Liability Protection
Thread poster: lsheets98

lsheets98  Identity Verified
United States
Local time: 19:38
Spanish to English
May 7, 2013

Hello all,
A colleague and I are thinking of starting an LLC to do translation for a larger company. My question is, what sorts of liability protections should we also be obtaining to keep ourselves safe legally? Those of you in an LLC, or independent contractors, how do you legally ensure that you will be protected in case of a lawsuit. I know that in some cases companies can be held "liable" even by simple association with a publication, and we want to protect ourselves accordingly.


 

Henry Hinds  Identity Verified
United States
Local time: 17:38
English to Spanish
+ ...
Not Needed May 7, 2013

For years, every time this subject comes up I have asked if anyone here actually knows of a documented case in which a translator has been sued for professional liability. So far I have received no such information, That would tell me that liability protection is not needed.

I ask again: Does anyone know of such a case?


 

Sheila Wilson  Identity Verified
Spain
Local time: 00:38
Member (2007)
English
+ ...
A warning May 7, 2013

I can't really help you but I can tell you that I had insurance for several years before discovering that it only covered the country of issue. At that time, I was living in France and about 50% of my clients were there too, meaning that I had no protection against the other 50%. When I moved to Spain (where I've never had a client), I investigated a little and found the same to be true here.

So, if you do get insurance, make absolutely sure it's going to be effective wherever your client is based.


 

Alex Lago  Identity Verified
Spain
Local time: 01:38
Member (2009)
English to Spanish
+ ...
Did you find one? May 7, 2013

Sheila Wilson wrote:
When I moved to Spain (where I've never had a client), I investigated a little and found the same to be true here.


Hi Sheila, did you find a company in Spain that covers overseas clients?


 

Philippe Etienne  Identity Verified
Spain
Local time: 01:38
Member
English to French
A past post from Tomas May 7, 2013

Alex Lago wrote:

Sheila Wilson wrote:
When I moved to Spain (where I've never had a client), I investigated a little and found the same to be true here.


Hi Sheila, did you find a company in Spain that covers overseas clients?

I recorded the name he gave, but I have never investigated further...
http://www.ruizandicoberry.com/

Philippe


 

Sheila Wilson  Identity Verified
Spain
Local time: 00:38
Member (2007)
English
+ ...
I'm not letting it worry me May 7, 2013

Alex Lago wrote:
Hi Sheila, did you find a company in Spain that covers overseas clients?

I'm hampered over here, Alex, by the fact that my Spanish, although improving daily (with 3 hours of classes per week for months, it should be!), is still pretty basic. To be honest, when the first couple said "No way!", I gave up. As Henry says, nobody knows anybody who's actually got any value out of one of these policies, so it's probably just money down the drain anyway (although I wouldn't encourage anyone to cancel their other insurances just because they haven't claimedicon_smile.gif).


 

John Fossey  Identity Verified
Canada
Local time: 17:38
Member (2008)
French to English
Unquantifiable risk for an insurance company May 7, 2013

I was unable to find an insurance company that would cover liability globally such as required for our industry. Part of the problem was that they could not fit the business into any of their categories, as translations can cover any subject and be based in any country - the insurance companies wanted me to limit my business to only certain countries and only certain fields. These were the major global insurance companies, too. Even then they wanted several tens of thousands of dollars per year premium, since they couldn't quantify the risk.

OTOH, the broker told me that a simple limitation of liability clause on contracts and invoices would provide good protection, which I do. I have never had the opportunity to test it out, and have never heard of anyone else doing so either.


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 01:38
English to Polish
+ ...
Contracts May 7, 2013

lsheets98 wrote:

Hello all,
A colleague and I are thinking of starting an LLC to do translation for a larger company. My question is, what sorts of liability protections should we also be obtaining to keep ourselves safe legally? Those of you in an LLC, or independent contractors, how do you legally ensure that you will be protected in case of a lawsuit. I know that in some cases companies can be held "liable" even by simple association with a publication, and we want to protect ourselves accordingly.


Use appropriate contracts. Write it black on white that it is the clients' responsibility to obtain qualified legal advice to make sure that they have all the necessary rights. Add an indemnity clause whereby they indemnify you for anything in connection with a failure to ascertain those rights on their part, especially a culpable failure (i.e. negligence). Throw in another clause whereby the client represents that all the information provided to you is true and has been verified, but don't allow clients to sign indemnities or representations unless and until they've actually done something to verify it rather than merely assuming the responsibility.

Use a damages cap (aggregate liability to more than n euro) and exclude fancy types of damages (e.g. consequential loss of trade volume). Require that the client keep (on the client's responsibility) accurate and appropriately detailed documentation in order and support any claims with appropriate documents, waiving the right to rely on mere presumptions and probabilities in a court of law (you can actually assign burden of proof in a civil contract). This applies especially to documenting any intervention by anybody other than you in the translation you gave to your client. Spell it out that the client shall need to guard an untouched copy and cannot rely on witness statements by the interested parties themselves that no tampering took place, it's all gotta be on paper or no deal.

Require clients to review the translations within specific time-bars, which should not be too long. The incentive to question your translations diminishes when there's no sound basis, and the money has already changed hands. Put more stringent limitations especially on typographic and any typesetting issues (let alone DTP), but remember to ward off claims based on style alone, the feel, the rhythm, the perceived appeal, or any other subjective aesthetics.

Specify the choice of law (remember to make it "without regard to its conflict of law rules") and courts (jurisdiction for the courts of a country and competence/proper venue for the exact judicial district if you care, e.g. the one where you live). Specify any good practice or ethical codes that you want to rely on.

Make complainants (plaintiffs) need to mitigate the damage or loss as a condition of recovery, coupled with a requirement for them to proceed with due professional diligence in pursuing their enterprise and safeguarding their interests. Throw in a reasonable person standard to boot. This should prevent a whole book from being reprinted over a couple of typos, for example. Don't trust courts to be reasonable, though (or at least in the same sense as you understand it); when in doubt, specify the details.

BUT, and this is very important, very little of the above can you do with consumers in the EU. You need to have a separate, lawyer-approved set of general terms and conditions for consumers (among other reasons also so that consumer organisations can't sue you for abusive clauses in your standard contract).

Still hire a lawyer anyway, don't do it yourself.

Henry Hinds wrote:

For years, every time this subject comes up I have asked if anyone here actually knows of a documented case in which a translator has been sued for professional liability. So far I have received no such information, That would tell me that liability protection is not needed.

I ask again: Does anyone know of such a case?


I don't have docket numbers, but translators have lost lawsuits in Poland. Civil lawsuits are a pain, because a court can actually take a client's word that the files presented by the client as exhibits are really the files received from the translator, which is tantamount to a presumption of non-tampering by third parties. Supposedly, a translator lost such a case several years ago because he was unable to prove that in-house people translated some last-minute changes. My Terms of Service include some cheeky language directed at a court for such an event (litigation was my first job after university). There are said to have been some other cases involving error in translation.

Some years ago, there was a different case, one involving a publisher. The translator was not even notified as the agency manned the defence and sent the plaintiff back home: the court did agree that 1) skimping on proofreaders first in connection with 2) reprinting an entire brochure over a typo later was not reasonable and did not entitle the plaintiff to recovery.

Not all courts are reasonable, though, while lawyers do have a known tendency to believe themselves to be keen linguists, so beware. A well-written contract is always helpful, as is asking those of your clients who are lawyers to help you out in connection with some mutual discount. Heck, I've worked in litigation in the past, and I work on contracts all the time now, and I'd still happily give a discount to a fellow lawyer who agreed to look at my contracts in case he or she can spot something I and the other guys couldn't.

Oh, and insurance. Spain is less lucky, but there are supposedly some really good terms for translators in the UK, largely because nobody sues translators in the UK.

[Edited at 2013-05-07 14:42 GMT]


 

Christine Andersen  Identity Verified
Denmark
Local time: 01:38
Member (2003)
Danish to English
+ ...
Much the same applies in Denmark May 8, 2013

Łukasz Gos-Furmankiewicz wrote:
.....
Oh, and insurance. Spain is less lucky, but there are supposedly some really good terms for translators in the UK, largely because nobody sues translators in the UK.

[Edited at 2013-05-07 14:42 GMT]


I have a policy which also covers me for a lot of unpleasant events that I hope will never happen - fire, burglary, computer virus and sickness etc. But it is good to have a policy in case....
It helps to replace books and resources, computer and hardware, and up to a month's earnings under certain conditions if I am unable to work.

Added to that is liability for a good many million Danish Kroner (I can never remember how many, and it's a tidy sum in Euros or other currencies...) if a client sues me. Now you ask, it specifically does not cover claims from the USA, so I think it does cover claims in Europe and possibly other parts of the world.

The broker quoted that a technically tiny translation error could cause a lot of damage in unlucky circumstances - but said he did not know of anyone claiming on that policy. They were usually covered by other arrangements. But it comes in the package...


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 01:38
English to Polish
+ ...
More about that May 8, 2013

Christine Andersen wrote:

The broker quoted that a technically tiny translation error could cause a lot of damage in unlucky circumstances - but said he did not know of anyone claiming on that policy. They were usually covered by other arrangements. But it comes in the package...


Some time ago I saw multibillion litigation that among its many angles involved the precise specifics of "arising out of" or "arising in connection with". A bunch of legal doctrine got translated, but I have no knowledge of anybody going after the translator. It's probably usually understood that people with Arts degrees are not made for panzerdrafting. Such a common understanding isn't a reliable liability shield, though. We've got that thing called 'the crisis' going on, and people are more and more likely to start hanging on to straws.

Equivalence especially between English and anything else is never perfect, and so there's always something to complain about. A defaulting party might put up a smoke-screen that involves reliance on a fancy reading that works only in one of the languages, the non-defaulting party might lose patience, either of them, or even both of them, might go after the translator if they forget the translator doesn't have the kind of money they're after, or if they have some kind of insurance coverage that triggers only after exhausting the legal path, i.e. when they bailiffs say there's nothing left to seize.

Then there's the issue of folly. Courts are still hyped on the 'free evaluation of proof' and can't get over their newfound authority to rule against defendants without fully proving the matter, sometimes even without much of a concrete proof at all. This includes taking the plaintiff's word on the translation being whatever the plaintiff attaches as an exhibit or on no tampering having taken place. Corporate folly might be reluctact to admit that a high-up manager or officer personally amended a couple of things and botched the job, or even an in-house translator did it. Huge money is involved, so motivations other than folly may come into play.

Basically, with enough ill will or stupidity, a translator is quite exposed.


 


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