Attorneys have a lot of misconceptions about legal translation, which causes massive damage to clients largely due to the systematic deception many successful language vendors use against clients. In this article, I’d like to clear up those myths and misconceptions by comparing what industry experts say in books, such as General Theory of the Translation Company, versus the alternate reality talked about by even lawyers highly experienced with translation. The General Theory book advises maximizing profits with the maxim, “quality doesn’t matter,” which results in alternate facts transmitted to law firms, with the result being that attorneys believe they are paradoxically getting “best in the industry” quality from people who 100% fail when they take government or translator association translation competence tests.
When writing this article, I wanted to use only the best-informed lawyers I could find, and the Hague Law Blog showed the necessary superior level of knowledge about translation when compared to other lawyers—later in this series, I’ll name a few prestigious big law firms who were sued over bad translation. Thus, the goal isn’t to pick on these lawyers specifically, but to point out the misinformation plaguing almost any lawyer trying to find translation companies to help with legal documents.
Professional Qualifications Matter
“My former intern, actually named Emily, *is* a translation major, so she’s qualified. I still never had her translate for me, because she was more valuable to me on other projects.”
This quote was taken from an article by a Hague service lawyer, Aaron Lukken, discussing what qualifications are needed for lawyers. The impression I got was that he argues against having random bilingual staffers or Google Translate do documents, in part because the overhead is too high and also because translation needs training. This is something a lot of lawyers misunderstand about translation, but it lacks common sense if you compare translation to other fields. However, the lesser point about an intern currently just majoring in translation, someone who can’t get a job in the translation industry and is working as an assistant to a lawyer, is wrong enough that it would be unethical to have this intern Emily actually translating for clients.
Would you let a pre-med major interning somewhere as an administrative assistant perform surgery on you? Probably not. In the same way, an accounting major who can’t find an accounting internship should not be handling your IRS audit if you might go to jail over some tax fraud misunderstanding. Even if you upgrade the intern to being a Juris Doctor from a good school and working at a good firm, law firms don’t consider their summer associates qualified to practice independently. Often, they simply do pretend work for law firms that clients never see. Let’s take this a step further: someone who just got out of medical technician school is not necessarily qualified to go and work for a hospital. If you, as a lawyer, insist to your client that they can just assume this person is qualified right out of school without having a professional vet them, it would count as medical malpractice. Incompetence, even by vocational school-trained staff in a hospital, can still lead to patient mortality.
Translation is a big educational step up from medical technician school. The United Nations launched the MOU program for master’s level training of translators because the evidence showed that the bachelor’s level was not enough, and here we have the Hague Law Blog recommending people who haven’t even finished college do this. This is concerning not just to me but also regulators. The ABA has a specific interpretation that negligent hiring or supervision of translators is an ethical violation and, if it causes damage, the lawyer could be liable for malpractice. While the Hague Law Blog makes it clear that nothing like this ever happened, lawyers also need to know that negligent hiring or supervision is not only a tort but a major malpractice risk.
When I was an attorney working in the M&A field, I worked on numerous purchase and sale matters for clients like companies that own oil refineries. This often involved things like having an environmental site assessment and even metes and bounds surveys. You can bet that I never consider the possibility of an amateur going out with a tape measure and surveying the property or having a chemistry undergrad go looking for signs of unlawful groundwater contamination, not even for a New York minute.
Therefore, we should really consider what it is that many lawyers, including this top .1% knowledgeable one, think is so special about translation that the kind of norms that apply to everyone, from electricians to lawyers, are suddenly irrelevant here. I believe that a simple lack of contact with professional linguists and the paucity of good information on legal translation can account for lawyers’ confusion here.
Here’s advice to lawyers: look at the depth of training international organizations think is needed to be an effective translator. The ABA was concerned enough about this issue that they issued an interpretation warning lawyers to break out of the amateurism mindset and think like professionals.
Outsourcers lie to you
“If it’s my guys who goof it up, I have somebody to yell at (pretty rare, as I work with some of the best in the business), and they can get things fixed in pretty short order. If it’s my client’s translators who goof, well, I can’t help them.”
A background problem, not the significant one, is the lie that there is a “my guys.” As analysis published in the General Theory of the Translation Company based on surveys of literally thousands of translation companies points out, these companies are all hiring the same freelancers, generally the cheapest ones possible. These freelancers don’t work for a specific translation company, they work for all of them, and the list of people your client uses and the one you use is the same. It also means that your translators at these outfits are literally competing against themselves, so if you yell at them, what’s the worst that can happen? You fire this translation company and find another translation company that hires the same freelancer? They aren’t under any pressure, and that’s why they are “goofing up,” I.e., cutting corners.
Generally, this is not a good sign for someone outsourcing translation work and, in the context described above, usually indicates that machine translation was used to cut corners and that, occasionally, the law firm notices the cut corner without really understanding the process. Emily the intern is usually the law firm’s “expert” on translation, and even she stands no chance against industry veterans with years of experience using sophisticated algorithms and artificial intelligence to cut corners in ways law firm interns would never notice. Unless you are an experienced translation auditor like me, who audits for corporations, governments, and international organizations, then you won’t notice at all. Fortune 500s with internal translation departments don’t notice this. What makes Emily the Intern so special that she can catch these highly sophisticated techniques just two years into her degree?
The second problem here is the idea of working with some of the “best in the business.” In a separate blog post I’ll cover next week, Lukken actually says he doesn’t work with who the translation industry considers the best. So, if he is rejecting industry opinion leaders, then this means that amateur, layperson, or headhunter opinion is being used. As documented clearly in the General Theory book by the Common Sense Advisory experts, the way a translation outsourcer works is by using as inexpensive translators as possible because quality doesn’t matter because clients can’t tell what good quality is. This situation is exactly what the Hague Law Blog described above. And if even a lawyer who clearly has top 1%, maybe even top .1%, understanding of translation matters, like Lukken does, then the other 99.9% of lawyers don’t really stand much of a chance against these advanced corner-cutting tactics! What do the top .01% lawyers getting genuine top quality do?
These guys, who’ve worked with the FBI and intelligence translators for many years and do not like the idea of using intermediaries, usually leverage networks of certified and sworn translators to find the right translators. They keep a list of up to 30 individual experts and work with them directly. They don’t rely on the opinion of laypersons or intermediaries, also a kind of relatively advanced layperson, to determine who the good translators are. A big reason they have their own list is that translation intermediaries will charge their certified translators a 40% commission, which basically means 40% less effort and essentially a downgrade from “gold” to “silver.” Nevertheless, that’s still a lot better than uncredentialed translators, who are usually putting in only 10%. These uncredentialed translators are typically casual workers, often housewives looking to make a bit more income on the side. What separates the top .1% translation utilizers, like the Hague Law Blog, from the top .01% is that the lawyers who worked at the DHS and DOJ interacted directly with translators and continued collaborating with them after moving to the private sector. So, unlike the 99.9% interacting with intermediaries—businesspeople, to be frank—they know how the language services industry really works and how to get outstanding service for a very reasonable price.
Now, if I were writing for the Hague Law Blog and doing so many Hague petitions that I would be handling hundreds of thousands of dollars worth of translations, I would be networking with those certified translators in the ATA Law Division who are experts in key languages and would have a go-to list of genuine experts in this field. Headhunters charge a 40% commission, which might add up to $2 million of client money over 10 years. However, if Lukken were to spend 100 hours networking as former DHS counsel do, he would deliver $20,000 of saved headhunter fees alone for every hour spent networking. His obvious expertise in Hague service—a matter of great interest for translators—means that America’s best translators would line up just to learn about his view on the practice. Not to mention that the translation produced by a passionate expert is way better than a casual worker and would mean the difference between rejection and approval in some tough jurisdictions.
Bulk Discounts
“Ask your translation provider for a volume discount if you have a huge sheaf of documents (roughly 30,000 words or more). Much of the provider’s cost lies in the set-up of the project—the administrative burden is the same whether you’re worth six hundred dollars or six thousand—so a lower price-per-word is warranted with bigger projects.”
Actually, very few translation providers use bulk discounts—that is to say, people doing translation themselves don’t really offer it. The word “provider” is so misleading that a lot of industry analysts, such as Nimdzi, are starting to refer to translation providers as Language Vendors and not providers, though this is happening slowly. Fascinatingly, translation companies refer to each other, and even individual freelance translators, internally as “vendors” in the language industry. The word “provider” is only used with clients in order to create a false impression that these brokerages employ translators, which they don’t, and if they do it may be a token few dozen for a billion-dollar company.
So, if you are getting a volume discount from a translation “provider,” it means you are working with an intermediary and not the actual provider of the translation services. Looking at the math on this, the idea seems a little absurd. A 30,000-word translation that is carefully translated over 100 hours, or even 50 hours, might have a 30-minute administrative setup time or less. These days a handoff can be done in about 5 minutes using automation. Even with the traditional 30 minutes, this is about 1% of the time on the translation, but the discount is 10%.
So, what are you paying for? It’s not administrative costs; it’s actually Sales & Marketing costs. For example, a translation company might spend $5 on online ads and needs 150 clicks to get a sale, or about that much for online or industry convention representative marketing. That might be a bit over $600 per sale. A lead with a $200 project and a 40% gross margin of $80 is a loser for the company. A sale of $6,000 to a consolidated intermediary would make $1,800 in gross margin after marketing costs, so knocking off $600 would make sense for this vendor.
The bottom line: As noted above, it makes no logical sense to have clients pay such a huge amount of headhunter fees if you already work with a large and steady volume of translation. As a lawyer in this situation, you could save clients $20,000 for each hour spent networking with a professional association like the ATA, assuming you spent 100 hours on it when, in reality, just 10 hours would likely suffice. From a client’s perspective, whether an international lawyer networks with ATA professionals should really be a determining factor when deciding which lawyer to hire. Now, working at State/DOJ/NSD is usually a good proxy for this capability but, as an international lawyer doing Hague service, having that network can double the value you create for clients right there. With so few lawyers knowing this, it’s a great way to tower above the competition.
When I was in law practice, I had no clue. After reading their service brochure, I even thought our translation company was like an accounting firm where their big fancy office tower was filled with people who work on our projects. Little did I know! The reality of what these companies do is shocking. For years I’ve compared it to Enron-levels of shocking, and to give you an idea of how seriously I mean that, I personally knew some of those Enron executives.
Cost-cutting
“Here are a few tips to reduce the price tag: Keep brevity in mind. “
Analyzing cost while ignoring benefit is a common mistake made by lawyers in not just translation but also outsourced foreign language legal work. We would usually only use this approach in fields like the FCPA—and I’ll explain how FCPA lawyers use translation to illegitimately erase and discard evidence of violations in a separate post—no doubt much to the delight of CEOs who know that a few “gasosas” are all that is needed to grease the wheels of international commerce.
When it’s used in a field where you want to preserve evidence—like M&A warranties and representations or Hague service—lawyers damage their clients because they can’t really assess the quality, so they focus on accomplishing the specific process at the lowest price. Using brevity itself to cut costs generally backfires, because when a lawyer writes for the court, they should already be taking into account what the optimal length to convey essential information to the client would be. I often say metaphorically that translators “erase” claims from FCPA documents. Here, the advice is to deliberately erase claims in order to save some money. I often see companies doing things like putting the $30 million they have at stake in jeopardy just so they can save a couple of thousand dollars on a poorly understood cost item like foreign language. Cutting out the exhibits can also result in the foreign-language-speaking audience—translators and courts—having an inadequate grasp of the facts. As an international lawyer, it’s important to have some grasp of the science of language. No matter how good your translator is, they will not have a perfect understanding of a highly brief text, and a lot will be lost in translation, meaning the recipient will be even more clueless. The federal ILR has documented this, noting that even a lot of their “native speaker” linguists lack the ILR5 proficiency level needed to understand English-language legal documents like we would. Translators rely on that context to do a good job; if you try to take away as much of it as possible, they often can’t do a good job.
Hamstringing translators to save money can cause Hague petitions in China to be inexplicably rejected. As I described in a separate post on Back Translation of Chinese, when I back translate this kind of China content into English, I find myself having to tell the company that while the back translation looks perfect in English, the translation itself makes no logical sense in Chinese. This has happened in cases where Hague law commentators said the PRC rejected Hague service of process based on highly technical information. Some law firms take this to extremes by clipping out tiny sections of documents to translate out of context, so they don’t really know what they are translating other than it’s a string of words you can find in a dictionary.
This can be a problem for high-context languages like Chinese, where there have been a number of high-profile Hague petition rejections over things lawyers in America didn’t really understand. However, I looked at some of those companies’ translations into Chinese, and honestly, they didn’t make much sense at all. As someone who translates a lot of this stuff back into English from the Chinese translations, I am personally sick and tired of constantly seeing all of this word salad being produced by American Fortune 500 companies who, after dropping a huge rock on their own feet, accuse the PRC courts of mistreating them.
Bottom line for lawyers: after millions of dollars spent on sending highly inexpensive ultra-literal Hague petitions to China that judges don’t like and don’t understand, the PRC has only enforced three United States judgments to date. And not just closed-door legal matters either; even highly public big releases like The Avengers and KFC’s “Eat your fingers off” chicken have attracted ridicule in China over excessive cost-cutting measures that basically dump garbage into the PRC. Hague lawyers talking to clients about translation costs without counseling about the benefits should really pay attention to the fact that this approach, at least in the PRC where I’m watching this, is costing clients millions of dollars in wasted fees and lost recoveries.
Conclusion
Lawyers, just because some translation vendor says a bunch of casual workers with no qualifications promises you top quality, it doesn’t mean it’s true. As all of the big international organizations have recognized, this kind of work requires significant qualifications, and generally, masters-level education is now recommended for it.
Next week: I’ll cover myths about certified translators and their qualifications. Are you a translator? Be sure to check out the Hague Law Blog to learn about this very essential field of international law.
