Last week, I wrote about the misconceptions lawyers have about translation that only serve to undermine their own clients. This week, I want to introduce the misconceptions translators have about the legal process to try and help break down the walls between the parallel universes that each profession seems to be living in. While lawyers generally think they are getting high-quality work, most translators (particularly uncertified translators) believe that quality is not important in legal translation, likely because they think translating huge quantities of documents is a mere formality nobody would seriously rely on.
Quality Doesn’t Matter
The maxim “Quality Doesn’t Matter” is a core principle of virtually every translation company working with attorneys. How do I know? Researchers from the Common Sense Advisory, whose job was to survey these companies, include this as core advice in a published book, The General Theory of the Translation Company. A translation quality management course available on Coursera, one taught by an internationally recognized translation company with university backing, also requires mastering this principle in practice and even assesses students on their ability to plan projects that keep costs low while maximizing speed. An academic book by Juliette Scott includes surveys and interviews indicating that translators for law firms are being instructed by translation companies to disregard quality. Anecdotally, experienced translators familiar with the industry have heard the maxim repeated countless times.
There is a logic behind the “Quality Doesn’t Matter” strategy. In any kind of professional service, cost and speed are in tension with quality, and translation companies generally aim to maximize speed and minimize cost, which also requires minimizing quality. A translation intermediary does not really have much choice, either, because the same client will go and inquire with several companies about the same service. If four competing companies all say that your Hague service of process documents can be translated in 3 days, then no translation intermediary would survive by suggesting a two-week turnaround. On the cost front, people inside law firms and translation service bidding managers alike have told me stories of how clients will compile a list of bids and, almost always, choose the lowest bid. This is also the same story behind how thousands of Chinglish signs saying things like “Slip down carefully” (slippery when wet) came into being.
Do you think Chinglish is absurd or funny? Think again. Chinese-American lawyer Wu Jianqiang filed a lawsuit against a dozen big law firms and wrote a recent research paper saying that practically every big international law firm was doing the same exact Chinglishy thing when translating into Chinese and Japanese. Whistleblowers went to the president of the American Translators Association to little avail. Moreover, they alleged that the translation practices adopted by top law firms are so egregious as to constitute national origin discrimination against Chinese persons. That is to say, “Slip down carefully” was alleged to be the business model of Fish & Richardson, one of the most respected IP law firms in the universe. I think this allegation in itself creates a rebuttable presumption that the White House’s intellectual property theft allegations against China are false; that it was not some grand Communist conspiracy but rather the inevitable result of poor translator training and oversight.
The federal government does deserve a pat on the back for listening to Wu’s decade of allegations when it brought the criminal case USA v. Anwari. However, any claim of wrongdoing against the PRC is premature until legal translators —and their big law firm and federal clients— change their opinion and say, “Quality Does Matter.”
Nobody Reads This Stuff
When I was young and rebellious, working in-house at a giant translation company, my supervisor, who already had forty years of experience in the translation industry, made this bizarre claim. She said, on this translation project of some 40 million words, that nobody will be reading the documents and that they would go straight into a black hole. Moreover, these were incredibly severe allegations being raised, involving lots of criminal arrests, corporate fines approaching the billions, and allegations of all sorts of violence – even espionage. The weirdest thing about the whole situation is that the law firm who hired us wrote a memorandum that basically said they had a team of attorneys summarizing each translated document and that inconsistencies in the translations were causing problems.
I actually pointed this out to the supervisor, who was so offended by the lack of respect for rank that, when in the same elevator, she would literally turn and face the wall to avoid acknowledging my presence. Human resources had a meeting with me to insist that this “legal analysis” had no place there and not to challenge the importance of training the team in the fact that nobody was reading this stuff. Being young and rebellious, I kept pointing it out. To cut costs, they were actually hiring college interns, not giving them any training, and having them machine translate this stuff in-house. Thus, I presented a huge threat to the stability of the whole business model. To make a point, one manager with a military veteran background pulled me aside to tell me to stop bringing this up, before showing off his jiu-jitsu skills. Nevertheless, even someone who had killed fierce insurgents with his bare hands wasn’t enough to make me stop advocating for the client. Eventually, the company suggested I resign and find a new job, and I subsequently found myself working in the offices of the client.
On the client side, one attorney on the case already had severe PTSD from the translations. Specifically, the lead partner on the case, one of Washington’s most respected lawyers, would scream hysterically, “Is this stuff even accurate?” And he would throw things. The PTSD-stricken lawyer, who spoke Chinese, was tasked with cleaning this stuff up in-house, which is actually why so many law firms translate things internally, despite my warning that attorneys are actually terrible translators of Chinese (see this article). This is actually a very common theme with Chinese legal translation: clever attorneys catch on that the translation is catastrophic to their clients, while translation intermediaries are deceiving their translators into thinking that nobody even reads this stuff. Neither side really knows what is going on with the other. Moreover, said attorney was negotiating with the DOJ about how much of a corporate criminal fine would be owed under these facts, and the translation of the facts received made no logical sense.
Legislative translators have a related dogma that the translation of laws does not matter because only the Chinese version applies. This is also false, and in the jurisprudential principles require all foreign language materials have their English translations introduced into evidence. The US legal system applies this ancient principle in bizarre ways; for example, the SEC is filled with absurd Chinglish like ‘house lease’ for office space in towers, which would imply that someone fit a tiny little house into an office space as if it were some kind of gimmicky, popup Hogwarts Village store in a shopping mall. However, SEC rules prohibit uploading the Chinese source documents, which would reveal to investors what these documents are really saying. This results in cases like Animal Sciences v. Hebei Pharmaceuticals, where the Supreme Court not only introduced pidgin English versions of Chinese legislation to court but also said that the Chinese government’s opinion on what such law “really means” must not be dispositive. The half-billion dollar judgment against the Chinese company was subsequently upheld.
Both of these examples should be convincing evidence that not only do law firms and courts read translations of these documents, but they use them to make decisions that cause huge financial damage to companies. When I raised this concern with my giant translation company supervisor many years ago, her response was, “This is a multi-billion dollar company. They have plenty of money.” This is standard translation intermediary training and indoctrination; it’s also the opposite of what MBAs and JDs are taught about the world.
You Can Make Stuff Up
A final dogma, and a phenomenon well-documented by Professor Victor Mair, is the belief among legal translators that you can just make stuff up into English, and the reader will just figure out the meaning. In his research, Professor Mair documented what he calls Zhonglish, a syntactically correct spin-off of English that has a variety of nonsensical phrases. His classic example is “lodge solemn representations.” Mair never actually went to China or asked Chinese translators what they were thinking; his writings suggest that he was unsure whether translations were actually used at all there. I did go to China and ask a bunch of people. For example, I was a headline speaker at a legal conference on the translation of the new Civil Law Code of the PRC, which was memorialized on the Translators Association of China’s website.
The PRC also has new policies that provide some opinion as to whether you can make stuff up, with a lot of gray area. This also provides an easy example of why you shouldn’t make stuff up. For instance, if you’re translating a brand new spicy hot pot dish called Biantaila Guo, rest assured you can make up a new word in English for it under the policy, and, unlike most translators, I would call it the Insanely Hot Pot in English. Translators may ask, “why not abnormally hot pot?” The Chinese word biantai, coming from Biantai Xinlixue or “Abnormal Psychology,” is used as a metaphor for things so extreme you’d need to be crazy to do them. In English, that metaphor is actually ‘Insane,’ and English doesn’t use ‘Abnormal’ as a metaphor in this way. So, in English, it sounds like you believe the food’s capsaicin levels are so high that it risks chemical burns to the consumer.
A fact pattern might look like this. Recall that McDonald’s was famously sued over burns, and any hot pot chain, like Little Sheep, that gets its labels wrong will have those English versions entered into evidence against it. For example, a restaurant might require employees preparing that famous hot pot mixture of lard and spice that makes it so darn delicious to use bottles of purified capsaicin to reduce costs. However, one of those bottles spills into a hot pot instead. A customer then receives this hot pot, spicy enough to cause chemical burns, accidentally splashes some broth into their eyes, and is subsequently blinded. The label translation could be used to say that the restaurant chain knows the food formulation is abnormal and, therefore, dangerous.
Chinese translators have a unique way of creating new words and phrases, like Mair’s “lodge solemn representations,” that can cause huge confusion and lead to serious legal trouble. After having watched students and translators do this, the general process I can see is that the translator first identifies the smallest words or monemes, usually monemes, and then begins matching words from Chinese<>English dictionaries to the monemes, creating an entirely new English phrase. This then gets uploaded to a translators’ database and is treated as authoritative forever simply because it was uploaded to a database.
The problem is that nobody in America knows what “lodges solemn representations” means. For example, if the USA or UK wrongly arrests a Chinese citizen based on an incorrect translation, and then you go to the press saying you will “lodge solemn representations with consideration of countermeasures” with the US, they won’t really know what you are trying to say. People, however, would understand if you instead say something like you will meet US representatives to “protest the illegal detention and will threaten retaliation,” and that maybe the Americans should just let the innocent prisoner go. These cases are very common, and I know lawyers who specialize in this sort of defense, should you ever find yourself arrested because some damn police interpreter wants to speak word salad into the evidence. Actually, a survey of the China Initiative showed that 70% of Mandarin-speaking defendants were wrongly arrested based on this fundamental problem.
Translators making things up generally do not know they are making things up. Rather, they generally feel that, despite expressing themselves in ugly English, they are doing so in a highly accurate and precise manner. If you make something up in legal translations, it’s most likely because you don’t know what the correct word is and don’t have time to find the answer. This does not mean you can just make stuff up without telling the client – this actually violates the ATA Code of Ethics even if you don’t know you are making the error. Thus, informed consent is really necessary in these cases.
Conclusion
Legal translators, especially those working at intermediaries or within organizations, have numerous misconceptions about how the legal process works based on myths and misinformation spread in the translation industry. The most serious myth is that quality doesn’t matter. Actually, attorneys believe they’re getting great quality, and this is also what marketing materials claim. Second, translators wrongly think that nobody will read things like a 50,000-page stack of e-mails and spreadsheets. This is also false. One of the biggest costs in the legal industry is document review; even if, traditionally, most documents are of limited relevance to the case at hand – people still read them. Finally, translators think it’s OK to make stuff up to save time without telling anyone. This goes to quality and could be highly damaging to a legal client, so informed consent is really necessary as a basic ethical matter here.
