On top of all their other responsibilities, lawyers are bound to take reasonable steps for enabling communications with clients who might be dealing with language barriers. This was established in an official recommendation issued through a Formal Opinion released by the American Bar Association (ABA) in October 2021.
This is a two-way requirement. Counsel must make ‘every effort’ to ensure that clients with limited English proficiency have enough information to participate effectively in decisions on their own representation, while also ensuring that legal advisers can obtain adequate information from their clients.
In this context, lawyers facing language barriers must deploy the technical resources needed to ensure clear lines of communication. Traditionally, translators (for written documents) and interpreters (for oral communication) are called in as required, often Court-certified and paid by the legal system. A third leg has recently been added to this linguistic support: machine translation (MT), as acknowledged by the ABA:
” … a lawyer should arrange for communications to take place through an impartial interpreter or translator, capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary.” (emphasis added)
Formal Opinion 500, 2021: Language Access in the Client-Lawyer Relationship
Lawsuits Lost in Translation …
The decision on whether or not to summon a linguist lies with the lawyer. However, the ABA recommends that its members act with an abundance of caution. This often means convincing clients with limited English skills that relying on bilingual friends or relatives is not an effective way of dealing with complex legal matters that often use technical terminology.
A hostage to exact wording, international litigation may be won or lost through unclear testimony or clumsy contracts, where even a misplaced comma can cost millions of dollars. Here are four very expensive translation mistakes:
- Ecuador paid USD 1.76 billion to Occidental Petroleum Corporation for breaching a farmout agreement, due largely to ill-translated documents and judgments.
- Baby formula blooper cost Mead Johnson around USD 10 million in recalled packs with incorrect instructions in Spanish;
- Intoxicated is not intoxicado: a mistranslation of the Spanish word for food poisoning led to a USD 71 million malpractice settlement for a quadriplegic teenager;
… and How to Avoid Them
All of these disastrous consequences could have been avoided, if the initial translations had been properly prepared by qualified professionals. The difference in price of a few dollars per page or per hour is negligible, but the difference in probable outcomes is glaringly obvious.
The surest way to avoid costly translation mistakes like these is to make sure that important documents and crucial conversations are translated by certified professionals who are not only bilingual, but also bicultural. This is where a certified language service provider (LSP) like Trusted Translations is worth its weight in gold. Working only with qualified bilingual linguists, every word is checked against the original text, ensuring flawless accuracy.
Law, Language, and Loopholes
For legal translations, precision is vital. Not only must translators comply with the rules of the target language, they must also understand the structure of the other legal system as well. This means having a reasonable familiarity with legal concepts and precepts, seeking parallels and adding explanatory notes whenever necessary.
Translation tasks become even more complex when bridging the gaps between widely varying cultures and legal systems. In the West, legislations underpinned by the Napoleonic Code or Roman Law are very different from Civil or Customary Law. Elsewhere in the world, many countries have legal systems subject to strict religious tenets, while others are steered by tribal traditions. Even non-verbal indicators may be involved, including gestures, trade dress, and images (like street signs).
Pitfalls and Perils of Machine Translation
A recent (2021) translation payment decision handed down by a Polish Court raised two significant issues (among several others) related to machine translation:
- Quality: The Court found the translation (machine translated and purportedly post-edited) unfit for professional use, with negligent and incomplete post-editing;
- Confidentiality: Using Google Translate constituted a gross violation of contractual provisions on confidentiality, breaching the intellectual property rights held by the client.
Penny Wise and Pound Foolish
The conclusion seems clear: When it comes to translation, there are no shortcuts or bargains. Ranging from catastrophic to comic, the risks involved in poor translations always outweigh the benefits. Invariably, the entire job must be redone by a certified professional and reviewed by a professional agency, which means doubling up (at least) on time and costs.
Takeaway: The smart decision is to play safe and stay professional, getting customized quotes for every job from experienced language service providers.