Friday, August 14, 2015



A lot of cases require witnesses whose English language skills are weak, or non-existent.  The obvious remedy is a translator.  The flaw is that translation is not always accurate, especially simultaneous translation. This may be why diplomacy is so futile.  Languages are idiomatic. Groups of words do not mean the same thing as their literal translation. Consider, “He is used to cream in his coffee.” Versus “A wrench is used to tighten nut”   Translation is so difficult that in both World Wars the U.S. used Native Americans speaking in their Native language to baffle enemy intelligence.
In W.W.I General Pershing suspected that the Germans had tapped his telephone lines, and broken the codes.  He assigned Ojibwa Indians to transmit telephone messages in the Ojibwa language.  The Germans officers did not speak Ojibwa and did not catch on.  The only problem was that too many military terms did not have an Ojibwa equivalent.
In W.W.II the effort was much more organized.  Radio voice communication was efficient, but not secure.  Encryption was secure most of the time, but painfully tedious.  Hundreds of Navajo were organized as Code Talkers.  They made up codes within their language for military terms and other critical words.  Various airplanes, for example took on the names of birds; ships, fish etc.  None of the code was written down, but instead was passed on through oral methods similar to those traditions used to preserve tribal history.  A Navajo who was not initiated could not have usefully translated their messages, and none of their messages were ever understood by the Japanese.  In addition they had the distinct advantage of being simultaneously translated instead of laboriously encrypted.  What took cryptologists four hours, code talkers could do in two and a half minutes.  Sometimes the code talker could just describe what he saw without having it written then encrypted before it could be sent.
In both wars, the Code Talkers were fluent in both languages, and participating members of both cultures.
The court translator needs to be as fluent in each language as the questioners and answerers are in their individual languages, including slang, technical terms and jargon.  Usually they are not.  Fortunately lawyers always speak in plain simple grammar school English.  (Yeah right)   English has twice as many words as any other language, at least 600,000.  This is why the Navajo code talkers had to make up expressions in Navajo.  At the other extreme Pidgin, the official language of Papua New Guinea has only a few thousand.  In Pidgin for example there is no name for a piano you could say “bigpella box many teeth alla same you bang ‘em he cry out”.  A translator who learned his Pidgin where there were no pianos might not translate that as piano.  And who is to say every Pigin speaker would describe a piano the same way?
I have learned to tell from the transcript if a translator was used, even if it is not noted.  Certain words are repeatedly misused, for example door for gate, because in Spanish they are both La Puerta.  In a deposition of a Lao witness to a traffic accident the testimony became very confused about lines and lanes.  Finally the translator remarked that in the witness’s language, line and lane were the same word.  A quick thinking attorney suggested a synonym; stripe for line and the deposition proceeded smoothly.  You would think a competent translator would have noticed the problem, but, obviously, she was working by rote, as they often do because translators seldom have the technical vocabulary of the witness.
A deposition of a truck driver proceeded for an hour with the driver making repeated reference to the “tar”.  Finally one attorney said “I don't see any tar in that photo.”  The driver, from North Carolina said “thet tar” and pointed to the left front tire.
In a series of depositions regarding an accident on a tuna boat all hardware on the boat was simply “an iron.”  The Captain who spoke English referred to cleats, chocks, blocks, davits, and winches, but in the transcripts of translated depositions none of those words appear, just “iron”.  Every crewman spoke a different language, and for a long time I wondered how they communicated, and if it mattered since everything was simply an iron anyway.  If the Samoan or the Portuguese said “chock,” or the equivalent the translator did not recognize that word in that language, and asked for an explanation.  No doubt the explanation included that it was metal, so it became an “iron”.  If the Hawaiian or Mexican said cleat, it became an “iron,” and so on.  You would think the translator would have at least said “iron thing” so the ambiguity would be obvious.  
One solution would be for each party to bring their own translator to the proceeding, just as we saw with Bush and Gorbachev.  Our firm did that once in a case involving an imported forklift.  Our client’s German engineer came here for a deposition.  As a precaution we provided an engineer, who had worked in both countries and was thus fluent in engineering terminology in both cultures, to verify the translations.  After only 45 minutes the deposition was terminated because the translations were unrelated to the engineers answers.  The German-American housewife court approved translator could carry on a domestic conversation in either language, but the engineering terms meant nothing to her.  Our engineer got qualified as a court translator the next day, and the deposition was completed the following day.
I can understand this from my own experience talking to a Mexican mechanic through a translator.  We were examining a concrete pump in Mexico that had been involved in a local amputation accident.  I asked him to show me the accumulator, which the interpreter dutifully translated as accumulador.  We were met with a blank stare.  I drew the simplest of schematic sketches, an upright oval with a line sticking out of the bottom.  His face lit up he said "Oh, La bottella hydraulico,"  (the hydraulic bottle), and led me right to it.  American engineers and mechanics often say “accumulator bottle” a reasonably descriptive term.

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