Legal translators are expert witnesses, even if they are rarely or never treated as such. This implies that legal translators do—or at least should—have extensive knowledge that can be utilized to the benefit of their clients. As with all expert witnesses, a general briefing, in addition to the materials being analyzed, is necessary; and briefings that provide the overall case background and prepare the expert to provide a thorough analysis are generally highly beneficial.
Nonetheless, industry surveys have found that the typical legal translator receives zero briefing or information on the matter they are translating. In fact, over 99% of the time, translators are not even informed that a law firm or legal matter is involved; they are simply told that a document has appeared from “somewhere” and needs to be sent back “somewhere.”
This disconnect is not at all what law firms intend, so why does it occur? Industry incentives for project managers to prioritize high-volume turnaround without consideration for quality provide an explanation. Law firms can therefore better protect their clients by increasing demands on their translation agencies to follow best practices and deliver superior accuracy.
Briefing Expert Witnesses
In all common law jurisdictions, expert witnesses must be briefed so that they can adequately provide a response for the case. The principal exception to this, however, is translators. While translators may be called upon as expert witnesses, translation itself has historically been treated differently by the courts than expert witness testimony. For example, an attorney with some medical knowledge cannot produce a medical diagnostic report for trial, but an attorney can provide their own translation for the case. A possible reason for this historical development is the relative difficulty of acquiring translations in many languages and the difficulty of acquiring competent translators in any language combination.
There are less than a dozen legal translation degree programs offered worldwide, and zero in the United States or China. Students are typically trained to translate novels, tourism brochures, or museum explanations—not anything to do with the kind of corporate law documents that dominate legal translation. Thus, a translation agency may offer “expert” translators, but none have any training in the field.
Another factor in translation specifically can account for why law firms and attorneys often do the translations themselves. In fact, this is how I got started—in a large law firm doing massive amounts of in-house translation. The reason lies in the fact that law schools around the world offer a very high number of legal translation-related courses, and these courses number in the thousands. Thus, even if professional translators have not been trained in legal translation, lawyers have at least basic knowledge and opportunities to develop their skills in-house. Let’s be clear: I’m not very proud of the in-house translations I did for law firms. That was basically an exercise in self-learning and overcharging clients. Consider the math: a law firm associate doing the translation might charge some $300/hour to translate about 300 words, or $1/word in the United States. As in most jurisdictions, this is about four times what the most expensive translation companies would charge for the work, but for lower quality than what a reputable translation company using qualified linguists could deliver. The main rationale for this practice is rooted in a distrust of translation companies, which often dishonestly provide inadequate linguists.
The disparity in how attorneys are briefed on cases versus how linguists are put into an information vacuum also drives self-translation. A typical attorney will get a significant amount of context and information about a case, enough to make qualified legal judgments. If supervising attorneys don’t provide this, they could rapidly be held liable for malpractice, and there have been cases where low-paid contract attorneys have successfully imputed liability up to the law firm.
Translation, on the other hand, is not something practitioners think very much about. Most law firms don’t even pay attention to the fact that in-house attorneys doing translation are fully briefed, while outsourced translators are in an information vacuum. Furthermore, most practitioners are also unaware that translation, like any other expert field, involves making choices and judgments. They mistakenly assume that merely providing a source text provides optimal conditions for a translation, ignoring the vital roles context and informed decision-making play in producing accurate and effective translations.
Purpose
As remarked in my previous articles on Skopos Theory, the idea that purpose is central to the translation activity is very widely accepted today, even though just a few decades ago, people involved in translation generally thought of the activity as having no particular social purpose. In legal translation, purpose is actually very important and will speak a lot to both the translation method and the translator’s relationship with the client or lawyer. A prime example is anti-money laundering translations for know-your-customer compliance, which is a significant field in China for law firms working to secure access to global markets for their clients. In such cases, attorneys are generally very concerned that their legitimate clients might be unable to go through the international approvals process.
Attorneys may therefore also feel that it is their job to be in control of the translation process, and legal ethics rules do indeed lend some support to this notion. However, a lawyer is probably not a qualified translator as they’re not practicing in that field (much like how a non-practicing attorney is probably not qualified to take a case to trial). The best way for the attorney to defend their client’s interests in such matters is to (1) ensure the translator is actually qualified, and (2) follow the Skopos Theory process. As Scott noted in her book, just 0.5% of translation projects with the above fact pattern involve translators who understand what the lawyer needs or even that the lawyer has ethical obligations in the matter. Simply briefing the translator on the nature of the legal matter and what is at stake can actually be sufficient in this case.
Providing such a briefing could significantly affect how the translator approaches the work—particularly in how they address or annotate the underlying concepts ontologically relevant to KYC compliance. A common concern is that many details are “lost in translation” as a result of the choices made during the translation process. For example, bank KYC and corporate FCPA translators have often told me that their focus is on the “flavor” of the text, which is typically the focus of literature translations. For these translators, this usually means translating metaphors extremely literally, assuming that the reader, despite having no warning, will spontaneously decide to invest a lot of time to learn what the metaphor means. The “paper tiger” metaphor is a good example of this: Mao Zedong deemed the metaphor so important that he would interrupt diplomatic exchanges to insist on its literal translation and understanding.
In the pursuit of this spicy “flavor,” a lot of choices are made that would delete key KYC or FCPA information from the translation. For instance, in the mitten crab smuggling cases, this approach resulted in phrases like “A running dog was on trail,” appearing as though people are just talking about dogs, whereas the original Chinese text’s intended meaning —“One of the henchmen was on the road”—sounds a lot more like a crab smuggler was involved.
Applying Skopos Theory thus encourages translators to align their approach with the purpose of the text. For instance, the key focus in food import/export compliance and seafood sourcing cases should be on identifying who is acting with intent to smuggle and who that person’s agents are. The “running dog” flavor common to Chinglish is something that could be a critical fact in the case. However, in the absence of any information about the purpose of the project, translators default to the translation style used in so many “Learn Chinese Idioms” books, where you can learn all about metaphors and traditional stories about dragons and phoenixes.
Case Background
Most linguistics professors today believe that the meanings of words or sentences in an expression are basically determined by the social context in which they appear. Thus, it is quite surprising that Scott’s study of legal translators found that in almost all cases in Europe, the social context provided to legal translators consisted of nothing more than a purchase order number. Whether a law firm or legal department is involved is generally not disclosed—leaving legal translators often unable to determine if the document is for business sentiment analysis or a lawsuit. This lack of context may, in part, be driven by an interest in protecting sensitive client information. For example, briefing materials for bribery cases will include facts like who blew the whistle, who was bribed, and the identity of the alleged perpetrator. If any of those kinds of facts were released to the public and into the hands of frequently sloppy or even dishonest journalists, the damage to the company could be huge.
Fortunately, while relevant to a lawyer, those facts are not all that essential for doing a translation and substitutions can be made to protect sensitive information. For example, instead of saying “Mr. Yang is alleged to have paid a bribe to Mr. Zhou,” an attorney could simply say that the purpose of the translation is business-as-usual anti-bribery screening with a focus on bribery.
Rather than adopting the science-based approach advocated by thought leaders in the industry, law firms tend to take one of two ineffective approaches when engaging with translators. First, the law firm may actually send a memo urging translators to avoid using nonsensical phrases in the translation. However, sending “ESL 101”-style memos isn’t helpful when the translation agency itself is staffing dishonest or unqualified people to the project. Second, the law firm may have an associate or staff attorney fix nonsensical translations to force them to make sense, often sending them back to the translators as feedback.
These approaches have serious logical defects: the law firm creates a privileged class of translators who have access to information (lawyers) and places them in a hierarchy above unprivileged translators who aren’t even privy to whether a law firm is involved or if they are translating for some little old grandmother in Arkansas with a cache of spicy emails. This happens all the time in the world of big law firms. Based on Juliette Scott’s survey statistics, I would say that this hierarchy being set up is around 40-50 times more likely than translators being made aware the project involves a law firm or legal matter. But let’s take a step back here: why would law firms deliberately keep translators ignorant of the basic fact that this is a legal matter?
The basic reason is that translation project managers’ KPIs go up the less time they spend on communication—so they attempt to fully automate it and cut out all human communication entirely. Documents go in, translations come out. Even industry analytics companies like Nimdzi rank translation companies based on how quickly their project managers can push translations through and urge that volume, not quality, is the mark of success. Thus, they steer clients into a mode of interaction that maximizes the volume of work being done while driving quality down to the lowest level possible without the client noticing. The situation is so bad that China’s Ministry of Justice urges law firms not to use translation companies when going through the foreign judgment enforcement process.
Be More Demanding With Translation Agencies
The main reason that translators, despite being experts, work in a manner that makes it impossible to complete their tasks as experts has much to do with how the localization industry is organized. That is to say, the localization process is being used for legal translation since that’s the translation industry’s primary focus. To get better results, lawyers need to get very demanding with their translation companies and force the Skopos Theory methodology into their translation process. Most translators will also attempt to ignore this methodology in favor of high-speed, low-quality work, so the law firm needs to hold them accountable.
For instance, consider asking questions about inconsistencies: Why does the translation refer to the United States government agency the Food and Drug Administration as a “government organ” instead of a “government agency”? Is that even accurate? Why refer to the China FDA as a government organ? The translator might offer lots of good excuses, but the real reason is that Google Translate picked the translation.
