Recent Articles tagged language translation & interpreting for international litigation multilingual from LexMonitor

Admissibility of Telephonic Expert Witness Testimony by Foreign Language Translator/ Court Interpreter

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 10 May 2008 05:41:56 GMT

Although sometimes admissible, the use of telephonic expert witness testimony given by a foreign language translator or court interpreter is highly disfavored by the courts. In general, the courts are likely to apply the same standards of admissibility of telephonic...

The main issue that arises with using telephonic testimony is that of the Confrontation Clause found in the U.S. Constitution and many state constitutions. According to the Sixth Amendment of the U.S. Constitution, one has the right to confront a witness face to face.

However, for practicality reasons, the courts have generally held the right to confrontation is not absolute.

Specifically as to the relationship between telephonic testimony and the Confrontation Clause, the courts have ruled that according to certain public policies – such as the efficient use of court resources – the use of telephonic testimony may be compelled. This is particularly true when a witness is truly unavailable.

Although there is no set rule as to when telephonic testimony satisfies this public policy exception, in general it can be stated that the party moving to admit telephonic testimony must either:

a) Get a waiver of confrontation from the opposing party; or
b) Demonstrate that such testimony is necessary to further an important public policy and show the expert witness is truly unavailable as a witness*.

See State v. Jacob, 494 N.W.2d 109, 119 (1993); U.S. v. Jacobs, 97 F.3d 275 (8th Cir. 1996).

Determining the Unavailability of Foreign Language Translator/ Interpreter to Provide Expert Witness Testimony in Person- Telephonic Evidence

translate@languagealliance.com (All Language Alliance, Inc.) — Thu, 08 May 2008 17:27:10 GMT

Earlier we blogged about the admissibility of the telephonic expert witness testimony by a foreign language translator/ court interpreter. One key factor in a court’s decision to allow telephonic testimony is whether or not the witness is available. Thus, in order to admit foreign language translator testimony via telephone, a party must sufficiently demonstrate that in fact the foreign language translator/ interpreter is “truly unavailable”.

According to the Federal Rules of Evidence pertaining to admitting telephonic evidence, a witness is truly unavailable when it is shown that he/ she is unable to attend the hearing. Although the trial court has great discretion in determining whether or not a witness is able to attend a hearing, a common theme in many rulings is that a witness is truly unavailable when he or she lives outside the jurisdiction, and the need to travel to the hearing would be unreasonably burdensome to the witness.

See Beltran-Tirado v. INS, 213 F.3d 1179, 1186 (9th Cir. 2000); In re S.B., 639 N.W.2d 78, 83-84 (Neb. 2002); State v. Rosengren, 199 Ariz. 112, 116 14 P.3d 303, 307 (App. 2000).

Legal Document Translations, and Ethical Issues of Filing Privileged Foreign Language Documents: The Filing Attorney’s Side

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 03 May 2008 18:56:44 GMT

In the absence of English translation of foreign language documents filing mistakes can happen. During multilingual e-Discovery it is conceivable that privileged foreign language documents can be made available to the receiving party. Regardless of whether it is done inadvertently or on purpose, when privileged documents are disclosed during discovery, ethical issues not only rise for the receiving party but also for the disclosing party.

According to the ethics codes of most jurisdictions, a disclosure of privileged documents or information is a violation of the attorney-client privilege, meaning an attorney can face disciplinary action for an unethical breach of the attorney-client privilege.

Unlike the receiving party of the privileged documents, the disclosing attorney does not benefit from the “knowledge requirement”. In other words, attorneys who disclose privileged foreign language documents cannot argue they were unaware of the documents’ privileged nature because the documents were written in a foreign language.

The reason for this is because an attorney also has an ethical duty to zealously represent his client. As stated in a previous legal translation blog entry, this requires an attorney to fully understand all aspects of communicating with a foreign language-speaking client. Thus, the attorney has an ethical obligation to obtain a foreign language translation of all foreign language documents. His or her failure to do this, and the subsequent filing of a privileged document, is therefore a violation of both the attorney-client privilege and the duty for zealous representation.

See D.C. LEO 256 (1995); Maryland LEO 2000-04 (1999); In re Meador, 968 S.W.2d 346, 352 (Tex. 1998); Kondakjian v. Port Authority of New York and New Jersey, 1996 WL 139782 (S.D.N.Y. 1996); Brandt v. FDIC, 212 B.R. 386, 296 (Bankr. S.D. Fla. 1996).

To read our legal translation blog post "Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side", click here.

Contact our legal translation company to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 03 May 2008 18:55:07 GMT

Sometimes during multilingual discovery an attorney will inadvertently file a privileged document. This can happen with foreign language documents, especially when the English translation is not available. When this occurs, the receiving attorney has various ethical obligations as to how...

For example, some states hold an attorney can retain and actually use inadvertently produced documents reviewed and received in good faith. Other states require the attorney seek the guidance of the court. Yet other states require the attorney to return the document.

Of course, when the inadvertently filed document is in a foreign language, the receiving party often will not know of its privileged status unless a foreign language translation is done. Because the courts have ruled no ethical obligation arises until one becomes aware of the privileged nature of the foreign language document, an attorney should have a foreign language translation of the document and then, based on the translation, follow that particular jurisdiction’s ethical requirements.

Contact our legal translation agency to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Translating Multilingual Language Documents during e-Discovery

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 03 May 2008 18:53:36 GMT

The debate regarding human foreign language translation versus machine-based foreign language translation during foreign language electronic discovery is one that may never be decided. However, one issue that is rarely thrown into the mix is how these two approaches handle...

Although the majority of foreign language translation involves translating a document from a foreign language into the language of use, there are cases when a document may contain more than one foreign language that needs to be translated.

The problem with machine foreign language translation is that computers are often programmed to translate from Language A to Language B, meaning they are unable to recognize – or translate – a multilingual, or a mixed language document. Granted, the program can be reset for each foreign language, but this involves scanning the document and recognizing the language changes – which takes time. A more efficient approach to the multiple language documents is to use several human translators. This way you are assured to have all of the document’s foreign language text translated accurately and efficiently in a manner, whose accuracy and expertise can be easily proved in court.

Contact our legal translation firm to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Language Translations and Registering a Foreign Language Trademark

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 28 Apr 2008 17:18:18 GMT

When applying for a trademark that contains a foreign language term or word, certain issues as to the meaning of the term may arise. This may become an obstacle to successfully obtaining the trademark when the foreign language term has...

If the desired word is or contains in part a foreign language term, as a general rule, the applicant should include a foreign language translation. If a foreign language translation is not included with the record, the examining attorney will most likely inquire into the foreign meaning of the word. 37 C.F.R. Section 2.61(b); T.M.E.P. Section 809.

Further, when making an application for a trademark of a foreign language word, the applicant must specifically indicate whether or not the term has any special meaning in the foreign language. To do this, a foreign language translation made by someone familiar with the language and its day-to-day use should be used. 37 C.F.R. Section 2.61(b).

To read our earlier legal translation blawg entry "Patent Translations, and Protecting Your Client’s Intellectual Property Both Here and Abroad", click
here.

And to read "Probative Value of Foreign Language Website Evidence, and Foreign Language Translation", click here.

Challenging Unfavorable Ruling Resulting from Unethical Use of Foreign Language Documentary Evidence

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 04 Apr 2008 17:49:17 GMT

Irrespective of the availability of foreign language legal document translations, various issues may come up in the context of foreign language evidence. What happens if an opposing party uses a foreign language document in an unethical manner and receives a favorable judgment because of it? Can the ruling be challenged, based on the unethical use of the document? If so, what is the standard of review?

The answer to the above questions is yes, so long as the challenging party is able to demonstrate:

1) The use of the foreign language documentary evidence was in fact unethical, and

2) The use of foreign language documentary evidence played a substantial role in the court reaching its decision.

To demonstrate an unethical use of a foreign language document, the challenging party must turn to that particular jurisdiction’s code of ethics. As each state’s code varies greatly, what is unethical in one state may be completely ethical in another. If the action is unethical, then there are grounds for appeal. (See, in general, Rico v. Mitsubishi Motors Corporation et al., Super. Ct. No. RCV39233 2007)

The next step is then to demonstrate that the unethical use of the foreign language document in fact played a substantial role in the court’s decision. Typically this is framed as a “But For” question, or “but for the unethical use of the foreign language document, the Court would not have reached the same unfavorable outcome”. If it is shown the unethical use of the foreign language document was the deciding factor in the court’s unfavorable ruling, then there are grounds for appeal. (Sufficiency of Evidence or Plain Error Standard of Review)

To read our earlier legal translation blog entry " Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side", click here. And to read " Legal Document Translations, and Ethical Issues of Filing Privileged Foreign Language Documents: The Filing Attorney’s Side", click here.

Foreign Language Translation, and Litigating Foreign Language Life Insurance Policies

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 28 Mar 2008 19:59:59 GMT

Even if a life insurance policy is written in a foreign language, it is enforceable unless a specific ground of unenforceability is found. When litigating the enforceability of a life insurance policy, the issues are essentially controlled by the law of contracts. However, when either the policy, or a clause in the policy, is written in a foreign language the additional step of obtaining a foreign language translation is required. With a foreign language translation attached, the life insurance policy can be submitted as evidence.

Regardless of foreign language clauses, a life insurance policy will be enforced unless it is shown that it was entered into as a result of fraud or deceit, that there was a breach of fiduciary duty, or that negligence was involved.

In terms of foreign language issues, the typical cause of action for life insurance policies involves the breach of fiduciary duty. The basic line of argument is that the life insurance company and/or its agent assumed a fiduciary duty in the context of the policyholder’s relationship with the company or agent. This argument is upheld when the policyholder is unable to understand the legal meaning of the documents and, thus, rely on the information provided by the company or agent. This often occurs when the signing party is a foreign language speaker and the company or agent fails to obtain a foreign language translation and instead has the signing party rely on the information they provide.

See Restatement of the Law of Trusts, Third (1991); Uniform Prudent Investor Act; and Egler, Frederick N Jr., Malak, Paul J. “The Individual Life Insurance Practice Case: A Litigation Primer.” FICC Quarterly, 1999.