Here we go again. I’ve written before in this space that, yes, counsel, you do have to translate that thing.
But resistance keeps coming up in the legal community: “oh, come on, the defendant lived in Chicago* for twelve years– the guy speaks English!”
Perhaps, but he lives in Germany now, and you’re serving him there. Germany requires translation into German, without regard to the defendant’s competence in English.
(Yet they continue to push.)
Look– it’s not about the fellow you’re serving, folks. It’s about the rules. It’s about foreign sovereignty and the right to control legal procedure within that sovereign’s borders. It’s about Germany’s accession to the Hague Service Convention, which includes a requirement that all documents served in Germany be (1) in German, or (2) accompanied by a German translation. Period. There’s no “however…” in the declaration.
Why is that? Well, remember that in civil law jurisdictions, serving process is the responsibility of the court— not of the plaintiff– which means the documents are going to cross the desks of several court employees and other government bureaucrats, each of whom has a responsibility to ensure that proper documents are served in a proper manner. But if they can’t understand what’s in those documents, the manner doesn’t matter. Here in the common law realm, a process server doesn’t give a fiddly fig about what’s in the documents. Not so in the civil.
It’s a policy question– those foreign bureaucrats cannot possibly do their job properly if we American & Canadian lawyers don’t do ours properly. And even at that, think farther down the road– if enforcement in that foreign country might eventually be an issue, the judge hearing the case will surely want the originating documents in his/her own language.
Another tidbit that creeps into the conversation when I’m explaining to clients that translation is necessary: “well, can’t I just translate the summons and complaint, but leave the exhibits in English?”
Exhibits are part of the complaint, so to keep translation costs down, keep the pleadings short. Lawyers don’t get paid by the word… but translators do.
But translate every word, every page. If it has to be handed to the defendant, it has to be translated.
In short, to borrow a tagline from a little shoe store in Oregon… JUST DO IT.
* Some trivia here. What is the second largest Polish city? Chicago, Illinois. Or so they tell me. It may be urban legend, but it’s fun, and although I haven’t been to Gdansk or Cracow or Warsaw, I know I can get great kielbasa in the Windy City. One of my best friends is descended from the characters in Sinclair’s The Jungle. She grew up following the White Sox. All Southside, all Polish, all the time! In Poland, though, Hague translation requirements are a bit less stringent than in Germany: you don’t have to submit a Polish translation of English documents if the defendant accepts them voluntarily. But here’s the looming question: if that defendant is going to just accept the documents, why wouldn’t he just save everybody the trouble and simply waive? It bears repeating– JUST DO IT.