I’m begging for help here: If you have global responsibilities and are routinely dealing with documents created in languages that you don’t speak, how do you assess outside counsel’s skill at communicating?
As any regular reader of this column knows, I’m a realist at heart. I know in my bones that most lawyers write poorly. I learned this lesson early. When I popped open the first brief that crossed my desk as a clerk in the Ninth Circuit, I exclaimed to one of my co-clerks, “This is great!”
“What’s great?” she asked. “The brief?”
“No,” I told her. “The brief sucks. What’s great is that you and I are not going to starve.”
My judge, a former law school professor and dean, said publicly that she would have given passing grades to about half the briefs she saw in the Ninth Circuit. My reaction was that her standards suffered from grade inflation; the vast majority of the briefs we saw were abominable. I concluded early on that the average lawyer is average, and average just isn’t good enough in cases that my client is now trying to win. A big chunk of my current job is to identify lawyers who are exceptional, which means, among other things, that they are able to convince tribunals to reach the results that we want.
I’ve imposed a rule for all dispositive motions filed in the English language on my client’s behalf: I read drafts of all of them. That serves several purposes: It tells outside counsel that someone’s looking over their shoulder. It lets me quickly assess the quality of the lawyers that we’re hiring. And once in a blue moon I might actually contribute an idea or an editorial suggestion that helps the cause.
But what about cases where the briefs are written in languages that I don’t speak?
For run-of-the-mill cases that exceed my linguistic grasp, I rely on our outside lawyers, supervised by local in-house lawyers, to protect my client’s interests. I monitor those cases by hearing spoken English-language reports, and I take on (misguided) faith that we’re filing briefs that are comprehensible. That doesn’t make me comfortable, but it’s all that I can do at a reasonable cost.
For the most significant matters that are being briefed in other languages, I obtain translations (from well-respected translators) of key documents. Those translations are uniformly incomprehensible. They’re written in legalese that has been converted into pidgin English. I read the sentences, and read them again, and tear my hair out, and read them again, and stick pins in my eyes, and read the sentences again, and I still can’t figure out what in God’s name the author is trying to communicate. I suspect that I can read the sentences a dozen more times and still not decipher them. It’s the written equivalent of Oakland, California: “There is no there there.” I’m like a blind man in a windowless basement with the lights out on a moonless night, searching for a black cat that isn’t there. I can’t make sense of the sentence because the sentence contains no sense.
You think I’m kidding. I’m not. I was prompted to write this post by the following sentence, which is now sitting in front of me on my desk: “The Honorable Supreme Court has had the opportunity to pronounce decisions in regard to this article, following a strict interpretation thereof, in the sense that those laws related to the manner by which rights resulting from a contract could be claimed in a legal proceeding may be included in the objections to law not incorporated into contracts, by distinguishing between substantive and procedural rights contained in same, in order to reach the conclusion that an arbitration clause is a mode by which to claim rights derived from a contract in judicial proceedings, in other words, that it constitutes a procedural or adjectival aspect of the contract and is not a substantive right.” [Citation omitted.]
That brief has already been filed, so I didn’t just disclose any attorney-client confidence by reproducing that sentence here. And both outside and local in-house counsel tell me that we’ll win this appeal. Maybe, but I sure can’t verify that from my own personal knowledge.
What’s an in-house lawyer to do with this? If a firm sent me this sentence in an English-language brief, I know what I’d do. But we’re in a country with a relatively small and non-litigious population, so there are few lawyers there (and perhaps none of them can communicate in writing). Perhaps this would be an example of great legal writing if it were read by locally knowledgeable eyes in its original language. Or perhaps the fault with what I’m reading is the translator’s, not the lawyer’s.
This type of situation baffles me, and I face it repeatedly. So this column reverses the usual roles and seeks advice from any readers who’ve solved this conundrum.
What should I do to ensure that the quality of my legal representation is not lost in translation?
Thanks for your thoughts.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].