Over the last twenty years or so, the scope of the business landscape and its concomitant litigation have become increasingly complex and globalized. As a result, it’s no longer uncommon for attorneys to find themselves involved in matters which span jurisdictions, countries, and languages. Global litigation often involves documents and evidence written in languages other than that of the jurisdiction in which the case will be heard, and in these situations, legal translation is a must. 

However, there are other reasons to understand the nuances of legal translation, beyond the pragmatic considerations involved in a specific case. For example, bilingual lawyers who are considering an alternate career path might be interested in becoming legal translators, and eDiscovery practitioners who are intrigued by the industry’s growing emphasis on AI might be curious about the accuracy of machine translation systems. 

That said, a solid understanding of the fundamentals is a prerequisite for further exploration of the field, regardless of your reasons for investigating.

What is legal translation?

Simply put, legal translation is the act of translating documents and evidence from their native language into the language in which the matter will be heard and ultimately decided. For example, emails written by employees of an Italian company would need to be translated into English if they’re deemed relevant in a matter that will be heard in an American or British court. 

However, the realities of the effort are seldom so simple, and it’s important to note that although the terms are often conflated, translation is not the same as interpretation. Translation applies to written materials, while interpretation is the term used for spoken language. Both require a sophisticated understanding of the source and destination languages, as well as relevant cultural and societal nuances. But legal translation goes beyond simple linguistics, requiring a thorough awareness of relevant laws, regulations, and business practices. The goal is to understand and properly communicate the meaning of a document within the context of applicable laws.

Why is legal translation important?

Complete, correct translation of documents, emails, and other materials that may prove informative is a cornerstone of the justice system. Translation is crucial to an appropriate understanding of the facts; attorneys can’t possibly build an effective case, much less argue it, if they don’t fully understand the evidence. And if lawyers can’t present a complete, persuasive argument, judges and juries can’t reasonably be expected to render a rational, well-founded and fair verdict.

That said, legal translation isn’t limited to materials that are directly involved in litigation. It’s also important for contracts, confidentiality agreements, wills, trusts, and other kinds of financial instruments, corporate policies, and a host of other materials that are critical to global business. In these contexts, inaccurate legal translation can result in financial losses, create the possibility of further liability, create unfavorable employment conditions, or otherwise negatively impact companies, individuals and the law firms themselves.

The challenge

Translation in any context is nuanced and complex, because a literal, word-for-word translation of almost any kind of material inevitably loses meaning. Accurate translation or interpretation requires a thorough understanding of both languages, and the ability to consider the intent of the communication beyond the specific meaning of individual words. For example, the English word “brother” can be translated into Dutch in two ways: broer, which means brother in the familial sense (my little brother is a pain) or broeder, which means brother in the religious sense (Brother John led the congregants in a hymn). Similarly, the Dutch word huur means either “to rent” or “to hire,” depending on the context in which it is used. Correct interpretation takes that context into account and guides the translator in deciding which form of the word best represents the intended concept. 

¡Cuidado! A bilingual attorney a translator does not make. Translation is as much an art form as it is a skill.

In legal translation, the work is even more challenging and nuanced, because professionals also need a deep understanding of all the relevant laws, subject matter expertise as required by the matter, and an almost instinctive ability to zero in on the nexus of law and language. For example, in a financial matter, the legal translator would need to be a linguist with financial experience, perhaps even an MBA. When translating an employment contract from Spanish to French, it’s essential to fully understand the foundations and implications of Spanish and French employment law, in addition to the languages themselves. More than that, a translator should be cognizant of relevant cultural factors – for example, in France, new fathers are given paid paternity leave, but in Switzerland only mothers are given leave¹– which means the translator should take care to use phrases like “maternity leave,” “paternity leave,” and “parental leave” appropriately. 

Machine translation and defensibility

Clearly, native speakers who have a deep understanding of the law are the best resource in legal translation projects. However, in recent years, important advances have been made in the field of machine translation – an exciting field which uses sophisticated algorithms to translate text and speech from one language into another. Increasingly, litigators are leveraging machine translation to identify content, and as a means of evaluating materials so that only those that contain words and phrases of interest are sent to professionals for legal translation. It’s an approach that can yield significant cost savings, and provided that appropriate human translation and post-editing are appropriately leveraged, it’s generally defensible and effective on straightforward content; however, where nuanced forms, such as legalese, technical jargon or slang are concerned, machine translation may not be terribly accurate, so care should always be used when applying MT in complex matters.

Conclusions

Legal translation is a critical component of global business and litigation. Given the sophistication of the knowledge, skills, and perspectives it requires, legal translation is extremely complex and challenging, for both linguists and the litigators who require their services. Language Service Providers with expertise in legal matters are positioned to make this process easier for both attorneys and paraprofessionals, helping both professionals who have not had the need for such services previously and those who work with foreign language regularly, as each request and matter is unique. 

Further, legal translation may well represent an exciting alternative career for bilingual attorneys – especially when combined with evolving and emerging technologies like machine translation and natural language processing. But be warned: accurate legal translation is as much an art form as it is a skill. Beyond fluency and legal knowledge, you need a certain instinct for uncovering the intended meaning, so it may not be for everyone. That said, for those with an interest in the law, languages, and technologies, it’s certainly a field worth exploring.


¹https://www.pewresearch.org/fact-tank/2019/12/16/u-s-lacks-mandated-paid-parental-leave/

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