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What a judicial expert translator needs to know
Thread poster: Fabio Descalzi

Fabio Descalzi  Identity Verified
Uruguay
Local time: 02:08
Member (2004)
German to Spanish
+ ...
Mar 11, 2011

Dear colleagues,

I am inquiring about expert knowledge in translation, more exactly, in the judicial field.

Expert witnesses, known also as professional witnesses or judicial experts, by virtue of their education, training, skill, or experience, are believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized opinion about an evidence or fact issue within the scope of expertise, referred to as the expert opinion, as an assistance to the fact-finder. Judicial experts may also deliver expert evidence about facts from the domain of their expertise. Where a judicial expert has particular knowledge or skills in an area being examined by the court, and has been called to court in order to elaborate on that area for the benefit of the court, that witness may give evidence of his opinion on that area. (Extracted from Wikipedia).

A judicial expert translator shall be a professional translator, with good knowledge of legal matters and... what else? Would you like to share your knowledge?

Just in case: I am not asking "what does a sworn translator need", but: what does a judicial expert translator need to know, in order to properly fulfil his duty in cases where the very work of a translator is being inquired in a trial.

[Edited at 2011-03-11 18:44 GMT]


 

Henry Hinds  Identity Verified
United States
Local time: 23:08
English to Spanish
+ ...
In a nutshell... Mar 11, 2011

In a nutshell, there is no answer possible. We could probably go on for years and still it would be incomplete.

I am considered to be an expert in translation and certainly in legal translation, which is one of my specialty areas. I have learned everyhing I know through close to 40 years of experience, for there were no educational opportunities available to me in that area.

However, the documents I have translated have always spoken for themselves. Only one time in my career have I ever been called to court to testify on a translation I made, and in that case no one was taking issue with the translation. But it was a murder case and the document I had translated amounted to a confession, so they wanted to have me there to make sure all the bases were covered. The defendant was convicted.

All I can say is that being an expert requires a lot of experience.


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 07:08
French to German
+ ...
One question before I answer yours... Mar 11, 2011

Hello Fabio,
one question before I answer yours... Which kind of trial would you typically be dealing with?


 

Fabio Descalzi  Identity Verified
Uruguay
Local time: 02:08
Member (2004)
German to Spanish
+ ...
TOPIC STARTER
Any translator-relevant matter Mar 11, 2011

Laurent KRAULAND wrote:
Hello Fabio,
one question before I answer yours... Which kind of trial would you typically be dealing with?


Hi Laurent,

Thanks for caring.

Of course, trials can include any complex issues, and that is why judges make use of experts: to tell them "what is this all about". Let's take a practical case: a newspaper publishes a (foreign) piece of news (that has been translated into the country's official language) about an important person; that important person feels slandered and sues the newspaper for that piece of news; then the newspaper must prove that the published information is right, and - you name it: interpretations about the real meaning of the foreign information, its wording, etc. Legalese matters apart, an expert in translation may be called to give his/her expert opinion.


 

Derek Gill Franßen  Identity Verified
Germany
Local time: 07:08
German to English
+ ...
Expert opinion Mar 11, 2011

I tend to agree with Henry that it would be difficult to describe exactly what such an expert witness must know.

I suppose, however, that certifying the correctness of a translation, i.e., what a court certified translator does, is what a "judicial expert translator" must be able to do.

I have actually been called on by the court to submit my written opinion as an expert witness with regard to the translation of a single disputed term in a contract (both parties were German but had concluded an English contract). To do so, I wrote a short paper (substantiated, of course, with the necessary references, i.e., not just "from the hip") about the various possible translations, meanings, and my conclusion on what term would be best suited.

So yes, it can and does happen (albeit rarely), but I would be hard-pressed to list the things an expert witness for translation would have to know. I think that, besides having a lot of experience in translating, one should probably know how to use a dictionary, be able to analyze the meanings of words in context, and write well.

icon_smile.gif

[Edited at 2011-03-11 20:37 GMT]


 

Fabio Descalzi  Identity Verified
Uruguay
Local time: 02:08
Member (2004)
German to Spanish
+ ...
TOPIC STARTER
Being able to... Mar 11, 2011

Derek Gill Franßen wrote:
I tend to agree with Henry that it would be difficult to describe exactly what such an expert witness must know.


Me too. Henry is an experienced translator and a great contributor to these fora. Of course, "the activity of an expert witness" cannot be summarized in just two or three sentences.

Derek Gill Franßen wrote:
So yes, it can and does happen (albeit rarely), but I would be hard-pressed to list the things an expert witness for translation would have to know. I think that, besides being able to translate, one should probably know how to use a dictionary, be able to analyze the meanings of words in context, and write well.


... and would you be able to cite any sort of "jurisprudence for translators"? That would certainly help. You know: lawyers and judges are long used to doctrine and jurisprudence. In our profession, the only "body of law" I can think of, apart from dictionaries, would be books written by translation theory authors.

[Edited at 2011-03-11 20:39 GMT]


 

Derek Gill Franßen  Identity Verified
Germany
Local time: 07:08
German to English
+ ...
There are various ways to substantiate an opinion. Mar 11, 2011

Fabio Descalzi wrote:
... and would you be able to cite any sort of "jurisprudence for translators"? That would certainly help. You know: lawyers and judges are long used to doctrine and jurisprudence. The only "body of law" I can think of, apart from dictionaries, would be books written by translation theory authors.


EDITED: I initially misunderstood your reply.icon_wink.gif

I substantiated my expert opinion in that particular case by citing linguistic reference material, e.g., Black's Law Dictionary (it was a legal term) and various bilingual dictionaries.

icon_smile.gif

[Edited at 2011-03-11 20:49 GMT]


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 07:08
French to German
+ ...
In this particular case... Mar 11, 2011

you are writing about, Fabio, I think it would involve some research to the "best of your knowledge" as both a linguist and a judicial expert. Your expertise could be challenged by the findings of a counter-expertise.
Furthermore, the main point in this trial would be to know (as far as possible) whether the translation of the article about some important person was made according to more or less objective standards or according to the point of view of any political party opposing that important person.


 

Luis Arri Cibils  Identity Verified
Local time: 00:08
Member (2003)
English to Spanish
+ ...
In the US Mar 11, 2011

Hi Fabio,
´
Let me add another twist to your question. In an adversarial legal system such as in the US (as opposed to prosecutorial systems as in many other jurisdictions), as a general rule, expert witnesses are called by the parties, not the court. It is the parties’ prerrogative to call experts in support of their allegations, to convince the trier of facts, generally the jury, but not necessarily, that they are right. The opposing party has the right to call expert witnesses in rebuttal. The experts’ testimony becomes a battle of CVs (and of looks, demeanor, poise, etc.) Thus, what should an expert witness know? As a short answer: more than the opposing side’s expert witness, or at least, he or she should be more impressive/convincing than the other expert.

I was called as an expert witness only once, in federal court, in an international drug trafficking case. I had been the editor of the transcription and translation of several intercepted phone calls. I was also shown, one or two days before my court´s appearance, several videotapes of meetings of the members of the cartel discussing how was best to import the drugs in the US (“sloppy control through this or that port of entry,” etc.). It was really a “reality show”.

On direct examination, I was a witness for the prosecution, I explained my qualifications, how I had done the editing of the audiotapes, my evaluation of the general quality of the videotapes, etc. Of course, I was unable to vouch for the completeness and correctness of the transcription and translation of the several hours of videotapes I had just seen, only re their general quality.

On cross, the defense attorney started her attack: With my resume in her hands, she asked: “I see that you are a lawyer and an ATA-Cert. Translator. Are you also a Federal Court Certified Interpreter?” “No.” “Are you certified by NAJIT or by any state? Do you have any qualifications as an interpreter?” “No, and neither I am a medical doctor. I am a translator and I am testifying re a translation.” “I see you do not list in your CV XYZ [the agency that had made the transcriptions/translations] as your employer. Could you tell me why?” “Simply, I do not list my clients in my resume. XYZ has never been my employer, only my client.” In short, the opposing side´s attorney will try to discredit you in any way, shape or form possible in front of the jury. Being a certified federal court interpreter, if it is in the pair ENES, will always help. They have an outstanding reputation, well deserved in my opinion, even if they are not certified as translators, but few know the difference, particularly common folks, comprising the jury.

Also, what an expert needs to know, it depends on the issues to raised at trial. They might be pure legal issues. Experience as a legal translator, Black's or ither dictionaries, etc. will help. Or, maybe, the issue is “slang” translation. Often, the bad guys speak in “code”. You may translate those terms literally, but in court, you may be asked about your opinion on what that code means. I have translated many affidavits from DEA agents stating that in their professional opinion, when somebody says “xyz” they mean “marihuana” or “cocaine” or whatever. They support their opinion based on their X years of experience on the field. Do remember that an expert witness only need to be credible to the jury.

Best,
Luis


 

Fabio Descalzi  Identity Verified
Uruguay
Local time: 02:08
Member (2004)
German to Spanish
+ ...
TOPIC STARTER
"How to best sell yourself" Mar 11, 2011

Thanks Luis for your very interesting and clarifying contribution.

Luis Arri Cibils wrote:
Let me add another twist to your question. In an adversarial legal system such as in the US (as opposed to prosecutorial systems as in many other jurisdictions), as a general rule, expert witnesses are called by the parties, not the court. It is the parties’ prerrogative to call experts in support of their allegations, to convince the trier of facts, generally the jury, but not necessarily, that they are right. The opposing party has the right to call expert witnesses in rebuttal. The experts’ testimony becomes a battle of CVs (and of looks, demeanor, poise, etc.)


Clearly stated: in the USA. In a Roman Law system (at least in our country), every party can call its own experts; but then the judge may summon his/her own appointed expert.

In any case, judicial experts do need a lot of... expertise, apart from experience. This or that way to "sell themselves as THE experts".

Luis Arri Cibils wrote:
Do remember that an expert witness only need to be credible to the jury.


Or, in other cases, to be credible to the judge.


 

Luis Arri Cibils  Identity Verified
Local time: 00:08
Member (2003)
English to Spanish
+ ...
On the OK Corral Mar 11, 2011

Fabio Descalzi wrote:


Luis Arri Cibils wrote:
Do remember that an expert witness only need to be credible to the jury.


Or, in other cases, to be credible to the judge.


Absolutely right, Fabio. That’s why I said “trier of facts”, jury trials or bench (judge) trials.

Last year, I translated somewhere between 300 to 500K words re a case, under Roman Law, in a Roman Law country, where first the parties selected their own “peritos” and, later, the court appointed its own. By and large, the required qualifications for this last “perito” were “political.”

As a poet, from the other side of the river from where you are, the side I was born many moons ago, once said:

Hacete amigo del juez
No le des de que quejarse
Que siempre es bueno tener
Palenque ande ir a rascarse.

I might be a tad too cynical, having worked as a lawyer, but when any client of mine asked for his or her “day in court,” I rushed to remind the client that “legal justice” was not “divine justice,” but the “best available civilized alternative to the ‘OK Corral’.”

Of course, you are asking, what are the ideal qualifications that an expert should have in an ideal world. This, of course, will depend on the issues at trial. There are no general qualifications. It might be “legal knowledge”, tech knowledge re weapons, for example, slang, cultural, etc. The more the merrier.

Best,
Luis


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 07:08
French to German
+ ...
Human justice vs. kangaroo court Mar 11, 2011

Luis Arri Cibils wrote:

(.../...)

I might be a tad too cynical, having worked as a lawyer, but when any client of mine asked for his or her “day in court,” I rushed to remind the client that “legal justice” was not “divine justice,” but the “best available civilized alternative to the ‘OK Corral’.”

(.../...)


It is indeed a matter of imperfect human justice vs. merciless kangaroo court justice.


 

Luis Arri Cibils  Identity Verified
Local time: 00:08
Member (2003)
English to Spanish
+ ...
On kangaroo courts Mar 11, 2011

Laurent KRAULAND wrote:

It is indeed a matter of imperfect human justice vs. merciless kangaroo court justice.


Indeed, Laurent, and often kangaroo courts are obvious. Yet, and also often, the underlying assumptions of those imperfect justice systems make them de facto kangaroo courts in disguise. Needless to say, imperfect justice is one step ahead of other justice systems.


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 07:08
French to German
+ ...
OT: the violence of law Mar 12, 2011

Luis Arri Cibils wrote:

Laurent KRAULAND wrote:

It is indeed a matter of imperfect human justice vs. merciless kangaroo court justice.


Indeed, Laurent, and often kangaroo courts are obvious. Yet, and also often, the underlying assumptions of those imperfect justice systems make them de facto kangaroo courts in disguise. Needless to say, imperfect justice is one step ahead of other justice systems.


One of my university teachers had the habit to say that the legal corpus was built on syllogisms (in the context of Roman Law). He also - and more than often - insisted on the "violence of law".


 

Tatty  Identity Verified
Local time: 07:08
Spanish to English
+ ...
A law degree Mar 12, 2011

I definately think that any "expert witness" worth their salt would have to hold a degree in law if the disputed term is a legal one. It only stands to reason. That said, everyone knows that translating documents produced by a civil law system to British English for instance with its common law system is by no means an exact science. Law is complicated, with lots of overlap between doctrines.

 
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