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When does “guarantee” not mean “guarantee”? When it’s written in a foreign language. At least, that’s what Richard Martin had to argue in court. Martin’s client, a major Italian bank, was being sued as a guarantor of a large loan. The loan document, when translated literally from Italian, indeed said that the bank guaranteed the loan. Something, however, got lost in the translation. “Some terms of art like guarantee in Italian have a different meaning than in English,” says Martin, a litigation partner in the San Francisco office of Heller Ehrman White & McAuliffe. “So if you translate literally, you will not be faithfully communicating the meaning of the document.” The case against the bank turned on the meaning of this document. The result was a battle of translators, with Martin filing affidavits about the meaning of the agreement from a translator and an Italian-speaking attorney. The court eventually decided that an Italian “guarantee” was indeed different from an English “guarantee” and dismissed the suit against Martin’s client. This situation, however, illustrates a mounting problem facing litigators. Thanks to the globalization of business, litigators in the United States face an ever-larger number of clients and witnesses who don’t speak English. Attorneys’ discovery requests increasingly result in huge stacks of documents written in foreign languages. The result is that litigators are increasingly forced to rely on translators and interpreters. This gives rise to the danger that some important nuance or technical term may not be properly translated. So how can attorneys find translators who not only are fluent in the required languages, but also are familiar with technical industry and legal terms and can handle the pressures of litigation? It isn’t easy. QUALITY CONTROL There are several thousand translation agencies in the United States, according to Florian Deltgenk, vice president of Apex Translations, which is headquartered in Columbus, Ohio. The vast majority of these agencies are one-person operations, and there are reasons why litigators may want to stay away from such small shops. Small shops may not be able to do a good job on the massive amounts of paperwork that many attorneys need to have translated in a hurry. “Technical translation is time-consuming,” warns Brian Fish, translation coordinator for D.C.-based Finnegan, Henderson, Farabow, Garrett & Dunner. “The ability to do it fast is almost a red flag, unless the person has other translators take on some of the work.” Fish has experienced too many instances of translators taking on more than they can handle, thinking their gung-ho attitude will please the law firm. “That winds up backfiring,” says Fish. “It is much better if people know what the work involves and spend the time necessary to do a quality job.” More important, one-person shops can’t provide quality control. “After one person has translated a document, someone else should look over the original and the translation and confirm that the two documents are really translations of each other,” says Dan Altman, an IP partner at Irvine, Calif.’s Knobbe Martens Olson & Bear. Still, solo translators can do excellent work if given the time, and their services are often less costly than those provided by the large agencies. Fewer than 10 large agencies specialize in providing legal translations and interpretations, says Brooke Christian, vice president of U.S. sales for San Francisco-based TransPerfect Translations. These agencies include Bowne & Co. (which recently bought Berlitz), Geotext Translations, RWS Group, Schreiber Translations, LanguageWorks, and TransPerfect, according to Christian. However, a litigator can’t blindly rely on one of these large, established agencies to find the right translator or interpreter. Knobbe Martens’ Altman discovered this the hard way. CHECK LANGUAGE SKILLS He and several other attorneys from his firm had a meeting with a Korean-speaking client to discuss a pending patent infringement suit that jeopardized the client’s whole business, worth several hundred million dollars. An interpreter for the meeting was provided by one of the major legal translation agencies, but it quickly became apparent that something was wrong. “Every time we asked a question, [instead of repeating it in Korean] the interpreter wouldn’t say anything,” says Altman. After the attorneys prodded him to ask the question, the interpreter would finally say something in Korean. Fortunately, one of the attorneys in the room spoke Korean; he would pipe up, saying that the interpreter hadn’t asked the right question. After the attorney corrected the question, the client would answer in Korean. Then, when the interpreter gave the answer in English, “we’d get an alarmed look from our Korean-speaking attorney, because the translation had nothing to do with the client’s answer,” says Altman. “The translation was just fiction.” This went on for an hour before the attorneys told the interpreter that his services were no longer needed. They struggled through the rest of the meeting using the Korean-speaking attorney as the interpreter. The incident didn’t sour the law firm’s long-standing relationship with the agency that had supplied the interpreter. “We knew it was an isolated incident,” says Altman. “It happens when you are working with independent translators.” Translation agencies typically rely on free-lancers to supplement their staff. “We still depend on that translation company to provide us with someone appropriate to our needs,” says Altman. “But now that we know we can get bad interpreters, we’re on our guard. If someone comes and can’t speak English well, we send them away.” “You’ve got to do your homework when selecting translators,” says James Brogan, a litigation partner in Piper Rudnick’s Philadelphia office. And it’s not enough to find out whether the translator is competent in both English and the required foreign language. “You have to make sure the translator is familiar with colloquialisms in the area where the party is from and the terms of art peculiar to the industry that is the subject of the litigation.” It is often a good idea to supply translators in advance with a list of relevant technical and industry terms. In a deposition, this requires the consent of the other side. “But if the other side objects, you can bring it to the attention of the court and have it worked out,” says Brogan. “Everyone’s goal is to have an accurate translation.” When it comes to selecting a translator, the first thing that William Jaeger looks for are credentials. The litigation partner at San Francisco’s Townsend and Townsend and Crew notes that organizations such as the American Translators Association certify that translators meet professional standards. TRANSLATOR OR INTERPRETER? It is also important to know whether you need a translator or an interpreter. “Someone who is a good translator may not be a good interpreter and vice versa,” says Martin. “Many people can do good translations of documents. Many fewer can do good live interpretations [of deponents and witnesses]. Translators can look things up, think about it, and revise their translations. Interpreters have to be able to convey the way the witness speaks — and that’s a skill.” When Martin needs an interpreter, he often looks for people with the interpreters’ office of the federal courts. That agency does “pretty rigorous training and testing,” says Martin. Litigation often puts extra demands on translators. It may not be enough to translate well; the translator may be called on to defend the translation in court. That’s why Jaeger looks for “people who can present themselves well when they explain why they think a word means what they say it means — people who can talk strongly and forcefully about why their interpretation of a document is the correct one.” Interpreters may need to withstand the pressures of adversarial proceedings. “Interpreting is hard, and it is harder to do when people are yelling at one another, when a lot can hinge on a single word, and when there’s [the opposing party's] translator sitting nearby,” says Harold McElhinny, a litigation partner at San Francisco’s Morrison & Foerster. “All this introduces a level of tension that not a lot of interpreters can deal with.” Once, early in his legal career, McElhinny had an interpreter crack under the pressure. “I was defending a deposition of a Japanese witness in Denver, and I got a pleasant, old Japanese woman to be the translator,” he says. The deposition was on a technical subject, and the interpreter kept making mistakes. These mistakes were corrected by the witness, who knew some English, but each time he made a correction, the other side loudly objected to the whole procedure, saying that the witness knew enough English so that an interpreter wasn’t necessary. Interpreting is quite strenuous, and as time passed, the interpreter made more and more mistakes. Then she started crying. McElhinny and opposing counsel took a break, bought the woman some Japanese food for lunch, apologized to her, and promised not to yell at her again. They finished the deposition, but it wasn’t easy. “It’s very hard to make the witness cry if you’re worried you’re going to make the translator cry first,” says McElhinny. This article was distributed by the American Lawyer Media News Service. Steve Seidenberg is a free-lance writer based in New York.

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