Monday, May 21, 2012

US Supreme Court Decision Reaffirms Definitions of Interpreting and Translation as Separate Disciplines


“Handle them carefully, for words have more power than atom bombs.”
 --Pearl Strachan

Washington policy wonks and K Street lawyers pride themselves on getting the words right. They understand that clear definitions are critical because they are the basis for everything else, but even specialists can get it wrong or unwittingly perpetuate misconceptions. This week, in a 6 to 3 decision the United States Supreme Court helped dispel one of those misconceptions—one so pervasive that it is perpetuated in everyday conversation, the media, and even in our country’s legislation. The simple question at the heart of this misconception:  What’s the difference between a translator and an interpreter?

The simple answer, now upheld by the Supreme Court, is that translators write, and interpreters speak.

When Japanese professional baseball player Kouichi Taniguchi fell through a wooden deck at the Marianas Resort and Spa while on vacation in the Commonwealth of the Northern Mariana Islands, he unwittingly set in motion a chain of legal maneuvers that culminated this week when the Supreme Court handed down its ruling. The question presented before the highest court in the land, however, had nothing to do with construction codes, accident liability or even compensation for pain and suffering. The question presented is whether costs incurred in translating written documents are “compensation of interpreters” for purposes of 28 U.S.C. § 1920(6). [1]

“So what?” may well be your next question. But for translators and interpreters, a cadre of multilingual knowledge workers whose importance continues to grow daily in the globally connected 21st century, and for those who rely on their services, calling things by their names matters. Clear definitions are important; they help ensure that all parties involved understand each other.

Consider Capitol Hill, home to this nation’s lawmakers. Representatives work in the House, while senators work in the Senate. The work they do is similar, but no senator would take kindly to being called a congressman, and no congressman would try to participate in a vote on the Senate floor, even though they both work in Congress.

A similar division of labor exists between translators and interpreters. Translators work with the written word. They translate international treaties. They translate seized documents from Al Qaeda and other terrorist groups. They have translated Harry Potter into at least 67 other languages.  In contrast, interpreters made the Nuremburg Trials possible by simultaneously interpreting witness testimony into and out of English, French, German and Russian for those present in the courtroom. Interpreters make it possible for our president to pick up the phone and speak with other world leaders. They work in countless emergency rooms across this country interpreting what doctors and patients say in life and death situations. A literary translator is of no more use to an emergency room doctor than a medical interpreter is to a company that wants to publish the English version of Stieg Larsson’s latest mystery novel.  The skills, disciplines, and job descriptions are quite distinct.

In its opinion, the Court stated that “both the ordinary and technical meanings of ‘interpreter,’ as well as the statutory context in which the word is found, lead to the conclusion that § 1920(6) does not apply to translators of written materials.”[2]

The drafters of 28 U.S.C. § 1920(6) either intentionally omitted translation or simply overlooked it, focusing on the immediate need to ensure that non-English-speaking parties to a suit could understand and participate in live courtroom proceedings. Given the general confusion surrounding what translators and interpreters do and how often people get the two professions mixed up, the omission comes as no surprise. The best way to fix this oversight would be by amending the code to include translation as well, not by tortured legal arguments that attempt to say translation and interpretation are the same thing, when they indisputably are not. 

Words matter. And the Supreme Court got the words right in this case. When he announced that the ruling was being published by the Court in English, Justice Samuel Alito made it very clear that he understands the difference between translation and interpreting when he said: “Anybody who wants to read it in another language will have to pay to have it translated, not interpreted.”[3]

--Barry Slaughter Olsen


[1] Brief of Amici Curiae: Interpreting and Translation Professors in Support of Petitioner, p. i http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-1472_petitioner_amcu_professors.authcheckdam.pdf  
[2]  Taniguchi v. Kan Pacific Saipan, Ltd., DBA Marianas Resort and Spa, p. 11. http://www.supremecourt.gov/opinions/11pdf/10-1472.pdf 
[3] Supreme Court says interpretation and translation are different things when it comes to fee, Washington Post, 05/21/2012,  http://www.washingtonpost.com/politics/courts_law/supreme-court-says-interpretation-and-translation-are-different-things-when-it-comes-to-fee/2012/05/21/gIQAXzbOfU_story.html

9 comments:

  1. I am really torn on whether reimbursement for translation should be added as a necessary prop to help guarantee equal justice for all (as interpreting is supposed to do); as it happens, I work both as an interpreter (in court and elsewhere) and as a translator, and most of the translations that I do are for gigantic international litigants with vast sums of money at stake. Would covering the cost of translations necessary to pursue private personal injury suits encourage or discourage the often excessive litigation this country seems to be addicted to? (I don't think the flow of work that comes my way would be affected one way or the other btw). This really goes back to the underlying elephant in the room question about tort law in general.
    Still I am convinced of ONE sad fact ... the Great American Public still doesn't get the difference, when TV and cable news channels, NPR reporters and even the New York Times routinely use the word "translator" when referring to someone who is INTERPRETING speech. "President XXX, speaking through a translator, said ..." In the immortal words of Lucy, Aaaauuuurgh!

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  2. Limey,

    Thank you for chiming in. You are correct when you write that the motivations of the legal community for pushing this case all the way to the Supreme Court had everything to do with tort law and little or nothing to do with translation and interpreting. That said, the crux of the matter had everything to do with the definitions of our two professions, giving them a very short 15 minutes in the sun. Fortunately, the majority of the Court reaffirmed the accepted definitions of translation and interpreting, recognizing that they are not the same thing. At least now, when we explain the difference between translation and interpreting, we can tell folks that the US Supreme Court agrees with us.

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  3. I agree with Professor Olsen. I do wear both hats in the health care industry and it is a cross I have dragged since day one. Hopefully now I can also cite the Supreme Court Ruling! Actually, I just shared the link with everybody!

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  4. Miriam,

    Thanks for spreading the word.

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  5. Great analysis, thank you! We are embarking on an educational campaign to tell our clients about the difference between interpreting and translation -- and it's nice to be able to cite a Supreme Court decision.

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  6. Judy, glad you found the analysis useful and thanks for all your client education efforts.

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  7. I am just wondering how this effects ASL (American Sign Language) Interpreters. They do not speak and thus do not fall under this definition. It seems mighty insensitive not to include them.

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  8. Also, What is the name of this case?

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  9. Hi Evan,

    My reading of the ruling is that it will have little or no effect on sign language interpreters. The provision of their services in legal proceedings is covered mainly by the ADA.

    The name of the case is Kouichi Taniguchi v. Kan Pacific Laipan, Ltd. dba Marianas Resort and Spa.

    At any rate, the lack of knowledge about what translators and interpreters (both spoken and sign) do is something that we are working to rememdy at InterpretAmerica. Which is why we have tried to shed light on this case.

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