מאמר חשוב וצודק
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Malpractice Risk from Legal Document Translations: The Problem and a Possible Solution 05.07.2005 Richard Tamir An incorrect translation can bring a suit in malpractice/negligence against the translator and the attorney. Quality Control procedures may reduce that risk. The Problem: Legal documents are perhaps the most critical in our society. A mistake can cost clients money, property or significant rights. Therefore, translation of these documents is also critical – not just for the clients, but also for their attorneys. An incorrect translation can bring a suit in malpractice/negligence against the translator and the attorney, and it is likely that the attorney will have deeper pockets to pay a judgment. Errors in translation can be easy to make, and hard to see for a non-translator. For example, a simple comma error in a will can cause a major financial loss: the phrase "I leave my assets to all my children who loved me." goes to only the loving children; put a comma after the word "children", and it goes to all the children, loving or not (words of definition vs. words of description). Here, the loving children can lose a portion of their inheritance through a simple comma error – and this has happened. What is their recourse after the estate is closed? Suing the attorney and translator. Legal translations involve issues of Risk Management and Quality Control. The cheapest and fastest translation creates the highest level of risk. But translation costs are usually paid by the client, not the attorney, and the need for a "rush job" often results from a lack of attorney planning. Therefore, in a malpractice suit the Court would likely expect an informed client to choose the most accurate translation at a reasonable cost, and would not excuse an attorney’s lack of time or planning. The Solution: Translation departments in large law firms provide a good example to follow. Typically, a second translator reviews the translation for accuracy and correct legal phrasing. This business process has 2 advantages: (1) the translation is likely to be more accurate, and (2) it provides a defense in case of a malpractice suit for translation error. Legal practice is not a situation of Strict Liability, such as for explosives, and showing that a Quality Control process was used to assure accuracy is a significant factor for the Court to consider. Small law firms and attorneys in solo practice can also follow this practice. The Quality Control form below, similar to ISO-9000 forms, can show "best efforts" were made for translation accuracy: The Quality Control Approach This QC form establishes a policy (second translator and attorney review) and a tracking mechanism. This form, kept on file and provided/available to the client, is a proof that best efforts were made to provide an accurate translation. To the attached form – Press here Note that today’s typical practice, a quick review of the translation by the attorney, is not Quality Control. The attorney is usually not a professional translator and will not see translation errors unless they are obvious. More subtle errors, often the most dangerous, will be missed. Attorneys can follow these Quality Control procedures themselves, or they can find translation firms that use such procedures. There are few such firms today, but hopefully this situation will improve. Issues to Consider: ISO-9000, the international Quality standard, focuses strongly on creating a "Quality Environment" – a culture in which Quality issues are understood and prioritized, and solutions are implemented and followed. Law practice is not covered by ISO-9000, but there are lessons to learn from the "quality movement" that has spread around the world. The issue is clear: without a Quality Control process, How Do You Know the translation is accurate? After all, even the best translators can have a bad day, and a rush job increases the probability of errors. Summary Points: Legal translation errors create malpractice risk for attorneys, as well as translators. Standard Quality Control techniques can lower the level of translation error, as well as provide a "due diligence" defense in case of malpractice suit. Quality Control does not come free – typically, it costs 25% - 35% more than standard-cost translations. But an informed client would likely prefer an assurance that the translation is correct, versus having no idea of the translation’s accuracy. "Trust Me" is not enough. Paying the slight cost increase for Quality-Controlled translations can be an attorney’s "insurance policy" against malpractice suits, if there are still errors in the translation. None of these suggestions will help the Israeli advocate unless they take the issue seriously and implement Quality Control procedures for their document translations – either in their own office or through the translation service they use. -------------------------------------------------------------------------------- The Author: Richard Tamir is a US-licensed attorney, and former Global Practice Leader in Risk Management for Arthur Andersen in the 1990’s. He received Shapira Scholarship honors from the Misrad HaClitah in 2002, the first case of a consultant receiving this scholarship. His work in Risk and Safety Management was the key factor in his client’s receiving the Yoseftal Prize for Construction Safety in 2004. He has consulted to the IDF’s Logistics Branch in ISO-9000 Quality procedures. Mr. Tamir has established a translation firm, Legal English Services, which follows the principles described in this article. He can be reached at [email protected] , or at 052 5400250.
http://www.israelbar.org.il/english_inner.asp?pgId=24652&catId=246