Legal Translation in the U.S.

by Madeline Newman Ros with special thanks to legal consultant: Fernando Tejada, Mexican Licensed Lawyer Legal translation in the United States presents a dual challenge. Not only is it necessary for the translator to cross a language barrier; he or she must also be able to interface the concepts and communication modes of two fundamentally different legal systems: Roman law and common law. Furthermore, whereas predominantly oral proceedings prevail in the United States, predominantly written proceedings prevail in most Spanish speaking countries. As a result, legal translations demand a high level of professional skill and involve several important issues. PROFESSIONAL ISSUES Rules for submitting legal translations in the U.S. are not standardized, and their enforcement is somewhat inconsistent. Many courts and public agencies treat translation as an offshoot of interpreting. If the language involved is considered to be a designated language for court interpreter testing (Spanish, for instance), the translator may be required to be certified as a U.S. federal court interpreter and/or as a court interpreter for the local jurisdiction in order to submit a translation. Such a requirement is especially likely to apply if the translation is submitted in connection with a penal matter, and may be coupled with additional special translation exam requirements. ATA accreditation is usually a secondary factor but is receiving growing recognition. U.S. State Department approval may also be accepted, especially if the language is not designated for testing by the court (as is the case with French, German, and Japanese in most parts of the U.S.). Other criteria sometimes used to qualify a translator include: college degrees in languages, linguistics, or translation and interpretation; degrees in law from foreign countries; bilingual classification from law enforcement agencies; registration as a non-designated language interpreter with a local court or with a state court system; or affiliation with a translation agency or language school. It is frequently required that the translator attach a declaration or certificate to his translation. Courts often have a specific form in this regard, the use of which may be mandatory. Some governmental entities will accept only translations that bear a seal of the appropriate court's administrative office for translating and interpreting matters. In other instances, a notarized declaration or even a statement made under penalty of perjury by the translator may suffice. Such a declaration should include a recital by the translator of his or her professional qualifications, along with a statement to the effect that the translator has prepared the translation, and that the translation is true and accurate. It is usually expected that the translator certify his own work only. Declarations stating that a translation has been reviewed and approved by a qualified translator may be viewed as irregular, and will seldom be accepted on a routine basis. It is important to verify that a translator will be acceptable to the court or governmental agency to which the translation will be submitted before the translation is begun; otherwise the translation may have to be done a second time. One must also be sure that the translator's declaration or certificate is prepared in a manner that will be accepted, in order to prevent unnecessary delays. It has been my observation that the burdensome cost of resubmitting or even redoing a translation is often unfairly absorbed by the end user. Thus, such prior verification is an important ethical
1996 by Madeline Newman Ros

consideration. TRAINING ISSUES Little training is offered in the U.S. that specifically focuses on legal translation. The closest type of training readily available for persons wishing to work in this field usually focuses on court interpreting (with emphasis on the U.S. legal system), on literary translation, or on translation in general. The biggest weakness on the training front is that few training experiences provide extensive exposure to foreign legal documents or a systematic orientation as to foreign legal systems. One contribution that the presenter has tried to make in this regard is to participate in organizing courses and seminars regarding these topics in conjunction with the California Judicial Council's continuing education program for court certified interpreters. Other such seminars are being offered through our local ATA chapter, SCATIA. Some training centers, such as the Southern California School of Interpreting, have also started to include a certain degree of exposure to foreign legal systems in their curriculums. ISSUES OF A LINGUISTIC NATURE Legal writing styles may differ greatly between languages. Attention needs to be paid to syntax, grammar, and style conversions so as to produce a readable document. Failure to recognize such differences can lead to mistranslations. Literal conversions can sometimes turn a clear source language passage into an ambiguous target language passage. At times, a literal conversion can even severely distort the meaning of a legal text. Mistranslations of Simple Language Components: Sometimes, a mistranslation in a legal text can result from an overly literal translation of simple language components such as conjunctions, pronouns, or verb forms. A word as simple as the Spanish word y should not necessarily be translated in accordance with its dictionary definition (and). For example, the Guatemalan Code of Civil Procedure states: Solamente los abogados colegiados podrn ser defensores y procuradores. An overly literal translation might read, Only attorneys admitted to the bar may be defense attorneys and prosecutors. A more accurate translation would be Only attorneys admitted to the bar may be defense attorneys or prosecutors. The original use in Spanish of the word y was proper, and thus should be translated using equally appropriate English, which conveys the same meaning as the original sentence. Demonstrative or possessive pronouns and adjectives (words like this, that, or its), also lend themselves to overly literal translations that can create confusions or distortions. Their Spanish equivalents: ste, sta, su, etc. are basic components of Spanish language legal writing conventions. For instance, we could have the following typical sentence in a sample contract: Los pagos deben efectuarse en el domicilio del Acreedor o donde ste le notificare. An overly literal translation might read: Payments shall be made at the Creditor's domicile or wherever this one may indicate. Many people try to correct such a problem by rendering the sentence as, Payments shall be made at the Creditor's domicile or wherever the latter may indicate. Yet the reference word latter is still somewhat confusing and inappropriate. One the one hand, there is no explicit or implicit reference to anything that could be identified as the former. On the other hand, the word latter is rarely employed in a legal writing in the U.S. At the root of this translation challenge is a fundamental difference in legal writing style conventions for Spanish (and several other languages) vis-a-vis English. As has been pointed out by
1996 by Madeline Newman Ros

many writers on practical translation issues (Marina Orellana or Enrique lcaraz Var, for example), English allows for a greater degree of repetition than Spanish, especially in legal writing. My own translation of the sample sentence would have been, Payments shall be made at the Creditor's domicile or wherever the Creditor may indicate. These types of conversions take place frequently in legal translations. Verbs have standard forms in legal writing when they refer to obligatory behavior. Our previous sample sentence, for instance, had deben efectuarse as its verb. A general book on comparative grammar might suggest translations such as must be made, should be made, or even ought to be made for such a phrase. In legal writing, however, if the context tells us that deben efectuarse is specifying mandatory conduct, the standard verb form in English would be shall be made. Some language style features can greatly impact on a legal translation simply because they tend to come up time and again. A statement such as, En el anexo A se incluye el avalo bancario would literally translate into English as The bank's appraisal is included in Attachment A. Yet it can be translated more succinctly as Attachment A includes the bank's appraisal. The expression conforme a lo provisto en la Fraccin 2 del Artculo B del Cdigo Civil literally translates as in accordance with that which is foreseen in Part 2, Article B of the Civil Code. A more readable version, in keeping with actual usage for legal writing in the U.S., would simply be: Pursuant to the Civil Code, Article B, Part 2 or, alternatively, In accordance with the Civil Code, Section B, Subsection 2.1 Certain legal writing conventions may seem strictly stylistic but actually have legal implications. For example, the words person or whoever are accepted as legal terms in English. Expressions employing structures such as he who are reserved for a few rare maxims only. Thus, when translating an expression such as, el que priva de la vida a otro Any person who takes the life of another yields a more standardized legal style than He who takes the life of another. Another basic language component that is often mishandled in legal translations is the Spanish gerundio (verb forms ending in ndo). Such verb forms are in some degree equivalent to English verb forms ending in ing. Yet the Spanish gerundio usually introduces an adverb phrase or functions as a combination conjunction/verb. A mechanical translation of a gerundio into an English -ing form turns the phrase into what is functionally an adjective or a noun. Furthermore, the syntax associated with the gerundio is almost always Verb - Subject, rather than Subject - Verb, as dominates in English. Literal translations of the gerundio almost always result in an extremely awkward text, as can be seen in the following excerpt from a Peruvian passport: En caso de prdida, destruccin o robo, debe notificarse de inmediato a la Polica de la localidad..., siendo requisito para la obtencin de un nuevo pasaporte la constancia de la denuncia respectiva.
1

The proper translation of words such as Artculo, when used to describe subdivisions of law, is a point of controversy among certain Spanish>English translators. There is one school which feels that it should be translated as Section, since law in the U.S. is broken down into Chapter/Section/Subsection. Other translators argue that the use of the word Article to denote a subdivision of a law is easily understandable. Furthermore, they argue that the purpose of citing an article of a foreign law is to aid those who wish to look up that law, which process is facilitated by using the cognate. Thus, they treat the word almost as a proper noun, analogous to an address, and translate it as Article. 1996 by Madeline Newman Ros

Suggested Translation: Notify your local police at once, if this passport is lost, destroyed, or stolen. Proof of having made the respective report is a requirement for obtaining a new passport. Literal translation: In case of loss, destruction or theft, an immediate notification should be made to the police of the locality..., being a requirement for the obtaining of a new passport a proof of the respective denunciation. Mistranslations of the gerundio can produce major conceptual distortions, as can be illustrated with the following passage: Hace imprudente uso de ese arbitrio la autoridad de segunda instancia que confirma la pena de prisin sealada en el mximo legal para el responsable de un homicidio calificado...observndose que, si bien en el caso concurren tres calificativas...se presentan como datos de significacin atenuante los que consisten en que aquel sujeto haba observado buena conducta anterior.2 Translation: The appeals court judge misapplied his discretion when he upheld the prison sentence set at the legal maximum for the perpetrator of a first degree murder . . . for it should be noted that, though three qualifying aggravants were present in the case . . . mitigating circumstances were also present, consisting of the fact that the defendant had previously observed good moral conduct. If the translator of this passage had mechanically translated the underscored words as observing, the translation would have turned the original concept into its direct opposite. The argument which reasons that three qualifying aggravants were present, but that mitigating circumstances were also present, would have been incorrectly attributed to the (misguided) appeals court judge, rather than to the judge who wrote this opinion. Certain language that does not rise to the level of legal terminology can often be common in legal texts, but rare in other contexts. A good example of this is the conjunction toda vez que, which, for general usage, normally takes the subjunctive mood and means whenever. In legal writing, it almost always means inasmuch as or insofar as and is followed by the indicative mood. Even among well educated Spanish speakers who are not familiar with Spanish legal writing, this usage seems rather odd. Language Considerations and their Influence on Terminology Usage: Basic elements of style preferences in a given language also influence terminology usage. For example, Spanish shuns repetition. English, relatively speaking, will often use repetition for the sake of clarity. As one writer puts it, English legal writing has a syntax characterized by repetition of words or syntactical constructions that are avoided in Spanish.3 Thus, if the Code of Civil Procedure is mentioned twice in a paragraph, a Spanish legal text may refer to it the first time as Cdigo de Procedimientos Civiles and the second time as Ley adjectiva. If the Constitution is mentioned twice in a row, it may be called constitucin in one place and Magna Carta in another. If a tariff is being discussed, the word arancel (tariff) may be mentioned at first, while a few sentences later, the
2 3

Marco Antonio Daz de Len, Diccionario de derecho procesal penal, Editorial Porra, S.A., Mexico City, 1989, p. 227. Enrique lcaraz Var, El ingls jurdico, Editorial, Ariel, S.A., Barcelona, p. 81. Translation is mine.

1996 by Madeline Newman Ros

word tarifa (a term that implies a list of charges for importation of goods) may be used. English legal writing would employ repetition in most of these cases. Even when it comes to numbering Articles of a law, Spanish will structure a sentence by saying Articles 5 and 6 of the Penal Code and 2 of the Code of Penal Procedure, whereas English would state, Articles 5 and 6 of the Penal Code and Article 2 of the Code of Penal Procedure. Nonetheless, one must be careful to research terminology and legal concepts so as to be able to distinguish synonyms from actual conceptual differences. For example, the legal concepts of a foreclosure and an execution on real property have certain aspects in common, yet the first is an in rem action (against the property), while the second results from in personam proceedings (actions against the person). Conversely, the words embargo, secuestro, and gravamen are sometimes used interchangeably to refer to an attachment in civil legal terminology. Sometimes, particularly in legal writing, Spanish may use a general word in reference to a specific term containing said word. The proper translation into English must take such style considerations into account. For example, a standard open-ended stock corporation is Sociedad Annima in Spanish, while a partnership would be a contrato de sociedad. Yet the term is only likely to be spelled out once in a document. Afterwards, the company in question would simply be referred to as a sociedad, a term which, when taken out of context, can refer to a myriad of organizational structures. A proper English translation would stay consistent. So long as the word sociedad was referring back to the sociedad annima, we would probably translate the word as corporation. An interesting analogy for this phenomenon was provided by my legal consultant when confronted with this phenomenon. In his terms, [in Spanish] we might call a 'sociedad annima' by its first name, 'sociedad,' and leave off its last name, 'annima'.4 As another example, let's suppose that Page One of a Spanish document mentions a declaracin adjunta (literally: an attached declaration). When we get to the Page Two, voil, there's the declaration, which turns out not to be just any old declaration, but a sworn, written declaration, in other words, an affidavit. If we decide to use the word affidavit on Page Two, we should also be using it on Page One, and translate declaracin adjunta as the attached affidavit. Some words in Spanish, such as acta, cover a number of concepts, which must be delineated for translation into English. An acta can refer to a record of any type of proceeding. It could mean the minutes of a meeting, or some other type of proceeding record. Acta is also used to refer to civil registry records (birth, marriage or death certificates). An escrito can be any type of document prepared by lawyers and submitted to a court: The complaint that opens a civil law suit can be an escrito; so can an opening brief or a closing brief (presented in writing). A mandato can be any act by which one person officially authorizes or orders another person to do something. If it is drawn up by a private party, it would be a power of attorney. If it is drawn up by a judge, it could be a writ or an injunction. Another good example of this linguistic phenomenon can be seen in the way that the word patria potestad is used in Spanish. Its dictionary definition is patria potestas, parental authority, or parental rights. Yet, when a judge awards legal custody to a parent, the word employed in Spanish is usually patria potestad. The reason for such usage is that legal custody is encompassed by the concept of parental rights. Thus, the more general term patria potestad can be appropriately applied to also refer to an award of parental rights in a divorce case in Spanish. In English, parental rights would be inappropriate terminology for such a context, as its meaning is too broad. Conversely, words like defendant in English may have literally dozens of translations in Spanish (indiciado, presunto responsable, procesado, reo, etc.) depending on the stage of the case. If the venue is civil, the
4

Interview with Fernando Tejada, 8/30/96.

1996 by Madeline Newman Ros

defendant might be the demandado or reo. One must determine from the context of the document whether or not such distinctions need to be spelled out in English. In one context, procesado might be best translated as defendant. In another, it might be necessary to indicate that procesado specifically refers to a defendant subsequent to issuance of a committal order, and prior to pronouncement of judgment. Spanish legal usage sometimes employs the same word to refer to a proceeding and to the record that results from such a proceeding. Thus, an affidavit might close with words such as Se termina la presente diligencia, la que leen, aceptan, ratifican y firman. Literally, this sentence would translate as: This proceeding is concluded, and it is read, accepted, ratified, and signed. A more meaningful translation would read, This proceeding concluded, and the affidavit was read, accepted, ratified, and signed. The same exact sentence might be found at the foot of a birth certificate, in which case, it might be translated as, This proceeding concluded, and the certificate was read . . . Likewise, certain legal usage in any language will often include coined phrases that do not translate well into another language unless their expanded meaning is taken into account. Thus, the English phrase no legal cause may really mean no legal cause that judgment should not be pronounced at this time. Mexican vital statistics documents frequently end with the phrase firm el que supo (literally: he who knows signed), which really means firm el que supo, pudo y quiso hacerlo (those persons able and willing to place their signatures did so.) The closing of such a document may also include such seemingly unintelligible statements as, Testados d-l-nOmtase.-Entrelneas nombre. Lase, which means, the crossed out letters, 'd,' 'l,' and 'n' are stricken. The interlineated word 'nombre' is a valid inclusion. Likewise, when a Spanish language legal document refers to el tercer considerando (the third considerando), it really means Clause Three of the document section entitled Considerandos, in other words, Clause Three of the Findings of Law if the document is a court decision, or Clause Three of the Points and Authorities and Issues of Law if the document in question is a brief. ISSUES OF COMPARATIVE LAW Many translation issues strictly deal with issues of comparative law. Thus, in order to produce accurate translations of legal documents, it is important to refer to monolingual, encyclopedic style legal dictionaries, and to have copies of certain basic legal texts, such as a Penal Code and a Civil Code, available for reference. The bibliography section of this paper provides a good list of such works for the Spanish<>English combination. Bilingual dictionaries can be useful cross-reference tools and can expedite one's research, but should not be used as a final authority. On the one hand, bilingual legal dictionaries have no legal weight in either legal system. The word in question may be used in a more specific or more general sense in the text than the dictionary provides. If more than one entry is listed, the translator is still faced with the task of determining which entry is applicable. A word such as dolo, for instance, may mean fraud, misrepresentation, bad faith, criminal intent, or malice. Yet more than one of these translations would rarely fit in a given context. Finally, bilingual dictionaries often have mistakes. I recently edited a translation in which the translator, basing himself on three excellent bilingual dictionaries, seriously mistranslated the type of will that a person had made. Yet a comparison of the Mexican Civil Code and a look at monolingual encyclopedic legal dictionaries helped us produce a very good translation after a few short minutes of extra research. As a starting point, one must take into consideration that the differences in legal systems
1996 by Madeline Newman Ros

present the translator with professional decisions that do not always have one right answer. We are often faced with a situation akin to putting a square peg into a round hole. The complex differences must be summed up into a workable, consistent terminology that communicates the concept as best as possible in the target language. One's translation theory often influences one's choices. In certain times and places, a very literal translation of Spanish legal terms has been used, with the expectation that English speakers would familiarize themselves with such concepts and terminology. The dominant trend in the U.S. today is to accommodate the English translation as closely as possible to terminology that is either in use in the U.S. legal system, or that would be clearly understandable to a legal professional working in the U.S. This latter theory is the one that I prefer to employ in my translation work. An illustration of this dilemma can be seen in the challenge posed by the term prueba confesional as used in civil proceedings. It is listed in most dictionaries as answers to interrogatories, yet it is not entirely equivalent to the cognate concept under the legal system of the U.S. One Mexican attorney defined said term as, a forceful, aggressive, confrontational questioning made in affirmative terms that only admits yes or no answers and them some explanation.5 Questions are prepared in writing by the opposing party in what is called a pliego de posiciones and brought into court in a sealed envelope. The judge qualifies the questions, and may accept, reject, or modify them. The answers to questions that are legally qualified (calificado de legal) are given orally and reduced to writing by a secretario. The secretario, that is, the judge's clerk, is required to be an attorney in his own right in most parts of Mexico and Central America. Written questions posed by opposing counsel may be supplemented by other oral questions posed by one's own council. The document memorializing the answers becomes a part of the court file for evaluation as evidence. Thus, the nature of such a prueba confesional has some elements similar to a deposition as used in U.S. legal terminology, some elements similar to answers to interrogatories, and some elements that differ from both such procedures. Another example of this type of challenge is the term Ministerio Pblico, which has been translated as Public Prosecutor's Office, Government Attorney's Office, Justice Department, Attorney General's Office, State Attorney General's Office, or even District Attorney's Office. Depending on the context, any of these may be an appropriate translation, inasmuch as the Ministerio Pblico could be either a federal institution or a state/provincial/departmental institution. My usual translation of choice is Government Attorney's Office, which covers all the bases. If one prefers to be more specific when translating such a term, a great deal of care must be taken. For example, in Guatemala, all courts are federal courts. The prosecuting agency for a common crime would be the local branch of the federal Ministerio Pblico. Translators in the U.S. tend to learn about the legal systems of the Spanish speaking world in pieces: We get a document and research the terminology as it comes up. The system slowly comes into focus like a vast, partially mounted jig-saw puzzle. This Swiss cheese approach is not without its drawbacks: Panic research in the face of a deadline can lead to inaccuracies. A fuzzy general conception of the legal systems can make it very difficult to recognize terminology variations from country to country for similar concepts. Furthermore, words may be mistakenly viewed as equivalent, when in fact they represent different concepts. In order to overcome these types of problems, it is helpful to read a few basic source language text books on law (cover to cover), and become familiar with Codes such as the Civil Code, Penal Code, Code of Penal Procedure and Code of Civil Procedure.
5

ibid.

1996 by Madeline Newman Ros

It is especially helpful to study procedural law, which is the area that differs the most from one system to another. An understanding of the stages that a case goes through is especially enlightening. Spanish language books on penal procedure often have flow-charts, which, once understood, can be a most helpful reference. In very general terms, a small claims case or a very minor penal case would go to a justice of the peace (juez de paz), but most cases are first heard in a tribunal de primera instancia, literally, court of first instance. The problem with the literal translation is that neither first instance nor court of first instance are used in legal parlance in the U.S., nor are they listed in legal dictionaries published in the U.S; they are functionally incomprehensible. Translators in the U.S. preferably translate this term as trial court, a word that is very close in meaning. Penal cases generally start with an averiguacin previa (preliminary investigation) carried out by the Ministerio Pblico (Government Attorney's Office). In order to bring the case into court, the Ministerio Pblico must be prepared to show that a cuerpo del delito (corpus delicti, literally the body of the crime) has been established, and that there is a strong suspicion of the guilt of the accused (expressed in Spanish by saying that the accused is a presunto responsable, literally a presumably guilty party). Seventy-two hours later, the judge may make a committal order (auto de formal prisin) if the defendant is present, or a committal order with bench warrant (auto de sujeccin al proceso) if the defendant is not present. In order to do so, the judge must find that there is a strong suspicion of the guilt of the accused and that a corpus delicti has been established. These standards are similar to those applicable in order for a defendant to be held to answer in the U.S. Laws differ as to whether or not the defendant needs to be present for these procedures. Under some systems, it is possible for an auto de sujeccin al proceso to be issued while the accused is off in Paris and has never been served with process. Civil cases start with a complaint (demanda). Typical preliminary proceedings may call for an embargo precautorio (attachment) or an arraigo. An arraigo is a ne exeat order, that is, an order not to leave a jurisdiction. Arraigos are particularly effective on islands, such as Cancn. The next stage of the case is known as the instruccin. Here, briefs are filed and evidence is first offered (ofrecido), then prepared (preparado), then produced (desahogado). Evidence is broken into several non-exhaustive categories. One such category is the confesin or prueba confesional. This does not necessarily refer to a confession. It also includes exculpatory evidence. In fact, a standard prueba confesional in the penal realm is the defendant's declaracin preparatoria (preliminary statement), which is meant to be exculpatory when provided by the defense. In civil law, prueba confesional refers to evidence offered out of the mouths of the parties themselves. Oral evidence offered by witnesses, usually in the form of an affidavit taken by a secretario (court clerk) in the presence of a judge, is known as testimonial. There is also expert evidence (pericial). Translators and interpreters are treated as experts, even though they do not offer evidence per-se. Penal evidence may include an on-site inspection (inspeccin), reconstruction of the events (reconstruccin de hechos), and a live or photo line-up (reconocimiento or confrontacin). These types of evidence often take the form of a proceeding, summarized by a court clerk in documentary form. When such evidence is contradictory, live, faceto-face, careos (confrontation) is used to sort out the differences. Evidence can also be documentary. Documents may either be pblicos or privados. A document becomes pblico if it is recorded with a Notary Public. A document recorded or issued
1996 by Madeline Newman Ros

a Governmental Registry or other public authority in the exercise of his or her functions is also pblico. Otherwise it is privado, or non-recorded. It should be noted that Notary Publics in Latin America are actually attorneys, and are authorized to attest to documents, as is a secretario (court clerk). In Spanish, this concept is conveyed by saying that they have fe pblica (literally public faith). Thus, the work of such Notaries is nearly equal in function to that of a registrar/recorder. When a document is recorded with a Notary, he actually puts a copy of it in a special book called his protocolo and keeps it there permanently. Thus, the verb protocolizar means officially record by the notary. In the case of a will, the terminology can be rather confusing, unless legal texts are consulted: a will can be pblico y abierto (literally public and open) or pblico y cerrado (literally public and closed). Pblico y cerrado means that the will is enclosed in a sealed envelope, that is, submitted under seal for recording with the notary. Pblico y abierto means that the will was stated out loud and recorded with the notary in the presence of the appropriate number of witnesses. At the close of the instruccin are the final arguments, known in penal procedure as conclusiones and in civil procedure as alegatos. In a civil case the parties are summonsed to court through a citacin para sentencia (summons for judgment) to present their arguments and hear the judge's decision. Penal law has a more complicated procedure in this regard. First, the parties are first summonsed through an auto de vista a las partes, (order allowing the parties to review the file) so that they may consult the file for five days and formulate their arguments. Court files are not a public record in Latin America. Thus, some of the documents in the files may be seen by the attorneys for the first time at this stage of the case. After the auto de vista a las partes, comes the presentation of arguments and the judge's verdict (sentencia). Trials in Latin America do not have juries. They are, in U.S. terms, court trials. Arguments in Latin America are usually presented in writing, and may be quite extensive. Though laws exist in some countries allowing for oral arguments, such a form of argument tends to exist in theory only, and has even given rise to some rather humorous passages in otherwise serious law books. Says one author: In practice, no one makes oral arguments, because no one listens to them. Indeed, if some eccentric lawyer were to make an oral argument, in the first place, he would cause a commotion that would startle the courtroom. Furthermore, no one would listen to the argument, because judges are seldom present at the hearing; the clerk would meander over to his newspaper, pick it up, and go out into the hall to read it.6 The judge's decision is issued in documentary form, and is always structured in the following parts: The prembulo (preamble); the resultandos, which is a summary of events and facts presented in the case; the considerandos, which is the judge's summary of his analysis of the case; and section entitled resolucin, puntos resolutivos or resuelve, which is the judge's holding. Briefs and decisions of higher courts are structured quite similarly. Certain proceedings in civil cases, such as attachment proceedings, foreclosures, and unlawful detainers (evictions), are handled through summary proceedings (sumarios), characterized as being shorter in technical terms. Other special proceedings (especiales) apply in special cases, such as adoptions. Certain summary or special proceedings may place limitations on issues that can be brought up. For example, one might come across a situation where the merits of the case, known in Spanish as issues that are sustantivos substantivos or de fondo, cannot be
6

Cipriano Gmez Lara, Derecho procesal civil, quinta edicin, Harla, Mexico City, 1991, p. 180. Translation is mine. 1996 by Madeline Newman Ros

argued, as they are being reserved for a plenary proceeding (juicio ordinario). In said case, documentary evidence would be viewed only on the basis of what is within the four corners of the document, that is, on the document's face, expressed in Spanish as factors that are intrnsicos (literally intrinsic); any issues that go further into the merits are known as extrnsicos (extrinsic). One point of caution for translators is that in several countries, such as Mexico and most Central American countries, there two basic categories of writs and judicial issues dealt with beyond the trial court's pronouncement of judgment: Standard appeals or petitions for review come under the category of recursos. Certain recursos stay at the primera instancia level. One type of recurso is the recurso de revocacin, in which the trial court judge is petitioned to reverse his own decision. There is also a queja, which is viewed as an administrative complaint filed with the trial court judge's supervising judge (usually the presiding judge of the State's Superior Court). Issues taken up under these two types of recursos usually involve procedural issues such as the fact that a judge has refused to hear a case. Another type of recurso is an apelacin (appeal). In Mexico, at the state level, the court that hears an appeal is known as the tribunal superior. When translating documents from Mexico for use in the U.S., it is customary to render that court's name as Appeals Court to avoid confusion with what is known in states such as California as the Superior Court, which is a lower court. Once final judgment has been rendered at the trial court level, the case enters an appeal level, known in Spanish as segunda instancia (literally second instance). When issues are sent to a higher court, their jurisdiction remains with the trial court. The appeals court, however, may handle a case for efectos devolutivos (for purposes of issuing an order to the lower court to rehear the case), for efectos suspensivos (for purposes of issuing a stay of execution) or for ambos efectos, which literally means for both effects, that is to say, for a stay of execution, with an order to the lower court to reconsider the case. Another legal convention that is strictly Latin American, known as amparo, is handled only by the federal District Courts, Circuit Courts and, depending on the country, the Supreme Court or Constitutionality Court. In theory an amparo is an extraordinary procedure limited to reviews by the higher court when the constitution is violated, and usually the recurso level must be unavailable or exhausted in order to request an amparo. This extraordinary proceeding, over the years, has expanded in practice. An amparo can be indirecto and request a writ or injunction against a court decision or against the action of any other governmental authority who is allegedly violating the constitution. An amparo directo is an appeal on constitutionality grounds of a lower court's final decision. Historical Factors: Some translation issues result from historical factors. Thus, the Liberal Revolution in the late 1800's in Mexico and certain other Latin American countries resulted in a much stricter separation of church and state in those countries' legal systems than what we have in the U.S. As a result, no one ever swears in a Mexican court. One takes an affirmation under penalty of perjury, known as a protesta. Yet several countries in South America do swear (juramentar) to tell the truth. Some documents close with political slogans that are historically significant. Thus, the expression SUFRAGIO EFECTIVO, NO REELECCIN below the name of a Mexican judge has nothing to do with whether or not he was elected. It is simply an old revolutionary slogan, EFFECTIVE SUFFRAGE. NO REELECTION. Putting it in quotes can help convey such an idea.
1996 by Madeline Newman Ros

The Mexican Revolution also did away with the tercera instancia. Thus, in proper technical terms, there are only two levels to any Mexican legal case. Legal language in Latin America is supposed to be strictly Spanish, to the point where Latin abbreviations are forbidden for use in court by law. Thus, words such as res judicata are rendered in Spanish as cosa juzgada (something that has already been completely litigated). Even little abbreviations such as et. seq. (and those that follow) will be rendered as ss (for siguientes). This hard and fast rule does not always apply. Latin words are often employed for doctrina (opinions of recognized jurists), jurisprudence, and court decisions. For example, the Latin expression a quo for the lower court invariably pops up in Spanish language court decisions. Still, there is a tendency to use less Latin in Spanish than in English legal language. CLOSING REMARKS An overall perspective is always important when one takes on the complicated tasks involved in professional work. An understanding of the status of regulations, standards, enforcement, and training opportunities helps to create realistic solutions to problems. Often times translators in today's market are called upon to translate documents that challenge their abilities. One basic issue to remember in any translation of difficult material is the need to analyze a document in order to grasp the overall concept being communicated. In other words, the document should be read and comprehension should be sought before the translation itself is attempted. Such an approach to translation is necessary to provide perspective and avoid mechanical translation. It also subconsciously prepares one's mind so as to be able to conceptualize during the translation process. Translators likewise are urged to accumulate resources by investing in an adequate reference library with which to research their translations. It is also important to realize that a translator's own subjective evaluation of his or her work can often leave room for errors. Thus, translators are urged to participate in seminars, study opportunities, and peer review processes such as the ATA accreditation process. These types of experiences can assist a translator by discovering deficiencies and can help the translator to further professionalize. Finally, translators should hire competent editors and consultants to review their work whenever possible. Though such a process may cut into short term profits, it is key to improving skill levels and leads to better pay and marketability over the long haul. BIBLIOGRAPHY Alcaraz Var, Enrique and Brian Hughes, Diccionario de trminos jurdicos, ingls<>espaol, Editorial Ariel, S.A., Barcelona, 1993. Alcaraz Var, Enrique El ingls jurdico, Editorial Ariel, S.A., Barcelona, 1994. Ballentine, James A., Ballentine's Law Dictionary, Third Edition, The Lawyers Co-operative Publishing Company, Rochester, N.Y., 1969. Bernardita Mariotto, Liliana, Contratos civiles y comerciales, Abeledo-Perrot, Buenos Aires, 1991. Black, Henry Campbell, Black's Law Dictionary, West Publishing Company, St. Paul, MN, 1990. Burgoa O., Ignacio, Diccionario de derecho constitucional, garantas y amparo, Editorial Porra, S.A., Mexico City, 1992.
1996 by Madeline Newman Ros

Burton, William C., Legal Thesaurus, Macmillan Publishing Co., Inc. New York, 1980. Cabanellas de las Cuevas and Eleanor C. Hoague, Butterworth's Spanish<>English Legal Dictionary, Butterworth Legal Publishers, Austin, Texas, 1991. Daz de Len, Marco Antonio, Diccionario de derecho procesal penal, segunda edicin, Editorial Porra, S.A., Mexico City, 1989. De Pina, Rafael, and Rafael de Pina Vara, Diccionario de derecho, vigesimoprimera edicin, Editorial Porra, S.A., Mexico City, 1995. Gmez Lara, Cipriano, Derecho procesal civil, Quinta Edicin, Harla, Mexico City, 1991. Hernndez Lpez, Aarn, El proceso penal federal comentado, Editorial Porra, S.A., Mexico City, 1993. Instituto de Investigaciones Jurdicas, Universidad Nacional Autnoma de Mxico, Diccionario jurdico mexicano, sptima edicin, Editorial Porra, S.A., Mexico City, 1994. Muiz Castro, Emilio G., Diccionario terminolgico de economa, comercio y derecho, ingls<>espaol, Editorial Fontenebro (Expansin), Barcelona, 1992. Orellana, Marina, La traduccin del ingls al castellano, Editorial Universitaria, S.A., Santiago de Chile, 1990. Osuna Lafarga, Jess Alberto, Derecho procesal penal, Biblioteca Acadmica, Mexicali, 1994. Pallares, Eduardo, Diccionario de derecho procesal civil, vigesimoprimera edicin, Editorial Porra, S.A., Mexico City, 1994. Robb, Louis A., Dictionary of Legal Terms, English<>Spanish, John Wiley & Sons, Inc., New York, 1955. Robb, Louis A., Dictionary of Modern Business, English<>Spanish, Anderson Kramer Associates, Washington, D.C., New York, 1960. Urrutia, Dictionary of Business, English<>Spanish, Limusa, Mexico City, 1995. Vanson, George N. and Tayler, Marilyn, Spanish-English Legal Terminology, Scott, Foresman and Company, Glenview, IL, 1985. Laws and Codes of Reference: California Civil Code, West California Codes 1995 Compact Edition, West Publishing Company, St. Paul, Minnesota, 1995. Ley de Amparo y Ley Orgnica del Poder Judicial de la Federacin, Ediciones Delma, Mexico City, 1995.
1996 by Madeline Newman Ros

Cdigo Civil para el Distrito Federal, Editorial Porra, S.A., Mexico City, 1993. Cdigo Procesal Penal, Guatemala, 1973. Cdigo Penal para el Distrito Federal, Editorial Porra, S.A., Mexico City, 1986. Cdigo de Comercio de Guatemala, Guatemala, 1970. Cdigo de Procedimientos Penales para el Distrito Federal, Editorial Porra, S.A., Mexico City, 1994. Cdigo de Procedimientos Civiles, Editorial Porra, S.A., Mexico City, 1994.

1996 by Madeline Newman Ros