Always be Prepared
With your exhibit list complete and submitted and the trial scheduled and coming up, next up is prep time. When preparing for trial, we recommend that you take the opportunity to once again review foreign language speaking witnesses and all foreign language documents (and their foreign language translations!) that you plan to use during direct examination. The last thing you want is to have a witness on the stand saying that they don’t agree with the translation. Trust us, this never goes well in front of a jury. Instead, prep your witnesses by going over the documents and the translations ahead of time. If there are any questions, address them now and then go over the translation again – and maybe again. With legal document translations, there is no such thing as being over prepared.
Here it is also important to mention the business records exception to the hearsay rule. Essentially what this exception could mean for your trial prep is that you will have to go through a series of foundational questions with your witness in order to establish the accuracy of legal the translation. For example, this questioning could be used to establish that the witness does in fact speak the foreign language at issue and that it is common practice for them to maintain regularly recorded business records in that language (such as email communications, for example).
Also, as a general reminder, whenever you offer a foreign language document into evidence, you must include both the original document, the translation and the translator’s affidavit. Failure to provide certified document translation could put any favorable decision at risk for appeal on the grounds of failure to offer evidence in English. More so, without the legal document translation, the jury will most likely find the document useless in their deliberations – unless you get lucky and a native speaker happens to be on the panel (but don’t count on it!).
Instruct the Jury
Speaking of juries, it’s always a good idea to submit a proposed jury instruction stating that the certified foreign language translations of the documents are to be considered accurate and should not be discounted merely because the original document was in a language other than English.
Last but not least
If your foreign language document is a ‘make it or break it’ piece of evidence, consider alerting the jury of this fact during your opening statement. This can be as simple as pointing out the fact that your client and/or witnesses speak a foreign language as their native tongue and use it as a common part of their business and communications. Also highlight that, in order to ensure the jury is able to fully understand these communications, certified foreign language translations by a professional foreign language translator will be provided. This will fully prepare them prior to the trial and give them confidence in the evidence that you are presenting and that they must consider in reaching their verdict.