REUTERS/Yuya Shino

Another tech titan is getting into linguistics services.  The same guys who’re jumping into the grocery biz to dethrone Walmart are launching a new foray into the machine translation (MT) game to dethrone Google Translate.  You guessed it: Amazon, according to a CNBC report earlier this summer, hopes to  take on the fellows in Mountain View with a tricked out version of the Safaba platform, which it acquired two years ago.

To which I offer a very loud and emphatic… big deal.  It still doesn’t mean MT is a good idea in legal pleadings.

[Fellow lawyers, bear with me.  We’ll get to you soon, I promise.]

I’m sure the Bezosians are totally stoked about their soon-to-be launched product offering.  If it’s like most of the other Amazon stuff I subscribe to (Prime, anyone?), it will be awfully handy.*  If Amazon’s translator works as well as everybody expects from a Jeff “Midas” Bezos creation, I’ll probably use it just as much as I use Google Translate– which is to say, quite a bit.  My usage, though, will be for finding specific words, a thesaurus of sorts, and French accent marks that I can’t remember how to “hot key”.  Often, I’ll use it to get the gist of something in a language I don’t speak, but never to gain a complete translation.

The language services industry is justifiably scared– I found out about the CNBC story because a friend of mine in the business posted a Slator follow-up article about it on LinkedIn (Slator is an online trade mag for linguists).   Translation providers ought to be frightened of MT for the same reason horse breeders feared Henry Ford’s assembly lines a century ago.  Ford (and other carmakers, of course) reduced the equine industry to a shell of its former self, and MT threatens the same in translation.

But remember what Ford said about the response if he asked his customers what they wanted:  a faster horse.  [Okay, maybe he never said that.  But the underlying idea is absolutely true.]  Ask language service customers what they want right now, and they’ll say “cheaper translation”.  But that’s where the analogy breaks down.  A Model T would still get you from point A to point B– just like your horse could– but without the feed and caring necessary to keep a horse alive even when you weren’t riding it.

Translation is a whole different kettle of fish, especially for attorneys, especially when they have to serve process in a different country.  Here’s why a cheaper translation is not like a faster horse– whether or not you need a stable and so many bushels of oats:

  1. As with any professional service offering, you get what you pay for in a “cheap translation.”  Recall that old litigator’s saw, “cheap, fast, and accurate… pick two” whenever a client demanded more for less.  That happens in translation, too, whether a human is involved or not.  That cheap horse might be really fast for about half a mile, at which point it keels over dead.
  2. Unquestionably, MT is a faster horse than human translation.  Exponentially faster.  And that necessarily makes it cheaper (no care & feeding).  But it doesn’t get you from A to B.  Remember your high school computer teacher’s acronym, “GIGO”?  Garbage in, garbage out.  If your machine doesn’t start with a comprehensive and very accurate vocabulary in both languages, you will get a garbage translation.  Good luck enforcing your U.S. judgment when a Japanese judge (who spent a year at Stanford in 1991-92) sees that you translated “meeting of the minds” incorrectly.  The machine doesn’t have the sense to stop and look something up (or to pick up the phone and call you to explain an arcane term of art).  It just runs home to Mama and uses the closest thing it can find– like the Japanese word for headbutting.
  3. While you could be confident that a conversation on horseback would be kept between men of an honorable character, a Model T allowed occupants to speak freely and candidly, because nobody could hear them over the engine as they whizzed by going 40.  You can likewise expect a translation provider of honorable character to keep tight-lipped about the pleadings you hand them (they’ll sign a NDA if you ask… and if they won’t, go elsewhere).  But if you use Google Translate or Amazon/Safaba or any number of other MT systems on the web, you may as well just post your pleadings on the firm’s website, because they just became part of the Borg Collective.

Now, to be sure, I won’t be able to say all of this in a few years.  AI (artificial intelligence) is growing by leaps and bounds– and I, for one, will heartily welcome our new robot overlords.  The day will come in the not-too-distant future when MT will come complete with editing and formatting and all of the time-intensive production that is now performed by human translators.

But you as a litigator must still make sure you aren’t just cheaping out.  That Japanese judge is a funny guy, but he’ll kick your enforcement action out of court faster than you can say Akebono.


* The shameless plug portion of our show… I’m a big fan of both Amazon and Google.  Really.  Alexa keeps me entertained with her patient-but-funny answers to my stupid questions, and Google is my cell phone provider (seriously, click here to sign up for Project Fi, and we’ll both score an Andrew Jackson for our trouble).  Amazon and Google get a big chunk of my business & household budgets every month.  Now if I can just convince one of them to build their second headquarters here in Kansas City.

(Start running your geek flags up the pole, folks.)

Transnational Lawyer’s Log, Stardate 23866.2:

An interesting quandary was posed to me recently in an email.

“Aaron, my client was sued in a Klingon court, but was served without a translation into English.  The plaintiff sent the summons by interplanetary mail– and it was only sent in the Klingon language, lacking even a summary of the case in English.  My client is just a yeoman on the USS Intrepid– one of the guys in red shirts who have the sky-high casualty rate– and was involved in a rescue of the inhabitants of the Khitomer outpost attacked by the Romulans.  He doesn’t speak a word of Klingon (the poor kid doesn’t even like Gagh*).  Apparently, a couple of the rescued inhabitants were injured in the operation, so they sued him.  The Klingon court issued a default judgment, and the plaintiffs now seek to enforce the judgment in his home state of Michigan.  Opposing counsel says they didn’t need a translation to make it valid service unless they go through the Central Authority.  Help?”

Well, let’s first establish that Klingon signed onto the Hague Service Convention in the year 2322, twenty-five years before the Khitomer massacre.  They objected to Article 10, and stated a requirement that all Article 5 requests be transmitted along with a full translation into Klingon.**  Michigan has been part of the Convention– via the United States’ ratification– since 1969, well before stardates or the United Federation of Planets were a thing.

Anyway, the young yeoman has some plausible arguments…

  • Number one, I would attack the omission of a translation on a straight-up due process basis.  Technically, opposing counsel is correct in that a translation isn’t required by the U.S. declarations to the Convention– but those declarations also make clear that our courts may choose not to enforce judgments that arise from mailed service that isn’t accompanied by an English translation.
  • Number two, the Klingons don’t allow mail service on their own citizens– they object to Article 10 of the Hague Service Convention in its entirety– so service by mail isn’t valid in either direction.  The poor kid from Michigan can’t serve the Worf family by mail, so nobody from Klingon can do it the other way.
  • Number three (and this is the big one), remember the constitutional standard…   “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. ” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Just because a decision is four hundred years old doesn’t mean we forget about it.  This thing still holds water, even in the 24th century.  And if a defendant doesn’t speak Klingon, the calculation isn’t even remotely reasonable.  It’s laughable.
 Now, I don’t want to go off on a rant here.  I tend to be a bit more Vulcan than my gruff exterior might indicate.  But this is just sloppy lawyering from the Klingon side.  Those guys ought to know better.

 


* Gagh really is more satisfying when eaten live.  It’s a bit disconcerting the first time, but still.  Tasty stuff.

** If you’ve never heard Shakespeare or Dickens in the original Klingon, you’re really missing out.

Poor fellow got stabbed right when things were getting interesting. Coke Smyth, Folger Shakespeare Library Digital Image Collection.

Before he was Bilbo Baggins, Sir Ian Holm brought Polonius to life in Mel Gibson’s 1990 screen adaptation of Hamlet (long before Mel went stone cold nuts, but that’s a different story).  For the uninitiated, Polonius was a loyal advisor to the slain king, very much like a second father to Hamlet the Prince.  Who killed him.

Polonius is my favorite character in the Pantheon of Shakespeare’s personalities– if for no other reason, because of this line:

Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief: your noble son is mad:
Mad call I it; for, to define true madness,
What is’t but to be nothing else but mad?
But let that go.

Brevity is the soul of wit.

My wit often forgets its soul, and I become tedious, much like my other favorite Shakesman, the constable Dogberry from Much Ado About Nothing.*  I am a lawyer, and I fall victim to the Lawyer’s Curse: that we think we’re getting paid by the word.  More words, more money.  Yay, lawyers.

Except, no.  Although we’re not trying to be witty, we don’t get paid by the word.  We get paid by the hour, and even that seems somehow perverse in a profession that prides itself on the best interest of the client.  Translators, on the other hand, do get paid by the word.  So when Germany’s declarations to the Hague Service Convention mandate translation of all documents to be served, it becomes pretty important for plaintiff’s counsel to keep things short, sweet, and to the point.

This is particularly difficult in patent infringement cases, although I have a theory I’d love to see tested.**  Nevertheless, it really is critical to keep the pleadings brief, even in fact-pleading jurisdictions.  Nearly all of our major trading partners require translation of service documents into their own language (the Netherlands and Israel being notable exceptions).

This above all: to thine own client be true.  

Remember that you don’t get paid by the word, but translators do.

Draft accordingly.

*  I still can’t decide whether I enjoyed Michael Keaton‘s or Nathan Fillion‘s Dogberry more.

** Patents are a matter of public record, and they’re accessible at the PTO’s website.  So why must they be attached to a complaint as exhibits rather than incorporated by reference?  I honestly don’t know the answer to that question, and I welcome feedback in the comments below.  Notice pleading (see FRCP 8(a)(2)) requires a short and plain statement of the claim.  Four hundred pages of dense patent language tends to violate that idea.  And those four hundred pages are incredibly costly to translate into Swedish.  Consequently, I argue that they ought to be left out, in order to avoid unnecessary costs.  (I may be wrong, and don’t mind being told so.)

Wright FlyerFor the entire life of my firm, I’ve had a recurring theme in just about every blog I’ve posted:  yes, counsel, you do have to translate that thing.  Translation is almost always unavoidable if you want a realistic chance of collecting a judgment.  But last summer, I offered some tips to limit the cost of translation of documents that have to be served abroad.  The first two bits of advice: keep brevity in mind (easy as pie for lawyers!), and avoid exhibits wherever possible.  Within the past month, these ideas have become particularly important to two separate clients in the very same practice area:  patent infringement.  Problem is, those clients hadn’t heard the advice prior to filing their claims, and it has cost them dearly.  Six figures dearly.

Patent infringement suits frequently involve foreign defendants.  Routinely.  In any sort of lawsuit, when just one defendant has to be served in a non-English-speaking country, especially one that is a member of the Hague Service Convention, the documents to be served must be translated.  Every word, every page, including exhibits, which are naturally part of the complaint they’re attached to.  The defendant may be quite competent in English—he may even be a U.S. citizen or it may be presumed competent simply because it does business in the United States.*

None of that matters, because it’s not about the defendant.  It’s about the foreign officials handling the documents… and those officials don’t sprechen-sie Englisch or parlez-vous anglais.

When even a seemingly short patent is included in the exhibits, the cost to translate goes up considerably.  When two or three patents are involved, the cost is astronomical.  So how do you get around the cost?  Just reference the patents— don’t attach them as exhibits.  They’re a matter of public record, so if your defendant wants to know what a particular paragraph says in a specific patent, it isn’t that hard to look up.

Take the Wright Brothers’ patent for the aeroplane (yes, it’s spelled that way in the filing).  It’s just shy of seven thousand words.  Translate that thing into Chinese, and you’re looking at a $2,000 project, with formatting and editing and proofreading.  The Wright patent is a mere seven pages, omitting drawings.  Today, hundred-page patents are routine.  Extrapolate that into dollars and you see the horror of serving in three different countries, all of whom require a different language other than English.

But if the complaint just says “reference U.S. Patent No. 821,393, page three, line ten”, a whole bunch of resources are saved.

Unfortunately, if you’ve already filed the complaint with the full text, it’s probably too late.  But a bit of forethought prior to drafting can save literally tens of thousands of dollars in costs to serve.

Tens. Of. Thousands.

Who doesn’t want to do that?


* Ahem, “it” being an entity.  Yes, if an entity does business in the United States, it is presumed to be competent in English.  But that isn’t the end of the analysis.  When serving such defendants, their home countries’ declarations to the Hague Service Convention control language issues—not the presumptions of U.S. law.

 

Yes, counsel, you do have to translate that thing—at least, if you’re sending it to a non-English-speaking country.  There are a couple that don’t require translation, but that doesn’t mean it isn’t still necessary.  [Click here to see why.]

That said, getting a translation is not as simple as a Google search to find a guy who speaks Chinese.  Why?  A whole bunch of reasons—all of them potentially fatal to your ultimate goal, which is a check that your client can cash.  Always, always, always, address these issues with your translator, and if s/he doesn’t know what you’re talking about, find a different translator.

We discuss these issues in a two-part series.  Part 1 is here, and details localization and some peculiar differences among languages with the same name.

FORMATTING

Every page, every word, every claim that is handed to the defendant should be formatted to look like the original (the “source document”).  Some examples:

  • The text on page 12 of the complaint should be reflected entirely on page 12 of the translation.
  • If the summons bears a stamp from the 324th Circuit Court for the Middle District of Galveston, and that stamp includes the English phrase “Don’t Mess With Texas” in the upper right hand corner, then your translator should include a reference to the stamp and translate “Don’t Mess With Texas” into the target language, situated in the upper right hand corner.*
  • If handwritten script in an exhibit (yes, those have to be translated as well) is illegible, even in English, then the translator just needs to indicate that the particular text is illegible.  Foreign judges are smart.  They get it.  But if the translator doesn’t address the issue, those foreign judges may rightly assume the questionable text is problematic, rather than illegible.

PRICING

Ten bucks a page is not a deal.  It is a guarantee that the translator is clueless, about either the linguistics or about running his business.  In either case, you could be headed for disaster if you just take the low bid without considering the totality of circumstances.

Most translators price by the word.  If they price by the page, then somebody is losing out– either you’re paying far more than you should, or they’re underbidding the project in a vacuum– in which case see my comment above about cluelessness.

Handy tip: if you send them documents in Word (the Microsoft format), odds are they’ll give you a lower rate per word, because it makes their life a whole bunch easier.

TWELVE VARIATIONS ON A WORD

SNOWThe native tribes of Alaska and northern Canada, if you believe the urban myth, have a hundred words for snow, and each one of them refers to a different type of snow on the dry-wet scale (X-axis) and the light-heavy scale (Y-axis).

But let’s say your complaint deals with a defendant’s use of a patented chemical in paint.  It makes for vivid blues and greens and reds and yellows… but how do you translate the shades of blue?

Azure.  Sapphire.  Turquoise.  Powder blue, baby blue, sky blue, Royal Blue (that would point to the 2015 World Series Champions, thank you), navy blue, midnight blue…

In short, context is key, so don’t be surprised if your translator calls you for clarification on a word that could go six different ways when it morphs into French.

WRAPPING UP

Above all, don’t mess around with this subject, and don’t cheap out on it.  Just don’t.  This is the easiest variable in all of litigation to disaster-proof, and it’s the hardest to explain away when your client asks why he just lost his case.  Hire a reputable company with a track record (or at least a webpage, for crying out loud!), preferably one that hires linguists with the appropriate vocabulary expertise (legal, scientific/engineering, medical, cultural).  Don’t assign the job to Timmy the Mailroom Intern because he spent a semester in Paris, and for crying out loud, DON’T USE GOOGLE TRANSLATE.

Just because you can get a low-cost translation doesn’t mean you should.


Roy Perez, Pitmaster at Kreuz Market
Roy Perez, Pitmaster at Kreuz Market

* In Part 1, I mentioned that Texas Barbecue eschews pork, and that fact makes it automatically inferior to all other forms.  I now stand corrected, because the legendary Kreuz Market has brought swine to Lockhart. The word magnificent doesn’t begin to describe it.

Yes, counsel, you do have to translate that thing—at least, if you’re sending it to a non-English-speaking country.  There are a couple that don’t require translation, but that doesn’t mean it isn’t still necessary.  [Click here to see why.]

That said, getting a translation is not as simple as a Google search to find a guy who speaks Chinese.  Why?  A whole bunch of reasons—all of them potentially fatal to your ultimate goal, which is a check that your client can cash.  Always, always, always, address these issues with your translator, and if s/he doesn’t know what you’re talking about, find a different translator.

We discuss these issues in a two-part series.  Part 2 is here, and addresses physical formatting and money, inter alia.

INTERPRETATION VS. TRANSLATION

Simple distinction:

  • Written words are translated.
  • Spoken words are interpreted.

Full stop.  These are terms of art among linguists.  You’re a lawyer.  You understand.

LOCALIZATION

The destination of your translated documents has significant bearing on the flavor, if you will, of the language you’re translating into.  Geography is everything.  Bear with me here…

There is no such thing as barbecue.*  No, really.

  • There’s Kansas City Barbecue.  This is the superior form—and the subject is not open to debate.  (My blog, my rules.)
  • There’s Memphis Barbecue.  Only slightly inferior to Kansas City.  Memphis had Otis Redding, so we’ll call it a push.
  • There’s Carolina Barbecue.  A questionable technique, in which they use everything but the squeal.  Tasty nonetheless.
  • And there’s Texas Barbecue.  Yeah, their beef’s tasty, but the whole idea is abhorrent in light of the total absence of pork.  This violates the Holy Gospel of St. Arthur**, Chapter 4, Verse 12.

Point is, what constitutes “barbecue” depends on where find yourself (and to be sure, I dig on some Texas ‘Cue).  Like barbecue, languages aren’t neatly pigeonholed into single categories.  After all, look at English.  What we speak in the Midwest (again, superior) is different from that of the American South, Australia, Scotland, New England, Old England…

  • French is fairly standard worldwide, but if your documents are going to Québec, you’re wise to use a Québecois translator to localize the text according to that province’s common vernacular.
  • Dutch isn’t Dutch everywhere.  What they speak in Aruba and what they still speak in Indonesia are different, and the northern part of Belgium, right next door to the Netherlands, uses a specific dialect called Flemish.
  • Portuguese in Portugal… not the same as in Brazil or Macao.
  • How about Spanish?  Ask someone in Mexico City to tell you what a fellow from Barcelona is saying.  In fact, ask the fellow from Mexico City to pronounce Barcelona.  Mexican Spanish is different from Castilian Spanish, in both spoken and written forms.  (The C in Barcelona sounds like a soft “th” in Spain, but like an “s” in Mexico. Bar-thel-OWN-uh, or Bar-sell-OWN-uh.)
  • Chinese… we’ll get to that in a moment.  It’s more involved than a barbecue analogy can illustrate.

For your documents to be well received, you’ll want to localize them for the locality that you’re sending them to.  Not observing this seemingly inconsequential step could raise hackles on the other side.

CORRECT WRITTEN ALPHABET (CHINESE)

The Chinese language has dozens, if not hundreds, of dialects.  Mandarin is the dominant dialectic group used in the People’s Republic of China (PRC), but it is spoken, rather than written.  It’s also the spoken form of Chinese that has become the most common throughout the Chinese-speaking world (and the futuristic ‘verse of Firefly, but I digress).  Mandarin Chinese is not a language to translate into (see interpretation vs. translation above).  Rather…

  • Documents on their way to Taiwan must be translated into TRADITIONAL Chinese.
  • Documents going to the PRC should be translated into SIMPLIFIED Chinese.

What’s the difference?  Well, not much in terms of cost to translate.  But the simplified form is a creature of Chairman Mao’s efforts to consolidate and standardize the language used across all of China.  Its use in Taiwan virtually guarantees that someone will be offended, and may give a Taiwan court an excuse to reject a Letter Rogatory or, eventually, decline to enforce a judgment.

With roles reversed, the PRC is less likely to take offense than Taiwan.  (An analogy: New York Yankee fans are fairly ambivalent when you discuss the Boston Red Sox.  The ire of Sox fans, conversely, burns with the heat of a thousand suns at the mere mention of the Bronx.)  Still, operate according to the destination country’s preference, lest the guy processing your paperwork in Beijing is a Yankee fan who once got beaten up outside Fenway.

Really, everybody speaks Chinese in the future.
Seriously.  Everybody speaks Chinese in the future.

WRAPPING UP

Above all, don’t mess around with this subject, and don’t cheap out on it.  Just don’t.  This is the easiest variable in all of litigation to disaster-proof, and it’s the hardest to explain away when your client asks why he just lost his case.  Hire a reputable company with a track record (or at least a webpage, for crying out loud!), preferably one that hires linguists with the appropriate vocabulary expertise (legal, scientific/engineering, medical, cultural).  Don’t assign the job to Timmy the Mailroom Intern because he spent a semester in Paris, and for crying out loud, DON’T USE GOOGLE TRANSLATE.

Just because you can get a low-cost translation doesn’t mean you should.


* Don’t confuse barbecue with grilling.  Barbecue is low & slow—low temperature over many hours, primarily to make a crappy cut of meat taste good.  Grilling is hot and fast.  Again, these are terms of art.  You’re a lawyer…

**Arthur Bryant has been canonized by the Holy Church of Smoked Meats and is chief among its saints.  Calvin Trillin once called Bryant’s the best restaurant in the world.  He was wrong.  It’s the most wonderful place in the Solar System.

U.S. court, U.S. plaintiff, U.S. defendant… everything about the case is American but one:  the defendant lives in Kaiserslautern.  Or Basel, or Xi’an, or Montreal—pick an overseas city.

When you serve a defendant in another country, you must observe the laws of that country, particularly where the Hague Service Convention applies.  Here’s why:

If the document is to be served under (Article 5), the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.”

— The Hague Service Convention, Article 5(3)

Note the key clause:  “The Central Authority may require…”.

They almost always do.  With the exception of Israel, Italy, and the Netherlands, every Hague member that wasn’t once part of the British Commonwealth (and one that still is) will mandate a translation from English into its own language.  Switzerland and Belgium are even more picky, requiring translation into a particular tongue based on which city the defendant finds himself in.

Even if the Central Authority does not require it, like in Italy or the Netherlands, the court officials and bureaucrats who handle the request down the line may have an affirmative duty to reject the request for lack of translation.

Best practice: eat the cost and do it anyway, because you will save your client a whole bunch of headache—not to mention money—as the case progresses.

The same advice applies to service under Article 10.  Although nothing in the Convention requires a translation for alternative methods, if the defendant is in a jurisdiction that wasn’t once a British colony, there is probably no such thing as a process server.  Service must be effected by a judicial official, so expect some sort of hiccup to set off a chain of events culminating in a dismissal.

And even worse, don’t play around and use Google Translate just to save a few bucks.  I love the thing—the camera function in the Android App is really handy for translating gelato flavors in Rome.  But it is utterly horrible for legal documents.  Do it the right way, and hire someone with the expertise necessary to do it professionally.   [The same can be said for undertaking Hague Service requests on a Do-It-Yourself basis.  Just like that home improvement project you started a year ago—but had to call a plumber to finish—it will cost you and your client more in the long run.  Outsource it!]