Does your translation program ensure FCPA compliance? Do you know how to handle mountains of foreign language documents in the event of an FCPA investigation?

Congress enacted the Foreign Corrupt Practices Act (FCPA) in response to millions of illegal international business dealings. Corporations and outside counsel have no choice but to understand the role translation plays in FCPA compliance in this era of heightened regulations and enforcement.

The choices you make regarding your translation program could make or break your compliance program, investigation, or case. Today’s far-reaching law only complicates matters for all United States businesses. It enforces strict consequences for those who fail to comply.

In 2021, the need for quick and accurate FCPA translations is becoming more crucial than ever before. Should you ever come under investigation, help protect your organization, or clients, by downloading our guide, “Translation: A Key Component of FCPA Compliance an FCPA Whitepaper.”

Translation: A Key Component of FCPA Compliance an FCPA Whitepaper

Download our complimentary whitepaper where we discuss:

• How the FCPA impacts your business

• Translating as a key component of your compliance program

• Handle large volumes of foreign language documents during investigations

• Morningside’s 4-Step approach for FCPA-compliant translations

• Benefits of using an LSP to handle FCPA translations

Multilingual legal matters are often complex and time-sensitive, requiring an experienced legal translations partner. Entrust your most time-sensitive translations to Morningside’s professional legal translators, each qualified through a series of rigorous tests and evaluations in accordance with our ISO-certified QA standards.

You can learn more about our legal translation services and receive your complimentary copy of our new white paper today.

Madeline Sturdivant

Madeline Sturdivant, Brand Marketing Manager at Morningside, a Questel Company, is an experienced marketing professional with five years in multiple disciplines, including digital, print, event, and strategy. She is responsible for the company's global marketing activities and managing relationships with the world's largest and most demanding healthcare, legal, and corporate organizations. Madeline's varied personal and professional interests drive her to continually expand her knowledge to benefit those around her.

Websites in professional industries such as law rely on the trust, credibility and reputation built by the company in question. More often than not, a potential customer’s first impression of a law firm is the law firm’s website.

For this very reason, the way that the information is displayed and delivered on a law firm’s website is of paramount importance. Translation is key to getting the branded messaging across to the target audience effectively and an accurate and localized translation of the website’s content is a key part of this task.

There are countless examples of embarrassing website translation mistakes, some of which would leave the most stoic lawyer red in the face, but these mistakes are easily avoided by using the right tools and translation services. We’ve highlighted four of the most common website translation mistakes made by law firms and provided useful tips for avoiding these pitfalls

1. Using machine translation for multilingual versions of your law firm’s website or landing pages

Whilst it may be tempting to utilize the immediacy and low cost of machine translation to create your law firm’s multilingual website, the poor quality of these translations may be detrimental to your firm’s credibility and leave your potential overseas’ clients with a bad first impression.

Of course, translated landing pages will ensure the website is visible and targeted to a wider audience, but if that audience sees mistakes in grammar, syntax and word choice in the translation, then it would be difficult to convert them into a paying customer.

The solution to this really common mistake is a simple one, and it comes in the form of hiring a professional legal translation firm that employs legal translation experts who also have website translation experience and are able to understand the nuances of legal translation as well as how to effectively market legal services to the target audience.

2. Forgetting to translate email and contact us forms

So, your law firm’s website is ready to launch and contains perfectly translated copy for each of your target markets, but what about next steps in the conversion funnel?

Take this conversion path for example:

• A potential client who only speaks Spanish is looking for legal assistance with divorce proceedings.
• She visits the site and is impressed with the way the website is translated in a professional manner.
• She clicks ‘contact us’ and sends a short message asking for more information from your specialist divorce lawyer.
• The automated response she receives is in English and she cannot understand the next steps required of her.
• She leaves the website to look for another legal firm to handle her case.

Particularly with sensitive legal matters, it is important to have the entire user journey translated properly to ensure that no potential client leads are lost.

3. Failing to translate lawyer profiles

The majority of website searches that lead visitors to your law firm’s website will be by potential clients searching for a lawyer to potentially work on their case.

These visitors have often been given a recommendation by a friend, family or work associate. In order not to waste this warm lead arriving at the website, ensuring that your lawyer’s profiles and descriptions are translated will improve both conversion and decrease bounce and exit rates on your site.

Monitoring Google Analytics is a simple way to see which lawyer profiles are generating inbound traffic and this information can be used as a benchmark to decide the order and priority in which these pages are translated, to have the maximum impact in the shortest time – a significant quick win for your law website.

4. Email Marketing and Newsletters – all important for getting your localized message across

If your law firm uses email marketing or newsletters as a channel to communicate with clients and prospects, then translation will be important to consider when spending time on these marketing assets.

Email marketing and newsletters are an example where audience-specific translated content should be considered. If, for example a market you’re looking to target is the Spanish-speaking community, then it makes sense to send out translated newsletters and email campaigns to coincide with national holidays like Cinco de Mayo, Día de Acción de Gracias and similar.

This will demonstrate a clear understanding of the audience you’re catering to, and this relates back to establishing trust, credibility and confidence in your law firm’s ability to tailor your services to your client’s background and specific needs.

An article from the July 7th edition of the Economist discusses how British law firms are expanding their global footprint. Unlike Dewey & Leboeuf which tried to grow too fast and ended up going bankrupt, London’s top 5 law firms are growing their revenues and profits at an impressive and steady pace and this is largely coming from growth in emerging markets. What could that mean in terms of professional legal translation?

Allen & Overy has recently opened up offices in Jakarta and Vietnam. Clifford Chance is bullish on China, the Middle East, and Brazil. And while the large number of Western firms moving into China has led to lower fees due to competition, China is still a hugely important and growing market for American and British law firms.

In terms of professional legal translation, more law firms overseas means a growing need for talented legal translators and multilingual support for global casework. And as global businesses themselves, law firms must prove compliance with the Foreign Corrupt Practices Act (FCPA) related to their foreign operations, which requires translating documents from various foreign offices into English.

No matter how you look at it law firms conducting business in multiple regions will require professional legal translation. Legal translation can present different challenges related to cost and efficiency. For high volumes of translation work, options including machine translation, online sifting, and document review should all be considered. Overcoming those challenges requires the right mix of technological and human support, and the right translation company to help guide you through the process.

By Shanna Bergman

We previously explored the issue of who should pay for legal translation services in November of 2011, when the United States Court of Appeals for the Ninth Circuit held in Taniguchi v. Kan Pacific Saipan LTD. 633 F.3d 1218 (9^th Cir. 2011) that the district court did not abuse its discretion in awarding legal translation costs to Kan Pacific, including document translation costs (from Japanese to English) as well as interpretation costs.  The Court of Appeals interpreted 28 U.S.C. §1920(6) (which grants courts discretion to award costs for the compensation of interpreters) to include document translation as part of the costs to be awarded at the conclusion of litigation. The Court of Appeals stressed in their opinion that Rule 54 of the Federal Rules of Civil Procedure includes “decided preference for the award of costs to the prevailing party and thus, the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language so long as interpretation of the items is necessary to the litigation”.  Taniguchi appealed and the Supreme Court of the United States granted certiorari to hear the case, which could have a big impact on who pays for legal translations.

The case was argued before the Court on February 21, 2012 and the decision came down on May 21, 2012.  The decision was highly anticipated in the litigation world as, amongst other things, a decision that “interpretation” is the same thing as written legal translation in the context of reimbursement for these expenses, could potentially shift the entire “cost-benefit” analysis for commencing litigation in the first place.

The Supreme Court has now held that “because the ordinary meaning of interpreter is someone who translates orally from one language to another, the category ‘compensation of interpreters’ in §1920(6) does not include the cost of document translation”.  Taniguchi v. Kan Pacific Saipan LTD, 566 U.S.____(2012)  In its opinion, the Court stated that “when a term is not defined in a statute (as is the case here) we give the term its ordinary meaning” Id.   The Court turned to several authorities to determine the ordinary meaning of “interpreter”.  They cite the following:  American Heritage Dictionary defined the term as one who translates orally from one language to another; Scribner-Bantam English Dictionary defined the word “interpret” as to “translate orally”; Random House Dictionary defined “interpret” as to translate what is said in a foreign language; Oxford Dictionary defined interpreter as one who translates languages (breaking it down into two sections)…one who’s office it is to translate the words of persons speaking different languages, esp. orally in their presence; Black’s Law Dictionary defines “interpreter” as a person sworn at trial to interpret the evidence of a foreigner to the court and “interpret” as to translate orally from one tongue to another. Id.   In addition, the Court noted that the statutory context of the Court Interpreters Act (noting that Congress enacted §1920 as part of the Court Interpreters Act) is a program to facilitate the use of qualified interpreters in judicial proceedings before the courts of the United States in any action, civil or criminal, where a witness or party speaks only or primarily a language other than the English language. The opinion goes on to state that the statute also gives very precise instructions for interpretation (i.e. simultaneous interpretation, consecutive mode etc.).  The Court stated that given these specificities, there is strong evidence that “Congress was dealing only with oral translation in the Court Interpreters Act” and nothing to do with the legal translation of documents.

With respect to Rule 54, the Court notes that “the discretion granted by Rule 54(d) is not a power to evade the specific categories of costs set forth by Congress…thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of ‘interpreter’” Id.

As an interesting final note, and one to perhaps consider as we move forward, Justice Ruth Bader Ginsberg notes in her dissent that  “Some translation tasks do not fall neatly into one category or another” (i.e. legal document translation or interpreter). She states that sometimes an interpreter “may be called upon to sight translate a written document” (i.e. convey the substance of a written document orally). Id.

So essentially, the Supreme Court has decided to maintain the status quo of reimbursement for interpretation services but not for document translation services related to litigation. Those entering into commercial or patent litigation which may require extensive legal translation of foreign-language documents need not fear paying a hefty translation bill should they lose their case, though it is still a good idea to factor in the legal translation costs they will assume, which are often far higher than originally anticipated.

There is a lot of confusion about what certified translation means, a subject we addressed in a previous post. But a reader recently asked about the difference between a certified translation and ISO certified translation, so we wanted to take the opportunity to clarify the issue.

A certified translation is a translation–usually of an official document–accompanied by a signed statement by the translator or translation company attesting to the fact that the translation is a true and accurate rendition of the source document. This means the translation company affirms that the certified translation is a literal word-for-word translation and that nothing has been added, deleted or altered. At Morningside, we take this signed statement or “certificate of accuracy” very seriously. Every so often, clients ask us to make changes to a certified translation, like inserting words or rearranging the text in such a way that the original meaning is altered, which is entirely verboten. We know that certified translations are often submitted as evidence to a court of law or regulatory agency like the FDA, and we certainly don’t want to jeopardize our reputation or our client’s — or ask our translators to commit perjury — to please a client. Most of our clients appreciate this and know that integrity and honesty should be the foundation of any business relationship.

The ISO-certified translation is entirely different. Morningside–along with several other translation companies–is ISO 9001:2015 certified. That means our quality management system conforms to international standards audited by an outside agency to ensure compliance. Our translation processes are ISO-certified, and this is the case whether we are preparing a certified translation, a medical translation, or a patent translation. When we prepare a certified translation, the critical difference is the signed certificate that accompanies the translation and our vigilance in ensuring that the translation is 100% accurate and in no way departs from the original text. Of course, when we prepare a non-certified translation of a brochure, website, or similar materials, a literal translation is unnecessary and counter-productive.

While there are many people in the world who are fluent in two or more languages, the number with the levels of proficiency required for accurate translation is far smaller. Of these, fewer still have the necessary experience, credentials and certifications for professional translation. When you narrow down your criteria to those who specialize in legal translation, you are left with a comparatively small number of people indeed.

Are translators with a legal background really necessary? After all, surely all translation is substantively the same?

This common misconception could not be more wrong. Translators with a legal background are essential if you want to obtain translations that accurately convey the meaning of the original documents. The quality and accuracy of your translations can have a profound impact on the outcome of your case.

Legal cases can often hinge upon the interpretation of language — in some cases just a single word. Legal systems vary widely from country to country, as they are based upon different histories, cultures and legal traditions. Legal terms themselves do not always translate directly from one language and culture to another. A non-specialist translator is always in danger of mistranslating legal terms due to a lack of familiarity with particular legal jargon and phrases in a legal context, leading to misunderstandings, added costs or even the collapse of a case or breach of a contract.

Specialized legal translators will also ensure your document is properly formatted for the target audience. The formalities of different legal systems can add extra levels of complexity to source documents, and specialized legal translators can use their experience to preserve the meaning and technical details of the source document while complying with the formatting requirements of the target audience.

By using translators with a legal background, you not only benefit from an increased level of accuracy and translational rigor, you also save time. An experienced legal translator will bring their niche vocabulary and familiarity of the legal system to the translation of your document.

These honed skills and prior levels of knowledge allow them to proceed at a faster pace than a general translator, who will have to constantly break from their work to clarify terms, familiarize themselves with vocabulary, and otherwise equip themselves with tools that a specialized legal translator is already familiar with. These added requirements increase the amount of time that a general translator must spend on the document, leading to increased costs, longer turn-around times and less room for careful verification and double-checking of your translation.

The importance of accuracy, clarity and preservation of meaning across translations in the legal field makes it clear just how essential specialized legal translation is.

(This blog is a truncated version of an article that ran in the New York Law Journal last month.)

At most law firms, when a legal document translation provider is needed, the usual course of action is to request estimates from several translation companies and pick the cheapest one.

This is not unreasonable. Clients are more cost-conscious than ever and less likely to obtain a legal translation that comes with a hefty price tag. Unfortunately, the cost of fixing a poor translation is much higher than obtaining an accurate translation, to begin with, not to mention spillover costs in embarrassment or even potential damage to your case.

Here are 7 factors to consider when selecting a legal translation provider:

1. Quality

Quality is the most important factor. But how can you determine if a company provides quality legal document translations? The translation is not a science, and there is no such thing as a perfectly legal document translation. But it makes sense to find out more about a company’s quality control procedures, how they select and vet their translators, and how they proofread completed translations. You may want to ask a legal translation provider if their translators are accredited by the American Translator’s Association (ATA) or similar organizations? What is their process for dealing with translation errors? If a translation company can’t answer these questions to your satisfaction, you should be wary of trusting them with your documents.

2. ISO Certification

While ISO certification does not guarantee accurate legal translations, it does indicate that the translation company has a quality management system in place and documented processes for quality assurance. While not foolproof, it is certainly better than no certification. Since many established translation companies have achieved ISO certification, you are better off relying on one that does.

3. Legal Specialization

It makes sense to choose a company that specializes in legal document translation. Even if you only need to translate several documents, you are better off working with a provider that is familiar with litigation and the discovery process and can provide legal support services in addition to document translation (i.e., interpretation for depositions, foreign-language document review, etc.). Ask about the qualifications of their legal translators, and how many years they have been translating legal documents. Also, ask about proofreading. If your case deals with the technical subject matter, then make sure the translators they would assign have a relevant educational and experiential background.

4. Reputation

How long has the agency been around? Has anyone in your firm used them in the past? You should not hesitate to ask for references to projects of similar scope and subject matter.

5. Responsiveness

It’s worth inquiring how long estimates typically take. Most translation companies can provide an estimate in an hour or two. But some—particularly the largest companies—can take much longer. Do they provide after-hours or weekend service? If translation requests often arrive at your desk after 6 pm, you should not select a translation provider that only responds to new requests between 9-5.

6. Size

Bigger does not necessarily mean better. At the largest companies, chances are you will deal with a different project manager and translator for each project, and the quality of the translation work may vary from project to project. You may wait longer to obtain a quote, receive impersonal service, and get the impression that your business is low on the priority list if you are not a big client. On the other hand, it makes sense to work with a company that is big enough to handle the various languages and technical specialties you may require at the necessary turnaround time. As in so many things, the “Goldilocks Rule” applies: pick a translation company that isn’t too small or too big, but “just right” for your needs.

7. Price

Price is always a concern, and clients are more sensitive than ever in this economy. While quality—not price—ideally should be the overriding factor, once you have established that the translation companies you are considering have appropriate qualifications, it certainly makes sense to compare fees. Just make sure you compare apples to apples. Many translation companies offer low rates that only include the cost of the translation– proofreading and formatting are extra. Their per-word rates may be lower than other services, but the final bill ends up much higher. Make sure to ask what the translation estimate includes, and if it is “all-inclusive.” If it isn’t, then ask for an estimate of the additional charges.

The costs of legal translation incurred during litigation can be enormous. Document translation fees for a complex, cross-border litigation case can easily reach hundreds of thousands of dollars, if not more. Who should pay for translation services, and should the winner be reimbursed for the huge expense?

The Supreme Court will weigh in on this issue during its 2011-2012 term, which began last month. On the court’s docket is  Taniguchi v. Kan Pacific Saipan, LTD, 633 F.3d 1218 (9th Cir. 2011) a case which will impact to what extent courts can award the winning party money spent for legal translation services during the course of litigation.

The case began when professional Japanese baseball player Kouichi Taniguchi fell through a wooden deck on Kan Pacific property and tore several ligaments. The injuries prevented him from playing, and he was forced to breach his contract. He sued Kan Pacific for negligence in order to cover lost wages, but ultimately lost the case. In addition, he was ordered to pay $5517.20 in legal translation costs to Kan Pacific for documents translated from Japanese to English. Taniguchi appealed.

In deciding Taniguchi, The 6th circuit had relied on U.S. Code § 1920. Title 28,1920 states that a court may reimburse the winning party for certain expenses like filing and printing transcripts, and also for certain interpretation services. The court relied on a dictionary definition of “interpret” which included “to translate into intelligible language.” Based on this, the court determined that “translation” and “interpretation” are interchangeable and that translation services should also be covered. Now as most translation companies will tell you, “interpretation” and “translation” are not synonymous. Translation involves written text; interpretation is oral and involves a speech or phone conversation. On appeal, The 7th circuit argued that this expansive definition of “interpreter” went too far, and split on allowing litigation costs like document translation to be included on the list of recoverable costs.

It was up to the 9th circuit to decide, and it ultimately agreed with the 6th circuit that courts could award the winning party the costs of legal document translation. Now it is up to the Supreme Court to make the final decision which could have far-reaching implications. The same reasoning that led the 9th circuit to decide in favor of reimbursing translation costs could impact e-discovery and a range of other litigation expenses. The cost-benefit analysis of entering into litigation could shift considerably given the potential reimbursement demands. Parties might agree to limit the amount of discovery and translation they do to hedge against paying the full costs later on, and the discovery process could become much more limited for certain cases. We’ll have more to say when this case is decided.

Every type of translation requires a specific set of skills and expertise from the translator. For legal translations—which can range from translating a contract to translating thousands of foreign legal documents for a major litigation case—precision and accuracy is a must. The translation must be absolutely correct and accurately reflect both the meaning and intent of the source document. There must be no ambiguity in legal translation, nor can the translator “insert” words that were not in the original or paraphrase the text in any way.

But in translating legal documents, legal knowledge and expertise alone is rarely sufficient. Legal translations often deal with complex scientific and technical subjects, like biochemistry, engineering, and wireless technology. A translator must understand both the legal terminology and the related technical and scientific subjects of the document.  A legal translator may have the perfect background to translate immigration documents, but be out of his league translating documents related to pharmaceutical litigation. That is why when Morningside selects legal translators for our clients’ projects, we insist that they have both an educational background and specific industry experience in the technical field or practice area of the documents in question. This is the first, but critical step, in ensuring a precise and accurate translation.

As a professional translation company, we spend much of our time focused on foreign languages, especially languages that come up frequently for legal translations and patent translations. But every so often we turn our attention to our native English. We are constantly surprised by how diverse the English language is, and how much of the English vocabulary is derived from foreign words. According to one survey, only one-third of English words come from Old English. 41% come from French and Old Norman, and at least 15% comes from Latin. Another 10% come from a mix of other languages.

There are plenty of English words whose foreign origin is quite obvious. We can guess where chauffeur, angst, and desperado come from (French, German, and Spanish). But many words that sound like “classic” English also have a foreign origin, and the origin is not necessarily European or even Indo-European–you have probably used a few words today that come from languages that many of us have never heard of. Here are a few examples:

• Ketchup – The word comes from Amoy, a Chinese dialect, where it meant the brine of pickled fish.
• Barbecue – The quintessential American cooking tradition, BBQ actually comes from Carib, a language spoken in northern South America and the Caribbean.
• Sugar & Candy – These sweet words come from Sanskrit, the ancient Hindu language of Northern India.
• Husband – The word comes from Old Norse, the extinct language of the Vikings, where it meant “master of the house.” In modern American usage, it often means the exact opposite.
• Pal – The word comes from Romany, the Gypsy language, where it means brother or comrade.
• Tank – As in water tank. The word comes from Gujarati, a language spoken in India.