Forensic linguistics in German criminal procedure

The latest edition of Language and Law/Linguagem e Direito is a special issue arising from a one day symposium looking at the way expert evidence is handled in different jurisdictions.

It contains an article by Sabine Ehrhardt of the Bundeskriminalamt looking at how forensic linguistic evidence and experts are handled in the German criminal court system. Forensic Linguistics in German law enforcement.

The main emphasis is on a case where forensic linguistics evidence was required to analyse text messages sent to the victim’s mother before and after the victim’s disappearance, answering the question: no body has been found, but did her husband kill her and fake the circumstances of her disappearance? The case was based on circumstantial evidence, of which the text messages were only part.

It was striking but perhaps not surprising that in the 200-page summary of the judgment, the judge seems to have completely misunderstood some of the expert’s arguments. The article queries whether German lawyers receive enough training in forensic linguistics.

Incidentally, the English of the article was good, but I really dislike the translation of Nebenklägerin – taken straight from Dietl – as joint plaintiff. My suggestion is private co-prosecutor. This refers to the role of the victim’s mother. I know the German “Kläger(in)” is closer to plaintiff than prosecutor, but it seems odd in a criminal court. – Romain has additional private prosecutor, which is better, although it seems to suggest that there are multiple private prosecutors, unless you put commas in.

‘Shall’ in English contracts

I recently heard a webinar by Christin Dallmann and Richard Delaney on translation problems in contract law. I highly recommend these webinars. It reminded me of that old chestnut: do we use ‘shall’ in a contract (when drafting or translating)?

Richard Delaney has now written a guest post on the use of ‘shall’ in Kevin Lossner’s Translation Tribulations blog, https://www.translationtribulations.com/2021/05/richard-delaney-on-shall.html. Kevin writes that this text was originally part of a social media discussion, but I don’t know where that was and didn’t see it. I am not going to argue point-by-point with Richard’s summary, just set out my own.

I think the mandatory verb in a contract can be shall, will or must. It ought to be used exclusively (some English contracts mix shall and will). I do not think the choice of verb form is likely to confuse any reader. The reader will realize that the verb imposes an obligation.

I posted on this on March 1 2013, since when I have surely changed my mind in some ways.
Shall I or shan’t I? Shall, must and the plain language brigade. The comments are interesting though.

Thornton on legislative drafting is relevant too, although it’s about legislation, not contracts.

  1. I use shall in the imperative or mandatory sense when I translate from the German (as Richard does). I use it even when it is not clear from the German original who the duty is imposed on.

One of the commenters on Kevin’s blog, Stephen Rifkin, writes:


According to the legal experts I have consulted in books and person, “shall” is very simple – legal obligation. A body, personal or legal, can have an obligation. Therefore, it is correct to say: The Tenant shall pay the rent on the 1st of the month but incorrect to say that “The rent shall be paid on the 1st of the month.”

I understand his point, but I would use shall here too, despite the lack of a subject. It does annoy me when German contracts appear to impose duties without indicating who is responsible, but I wonder what the alternative translation would be – varying the verb when the German doesn’t?

One objection to shall I have read recently is that since it is used in a variety of ways, it is more confusing than must for non-native speakers of English who nevertheless have to make do with English translations (rather than Arabic or whatever). That seems possible.

As often mentioned, Bryan Garner is an advocate of avoiding shall altogether (in original English contracts, of course). I think he got this from a movement in Australia and Canada. He lists something like 16 uses of shall, most of them unsatisfactory.

Writers who advocate plain English in law also condemn shall. One argument I’ve read is that if shall is used in different ways within one contract, a court might query whether it has a mandatory meaning at all. I would certain advise against using shall in more than one sense (for example, ‘If the landlord shall…’). Of course, I am not drafting a contract, but always translating a contract where the German version is defined as binding, so I doubt that a messily translated contract would be challenged in court, but you never know.

  1. Instead of shall, will can be used. If either party will do something, this is a promise by a party to the contract that has a binding effect. Some English contracts I have seen use both will and shall, for example, ‘the insurer will’ and ‘the insured shall’. This mixture is likely to confuse readers and so it is better to use either one or the other consistently when translating into English. Geoffrey Leech, see below, calls it a ‘quasi-imperative’.
  2. A third possibility is must. This is perfectly possible and avoids any unclarity. My only objection is that it sounds a bit unnatural to me.
  3. English grammar books not specifically about legal texts: when I first wrote about the use of shall, will and must for legal translation students, I was also teaching English grammar to a wider group. My understanding of English verb forms – tenses and modals – was based on the second edition of Geoffrey Leech’s book ‘Meaning and the English Verb’. I can’t agree with some writers who describe will and shall as ‘simple future’, because both verbs have a variety of uses and there is no simple future.

I will quote the third edition of Leech on will in contracts.

There is a difference between the will of insistence above and a QUASI-IMPERATIVE will found with second- and third-person subects: You will do as I say. The Duty Officer will report for duty at 0700 hours. This will is a stronger equivalent of must, and expre000sses the will of the originator of the message, rather than of the subject. It also differs from the will of insistence in that it is not strongly stressed. The quasi-imperative will seems to be a special use of the future will of ‘prediction’, the implication being that the speaker or writer has so much authority over the addressee that failure to perform the predicted action is out of the question. Hence it has military and despotic associations.

The verbs shall and will can be used to refer to the future but also as modal verbs (there is some overlap between future and modal uses). There is no ‘simple future’. For example, the German ‘morgen fahre ich nach Hause’ is not translated as ‘I will go home tomorrow’, but usually as ‘I am going home tomorrow’. ‘I will go home tomorrow’ might be said at the moment of decision or as a promise. Without going into more detail, in a contract I have always seen ‘The insurer will…reimburse’ as a promise made in a contract and therefore binding. (But Geoffrey Leech calls it ‘quasi-imperative’, see above).
When giving examples of usage, it is a good idea to stick to the affirmative use, excluding negatives and questions, which only confuse the description.

And on shall:
RULES AND REGULATIONS (with second-person or third-person subjects)
A player who bids incorrectly shall forfeit fifty points {rules of a card game. The hood shall be of scarlet cloth, with a silk lining of the colour of the faculty {rules for academic dress}.
This usage is found only in legal or quasi-legal documents. Here shall could be replaced by must (=’obligation’), or by the ‘quasi-imperative’ will.

  1. Use of present tense in German contracts.
    Something Richard Delaney mentioned in the webinar that I have never commented on but that is a constant problem is that the present tense in German contracts is usually used to mean an obligation, but it can also be a statement of fact.

Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed. 2011

The All Party Parliamentary Group on Modern Languages

I mentioned recently a tweet from Prof Jo Delahunty QC:

Twitter help plz?HoL session nxt wk on legal interpreting:can u think of legal terms/turn of speech that r unintelligible even 2 lawyers?

 

I couldn’t work out what House of Lords session this might be, but a colleague has told me it was a closed meeting of the All Party parliamentary Group on Modern Languages. This group was started by Baroness Coussins and is now chaired by Baroness Nia Griffith. I am not even sure whether the House of Lords committee meeting was today or yesterday. It has concerned itself a lot with the farming out of interpreting and translation services. It was started because Jean Coussins was concerned about the decline in modern language teaching in schools. The committee has branched out into all areas where modern languages are an issue.

To quote the British Council Site:

The APPG’s stated purpose is to:

  • explore the educational, skills-related, employment, competitive and cultural benefits of learning and using languages throughout the UK

  • provide a parliamentary forum for information exchange and consultation

  • encourage and support policies and action improving the take-up of languages in schools, further and higher education, in the workplace and in the community.

.

Language that even judges don’t understand, sought on Twitter

A tweet yesterday from Prof Jo Delahunty QC:

Twitter help plz?HoL session nxt wk on legal interpreting:can u think of legal terms/turn of speech that r unintelligible even 2 lawyers?

Suggestions posted there:

Scottish law reports and odd use of Latin.
Any use of Latin
‘We are sitting on x day’ – do clients think we distinguish between standing up or not

‘Conference’ instead of meeting.

‘Shall remain in place until after c has left the jurisdiction’ but c can’t leave the jurisdiction if it’s still in place

Ex tempore, de minimis cd. esily be expressed in English.

Subtle judicial putdowns.

‘Miss X’s ambitious submission…’

‘Bold’. ambitious slightly more bitchy than bold.

Notwithstanding

In the alternative

Home Office unable to understand that ‘within 14 days’ means a fortnight – they think it means 3 months or so.

‘Proportionality’ in costs: mine are proportionate, yours are extortionate.

Double negatives and putting stuff in the passive – done to communicate nuance, but hardly plain English.

‘Forthwith’ – if you mean RIGHT NOW say so!

‘I listened to smultran of a ECJ hearing and the interpreter gave the exact opposite meaning for one word.’

Frequently words that have specific legal meaning or use but are in daily palance that cause bother, e.g. ‘robbing’.

Assault – conversion – occasioning – blackmail. I ‘submit’

And our insistence on using fancy words like ‘vernacular’ or ‘particularise’ or ‘traverse’.

Disguised compliance.

Mutatis mutandis

I don’t know if these examples are meant to be things difficult for interpreters, or for readers who aren’t lawyers.They are presumably what barristers think are confusing.

This kind of language is used by German lawyers too. I don’t find it particularly difficult to undestand becasue I think I switch my mind to that register. But I am not sure about ‘language that even judges don’t understand’.

 

LATER NOTE

I am told that the House of Lords meeting referred to in the tweet was the All Party Parliamentary Group on Modern Languages, of which a bit more in a later post.

LAWnLinguistics blog on corpus linguistics

I have already given a link to Neil Goldfarb’s weblog LAWnLinguistics – Not about the linguistics of lawns, but that was only in passing. My post then was about Goldfarb’s use of corpus linguistics in an amicus curiae brief to the U.S. Supreme Court.

The latest post, dated today, is Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics. He writes:

On Friday I will be presenting a paper at a conference at Brigham Young University Law School on law and corpus linguistics. Here is the description from the conference website:
‘Building on the 2016 inaugural Law and Corpus Linguistics Conference, the 2017 BYU Law Review Symposium, “Law & Corpus Linguistics” brings together legal scholars from across various substantive areas of scholarship, prominent corpus linguistics scholars, and judges who have employed corpus linguistics analysis in their decisions.’

That’s quite a coincidence because on the same date there is a talk at IALS A Practical Workshop on using Corpus Linguistics for Law by Dr Gianluca Pontrandolfo.

Goldfarb wants to show lawyers how to judge the meaning of words, and Pontrandolfo’s workshop is said to be of interest not only to legal translators but to those analysing legal language for other purposes.

Anyway, the weblog has a great number of interesting links. It was pretty new when I first linked to it.

With thanks to Stan Carey on Twitter.

Language and Law – Linguagem e Direito

I posted about the journal Language and Law / Linguagem e Direito when it first appeared. I forgot to report (from From Words to Deeds blog) that the latest edition is about legal translation. That is, the journal is always about language and law, but not specifically on legal translation. Actually I got part-way through the first article, so this is a rather rushed account.

You can download it here.

The first article, by Karen McAuliffe, ist:
Hidden Translators: the Invisibility of Translators and the Influence of Lawyer-Linguists on the Case Law of the Court of Justice of the European Union. Here’s the abstract:

Abstract. Since the mid-1990s, when Lawrence Venuti published his book The Translator’s Invisibility, there has existed, in the field of literary translation, a debate on the (in)visibility, power and influence of translators on literature and academic theory. This paper shifts that debate to the field of legal translation, focusing on the role of and work done by lawyer-linguists at the Court of Justice of the European Union (ECJ) in terms of their (in)visibility in the process of text production of that court and in the texts themselves. Data presented here demonstrate that, in the ECJ itself, as in other fields, translation tends to be “a largely misunderstood. . . practice” (Venuti, 2008: vii), but that recent shifts in dynamics within that institution are leading to changes in perceptions of translation and more ‘visibility’ for translators in the process of production of that court’s case law, although they remain largely invisible in the context of the texts themselves.
However, the invisibility of translators in this context necessarily leads to a certain amount of power and influence on the texts they produce. Since those texts, in particular judgments of the ECJ, are intended to have force of law and to be applied uniformly throughout the 28 EU member states, that power and influence is not insignificant. This paper analyses some examples of such ‘influence’ on ECJ case law, and thus on EU law more generally. If we are to develop a full and nuanced understanding of the case law of the ECJ, the power of translators should not be ignored.

I was interested in this article, more in what I found out about the ECJ translators than in Venuti (I have got Venuti on my shelf but he has remained there). I had forgotten that French is the main language of the court.

One of the biggest difficulties, cited by almost every lawyer-linguist interviewed, is caused by the fact that those drafting the judgments are working in French, a language which for most is not their mother tongue

The translators tend to be lawyers, and above all lawyers without translation training. The translation they do has the force of law if it is judgments declared to be ‘authentic’, and this distinguishes their work from a lot of other legal translation.

Very few (only three of the 56 interviewed) had any experience of translation prior to working at the Court of Justice. Thus, the translating aspect of the role of lawyer-linguist appears to be one largely learned ‘on the job’. While that does, of course, have benets in terms of developing institutional translation norms and maintaining the consistency of the house style, it also runs the risk that translation ‘guidelines’ are interpreted as hard and fast rules of (ECJ) translation:
“I had no experience of translation prior to coming [to the ECJ], but that makes it easier to follow the rules of translation here, which are quite strict”. (lawyerlinguist)

With regard to the role of translation: a case can be brought before the ECJ in any one of the 24 official languages of the European Union, and each case has an official ‘language of procedure’19. Unlike EU legislation, which is ‘authentic’ in every language version in which it exists, with regard to ECJ judgments only the version of the judgment in the language of procedure is considered to be ‘authentic’. For practical purposes, the ECJ works in a single language: French. When an application is lodged before the Court (in any of the 24 official EU languages), all of the relevant documents are translated into French.

Interestingly, not a single one of the 56 lawyer-linguists interviewed for this paper was content to describe themselves as ‘translators’. Those who did initially refer to themselves as translators immediately qualified their statement by pointing out that as translators of judicial texts, with law degrees, they are “much more than simply translators” and that having a legal qualification “set [them] apart from ‘mere’ translators”.

I haven’t actually finished reading this article yet. But I found it particularly interesting as I was once part of an initiative to get more freelances working for the court. I was sent a huge pack of really interesting information and previous translations. Although I was using the internet and translation memory myself, it appeared that the lawyer linguists had a database of prior texts and EEC/EU documents which was not made available to me, so I spent an awful lot of time searching for and pasting existing English versions of the legislation and case law quoted. I also put a lot of effort into adapting my first translations, which were seen as a paid test, to the style of the materials sent me, and yet precisely that vocabulary was found lacking and was corrected minutely in red ink. I was told by another translator that that is what the court lawyer linguists are like: they give you a hard time until they get used to you. However, the initiative came to an end when the lawyer linguist who was promoting it died unexpectedly in his late forties. It really was not much fun translating because the work was three-quarters searching to find out what others had done. But if the lawyer linguists have not been trained in translation or had practice in it before they are employed, they will have no experience of revising other translators’ work. However, this is just my guess based on very little evidence.

Another article I have skimmed is by Vigier Moreno, F. J. – Teaching the Use of ad hoc Corpora. It’s about the problems of creating corpora for students learning to translate legal texts into their second language, so it’s close to my own experience of teaching legal translation. It’s a down-to-earth account of the subject. It has attached text examples and a useful bibliography.

Forensic linguistics in court

At Language Log, Mark Liberman has a post dated 28.11 and headed Plebgate judgment, in which he reports on his experience as an expert witness, with Peter French appearing for the other side (Mitchell’s).

As is widely known, Andrew Mitchell, the government chief whip, was stopped by police from cycling through a pedestrian entrance in Downing Street and is said to have told the policeman ‘Best you learn your fucking place – you don’t run this fucking government – you’re fucking plebs.’

The language aspect was that there were arguments that the police officer in questio, Toby Rowland, was thought unlikely to invent such an expression, and Mitchell was thought likely to use it.

Mark Liberman had to report on whether the time of the exchange recorded by CCTV cameras was long enough for the words to have been spoken. Both he and Peter French came to the conclusion that the time was long enough. Liberman quotes Archie Bland in The Guardian:

You couldn’t help but be lost in admiration for [Mitting’s] forensic command of the detail: you’d need a memory palace to keep it all straight. And yet it almost all seemed irrelevant. A judgment that took over an hour to read boiled down to the fact that two phonetic experts judged that Mitchell would have had time to say the “toxic phrases”, and that he had told his deputy that he didn’t know what he had said very soon after.

More from the case – full report here – in the Language Log post. Also the commenters get very involved in forms of address in court, starting with whether it was right for Mark to address an English judge as ‘My Lord’.

Europa Centre for Languages

I was surprised to read about

The UK’s only indoor mock European town, complete with market square, café, shops and classroom. Managed by the Languages Adviser for Havering and with a team of highly experience tutors, native speakers and assistants, the Europa Centre offers the public and schools opportunities to develop prior learning or to begin language learning from scratch.

Pictures here. I doubt I could get in to see it, despite my prior learning.

Near Upminster Bridge station, no less.

The Romford Recorder visited the Centre in 2011. Quoting Dan Alliot, the head of the Europa Centre and Havering Languages Advisor:

“When they come inside it is like another world and a lot of them actually go away thinking that they have been to France for the day.”

When I go to Whitechapel I also feel like I’ve been abroad for the day.

If you don’t want a day trip to France and instead fancy a visit to Germany, or Spain, simple flip boards mean that the French town of Haricotville can easily become Rubendorf for Germany or villa Guisante if in Spain.

Why are litigation letters often so dreadful?

Why are litigation letters often so dreadful?

I picked this old article up from a tweet by Jack of Kent (David Allen Green), the author.

It’s reminiscent of the kind of tone I sometimes hit when translating similar correspondence by German lawyers.

The authors of this dreadful correspondence will invariably profess themselves “surprised” or “astonished” (or even “surprised and astonished”). They are “bewildered” and “confused” and sometimes “shocked”. If any of these assertions were literally true then the dispute resolution departments of many law firms must be in a constant state of noisy hyper-ventilation. It would be close to a national medical emergency.

The comments are good too. Anonymous writes:

David,

I am dismayed and surprised to read this post. The allegations are bewildering when they are not misconceived and illiberal.

I await your response within fourteen days.

I wonder if Rupert Haigh’s Oxford Handbook of Legal Correspondence advises this kind of thing.

Corpora for (legal) translators/Textkörper für (juristische) Übersetzer

I did some months ago intend to write something about my experience of using corpora for translation purposes, especially legal translation. (See earlier entry and footnotes by John Kuti there)

At that time, it appeared the free programs I might have recommended had lost their value for me because they had access to fewer corpora.

Then again, one could get fairly similar results with a Google CSE (custom search engine).

I followed a webinar on the topic last year, and it ended with a contribution by Juliette Scott, who is a legal translator who is doing a Ph.D. on the subject. She now has a weblog, called Translation & the Law: from words to deeds, which is certainly a good place to find out more.

There was also a blog post by Kevin Lossner in Translation Tribulations, entitled A NIFTY method for legal terminology (I thought NIFTY was a play on NIMBY, but I found out it is the name Juliette Scott gives her method) – Here you will find the links to use if you want to help in Juliette’s research/find out more.

From a real-life seminar in London a couple of years ago I also have a most wonderful and useful book on the subject of corpora; Working with Specialized Language: A practical guide to using corpora” by Lynne Bowker and Jennifer Pearson (dated 2002 but still useful in 2012: you can look inside at amazon)

The basic approach to making a corpus of legal texts is to collect them on the internet or from other sources and convert them all into a format readable by the corpus program. This takes a bit of time. It also raises copyright problems unless you just use it for your own purposes. This was the problem with the free software BootCat, which had lost the right to use certain sources from the Web. The free software AntConc is for a later stage of the process.

Here’s an article by Michael Wilkinson: Compiling Corpora for Use as Translation Resources

I did have some rapid success in one field of legal English late last year. I sometimes translate lawyers’ websites and also extracts from directories in which law firms are described in glowing terms. Here’s an example from a firm I have nothing to do with:

CMS Hasche Sigle
Aufbruch in eine neue Zeit – und zwar mit Schwung. Unter dieses Motto könnte man das vergangene Jahr bei CMS stellen. Schon lange gehört die Kanzlei in Hamburg zu den führenden Adressen, jedoch monierten Wettbewerber, CMS sei zu breit aufgestellt, um im Markt wirklich hervorzustechen.
Diese Zeiten gehen zu Ende: V.a. die M&A-Praxis hat zuletzt einen deutlichen Schub erhalten und sorgte für Schlagzeilen, als ein Hamburger Team zusammen mit dem internationalen CMS-Verbund Takeda bei dem €10 Mrd schweren Erwerb von Nycomed beriet. Dies spiegelte sich auch im Markt wider, die Gruppe erntete in diesem Jahr spürbar mehr Lob. Gemeinsam mit Dr. Marc Riede betreute er zudem die HSH bei der Restrukturierung von Hapag-Lloyd.

It’s quite easy to collect this kind of thing in English from UK, USA and other sites and to search it for useful expressions. I might find more ideas for words like betreuen.

But I still have the feeling that a corpus would not help me with most legal translations, because I am not trying to create a text that looks like it was written in English about English law, but one that is clearly about a foreign legal system. If I created a collection of contracts, for example, every potential match of phrase would need to be checked legally to see if it meant the same thing. I have the feeling that I’d love to computerize my vocabulary work, but it would then bypass my own brain and experience.