|Oregon State Bar Bulletin DECEMBER 2009|
Secrets to Successful Mediation:
Tips from the Experts
By Lillian Clementi
The attorney was frantic. With trial only days away, she had just remembered that she had to stipulate to the other side’s translations of key French documents – and the material filled several boxes. “I [messed] up,” she said ruefully. “I simply forgot about the French.”
With non-English material increasingly prominent in U.S. legal proceedings, this kind of scenario has become more and more common – and not because of incompetence or negligence.
For many attorneys, working with documents they cannot read is a headache, and managing foreign-language documents can be a challenge even for a well-organized law firm. The good news is that you can handle non-English material more effectively, avoid disaster, and get the most for your translation dollar – if you follow four common-sense guidelines: planning ahead; using a professional;
setting up a realistic budget and listening to your translator.
The temptation to set non-English material aside for later is perfectly natural, but, as in the real-life example above, yielding to it can be dangerous.
Solution: inventory foreign-language documents right away, especially if you don’t know what you have. Even if you and your team are too busy to deal with them early in the case – and almost everyone is – the right linguist can help. With a few background documents and a quick briefing, an experienced translator can get to work right away, reviewing and analyzing your foreign material while you focus on other priorities.
Planning is equally important for the back end of your case. If you are a litigator, think ahead to depositions. What documents will need to be translated in advance? Will you need to have an interpreter present? Be sure that your team’s pretrial checklist gives you plenty of time to stipulate to the other side’s translations, prepare your own certified translations, and – if any of your witnesses are uncomfortable testifying in English – book a competent interpreter well in advance. A small up-front investment in planning will save significant time, money and stress later.
A Little Learning is a Dangerous Thing
It’s natural to turn to a bilingual colleague when non-English material surfaces. But “knowing some Spanish” doesn’t necessarily qualify a paralegal or even an attorney to translate or review foreign-language documents, says Thomas L. West III, owner of Intermark Language Services and former president of the American Translators Association (ATA). “A lawyer I know got a fax from his Latin American subsidiary and gave it to his Spanish-speaking secretary,” he recalls. “Three words stood out: celebración, asamblea and social. ‘Relax, they’re just having a party,’ she said. It turned out to be an invitation to a shareholders meeting.”
Go with a Pro
Bottom line: translation errors can be costly – even disastrous – so it pays to work with a professional. But how do you find the right language services provider? The ATA offers free, searchable online databases of its member translators and translation agencies at www.atanet.org. With the advanced search function, you can tailor your search to the language pair and subject area you need, and even specify geographical distances for in-person review.
Getting the right people is important: some “bilingual” reviewers are a waste of money at any price. Marjon van den Bosch, a professional linguist with extensive experience in document review, recalls several litigation matters involving thousands of pages of Dutch. “A staffing agency was tasked with finding competent Dutch-speaking reviewers,” she recalls. “But in each case it filled out the team with amateur bilinguals recruited from social networking sites and temp attorneys who had taken German in high school. Google Translate was their tool du jour.” Solution: if your linguists will come from a staffing or translation agency, ask for specifics on its recruiting standards and the credentials of the people who will handle your documents.
Bang for the Buck
Quality translation does not come cheap, but you can save time and money by thinking through your needs. To draft a reasonable budget, ask a few key questions up front.
Does all of your foreign language material really need to be translated? A few hours of review time from the right translator or a pass through the right computer translation software can help you identify the documents that matter most. Irrelevant documents can be weeded out, and less important material can be “gisted” or summarized in a few lines or paragraphs – saving time, translation costs and document-handling headaches over the life of your case.
If you are managing a large litigation, it is critical to determine how much non-English material you have, and in how many languages. Using a unicode-compliant review platform to work with electronic documents such as e-mail messages and Microsoft® Word documents is one solid answer, says e-discovery expert Conrad Jacoby, founder of efficientEDD. “One of the biggest challenges for a litigation team is simply knowing what they have,” he notes. “Fortunately, unicode – a computing industry standard that allows computers to encode and display most of the world’s writing systems – has made it dramatically easier to find unexpected foreign-language documents and treat them appropriately during processing or review.”
Once you know what you have, you can develop a cost-effective strategy for review based on volume. “If I have 200 documents in a given language, I’ll likely have a linguist do a document-by-document review,” says Jacoby. “If I have 5,000, I’ll have the linguist work with review software and use his or her language and subject matter expertise to help winnow the material. A competent reviewer can tell very quickly if something is completely irrelevant or needs further attention.”
Scalpel or Bludgeon?
How accurate do your translations need to be? Fast and relatively inexpensive, computer translation is often useful for brute-force “gisting” and first-pass review, but you will almost certainly need specialized human review and translation for your most important documents. “At best, computer translation will only be about 80 percent accurate,” says Joe Kanka, vice president of corporate development for eTera Consulting, a litigation support firm based in Washington, D.C., “so we want a professional translator at the table from day one. That, to us, is absolutely critical.”
And 80 percent accuracy looks a lot less impressive when you realize that you don’t know which 20 percent of your translation is inaccurate. For sensitive documents, a qualified human linguist is usually the best solution. “Once the material has been winnowed down,” says Jacoby, “a qualified translator or native speaker with the right subject knowledge will almost certainly do a better job analyzing non-English material than a monoglot reviewer working from computer translations.”
Listening for Added Value
A good translator should also be able to connect the dots, seeing each new document as part of a larger whole. Your documents tell a story, and if you are willing to listen, experienced linguists can help you piece it together.
Too few legal teams take advantage of this added value. To tap into it, simply provide translators and foreign-language reviewers with the background documents your attorneys and reviewers are using, and keep related English-language documents with foreign material when sending it out for translation. If you are working with more than one linguist, make sure that everyone on the team is sharing background and terminology. Stay focused on the big picture, and insist that your translators do the same.
Strong relationships and institutional memory generally help a law firm serve its clients more effectively, and the same is true for translation providers. In the Case of the Last-Minute Stipulations, the frantic attorney called a translator who had worked on the litigation for several years. She quickly proposed a damage-control strategy, and translators, paralegals and attorney were able to work together to complete the review in time for trial.
Surprises are inevitable in legal work, but thinking critically about your timeline and budget and working closely with qualified linguists can make your project run more smoothly. Veteran patent translator and ATA president-elect Nicholas Hartmann has seen this first-hand. “Ideally, the law firm, its client and the translator work together, forming an effective partnership that enables all of us to keep our customers, earn their respect and enhance our professional reputations.”
ABOUT THE AUTHOR
A working linguist with more than 15 years of translation experience, Lillian Clementi provides translation, editing and document review for Lingua Legal. She is an associate member of the ABA and is also an active member of the American Translators Association (ATA) and has served as president for its Washington, D.C., chapter and is the coordinator of ATA’s School Outreach Program.She is certified by the ATA for French to English. She also holds a German to English translation certificate from New York University; an M.A. in French from George Mason University and a B.A. in French from Loyola University.
© 2009 Lillian Clementi