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This article originally appeared in the December 2002 issue of the ACCJ Journal and is reprinted with permission.
Language can be so loaded that you just can't afford to risk getting it wrong. Here are some pointers to outsourcing legal translation and interpreting.
Ever since the Meiji Restoration in the latter half of the 19th century, Japan has been devouring western information and technology. Access to this knowledge has frequently been through Japanese translations rather than direct from the source language. This appetite for knowledge from the outside world has given birth to a distinct translation culture and spawned a major industry here. As globalization accelerates, the demand for language services is burgeoning-and nowhere more than in the legal field.
Outsourcing translation
The translation business is composed of three main types of providers. The major agents-such as Simul International, Inc., Japan Convention Services, Inc. and Inter Group Corp.-offer comprehensive language services, including translation, dispatch of interpreters and conference organizing over a wide range of fields. They generally outsource their work to a network of translators and interpreters. Other specialist companies concentrate on niche markets, such as medicine or patent translation, and often employ a team of in-house translators. At the individual level, a large pool of freelance translators work from home, both in Japan and abroad. Many of these specialize and offer their services both to agents and directly to corporate clients. Many belong to the Japan Association of Translators (JAT), which holds annual conferences and engages translators in on-line discussion groups.
Translation companies relieve the client of the task of both sourcing a suitable translator and managing the work. A niche provider will also offer expertise in the relevant field. A conscientious agent will add value by checking and editing the document from the translator before delivery to the client. Corporate providers may also offer more layout/design capability than some freelancers. This advantage can become an issue in the translation of discovery documents, which not only have to mean the same as the original, but also must look the same. Balanced against these advantages, however, is the fact that an agent or niche provider demands higher rates than do most freelance translators.
As litigation activity increases in Japan, a growing number of international law firms are setting up shop in Tokyo. Yukie Kaneko, Tokyo office manager for the law firm Cleary, Gottlieb, Steen & Hamilton, laments the short supply of legal translators. "At times, we have substantial demands for document translation, but we find it quite difficult to source competent legal translation companies that can also meet the very tight time schedules we often work under," she says. Very few translators have formal legal qualifications and most working in the legal field have gained their expertise through experience. One of Tokyo's most sought-after legal translators, Richard Thieme, for instance, gained his early training by working in-house at Tokyo Aoyama Law Office (now Tokyo Aoyama Aoki Law Office) and then at White & Case LLP. The term "legal translation" can be misleading. The fact is, much of the translation work offered by law firms on the commercial market is not highly legalistic at all. This is particularly true of discovery documents. In a real-estate fraud case, for example, the client would be best served by a translator specialized in finance. In a semiconductor patent infringement case, a translator who is an electronics specialist would be recommended.
Internet dictionary
David Owens, president and CEO of the Japan subsidiary of RWS Group, a worldwide intellectual-property translation company, believes that knowledge of a specialized field and Internet skills are keys to providing successful patent translations.
"Not only must translators be fluent in the source and target languages, they must have expert knowledge of the technology they are translating and be familiar with patent terminology, structure and conventions," he adds. "Being Internet-savvy is also an increasingly vital skill since technology changes so rapidly that conventional dictionaries and other technical resources soon become obsolete."
Translation of contracts does require some knowledge of the law and legal rhetoric. However, most translation companies will handle contract work as reference material rather than as binding legal documents. As independent Tokyo-based U.S. attorney Marcus Kosins points out, input from a legal professional is desirable in these cases. "A good translator of contracts is very hard to find. Contract language is very technical, and, more importantly, legal nuances play a role. These nuances are sometimes evident from the text, but many times only a well-seasoned business attorney can recognize them," he cautions. "One good way to improve the quality of a contract translation is if the translator can work with the drafting attorney-or at least have access to another attorney-to identify and address the legal nuances within the four corners of the contract."
How does one select a "conscientious" translation company among the mass of suppliers in the market? Owens of RWS cites three criteria: "At minimum, a conscientious agent is one that uses only translators working into their native language, unfailingly checks and edits draft translations, and uses translators who specialize."
In terms of what expertise costs you, translation rates vary dramatically, ranging from as low as \1,000 per 400-character page of Japanese (genko yoshi) into English to \15,000 or more per page. Caveat emptor. Due to the greater supply of native Japanese translators, rates into Japanese tend to be 20-30% lower. Triaging of discovery documents and similar tasks are likely to be charged at an hourly rate of \15,000-20,000 for an experienced professional.
Fred Uleman, veteran Japanese-to-English translator at Japan Research Inc. and one of the founders of JAT, offers the following tips when commissioning a translation:
"Insist on a quote so there are no surprises. There are some people-especially in countries where they assume that nothing exists until it is in English and that only the dollar is real money-who will want to estimate in terms of English output length. But it is impossible to know how long a translation is going to be until you have done it. Don't settle for educated guesses. Get the estimate in terms of the original, source-length text. This is something both sides can measure accurately before any resources are committed.
"That said, the most common Japanese length count is in terms of 400-character page equivalents. Count the whole thing, divide by 400, and that's how many pages it is. This is standard. The page definition for counting texts in English seems to be less standard. While some quote by the 200-word page, others adopt a 100- or 250-word count. The important point is simply to confirm this page unit every time. Both a full page of dictionary-size print and a big picture with a two-line caption are pages to the layman. But they are radically different in translation terms. Define the terms. Get a firm estimate. Avoid surprises."
Even though charging a flat per-page rate is standard, there are exceptions, according to Uleman. One is for rush work, where you should be prepared to pay a premium.
"My company has two rush-work levels: rush and super-rush. They come with 30% and 50% surcharges [respectively]. This is not at all unusual. If you want above-and-beyond-the-call-of duty service, you end up paying more," says Uleman. "Likewise, you might end up paying more for work in some specialist fields. In medicine, too, neurosurgeons charge more for work than GPs do. Things that are more important cost more."
Confidentiality is becoming a critical issue in outsourcing translation, and many clients (none more so than law offices) commonly ask translation suppliers to sign formal confidentiality agreements. When outsourcing to an agent, it is prudent for the client to ensure that the agent has similar agreements in place with its staff and any external translators working on the job.
Hiring an interpreter
The major demand from law offices in Japan for interpreting services is for depositions of Japanese witnesses, pretrial conferences with clients and court hearings. In an ideal world, an interpreter agency would assign the most suitable interpreter (with the right level of experience and specialized knowledge) to the job. The reality is that often they assign whoever is available.
Deposition and court interpreting is a very special kind of precision work and demands a level of experience and concentration beyond that required for many business meetings and commercial situations. So much depends on the tone of the delivery and the demeanor of the interpreter. This is the closest an interpreter will ever get to acting, and they had better get their lines right. The adversarial nature of litigation also means that this type of interpreting is not for the young, the fainthearted or the inexperienced.
Karen Hagberg has just returned to the New York office of Morrison & Foerster after a five-year stint as a litigation partner in the firm's Tokyo office. Representing Japanese companies in U.S. litigation and disputes is a major part of the firm's practice in Japan, and the office presently boasts 10 resident litigation lawyers. Hagberg defines her criteria for a competent deposition interpreter in the following terms:
"For purposes of interpreting at depositions, it is critical that the interpreter have complete fluency in both English and Japanese. At a deposition taken in connection with a U.S. lawsuit, the entire deposition transcript has to be considered as potential testimony at trial. The interpreter's Japanese-language skills are very important to ensure that the Japanese witness completely understands the specific question being asked. However, the ability to interpret the witness's answer from Japanese into coherent, 'native sounding' English is certainly just as, if not more, critical.
"If the case for which the deposition is being taken goes to trial, it is the English version of the 'testimony' that will be read to the judge and the jury if the witness is not present at the trial. And it is from this testimony that the fact-finder will draw his or her impressions of the witness. In addition, lawyers often use deposition testimony to support important pretrial motions. A clear, polished rendition of the testimony is essential if it is to be of any use in those motions.
"Depositions are also contentious proceedings very often, and, unfortunately, even the interpreter may become the target of the attending counsel's wrath. Accordingly, it helps to have an interpreter who has experienced the atmosphere of the deposition room and won't be intimidated if voices are raised or interpretations challenged, which is often the case."
One pitfall for both the hiring lawyer and the deposition interpreter is that there are some gaps in the ground rules. There have been cases, for example, where the opposing counsel has taken advantage of the fact that the same interpreter worked on both the preparation of a witness and his or her deposition. The counsel was able to charge that the interpreter was an advocate, and so filed for dismissal of the case. Prudence would suggest using different interpreters for these separate tasks.
Deposition interpreters command rates of between \100,000 and \120,000 per eight-hour day. In Japan, interpreters usually work in teams of two for lead interpreting (of the interrogatives by the examining counsel and the replies of the witness). One interpreter is sufficient for check interpreting (of the opposing side and raising objections to omissions or inaccuracies). Remember, interpreters have only their time to sell, so cancellation fees are standard.
Inherent linguistic difficulties
The Japanese language does not mark gender or number and frequently allows for elision of subjects and objects in a sentence. Dick Eastman, a Tokyo-based lawyer with extensive experience in dispute resolution between the U.S. and Japan, points to the legal consequences of this practice.
"In using testimony and documents in Japanese as evidence in litigation in America, issues of proper translation can be aggravating. For instance, Japanese often omit the subject of a sentence. Most of the time, the meaning is clear enough from the context, but in litigation, opposing sides naturally will want to argue for opposing interpretations," he explains. "Therefore, it is important to use interpreters and translators who will have credibility with the court."
Jorge Luis Borge once remarked: "The original is unfaithful to the translation." If, as a client, you perceive ambiguity in a translation or interpretation from Japanese, don't immediately shoot the piano player. The translator or interpreter may well have performed a minor miracle in rendering sensible a statement or argument that was barely comprehensible in the source language.
Bruce Holcombe is a conference interpreter specializing in litigation and is the principal of Lexis, Inc., a Tokyo-based niche provider of language services to law offices and financial institutions.