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Fighting Words: Adversarial Translation
January 20, 2012 - By: - In: Translation - Comments Off on Fighting Words: Adversarial Translation

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.

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