Category Archives: translation

Case law/Rechtsprechung

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This came up on a legal translators’ mailing list, and I can’t resist blogging it.

Apparently it has been argued that the German word Rechtsprechung should not be translated as case law, because the term case law implies the whole common-law system of judicial precedent, and German law has nothing like that. (This is an imprecise quotation: the suggestion was said to be that it is inappropriate to refer to court decisions of countries like Germany and Austria, which emphasize codification, as case law).

I disagree with this: there are differences between the importance of cases in German and English law, but the term case law can still apply to both. And it is applied to both, for instance by Markesinis, by Raymond Youngs, by other writers on German law. A search on German case law in Google Books will produce many examples, some of them good. Markesinis uses precedent too. That is probably a clearer term for non-English speakers, but it certainly does not suggest that cases are not law in Germany.

Anyway, the upshot is that for me, German Rechtsprechung and English case law are close enough to allow the translation. The translation of legal terminology often hinges on how close the translator finds two legal institutions. (I don’t translate Rechtsanwalt as solicitor, unlike many, because I think it’s too narrow – I prefer attorney, even though the term may be seen as historical or American).

Incidentally, German case law was relied on by judges when the Civil Code was first introduced: it was not a blank slate or Stunde Null as far as civil law was concerned. Cases are used to fill gaps in codes and statutes, and in some cases this happens by the legislature’s design. Commentaries on codes and statutes are full of references to cases. Of course, a court is not obliged to be bound, but it often will follow cases. The Federal Constitutional Court binds itself too.

The source of the opinion, which some other legal translators agree with, was a seminar by Russell Miller preceding the current ATA conference in Denver. Here is the summary:

Contending Legal Traditions in German Law
Russell Miller
(Wednesday, 9:00am-12:00pm; All Levels; Presented in: English)

The law is an inherent part of legal translation. With this truism in mind, this seminar aims to introduce German-language translators who work with legal translations to some of the traditions vying for influence in German law and legal culture, particularly the civil law tradition and the constitutional law tradition. It is hoped that a better grasp of the spirit and substance of German law will improve and enrich the work of translators dealing with German legal materials.

I wish I could have been there – it must have been interesting. Has anyone got some materials? Russell Miller is well qualified in German and US law, but one can still disagree on terminology.

Here is a quotation from a book on Google Books by Martin Vranken, admittedly a Belgian, who teaches at Melbourne University, which illustrates a use of case law which I find perfectly acceptable and which is common:

…the dogmatics of the BGB has not prevented the German law of tort being shaped heavily by case law. …the courts use Para 823, I BGB as the legal basis for important developments in tort law.

Incidentally, one of the suggestions for an alternative given on the mailing list was jurisprudence. It’s in the title of ‘The Constitutional Jurisprudence of the Federal Republic of Germany’ by Donald P. Kommers. And I’ve now seen it used in the German Law Journal. There’s an article there by Antonio K. Esposito and Christoph J.M. Safferling entitled Report – Recent Case Law (sic) of the Bundesgerichtshof (Federal Court of Justice) in Strafsachen (Criminal Law). The first sentence is:

Reporting on one year of the Bundesgerichtshof’s (BGH – Federal Court of Justice)
jurisprudence in criminal affairs is always a delicate matter.

I find this use of jurisprudence really weird. To me it means legal scholarship – Rechtswissenschaft. It seems it may have come via Lousiana.

Alternatives to case law, for those who object, are: court decisions, judicial decisions. Adjudication was also suggested.

Changes at register office/Änderungen beim Standesamt

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I wrote about the types of German birth certificate in 2005.

The practice of German register offices changed on January 1 2009.

Here is my earlier summary with the changes:

Geburtsschein (minimum details) – now gekürzte Geburtsurkunde
Geburtsurkunde (most details) – now Geburtsurkunde
Abstammungsurkunde (most details – including natural parents) – now beglaubigter Geburtsregisterausdruck

This shows that you can usually translate both Geburtsurkunde and Abstammungsurkunde as birth certificate, but there will be circumstances in which you need to distinguish them and can add ‘showing natural parents’.

Another problem I mentioned then was that some Geburtsurkunden say ‘mit der Abstammungsurkunde identisch’. This means that if you want to get married, you can use the certificate as evidence of your biological parents.

At least the translation is straightforward: we now have a short birth certificate, a (full) birth certificate (to use the UK terms) and a certified extract from the register of births.

There are more changes to the system. There is no longer a Familienbuch, but an Eheregister. I haven’t read these up in detail, but here is some information from Braunschweig.

Webinar on legal translation/Webinar zu juristischer Übersetzung

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eCPD is a company formed this year to provide webinars for translators.

That means an internet seminar for continuous professional development (which the ITI is propagating) that you can follow on your own computer. If you miss the date but have registered, you can hear it online later.

They have a webinar on specializing in legal translation on October 28. The ‘speaker’ (?) is Ricardo Martinez, of the City University of London, who will be giving examples on English and into French and Spanish.

Register here.

This webinar will provide the audience with an overview of the field of legal translation, focusing on the following aspects:
• Why legal translation as a specialisation?
• How to get into the legal translation field
• Disparity between Anglo-American Law / Continental Law
• Types of documents usually translated and some basic vocabulary (examples translated into French and Spanish)
• Main features of legal English
• Some practical problems in legal translation
Practical advice for the budding legal translator.

Speaker: Ricardo Martinez of City University, London
Ricardo has been translating, interpreting and lecturing since 1990, both in the UK and Spain. As an Intérprete Jurado he specialises in the legal and financial fields. He has expanded his areas of expertise throughout the years to other fields such as journalism, TV, tourism, engineering, software localisation and IT. As a lecturer he has taught at the Escuela de Traductores e Intérpretes in Madrid in the 1990s and is currently responsible for the English-Spanish language pair of the Legal Translation MA at City University.
Cost: £15

(This has long since been blogged by Philippa Hammond, but I missed it).

Translation problems in murder trial/Übersetzungsprobleme in Mordverhandlung

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Steve at languagehat takes up an article by Janet Malcolm in the New Yorker (abstract available here, full article only on subscription). The subject is a murder trial requiring written translation of an audiotape in Russian and Bukhori (a dialect of Persian spoken by the Bukharian Jews in Central Asia). It seems that the audiotape was difficult to hear and the translator made a number of errors, although there isn’t enough evidence as to why. The biggest misunderstanding was very favourable to the prosecution – one person to another, travelling in a car, saying ‘Are you getting off?’ but translated as ‘Are you going to make me happy?’ – the verb used is described as odd by commenters to the languagehat entry, and was apparently hard to hear anyway.

I haven’t got the full article, but I find some curious features:

One can imagine the translator’s own happiness when he heard those lines—and Leventhal’s when he read them in the transcript.

Leventhal was the main prosecutor. I don’t know why the translator would be happy.

We go through life mishearing and misseeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative.

This raises a number of questions. The prosecution should certainly not be playing for high stakes if this means getting a conviction on the basis of one translated sentence – they would have to have a lot more to convince them. Prosecution should not be about convicting people at all costs. And if two people are in a car, then ‘Are you getting off?’ is not exactly a tale told by an idiot that needs to be reconstrued to make sense.

(I’ve read at least three books by Janet Malcolm, all of which were excellent – most recently ‘Two Lives – Gertrude and Alice’, but here I have not enough to go on).

LATER NOTE (and spoiler): I did actually get the whole article. It’s extremely interesting and is mainly a psychological study of what we know of people in court cases. It’s clear there will be an appeal. The problem with the audiotape transcription strongly suggests this was unreliable evidence, but in the context of the whole, it appears just one piece in the mosaic. One has the impression that the trial was unfair to the defendants and to the defence counsel, but nevertheless that the defendant Borukhova may have been correctly convicted.

Translating foreign-language litigation documents/Übersetzung für Gerichtsverhandlungen

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An article by Erik Sherman at law. com, Don’t Let Litigation Get Lost in Translation
Can language conversion software cut cross-border litigation bills?

discusses the problems for a litigation lawyer of dealing with a huge amount of foreign-language material. One has heard tales of US lawyers being presented with truckloads of papers at the discovery stage (Offenlegung).

The conclusions seem to be:

Use machine translation (MT) to get a rough idea of which documents might be worth translating

The article mentions free software and implies that there are other systems. It doesn’t mention the possibility, if you often work with a particular language, of ‘training’ an in-house MT system to translate certain terms in a certain way, to expect legal terminology rather than general terminology and so on. Nor does it mention the problems of optical character recognition (OCR) if the documents are poor faxes. They may even be handwritten. If documents are not in electronic form, you might need to call in a translator to help you sift them. I remember Steve Vitek‘s stories of helping lawyers sort through Japanese patents.

If you need to keep an eye out for keywords, get a translator to identify them in the foreign language, since if they are inconsistently MTd, you may overlook them in English.

Get important documents translated by a human translator

For languages using a different alphabet or writing system, get a translator to identify possible software problems in advance

If you have to use several human translators, use a computer-aided translation system (CAT – translation memory) or at least a glossary to keep them consistent on the main terminology

Don’t let your lawyers change to a foreign language to discuss sensitive issues in the hope that the other side won’t notice what you’re up to

A law firm’s translation department should know a lot of this already. But maybe there are fewer translation departments in the USA.

The article doesn’t go into detail on what law firms need to know, for instance when it obliquely refers to CAT.

Once down to the critical documents, it’s time for human translation. But even here, translation technology plays an important role. Not only can it help jump-start an experienced translator’s efforts, but it can also enforce important uniformity of translation. “A lot of words are subject to multiple interpretations, so what can happen is that you can have two duplicates that have been translated differently, and it can have consequences,” says Constantine Cannon’s Solow. The more translators working on a matter, the greater the chance for variability in translation. Professional translation tools can “learn” specific translation choices and then present them as preferred options to any translator on the team. The translators then feed refined translations back into the tools, increasing the speed of the entire process. And suddenly, you’re ready for court before you can count un, deux, trois.

Sounds great. I incline more to quatre-vingts-dix myself.

I would add to the above: if you have a good translator who knows about software, don’t underestimate their value to you.

This is a weird statement:

The problem of trusting a translation becomes even more critical when dealing with many Asian languages, in which a single character can represent a complex concept. “One of those characters could have hundreds, maybe even thousands of meanings,” says Duncan McCampbell, president of international business consultancy McCampbell Global and a former litigator. “There are characters in Chinese [for example] that have no equivalent in English.”

(Via MA Translation Studies News)

Federal Court of Justice on translators’ fees/Bundesgerichtshof zu Erfolgshonoraren für Übersetzer

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The German Federal Court of Justice (Bundesgerichtshof) has pronounced judgment in a case relating to a literary translator’s fee. It has sent the case back for retrial, so the decision in this specific case is outstanding, but in principle it supports the plaintiff.

The BGH press release in German is available at the court site and is reprinted in the Börsenblatt. In buchreport there was an article on the background.

The translator in question translated two novels from English into German in 2001 (the German Copyright Act was changed in 2002). She was paid the fifteen euros per page customary in the business at that time. She assigned all her rights of use to the publisher – in Germany, you can’t assign copyright, but you can assign the rights of use of the copyright, which boils down to the same thing here. She therefore did not share in the profits.

The court held that in principle the plaintiff can require the publisher agree to alter her contract. At the time it was entered into, it was customary for fifteen euros per page to be paid. But the intention of the Act was that a translator should have a reasonable share in the profits made on every business use of the translation (presumably this is wider than just print media), for at that time it could not be foreseen that for the period of copyright – until seventy years after the plaintiff’s death – there would be so little profit that fifteen euros a page was a reasonable payment.