A single word and even a punctuation mark can determine the outcome of a legal case, which often leads to conflicts between translators and lawyers. From the translator’s perspective, their role is to ensure the translation is correct and accurate. Attorneys, who generally have more knowledge of the case context and typical cases based on these facts, and their clients may therefore feel threatened by the translator’s preferred rendering as it could potentially cost them the case. Attorneys are typically indifferent to the truth; they want to win, while translators want their professional independence respected. The mixture of these two perspectives is a recipe for legal battles over translation.
A typical reason for a legal battle between attorneys and translators over translation is that translators tend to focus on dictionaries, whereas lawyers focus on reality. Moreover, a lawyer dealing with a dictionary-translated or otherwise mistranslated word, especially a highly skilled lawyer, knows that the word probably spells doom for their client. The mechanics of this are quite simple; how an American jury interprets the word in the translated context determines how the jury will answer the question of fact put to it by a judge. For example, in cases of criminal conspiracy or criminal enterprise (UK), the phrases “you killed him, comrade!” look like a guilty conviction, whereas “coworker, you killed him!” raises a lot of doubts. If that sounds like a small distinction, consider the controversy in the UK about things like blind people merely standing in the vicinity of a crime being charged with criminal enterprise.
In similar circumstances, a law firm encountering this situation is in a difficult position. On one hand, the American Bar Association rules actually prohibit allowing mistranslation from damaging the client’s case. On the other hand, principles about document alteration and fraud also apply to lawyers. For the most part, a bilingual attorney will send back corrections to the translator, who then accepts or rejects them. They may even get into a heated argument or a fight about the situation; skilled attorneys in more difficult language pairs often regard translators as outright idiots, while the courts view those attorneys as liars. Generally, most translators will likely not accept the lawyer’s corrections, and the lawyer may resort to refusing to pay the translator to assert leverage — which, despite this being unlawful, most translators will accept.
The above situation occurs so frequently that it’s become a major headache for lawyers. When Chinese state-owned enterprises get sued in international courts, the politically correct manner of speaking in those enterprises is sometimes turned against them by the plaintiffs’ clever lawyers. In tort litigation, especially the international law variants involving matters like battery or wrongful death, even conspiracy, the word “tongzhi” (同志) stands out as one that will immediately grab the attention of lawyers. From the perspective of translators, the dictionary says “comrade,” and that is the end of the discussion. To the translator, the meaning of the word “comrade” is literally “how you say tongzhi using English.” However, most Americans know little Chinese, much less do they base their entire English language on the meaning of what a certain bilingual Chinese-English dictionary says. That’s where the trouble begins. Once this word is put out into the open, a plaintiff’s lawyer or prosecutors will typically seize on it to show that there was a conspiracy to commission the tort, and this may well be a classic litigation tactic by now. Therefore, the defense attorney in this case is in a position where their client may lose the case and be liable for a wrong they never committed. This exact situation is very common, and I’ve seen it myself.
A second scenario happens more often on the transactional side, and that is that nobody notices. In the classic high-profile case involving Meng Wanzhou, none of the lawyers noticed that the critical document sent to HSBC had been translated, and everyone took the translation at face value. The original Chinese word “hezuo” didn’t address the question of arms-length transactions, whereas the English word cooperate does specifically mean there is an arm’s length distance in the relationship. I don’t know what the defense counsel was up to at that time, but I imagine it involved some Chinese-speaking associates and also monolingual, native English-speaking law partners. The Chinese natives, not being professional linguists in this case, will typically not notice that the word “cooperate” is being misunderstood. The English-native partners will focus on using extraneous evidence outside the “four corners” of the document to prove that the parties knew what was really meant. In this kind of case, the translation enters the litigation process, but the mistranslated word itself is never challenged. Instead, lots of extraneous evidence is involved in an attempt to battle the translation. In the eyes of observers, this kind of case also makes it seem as though the US justice system is rigged against Chinese plaintiffs.
The involvement of extraneous evidence is a common practice where we see parties trying to “go around” the translation problem naturally as if it’s a boulder in the middle of a highway. No threats or coercion are used with the translator in this context, but at what cost? A corporate case like the one above could spend $500,000 fighting over extraneous evidence over what was literally a $50 translation problem. Moreover, these kinds of endless discovery and deposition battles happen all the time. The dictionary reliance issue can be introduced during the transaction or in litigation, but once involved it causes hundreds of thousands of dollars in damage.
Is there a good solution here? In my opinion, there is a clear solution. All of the above types of cases involve highly unqualified translators with little training or experience. The translator making those kinds of decisions, at a minimum, should be someone who is independent, has sufficient language skill (as evidenced by certification), and specializes in the legal field. This last one is very crucial; someone who does subtitles for HBO in the above example, no matter how good at the language and at translation, will use “comrade” because it looks exciting on subtitles and hints at intrigue. When working with evidence, something very closely tied to social reality, the evidence-based perspective is needed. In that vein, a commitment to science-based practices is also necessary. To understand why, let’s take an in-depth look at a hypothetical case study in the context of a social media free speech case.
Hypothetical Case Study
A common conflict between lawyers and translators of numerous languages is translators’ unwillingness to say anything socially inappropriate. Historically, the tendency for translators to change messages dates back to ancient Mesopotamia, where translators would revise the rash and aggressive language of kings to more tempered language. Today, such behavior remains a strong part of translation culture’s DNA. In Chinese>English translation, lawyers frequently pull out their hair over translators’ behavior because, in a defamation or fraud case, the inappropriate language in itself is the key evidence. Therefore, a translator’s refusal to translate it accurately means that the lawyer loses the case. Moreover, translators are empowering defamation to evade the law!
In the slanderous speech domain, a common phenomenon seen these days in the context of sham asylum cases is for people to cross the border into the USA, and then begin posting extreme and shocking political content to social media to cook an asylum case. Often, the intent is to be deliberately shocking, so shocking that many people living in the US feel legitimately personally threatened—and appeal to the platforms to take the messages down. In Chinese, these kinds of sham messages often use the word “dadao” in order to look especially shocking, a pattern seen in dozens of languages. Many translators are unwilling to translate such socially unacceptable expressions, even if at the behest of plaintiffs seeking their removal.
Consider the difference between two words often used in politics to “overthrow” a regime, tuifan and dadao. A key difference between the two is tuifan generally requires an ongoing regime of some sort and does not imply violence, just removal from power, whereas dadao can be used against an interest group not in power or a regime and is closely associated with violence, with over 90% of colocations involving violent contexts. In contrast, the colocation with violence for tuifan in news reports is about 15%, which I checked very unscientifically. As of the writing, there is a lot of controversy around politician Donald Trump and how he invited the “storm the capitol” event to overturn the election. Previously, Trump was banned from Twitter (now “X”) for statements made on the platform. I’m not a journalist, so the above is just for context about an important part of social media platform rules that ban making statements inciting violence, even political violence, and the related legal standards which are exceptions to free speech, that being solicitation or conspiracy to commit a crime. On social media platforms like X and WeChat International, it’s very expressly prohibited to post anything that might be considered political or ethnic violence. And this isn’t just for the government — even minority groups, interests, and community groups face very strict anti-defamatory and anti-violence enforcement on these platforms.
Now in 2024, there are quite a number of people out there posting these kinds of things on social media across various countries. Imagine a hypothetical scenario where someone out there requests and, with pressure from politicians, gets such posts removed from social media. Then, an organization like the ACLU challenges these actions as violations of free speech. In the context of free speech, encouraging violence directly against the members of a particular faction or political party would be considered a clear-cut exception, with stronger free speech claims developing the further down the speech gets toward the non-violent end of the spectrum. Suppose even further that the ACLU claims that X banned the content from the platform because its owner (Elon Musk) has factories being built and cars being sold in those countries. They allege a hypothetical quid pro quo! Therefore, in such cases, a word in an Asian language such as Thai, or the point of reference here in Chinese, dadao, can determine whether actions taken by platforms like WeChat and X in response to said social media posts are violations of free speech.
A typical translator handling a case like this will go straight to the dictionary and, if questioned about their translation, will show the dictionary and say “Praise be to the Gospel of the Lexicographer, let us spread the Good News of dictionaries.” Bilingual dictionary definitions for dadao include phrases like “knock down,” “down with,” or “overthrow.” Translators will likely not check monolingual dictionaries either as, if they did, they’d see that even the traditional definition for dadao does not align with the definition for their chosen translation. Moreover, the translator sees that word as being one word among 5,000 being translated. They probably need to look up 150 different words in their dictionaries—this is .5% of what they are considering. For the lawyer, however, the matter is framed differently. The lawyer will be researching cases about the violence exceptions to free speech protections and will have already been told of the allegedly violent word. Thus, for the attorney, the case may turn on that one word.
Assuming that the lawyers in this case are reasonably ethical, their hands are largely tied. They can, of course, argue with the translator about what the word means, but let’s assume that the translator is also reasonably ethical and goes with their own opinion based on the Gospel of the Lexicographer. The lawyers may prefer a more violent-sounding word like “smash” or “destroy.” From the lawyer’s perspective, the translator is wrong because the client’s story is different, but the trouble is that all translators have the same wrong opinion (indeed, professional Sinologists have never used a dictionary definition for the word). Is there a way around the translator? Absolutely, and it’s called science. The US federal and state courts for pretty much every issue governed by science permit the introduction of expert witness testimony to resolve a dispute, which is done in federal courts under the Daubert opinion.
In fact, English-language evidence receives expert witness testimony all the time, with the classic case Frigaliment involving a contract translated from German to English, with quite a few experts participating. That’s a law school textbook case, by the way. Forensic linguistic evidence can be introduced to English or really any language, should there be a dispute. If experts in semiotics and linguistics looked at posts using the word dadao and not tuifan, and looked at the linguistic corpus, they would see that dadao is highly correlated with images and acts of violence, and an expert witness on linguistics could quite easily produce the relevant testimony. The cost may be many thousands of dollars in extra fees, nonetheless, lawyers have been “getting around” translators for many years.
The translator is so easy to defeat in the legal context because there is no scientific basis for treating a dictionary as a religious tome. Dictionary-makers themselves say dictionaries are a useful tool but not a source of any kind of truth. There is no legal basis for an argument that the majority of translators believe in dictionaries. Therefore, dictionaries are true and right — which is as misguided as taking the majority of cattle ranchers believing global warming is false as a basis for proving the falsity of global warming.
