Fighting Words: Adversarial Translation

by Translation Guy on January 20, 2012
0 comments

Earlier this month, the appeals court in Lago Agrio, Ecuador, upheld an $18 billion award against against Chevron, in the largest judgment ever awarded in an environmental lawsuit. For legal industry rubberneckers this case has it all – environmental rapine, disenfranchised indigenes, crazy case law, justice for sale, and the excruciatingly private revelations of the crusader/operator leading the plaintiff charge, well told in a fascinating report by Patrick Keefe in the New Yorker.

However my professional interest lies in all that money that these guys have been spending on translation. This case has been generating litigation support invoices for 18 years, and is just the kind of revenue gusher that gets translation roughnecks like me dancing under a shower of black gold (That’s James Dean doing the same in Giant pictured left.) Wish I had gotten a piece of that case, especially since it looks as if both parties have taken to providing competing translations of the same source content.

Ted Folkman at Letters Blogatory asks, “Really? Dueling translations? … I would like humbly to suggest that the two [opposing litigators] sit down for a beer summit and see if they can find some way to reduce what has got to be the awe-inspiring litigation budget.”

Wrong, Ted. I’m against beer summits in general but more importantly, awe-inspiring litigation budgets are a good thing if you are billing. But also because adversarial scrutiny makes translations better. Interpretations at depositions and translation of other court evidence is carefully scrutinized by lawyers looking for mistakes, which means that legal translation contains fewer mistakes. Many eyes keep danger at bay.

Dan Harris, over at China Law Blog takes the same view. “”He/she who controls the language can control the case.”

Dan reports the he always moves to strike any uncertified translation. “Even with that, I virtually always have someone on my side confirm that the translation is accurate. About 85% of the time the translation is “accurate” but about 99% of the time, it has been translated in a way that favors the side doing the translation. This needs to be pointed out to the court. Just by way of example, there are languages where the same word can be translated either as “shall” or as “should.” Those are two very different meanings.” (Takes a lawyer to spot that one, and to argue an opposition translation error rate of 99%. This is the kind of guy I want on my team.)

“We figure that if you are going to end up before a Chinese judge, you are going to want to give him or her a contract that he or she can understand. If your contract is in English, the Chinese court will use its own translator to translate it into Chinese. This means you are not going to have any influence on what it is going to say nor will you even know what it is going to say until you have sued.”

But in the same post noted legal blogger Gilman Grundy grumbles about the how machine translation is complicating intellectual property law. “This kind of things is a huge headache in patenting where very often the meaning is not even clear when the documents are in English. At the prosecution stage there is way too much reliance on machine translation both by the patent office and by applicants, although the use of machine translation is unavoidable given the way in which multiple documents from different corners of the world can be cited as references against patentability, and given the tight deadlines involved. Throw in the fact that many of applicants are not working in their first language, and that even the people at the USPTO (let alone the EPO) do not always speak English at a native level, and you have a recipe for endless dispute about whether documents were translated or interpreted correctly.”

Ladies and gentleman of the jury, I rest my case. Adversarial translation is good translation.

0 Comments

  1. Ted Folkman says:

    Thanks for commenting on my post! As I noted in my comment to Dan Harris’s post, my real target was not “adversarial translation” (I like the phrase), but instead the excessive costs of the Chevron/Ecuador litigation. Of course it’s important for parties to verify their opponents’ translations and correct them when necessary. And it may be that there was good reason for the dueling translations in this instance, although the reason isn’t apparent (to me, at least) yet. But one side’s litigation budget in the case is about half a percent of Ecuador’s GDP, so I doubt that the parties would have economized if it made sense.

    • Ken says:

      Thanks for your comments in turn, Ted. Truly an amazing case, kind of like watching a big locomotive collision in slow-mo. Loved that New Yorker piece.

      • Ted Folkman says:

        Yes, definitely a big train wreck. I think in light of the reaction to my Dueling Translations post, I’m going to walk it back a little and make it clear that, yes, I am in favor of verifying your opponent’s translation, etc.

  2. Dan Harris nails it on the head. Not just for this case, but any. Contolling the language (translation) means that you control the case. Easily it gives the upper hand most likely the judgement.

  3. All that oil on Dean and his hair still looks great. Not fair.

  4. Lee Thomas says:

    After reading Keefe’s piece on the Chevron case I just want to go out and join the protest against them. I can’t stand big business. I’m all for making a profit, but not at the expense of others. If it were up to me, the oil business should have been taken over by government a long time ago.

  5. Shawn Rankin says:

    In something as important as a trial, I don’t think machine translation should be used. Experts, hopefully appointed by the court, should translate all documents as a team without bias.

    • Ken says:

      Now that legal discovery has gone digital there is too much information available for litigation review. For years, because the cost of human translation was prohibitively expensive, courts and opposing consul would make deals to ignore foriegn language material. Machine translation allows its consideration, and can always be escalated to a human quality if it needs to be produced.

  6. Arlene Hess says:

    I agree. Way too much money spent on litigation. Of course, the easy remedy for that is to just lower the legal fees.

  7. Lucky says:

    I realize Chevron has been blamed for this thing and held finanically responsible, but what about the Equadorian government? Where were they when all of this was happening? They must have been aware of the environmental impact. If there were payoffs, the government should be held responsible and penalized as well.

    • Ken says:

      The damage was the result of a joint venture with the Ecuador State Oil company. Chevron’s position is that they have already paid their share of the clean-up, as a matter of contract.

  8. Elizabeth says:

    Wouldn’t it be interesting if courts set litigation budgets for each case? Then there wouldn’t be all this back and forth and cases could be settled a lot sooner. This one went to what, the sixth judge? Crazy. This is what big money can do. String it out and hope the little guy gives up.

    • Ken says:

      That’s how big money gets bigger, Elizabeth.

  9. Cuddly Bun says:

    Here is another reason to lobby for a universal world language. If everyone spoke the same language, then there wouldn’t be a problem of mistranslating documents.

  10. Claudia Hill says:

    Makes me sick to think about the environmental damage. I would hope that people in today’s world of business had some sort of heart and could clean up the mess made just because it’s the right thing to do.

  11. Ray says:

    The comment on the chinese judge is very accurate and close to my heart. When I lived there I had many documents (legal) and I never got copies of the translated version until that last minute, and of course, when they were read back to me they didn’t have the same meaning as they were written to have. But there is no winning there.

  12. Princess says:

    85% of translation being accurate isn’t good enough. Is the 15% just poor translation or just messing with words to to help clients?

  13. Shnookums says:

    Is there any kind of guarantee that the translations are 100% accurate? I mean, how millions of people in the world speak both Spanish and English? How can documents be translated in the is case where both sides can’t agree on what is said in the original? Nothing but a waste of time and money – unless of course you are one of the billers (like Ken said).

    • Ken says:

      Accuracy is in the eye of the beholder, Shnookums.

  14. Carl Hinson says:

    Many a compromises and deals were done at beer summits. One would think that Chevron could go for that and spring for a keg or two.

  15. I never thought of it this way, but if I were to apply for a patent and then another applied for one later that is essentially the same idea, then depending on how language could be translated, could determine if the original idea stands of if the new one can replace the old and reap the rewards. Gotta have a good attorney (and translator).

  16. Johnny Wall says:

    I liked the piece Keefe wrote on the Equador. Kudos to the locals to keep up the fight for so long. 18 billion is pocket change for chevron and they should just pay up. The money needs to be controlled and make sure the place gets cleaned up and the families are compensated.

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