Contracts: An act of good faith or the only thing stopping either party from cheating?

What’s the point of a contract? Is it a sign of good faith? A legally binding document that keeps two individuals in conflict from pulling the wool over the other’s eyes? A confusing document written in an archaic form of the language, too difficult for laymen to understand?

Understanding comparative law is essential for international companies operating in multiple jurisdictions as well as the translators who read through and translate these legal documents.

Few people comb through the entire complexities of an agreement before signing their name and legally binding themselves to its contents. At an office job, one of the most alarming moments I had was when my boss signed an agreement for a business deal drafted by the lawyer without even skimming through the document or asking for any details. (Actually at a previous job, as well, the President would sign documents with a simple understanding of its title without requesting the interpreter to sight read them for him.) In contrast, I had read this contract from front to end.

After all, the devil’s in the details and you never know the concessions and obligations you’ve bound yourself to if you don’t read it and simply signing it is tantamount to conceding your right to negotiation or revoke an offer. However, my mindset on this matter comes from an American legal tradition and likewise my bosses in both cases held assumptions deriving from a Japanese legal tradition.

So then let’s examine the differences on how contracts are viewed in the USA/United Kingdom and Japan and how these assumptions are written into the actual contracts in theses jurisdictions.

All Possible Issues Excluding Force Majeure

In American contract law, a contract is a legally binding document in which something of value must be exchanged and which requires mutual assent, i.e, both parties must agree to the contract. Anglo-American contracts come out of a common law tradition. As Tess Wilkinson-Ryan, Professor at Pennsylvania Law School explains, under contract law the two parties are assumed to have equity in the law so both have the power to revoke an offer or renegotiate the offer prior to signing the contract. One major difference between the UK and US contract laws is that the US leaves it up to the individuals and the market to weed out unfair terms, while the UK has taken legislative action to constrict what can be included in their contents.

In his course to understand English contracts and translate them into Japanese, Noboru Watanabe makes this observation about English contracts and why they are often much longer and more detailed than their Japanese counterparts.

“In contrast to Japanese contracts, contracts in the United States and Great Britain are considered documents for when problems arise or when the reciprocal relationship between the two parties breaks down. (In other words, during a marriage, they write out some lines in case the couple divorces.)”

「日本の契約書に対し、英米では契約書は『問題が生じた時、または当事者間で両行な関係が破綻した時のための文書』(すなわし、結婚する際に、離婚する時のための文章まで作成しておく)という考え方がなされている。」

– From 英契約書の読み方・話し方 at Simul Academy

In her book A Practical Guide to U.S. Law for Japanese Businessmen (アメリカ駐在員のための法律常識), Michiko Ito, an American Attorney at Law, describes the USA as a litigious country and mentions that “Americans want to write a contract for anything they do”. 「アメリカ人は何をやっても契約書を作りたがる。」

A major reason for this is the parole evidence rule, an Anglo-American common law rule, which states that, except in certain exceptions, negotiations prior to agreed upon written contract cannot negate or be considered in the interpretation of the contract. That is to say, if you were told that something could be cancelled free of charge, but in the contract there’s a cancellation penalty, if you signed the contract, you are liable for the penalty, since the contract is considered the final agreement between the parties.

Considering an attorney must take into account all possible ways that the relationship may deteriorate and ascribe all the responsibilities to each party as well as the penalties for breaching these, it’s equally important to list the cases in which neither party are held accountable for not fulfilling their part of the contract. This is described in the Force Majeure (不可抗力) clause. Force Majeure can be translated from French as a “superior force” and means any “Act of God” such as wars, natural disasters, and political or economic upheaval.

“In Anglo-American law, the expectation is that once a contract is established, unless there are exceptions, ‘the obligations therein, which includes the items listed under Force Majeure, must be performed no matter what happens.’ Consequently, as many possible reasons for Force Majeure should be listed so that nothing is omitted.”

「英米法では、一度契約が成立すると、例外規定のない場合は、『不可抗力事態を含め、何があっても契約上の義務は履行しなければならない』という考え方がされる。従って、漏れがないように、『不可抗力』の事態について可能が限り多くの事由が列挙される。」


– From 英契約書の読み方・話し方 at Simul Academy

Sign of Mutual Trust

While the US and Great Britain have a more cynical view of the relationship between the two parties, Japan has a more optimistic approach to contracts and their negotiation. A contract itself is considered 「相互信頼の証」(a sign of mutual trust) rather than the final word in the negotiation, which negates all prior correspondence. As such whereas Anglo-American agreements have Force Majeure to list every possible outcome, Japanese contracts have a clause called 「別途協議条項」(Separate Negotiation Clause) or 「紳士条項」(Gentleman’s Clause), which states if anything unexpected arises outside the parameters set by the contract, the two parties will discuss this with one another and come to an agreement.

An example of this clause:

“If an item not established in the Agreement occurs or questions arise about the interpretation of the clauses therein, both parties will discuss separately in good faith and smoothly resolve this matter.”

「本契約に規定のない事項、および契約の条項の解釈に疑義が生じた場合は甲乙双方、別途誠意をもって協議し円滑に解決を図るものとする」

Extract from 英契約書の読み方・話し方 at Simul Academy

Attorney Michiko Ito in her book mentions her Japanese clients often insist on inserting a clause about good faith 「誠意協議条件」 (good faith negotiation) in their contracts in the USA, but American lawyers often throw out such clauses since they are an agreement to agree on something in the future and as such are considered to be nonsensical and too vague to be included. However, she does mention that this clause could be tweaked in the USA to mention that the two parties will make a decision through arbitration if a dispute occurs, instead of agreeing that they will negotiate and come to an agreement later.

In Japanese contract law, the relationship and trust between the parties is more important than the written contract itself. In fact, the Japanese Civil Code in Article 521 doesn’t specify that the offer and acceptance to necessitate the formation of a contract must be in writing. While the idea of a verbal agreement exists in Anglo-American law, most individuals or companies prefer legally enforceable documentation. In my own case, I feel more assured if I’ve signed a contractor agreement with a company or individual, either drafted by them or myself, rather than us agreeing over the phone or over email that they will pay a certain amount for me to finish a particular project within a certain time frame. As an American it’s hard to trust a gentleman’s agreement, without the terms of the agreement laid out and thinking through how this relationship may break down.

On the flip side, from a Japanese perspective, an American contract seems to indicate an insulting lack of trust between the parties. After all, if you’re marrying someone you trust and they start discussing in detail what will happen if you get a divorce, that may signal to you they don’t have any faith in you. Michiko Ito recounts one story of a license agreement contract, in which the Japanese company upon seeing the thick detailed contract felt impugned and inquired directly to the American company if they didn’t trust them. As she explains, “Japanese people don’t have a clear concept of contracts, but they do respect obligations and humanity” 「日本人は契約に対する概念が明瞭でなく、義理、人情などを重んじる」. For this reason, while a Japanese contract does list potential penalties for breaches, it mostly emphasizes the duties each party should honor and good faith negotiations for any uncertainties or future changes.

Duty of Good Faith

It would be unfair and inaccurate to say that in contrast, Anglo-American contracts denote a lack of good faith. In that very same story which Michiko Ito told, the American company, when questioned about their lack of faith, responded, half jokingly, that they wouldn’t be forming such an important agreement with a company they didn’t trust.

While Japan puts more stress on the idea of good faith, in American contract law there is a general implied duty of good faith to perform and enforce a contract, which is unique for common law countries and is much more in line with civil law countries such as Japan or France. In fact, according to Charles Russell Speechlys LLP , “US law and English law differ as to good faith”. Implied duty of good faith only exists in the UK for specific types of contracts “such as employment law and insurance law in relation to pre-contractual disclosure by a party seeking cover. “

Contracts as Cross-Cultural Exchanges

Whether drafted in the USA, the UK, or Japan, a contract must involve the exchange of something of value and must be time-limited. However, the legal and social culture of the jurisdiction seeps into the contents of the contract itself. In international negotiations and agreements between companies or individuals these assumptions about whether a contract is something written in stone and unchangeable or a sign of good faith that can be negotiated in the future come to the forefront and can lead to conflict or confusion.

Whether reading a contract in its original or translated form, it’s important to understand the specific cultural and legal tradition that the agreement is bound to. As a translator these sorts of cultural-specific assumptions and norms are the most fascinating and frustrating part of my occupation. However, cross-cultural understanding is also imperative for international companies as well. The specific context of cultural assumptions and legal traditions are essential to understand the English translation of a Japanese contract or a Japanese translation of an English contract. Even in translation, a contract still speaks about a specific legal tradition and a specific culture.

Professional Associations: Are they worth it?

Professional Translation Associations

With two translation conferences coming up, this is the perfect time to take a break from writing research-heavy legal articles and discuss professional translation associations. While this may be more relevant for other translators or aspiring translators, it could be interesting for anyone vaguely interested in the translation industry.

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Most industries have professional associations, whether they’re mandatory or elective associations. After all, humans are as a species social creatures and like-minded people enjoy spending time with those who share similar interests and gaining insights from others working in a similar field.

Personally, between finishing my Masters and starting freelancing full-time, I joined lots of organizations for both Japanese translators and general translators, partially for this human connection and partially for professional development.

Currently I’m a member of:

  • JAT (Japanese Association of Translators)
  • NLSC (National Language Service Corps)
  • CHICATA (Chicago Area Translators and Interpreters Association
  • MATI (Midwest Association of Translators and Interpreters)
  • ATA (American Translators Association)
  • SWET (Society of Writers, Editors, and Translators)
  • TWB (Translators Without Borders)

However, most of these organizations— excluding NLSC and TWB, which are voluntary organizations — cost money to join as well as to participate in any activities. So particularly as a new translator with limited funds are professional organizations worth it?

Inherent in this question is what are the costs of these associations versus what are the benefits. For the memberships that I’ve joined the only cost is an economic one — ranging from $10 to $200 — as general membership does not require forced participation or engagement. While I do view these memberships as an investment, when looking at the benefits I prefer to define them broadly, bringing value in both tangible and intangible ways, rather than seeing it as a number driven cost-benefit analysis.

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Human Connection

While I’ve touched on the human aspect, it bears repeating. Freelancing is an isolating job, particularly when you work with clients around the world and mostly interact through emails. Most organizations have different meet-ups for their members ranging from conferences and workshops to more casual picnics and social gatherings. For a newer translator, this is an opportunity to learn from veteran translators, to ask about the business, translating specific terms, average prices in the industry, scams, and so on, and to speak to others starting out or further in their career about their experiences. It’s important not to feel alone and that human connection is imperative for someone who thrives on conversation and feeling like they’re part of a community. In a more tangible sense, I’ve gotten recommendations of reading materials, useful advice about marketing and places that need Japanese translations, and been referred to a client.

Professional Development

As someone who likes to read textbooks, watch documentaries and essay vlogs, and listen to educational podcasts for fun, the professional development aspect of these memberships is very important to me. These sorts of memberships offer workshops on select topics in the industry, articles, forums, and conferences. There is more material than I could ever possibly consume. JAT and ATA has a free (quarterly and monthly) periodical full of articles on more general business planning, marketing, technology, developments in the translation and interpreting industry as well as more specific pieces about translating specific genres or dealing with difficult forms of speech such as idioms, jokes/puns, metaphors, and culture-specific phrases.

JAT has a useful forum about various topics in Japanese translation, which includes some links to the recording of conferences that I couldn’t attend since I live outside Japan. NLSC has an extensive list of resources to continuously hone and develop your non-native language. ATA has an extensive resource list that shamefully I’ve hardly explored. Likewise, SWET has many articles on editing and writing that I’ve read little of, but I have appreciated the threads discussing translation of specific terminology and non-textual (i.e. punctuation and formatting) discussions. TWB has a free online training about translation and interpreting for humanitarian organizations. I’ve attended a few webinars via MATI and CHICATA on legal translation, business development, marketing, and healthcare interpreting. However, this is hardly an exhaustive list of what’s available. I attended one full-day program in the suburbs of Chicago, which discusses Adword and Google for Business as well as literary translation, poetry, and Latin in English legalese.

Conferences

This year, for the first time since IJET-26 in York, I am joining two different conferences: the MATI 15th Annual Conference on September 29 in Indianapolis and the ATA  59th Annual Conference on October 24-27 in New Orleans. These offer sessions on topics in translation —  in the case of ATA there are lots of sessions on legal translation and specifically in my language pairs Japanese/English which I am over the moon about and wish I could time travel to attend multiple sessions simultaneously—  and networking opportunities not just with other translators but companies looking for potential translators such as translation or localization companies and governmental organizations. MATI is sponsored by several translation companies who will attend the conference and ATA has two evening events specifically for networking with new clients.

As someone who likes in-person interaction but is a bit shy, meeting people in conferences is the best of all worlds. Particularly for asking questions to colleagues, I prefer to ask one on one or in a small group rather than public forums, which I may read but almost never post anything, being hesitant to put myself out there. While I feel as comfortable with job hunting digitally as I do in person —  excluding my dreaded cold calling —  it’s useful to make in-person connections with potential clients to foster a connection with them and gain recognition beyond simply being someone able to provide a particular service. When I worked in sales, I read one article that indicated that people often buy things based on emotion rather than just on benefits like quality or price; this is debatable at best, however, having that human connection makes them more likely to tell you about opportunities and connect outside a purely work-oriented arena.

However, conferences are a major expense in and of themselves. They provide ample opportunity to learn, network, and find projects, but even just to attend it’s in the hundreds of dollars. In my case, it’s a gamble that I’m looking forward to.

Access to Prestige

Many of these organizations have a directory, in which you can detail your experience, language pairs, and specializations. While there are also free translation directories such as Proz and TranslatorCafe, professional organizations are just that, professional. Much like the Alans in the Middle Ages using their access to the Byzantine Empire to gain the power that comes with prestige —  if you forgive an obscure reference —  professional bodies bestow a sense of professionalism through association and with that prestige.

Of course, as a translator, one must provide high-quality translations, yet having this access to a reputable organization provides more opportunities for clients searching for translators to stumble across your profile, and reassures new clients that you are a professional. I have been contacted multiple times by people who found my profile via these organizations. Although, at the moment they do no represent a large chunk of my workflow.

ATA has a certification test, which I’ve heard mixed reviews on ranging from it being unnecessary and overpriced to it being very useful for getting high-quality clients. At the conference, I intend to attend one talk on this certification.

To Join or Not to Join

This question is hard to answer in a simple yes or no. Joining is not imperative to be a professional translator, yet there are certainly benefits. While there are quite a few free resources for professional development, even after the initial cost most workshops and conferences are an additional expense so the costs for someone struggling financially is not something to take lightly.

Personally, I feel satisfied with the memberships I have. In fact, one day when I have more cash to burn I’d like to join NAJIT and try to attend another I-JET conference. The interaction I’ve had with other translators is invaluable. It may not directly improve my abilities or find work, but I have learned a lot of information and simply met some wonderful people who are fun to have a drink with. Veteran translators indicate the conference sessions tend to be recycled so after decades of attendance they offer less useful information, but as a new freelancer and translator with less than five years of experience, the opportunity to hone my skills is indispensable. While it is quite the expense and conferences are a big time commitment, as a translator or aspiring translator professional organizations are something to seriously consider.

Birth, Marriage, Death! Oh My! The World of the Family Registry [koseki 戸籍]

 

For the second installment of my legal series, I’d like to explore a formal Japanese administrative document that I have translated many times, which has no direct equivalent in either the USA or the UK. While such official paperwork may seem trivial and perhaps on the cusp of what’s considered “legal” documentation, it plays an important role in documenting who is in the in-group and who is an outsider, who gets rights and who doesn’t. It’s an imperative document with a rich history and some serious issues for those outside of mainstream society.

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From birth to marriage, from giving birth to death, the Family Registry (Koseki 戸籍 in Japanese) records all of this information. The Family Registry functions as an official birth certificate, certification of citizenship, death certificate, marriage license, and a census, which are compiled into a one- to two-page document and is kept at regional public offices. The Family Registry is filed under the name of the “head of the household” and is required to be updated after various life changes: marriage, birth, adoption, divorce, and death. This information is updated by submitting the following forms to the municipality in which one’s family register is located: Registration of Birth (Shussei Todoke 出生届), Marriage Certificate (Konin Todoke婚姻届), Divorce Registration (Rikon Todoke 離婚届), and Death Certificate (Shibou Todoke 死亡届).

Due to how imperative this document is for Japanese national identity, the translation of this form as well as other documentation may be required for divorce hearings between a Japanese national and foreigner, any major life event that happened outside of Japan, for a Japanese person living abroad to receive an inheritance, and to submit identification information to a foreign government (for example for Japanese nationals living in the US). The relevant law presiding over this short, but important document is the Family Register Act (Koseki-hou 戸籍法), established in 1947; and Article 13 details exactly what must be included in the Family Registry.

第十三条 戸籍には、本籍の外、戸籍内の各について、左の事を記載しなければならない
Article 13 In addition to the registered domicilethe following matters shall be entered in a family register for each person in the family register:
一 氏名
(i) his/her name;
二 出生の年月日
(ii) his/her date of birth;
三 戸籍に入つた原因及び年月日
(iii) the cause and date of his/her entry in the family register;
四 父母氏名及び父母との続柄
(iv) the names of his/her natural parents and his/her relationship with his/her natural parents;
五 養子であるときは、養親氏名及び養親との続柄
(v) in the case of an adopted childthe name(s) of his/her adoptive parent(s) and his/her relationship with his/her adoptive parent(s);
六 夫婦については、夫又は妻である旨
(vi) for a husband and wife, a statement that they are husband and wife;
七 他の戸籍から入つた者については、その戸籍表示
(vii) for a person whose name has been moved from another family registerreference to the former family registerand
八 その省令で定める事
(viii) other matters specified by Ordinance of the Ministry of Justice.
Family Register Act Article 13 from Japanese Law Translation
Family Registration Example

Origins of the Family Registry

While the laws presiding over the Family Registry are from the post-war era, this document detailing all of Japanese citizenry  — as seen in the example above — first came out during the Meiji Restoration in 1872 and for the first time required all Japanese citizens to have surnames. Prior to this during the Bakufu (a period of military government led by the Shogunate from 1192 to 1868) there were four documents to record the population: Registry of Human Categories (Ninbetsuchō 人別帳), Religious Inquisition Registry (Shūmon jinbetsu aratamechō 宗門人別改帳), Five Household Registry (Gonin gumichō 五人組帳) , and the Death Registry (Kakochō 過去帳). Under these systems, certain social outcasts such as the Burakumin, who are a group in Japan that has been historically discriminated against due to the occupation and identity of their ancestors, were excluded from this registration. Unfortunately the modern Family Registry has not completely shaken this history and has been accused of blatant discrimination.

Discriminatory Implications

According to Colin Jones, a professor at Doshisha Law School, in his article “Japan’s discriminatory koseki registry system looks ever more outdated”, this system legitimizes and even to some extent mandates discrimination against outsiders. He details that one group of outsiders of this system is the imperial family who is registered in the Imperial Family Register (Koutoufu 皇統譜) and any princess who marries an outsider becomes a “commoner” who is removed from the family register and added to the Koseki system.

Another group of outsiders are called Mukosekisha (無戸籍者) or people with no Family Registry. There are many issues for children whose parents are unknown, children born abroad whose parents didn’t register them within 3 months, and children through artificial insemination or surrogacy. In one episode of the radio podcast series 弁護士の放課後 ほな行こか〜 (After School with Lawyers Let’s get a move on!), which interviews members of the Osaka Bar Association, a family lawyer details why Japanese parents should register their unregistered children and that there are no penalties for doing it late. Some of these children are unregistered because their mother or parents didn’t want to be found (potentially due to domestic abuse) or there were other life circumstances which prevented registration and are hesitant to see a lawyer for fear of being judged. However, as the special speaker mentioned, most lawyers won’t lecture you for this, if they do then you can switch to a different one, and even if it’s last minute parents should register their children as it will be hard for them to function in society, register for school, or get a job when they grow up.

The final group that Colin Jones identifies are ethnic Koreans in Japan and foreigners in Japan, as the system itself is linked to nationality and one must be connected to a Family Registry to be naturalized as a Japanese citizen, which can mean a foreign spouse being added to their Japanese partner’s family registry. (In the pre-war version of the Family Register, Japanese citizens who married a foreigner were removed from the registry and foreign spouses were barred from being part of the registry.)

Attempting to Change an Arcane System

I would be remiss in not mentioning challenges to the Family Register system to address inherent discriminatory issues.  After all, laws and policies are not static and can sometimes be amended, even if it takes time to chip away at it.

In the case of the Family Registry Act, the one notable amendment is the 2003 Gender Identity Disorder (GID) Act which states that with the letter of support from two psychiatrists, someone can change their gender listed on the Family Registry. Same-sex marriage has not been legalized in Japan, however with the Family Registry system, same-sex couples can use the “adult adoption” to adopt one partner into the other’s Family Registry to gain legal visiting rights for medical treatment and family inheritance. However, adoption is not allowed for a person of “old age”.

Prior to the 1980s, the Nationality Law (Kokusekihou 国籍法) only allowed Japanese males to pass on “Japanese” nationality in the case of a union with a foreign partner, yet with the 1985 adoption of the Convention on Elimination of All Forms of Discrimination Against Women allowed a woman to pass her nationality onto children born from foreign spouses. Due to the fact that the fathers must “recognize” their paternity of their children it has been hard for foreign women to claim Japanese nationality for their children, yet with the 2008 Supreme court ruling that the Nationality Law provision on illegitimate children was unconstitutional, the father can retroactively recognize paternity even after birth. In 2015, a case arguing that the Family Registry’s requirement for married couples to have the same name is a form of discrimination against women, yet the Supreme Court upheld this provision.

The Family Registry system has been accused of being arcane and a legal form of upholding discrimination, which no longer represents what the modern Japanese family looks like. In 2017, the Ministry of Justice has suggested replacing the Family Registry system with the My Number System used for the tax and social insurance system. Perhaps over time this seemingly unchanging document and the almost unchanging Family Registry Act will too be affected by the winds of change and find space for those in Japan who have been deemed “outsiders” to it. Yet in the meantime it’s important for legal professionals and translators who deal with such documents alike to understand the Family Registry system and the laws underpinning it.

 

Japanese Traffic Court Interpreting

Court Interpreting and Traffic Court in the US

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This article is a compilation of my research to prepare for court interpreting and understanding US and Japanese traffic laws. I hope that this will be useful for those interested in legal interpreting, Japanese translation and interpreting, and Japan-US comparative law. For those interested in learning more about the Japanese legal interpreting and translation I’ve included some legal Japanese terminology and an excerpt of laws in both English and Japanese. If you would like me to transliterate such terminology in future posts, please leave a comment below. This is the first post in my series on topics on legal translation and interpretation. If you have any topics related to Japanese translation or law that you’d be interested in reading about, leave a comment so I can add it to this series.

As a disclaimer, while I have experience working as an interpreter in manufacturing and at a film production, I am mainly a translator and am not certified as a court interpreter.

Interpreting is like the public performance version of translation.

Jean Herbert in the Interpreter’s Guide says the three main steps in interpreting are understanding, conversion, and delivery. So the interpreter must have a wide vocabulary and deep understanding of both languages as well as a background that allows them to understand the topic. For understanding the topic, prior research and an understanding of the interpretive performance is imperative. The conversion of this is taking the meaning of the utterance and transferring it to another linguistic code while maintaining the same register, tone, style, and meaning as the original. Some linguistic issues Herbert noted are: proverbs and metaphors, allusions to literary works, jokes or stories, speaker errors, obscure or ambiguous material, and inserted excerpts from written documents unseen by the interpreter. Once this utterance has been converted to another language, the interpreter still must deliver it, like an actor, with good articulation and without idiosyncratic gestures. After all, while the interpreter plays an active role conveying the message from one party to another, they are a conduit for this information and must not let their own thoughts, feelings, and opinions interfere with this information in either verbal or non-verbal forms of communication.

The two biggest fields of interpreting are court interpreting and healthcare interpreting. However, the largest employer of full-time Japanese/English interpreters in USA is actually the manufacturing industry. Please check out Allyson Larimer’s article for more information on this topic.

In the case of court interpreting, since the landmark case, U.S. ex. rel. Negron v. State of New York, 434 F.2d 386, US courts are required to allow or provide an interpreter for those who are Non-English Speaking (NES) or Limited English Proficiency (LEP) to appear in a court as the proceeding is required to be conducted in English, but the case is not valid if the defendant cannot understand the proceedings. The modality of court interpreting is often simultaneous, consecutive, and sight-translation. Simultaneous while the prosecution and defense make their opening and closing remarks, consecutive for witnesses, and performing sight-translation for any court documents or pieces of evidence handed to the their client.

Traffic Court Interpreting

Compared to most types of trials, traffic court (交通裁判所) is a relatively simple trial for both the defendant (被告) and an interpreter. Most traffic offenses do not qualify for trial by jury so they tend to be a more informal trial overseen by a judge and often conducted without a legal representation for either the defense or prosecution. In fact in many cases, there’s no one for the prosecution (起訴側) such as the officer on the scene or the victim in a minor crash. After all, in a mandatory court appearance is only mandatory for the defendant not the officer that issued the ticket nor for the victim of a crash.

Picture from “Trial by Judge: Understanding Traffic Court” at NOLO

So instead the defense  (被告側) must either prove their innocence by providing evidence (証拠) and witnesses  (証人) or admit their guilt. Sumutoko advises Japanese nationals in Illinois that in the case of a traffic violation resulting in a mandatory court appearance 「裁判所出廷が必須な場合」there are three options.
  • Plead guilty, pay the fine, and receive a conviction「罪状を認め、提示された罰金額を支払う(記録が残る)」
  • Plead guilty, pay the fine, attend Driver’s School, and avoid a conviction「「罪状を認め、提示された罰金額プラスDriver’s School料を支払い、Driver’s Schoolに行く(記録が抹消される)」
  • Plead not guilty and fight it in court 「罪状を認めず、裁判所で争う」

In most traffic cases, the defendant pleads guilty, which also simplifies the proceedings. Once the defendant pleads guilty and answers questions from the judge, the judge usually takes into consideration both the severity of the offense and decedent’s driving record (運転歴) to determine the fine. (For a minor traffic violation, a judge fined me, but kept that violation off my driving record since I had a spotless record without even a speeding ticket.)

Regardless of the circumstances as the interpreter, you are not allowed to advise the defendant on what to plead or anything else related to the trial. One fundamental aspect of interpreting is that you are not an advocate for the client so the interpreter cannot give any legal advise or an explanation of legal jargon not explained by the other judge, yet without a fundamental understanding of such jargon or proceedings one cannot properly interpret.

Traffic Laws in the USA and Japan

The US has a reputation for being a very litigious country, something that could be a topic all by itself. The Attorney Michiko Ito described the US as 「《契約会社》アメリカ、《起訴ずきの国》アメリカ」”The US: filled with companies for contracts, the US: a country in love with lawsuits” in her book アメリカ駐在員のための法律常識 aimed giving Japanese nationals residing in the USA a general understanding of laws for living and doing business. This can be embodies within Traffic Laws of the USA vs. Japan and which violations can result in a mandatory trial.

As Michiko Ito explains, the US court system is complicated. Most laws are enacted on a state level and even if certain actions are illegal regardless of the location (speeding, DUI, DWI, running a red light or stop sign, not yielding to a bus, not stopping when a police pulls you over), how these rules are enforced and the fines they could incur can be different from state to state. In Illinois, these laws are found in the Illinois Vehicle Code (イリノイ車両法) (625 ILCS 5/), whereas the traffic laws in Japan are centralized and the applicable laws are the Road Traffic Act (道路交通法).

For offenses that result in fines, with or without a trial, both Illinois and Japan has a Driver’s Licence Point System or 運転免許の点数 in which with enough deduction one’s licence can be suspended 免停 or revoked 免許取消.

In Illinois, this is calculated in a one month period and incurring violations from 15 to 44 points results in a 2-month suspension, 45 to 74 points in a 3-month suspension, 75 to 89 points in a 6-month suspension, 90 to 99 points in a 9-month suspension, and 100 or more points in a 12-month suspension. The more infractions one occurs the more likely a judge may order for their licence to be revoked. These infractions range from 5 points for driving 5 miles under the speed limit, 10 points for failing to obey an officer’s orders, 20 points for texting or using a phone while driving, 20 points for not stopping at a stop sign, 5 to 50 points for speeding, depending on the speed, 55 points for reckless driving.

In Japan, it depends on your past offenses. With no prior record, a violation of 6 to 8 points results in a 30 day suspension, 9 to 11 points in a 60 day suspension, and 12 to 14 points in a 90 day suspension. Any points above that and one’s license will be revoked, once that is revoked and the 欠格期間, which is the time period before one can apply for a new license and re-enroll into driving classes, depends on the offense. Three violations will result in immediate license revocation: driving under the influence (飲酒運転), driving without a license (無免許運転), and causing a serious accident (悪質な事故). The Road Traffic act states that:

第六十五条 何人も、酒気を帯びて車両等を運転してはならない。Article 65 (1) It is prohibited for any person to drive a vehicle or streetcar while under the influence of alcohol.
2 何人も、酒気を帯びている者で、前項の規定に違反して車両等を運転することとなるおそれがあるものに対し、車両等を提供してはならない。(2) It is prohibited for any person to provide a vehicle or streetcar to a person under the influence of alcohol who is likely to drive it in violation of the preceding paragraph.
3 何人も、第一項の規定に違反して車両等を運転することとなるおそれがある者に対し、酒類を提供し、又は飲酒をすすめてはならない(3) It is prohibited for any person to provide an alcoholic beverage to or encourage the consumption of alcohol by a person who is likely to drive a vehicle or streetcar in violation of paragraph (1).

There is some overlap in Japanese and Illinois law procedures as driving under the influence is considered a felony not a traffic violation. In the case of Illinois, it will result in up to a $2,500 fine, up to 1 year jail time, and a one year suspension of one’s licence. However it’s important to note the difference in what is considered the legal limit. In Illinois (and most of the USA), a DUI is considered a blood alcohol content of 0.08% or more. Japan is much more strict and a DUI is 0.03% or more, in addition jail time can be up to 3 years with up to a 500,000 Yen fine.

With these two basic systems in place, what offenses result in mandatory traffic court?

In Illinois, the officer at the scene will issue a ticket and will either check the box for “appearance in court required” or “No appearance in court required”. Even for infractions that don’t require a court appearance, it can be contested in court and paying the fine whether it’s a parking ticket or speeding ticket is tantamount to admitting guilt. For certain violations, as part of the separation of powers law enforcement as part of the executive branch needs to delegate these fines to a judge in the judicial branch. Any violations resulting in an accident will lead to mandatory appearance in court, but other possible violations are speeding, reckless driving, bus violation, failure to yield, and disobeying an officer’s orders regardless of the severity of the initial offense. In regards to this final one, the Illinois vehicle codes states,

(625 ILCS 5/11-203) (from Ch. 95 1/2, par. 11-203)
    Sec. 11-203. Obedience to police officers. No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer, fireman, person authorized by a local authority to direct traffic, or school crossing guard invested by law with authority to direct, control, or regulate traffic. Any person convicted of violating this Section is guilty of a petty offense and shall be subject to a mandatory fine of $150.

In Japan, on the other hand, only serious violations result in a trial. The officers have a blue ticket for minor violations and a red ticket for serious violations. For minor traffic violations, if you pay the traffic violation fine (反則金) then the violation will not appear on your criminal record unlike in the USA where it’s recorded in your driving record. Similar to the US if these fees are not paid it will lead to a criminal procedure and another fine. However, if you deny guilt and try to appeal this ticket, it will also result in a criminal procedure. In the case of a very minor violation or one’s first violation, it might not be prosecuted and the initial fine could be waived. However, if the defendant admits guilt during the procedure then they will have to pay a criminal fine (罰金), which will appear on their criminal record. If they deny the validity of the ticket, the defendant may appear in court. Sumikawa’s law office advises against fighting a traffic violation fine as the criminal proceedings and trial will appear on your record.

In the case of major traffic violations, a criminal proceeding is required and if the defendant claims innocence a subsequent trial. Some examples of major crimes are drunk driving, driving while on drugs,  a hit and run, and speeding 50 km over the speeding limit. Japan also has an additional traffic regulation for these sorts of violations when they result in either death or injury, the Act Concerning Punishment of Automobile Driving Resulting in Death or Injury (自動車運転支所行為処罰法).

When it comes to laws and policies, the devil is in the detail and a law on the books is only as powerful as its enforcement. After all, in the same exact road and going the same speed, one person can get fined and another person can get away scot-free.  One person can not notice the officer’s siren going off for a while and once they pull over, get slammed with a mandatory court appearance, but another person may get an officer that’s more understanding and gives them a warning or simply issues them a ticket. There are significantly more minor violations that can lead to a mandatory trial in the USA, although there is overlap in what is considered a severe traffic offense and what may result in a license revocation. The USA is a nation for cars and has limited public transportation so the suspension or revocation of one’s license will have a serious impact on one’s life and can be the difference between being able to go to work or getting groceries and not being able to do so.

Japan does not bring as many traffic violations to court and when it does it’s considered a criminal proceeding, but tends to be settled out of court. It is significantly more difficult to get a driver’s licence in Japan (the driving age is 18 compared to 15 to 16 in the USA) and it is much easier to get it suspended or revoked. Major traffic violations tend to have much harsher penalties in Japan compared to the USA. Furthermore, traffic accidents that result in injury or death are considered an “intentional” crime, which gives the legal groundwork for large criminal fines and longer jail time.

When interpreting in a US court, while Japanese law is not imperative, it is useful to understand the cultural differences to understand the position and thought processes of someone who might not completely familiar with US laws and regulations. Personally, I think exploring comparative law and policy, much like comparative linguistics gives a greater understanding of how different cultures intersect and diverge. For translation or interpreting, one needs to understand both their own culture and their learned culture as well as understand the topic discussed or written about.

 

*Please stay tuned for this legal translation series for topics on human rights laws, contract laws, family registries, and legal specialization. I’d love to hear your thoughts and comments, as well as any other topics in this category that you may be interested in.

Specialization and the Translator

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Ever since I began studying translation, I have been told by more experienced translators as well as translation agencies, that as a translator I should specialize in a particular subject area. As a business strategy this makes sense, you want to find your niche, an area you know about that others — in my case Japanese Translators — don’t know as well so you can not only be a conduit between languages but be a specialist in that subject. While there are many Japanese Translators, there are relatively few who specialize in Heian literature and few who can read or understand ancient Japanese or have studied paleography to be able to read kuzushiji.

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An example of Edo Period Kuzushiji
However, there is a Catch-22 of being too specialized in a subject area that has a limited market as it limits the type of assignments you can get. Of course, a Heian specialized translator would be the go-to person for a University or literary company wanting to translate some lesser known diaries, but that doesn’t mean there are many projects in this genre of translations. About 90% of translation are technical translations, a statistics one of my professors told me on the first day of class. Yet technical translation encompasses a wide genre of specific specializations: IT,  life science, medicine, automotive, manufacturing etc. The User Manuals for medical equipment that I proofread at one job and the daily updates for machine/casting lines at the factory that I translated for another job are both technical, but require different specializations.

There are specialty translation groups, regardless of language pairs, such as NAJIT the National Association of Judiciary Interpreters and Translators, and ALTA the American Literary Translators Association. JAT, the Japanese Association of Translators has four translation genre specific specialty groups: Law, Pharmaceuticals, Patent, and Entertainment. (They do also have groups for translator tools, interpreting etc.) This is of course, not an all-inclusive list of specializations. For Japanese specifically, within entertainment in addition to literature, dramas, and movies, one can translate manga, video games, and anime, which encompasses a large and profitable localization industry. Many universities teaching Translation as either a BA or MA, such as Babel University, focus on the specializations IT, Law, Finance, and Medical.

So then how does one pick a specialization?

Does someone with specialty knowledge become a translator or does a translator go on to become someone with specialty knowledge?

Of course, it goes both ways. There are people who have studied medicine, law, pharmaceuticals, various branches of science, IT, finance, marketing, etc who decide to become translators and can easily select their specialization, because of their work history and undergraduate degree. There are also linguists who studied the humanities then went onto study translation, who decide later on to pick up a particular specialization either because of an interest in that area study or because they happened to get a job where they translated that genre and with experience as well as extra studying became an expert in that area. Specializations are earned through work experience in that subject area, translation experience in that subject area, and through a degree or other formal studies of that area.

My BA is in Linguistics and Global Studies, which is a combination of Economics, History, Anthropology, Politics, and Intercultural Communication. These studies give me qualifications for academic translations in the humanities, and my Global Studies major gives me a spring-board to learn more in-depth about International Law and to potentially specialize in law in the long-term. In my experience, however, there is not a huge market for academic translations and without taking extra course, it is not sufficient to give my a qualification in the law.

So then the next question, is how to become qualified in a subject not previously studied or directly worked in. I have heard arguments that an ideal translator is someone who have worked in that field and becomes a translator, i.e. an author who decides to translate literature, a lawyer who decides to translate legal texts, a banker who decides to translate financial documents, an engineer who decides to translate technical documents. The main thesis of this argument is sensible, one should translate what they understand. However, it seems to negate the importance of linguistic knowledge as well as the role of research that even a layman is capable of. I may not be an expert in insurance or family registers, yet I can do serious research into these subjects in both the source and target language and create a well-written translation. Of course, there are more specialized texts in medicine or automotive-related that I could not in good faith accept.

So then how much research makes one an expert? Of course, a Google search may be sufficient to understand the meaning of a particular text, but few would claim that qualifies them as an expert. I have gone to one talk about Patents and attempted to apply for a training program doing them, enough to understand how complicated this genre of translation is. (I’d go as far as to say, it made me realize this specialization much like automotive specific technical translation is not for me.) Taking a course in your desired genre (ie. finance, medicine, pharmaceuticals, law, etc) either content or translation focused is one step towards specializing in the subject, that in and of itself is insufficient for specialization. Ideally if someone wants to be an expert in a particular industry they need to study that industry by reading textbooks, taking courses, getting experience translating between their language pairs in it, and keeping up with companies and people in that industry. One talk I went to by a legal translator recommended joining industry groups so that you can talk to the leaders in that industry and learn what the most pressing issues were. Reading one book or going to one lecture on a subject doesn’t make one an expert, however, doing countless hours of research, doing various courses on the subject whether it’s online or in person, reading lots of books on the subject, and joining groups about this subject overtime can turn one into an expert.

One should pick a specialization that they are interested in or passionate about, or one that they understand, while keeping in mind what market is like for this area. (Localization is a large industry, but it doesn’t pay as well as a specialization in law or medicine. Conversely, getting qualified in law and medicine is quite expensive and time consuming.) I know people who work in localization and love manga and light novels, they are experts at using slang and translating humor. I know a medical interpreter who never studied nursing, but who did training in healthcare interpreting and feels fulfilled in her job. I know some self-proclaimed generalists who are quite happy translating all sorts of texts and find nothing wrong with not specializing. For myself, the last few months, I have begun looking more into translating contracts and specifically human rights law and immigration law, and while I’m certain there are more actual jobs in contracts, within the next five years I would like to specialize in this area of international law.

At a later date, I’ll speak a little more specifically about Legal Translation.

A Guide to Commonly Used Terms in Translation

Every now and again, I tell my friends or new business connections that I’m a translator and their eyes glaze over in confusion when I explain the services I provide. As any linguist knows, every field has its own unique vocabulary and as an outsider it’s difficult to understand exactly what these terms mean. Many companies and individuals who want translation, interpretation, or localization services do not know much about the industry and often request a different service from what they want. So this time, I want to talk about some commonly used terms in the translation industry and address some questions, I’ve been asked about this business.open-book-library-education-read-159621.jpeg

  • What is the difference between translation and interpretation?

Translation refers to written texts and requires analytical skills, although it does include subtitling multimedia files or translation of a written transcription of a media file. The main service that I offer is translation including both documents and multimedia files. In addition to translation, there is also localization, which is a term used for the translation of websites, advertisements, and entertainment. Localization allows for a larger degree of artistic licence and creativity in order to localize a movie title, advertising slogans, jokes etc so that it is understandable in the language and culture it is translated into.

Interpretation refers to verbal communication and requires a quick response. Consecutive interpretation is done after someone has finished speaking and is often used for meetings. Simultaneous interpreting is done while the speaker is speaking and is often used for multi-national conferences like the World Summit or for court interpreting.

Translators do not always do interpretation and there are interpreters who don’t translate. It’s the difference between a Public Speaker and a Writer, some Writers love speaking publicly and others are shy. Some Public Speakers struggle to write with the same eloquence that they can speak.

  • What’s the difference between proofreading and editing?

Proofreading is a bottom-up activity, correcting and checking for the smaller linguistic units of a text such as spelling, word-usage, and grammar. Editing is a top-down activity and checks the content of the text for consistency, phrasing, and conciseness. Both Proofreading and editing are activities that focus on the Target Text (ie. translated text), although bilingual Proofreaders/Editors will also check the Target Text against to Source Text (original document). However, this particular QA (i.e. quality assurance) activity has its own term: checking. In translation, Checking means checking both the translation and source to ensure the translation is accurate, complete, and natural.

However, there is an addition Quality Assurance activity in which comprehending either the Source Text or Target Text is irrelevant and focuses on DTP (Desk Top Publishing). This is called Document Review which ensures the layout of the translation matches the source, and checks for images, text overlap, completed translation, and that the numbers match. One does not need to know either language to perform document review. Some translators also perform Desk Top Publishing services which is fixing the issues found by the Document Reviewer, which could be themselves. DTP can be done on common software like Microsoft Word or digital design software like InDesign or Photoshop.

This is, of course, only a small portion of terms and services within the language industry. What questions do you have about the translation industry and what terms used by translation/localization companies or individuals within the industry confuse you?

 

Start of a new era: Latham Sprinkle Translation and Editing Launches

While it might be a slight exaggeration to call this the dawning of a new era, it certainly is the beginning of a very new way of life, casting off the shackles of stability to fully join the gig economy. Today marks, the official launching of my freelance business, Latham Sprinkle Translation and Editing, as my main profession. No longer am I debating, like Hamlet, whether to “be or not to be”, I’ve passed the point of no return and have succumbed to both the struggles and joys of being my own boss.

This is a very special post as it marks the beginning of my business launch and unlike my previous blogs, this will be more of a freestyle piece and less academic in tone.

For years now, I have been debating what direction I want for my professional career and after several ups and downs, within the language industry and outside of it, I have finally made up my mind. Ever since finishing college, I had sought out my golden goose, a stable salaried job involving translation, which exist but are usually interpreting jobs in disguise, in addition to another office role. After landing such a role only to discover technical interpreting was not for me, I thought my translation career was over.

While I had nearly given up on pursuing my dream of being a translator, much like my on-indefinite-hold dream of being a fantasy author, for the first time in over a year it feels like I found my calling and I’ve found my passion for the language industry anew. My failures have been learning experiences. I still need professional interpreter training and more training in CAT tools; and I still need to get a proper specialization to set myself apart and market my skills. Yet by recognizing these deficiencies, I can work on them and eventually turn them into strengths. I’m both young enough that I still have time to  work on specializations/certifications in order to hone my craft while I gain more experience, and experienced enough that I have an understanding of various professional industries and have the sales/marketing and translation skills to run a freelance business.

In the last few months, I have joined many professional translation organizations; through them I’ve met so many lovely translators and interpreters and attended professional workshops and webinars to learn more about aspects of the industry. In the end, freelancing is both about writing and translation skills, but also a business and must be operated as such. I have gained insights from both established professionals and other struggling newbies about how to perfect my abilities, market myself, and perform HR activities. My list of professional development activities: readings, webinars, classes, and the like are endless and it’s exciting that I have finally have time to really sink my teeth into it. I still feel like a diamond in the rough, but I’m determined to polish my skills in order to become a successful professional translator.

So with tempered optimism, I look forward to what the future brings.