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Register of legal translations (Part 2)

Richard Lackey and Maeva Cifuentes presenting at the 2018 METM in Girona.
Photo credit: MET and Cesc Anton.

By Maeva Cifuentes

Following upon
Richard Lackey’s presentation of the quantitative data of our research on the translator’s role in legal register, I present to you Part 2, which regards the qualitative part of our survey and the incongruency on the definition of the terms ‘register’ and ‘plain English’ among translators.

If you’ve missed our Article in the ITI Bulletin or our presentation of the results of our research at the Mediterranean Editors and Translators Meeting (METM) in October 2018, then I’ll give you a quick recap:

After comparing two versions of a Spanish translation that were strikingly different in style/approach yet both accurate and good, we began to wonder how translators make their choices in terms of register and approach. As such. In this vein, we surveyed 130 translators, lawyers, and translation buyers about their opinions on the subject. We have a podcast that was done at the MET meeting by Lisa Agostini and Yada Yada that provides a better summary of our discussions.

You can listen to it below:

You’ll see the results of the quantitative questions, such as specific translation choices in Part 1 on Richard’s website (link above).

Background of qualitative discussion

In this research, Richard and I used two words that are controversial to this community. We wanted a set definition and we wanted people to be able to say how they approach these two essential elements of legal translation: ‘Register’ and ‘plain legal English’. Cue the pitchforks.

Below, I discuss our qualitative results.

Naturally, the reactional response to the term ‘register’ was “what do you mean? Register means something different depending on whom you’re asking.” In our initial survey, we saw register as the tone, style, and level of formality of the text.

Style, in this sense, is the way writers uses words to structure sentences and arrange those sentences to establish the mood or image of the text. Oliver Strunk, author of Elements of Style, a bible for many English-language writers, wrote it as a “case for cleanliness, accuracy, and brevity in the use of English” [1]. Shouldn’t this be what a contract reads like as well? If it’s clear and accurate, does that mean the register is low?

Plain legal English is either a source of joy or anguish for translators, depending on who’s talking about it. In our minds at the time of drafting the survey, plain legal English never meant ‘dumbing-down’ of the text.

Then it came to how both concepts interact. Are plain legal English and register mutually exclusive concepts or do they rely on one another?

For instance, some translators said they were ‘pro plain legal English, as long as high register is kept’, while others said they were against it, specifically because contracts should keep a high register. Does plain legal English mean dumbed-down, low register language (does low register mean dumbed-down?)?

Ken Adams, who is the author of a Manual of Contract Drafting, prefers to use the term ‘standard English’ instead of ‘plain’, and defines it as ‘that set of grammatical and lexical forms which is typically used in speech and writing by educated native speakers’.  

Joseph Kimble, author of Lifting the Fog of Legalese, said that ‘Plain language doesn’t mean baby talk or dumbing down the language. It means clear and effective communication-the opposite of legalese-and it has a long literary tradition.’

But according to our qualitative results, writing plainly, or clearly, imposes a fear of losing meaning. That legal translation can be scary, making it different from other kinds of translation. In our research, we looked at what choices legal translators make when translating contracts, and what role they play in mediating the document’s style and register? The opinions vary, but it’s also – or mainly? –  due to the varying understanding of the main terms we are using.

In any case, as you can see from the examples above, surveys we conducted with translation professionals and buyers landed us in two polarized camps: those who think clarity and concise language is the most important, and others who think that the most important aspect of legal translation is to strictly reflect the style and register of the source text, even if it means word-for-word translation.

This could be due to the legal implications and liability that comes with legal translation. The legal translator, similar to the medical translator, is more prudent and careful than the marketing translator might be. The legal translator has to work not only between two languages and cultures, but between two legal systems.

Qualitative results

Question 1: How do you feel about using plain legal English?

When I coded the data on the 23rd of September, we had 134 people who answered the survey and 115 people who answered this question. Out of them, 63 people felt positively about using plain legal English in contract translation. We coded this as people using the words “good” or “positive” or “I like it”, etc. Vague responses were not counted as positive.

Out of the 63 plain legal English patrons, 21 mentioned that it’s okay as long as:

  • It doesn’t change the meaning of the source,
  • Legal import isn’t omitted, or
  • It doesn’t compromise clarity.

This made us wonder what people think plain legal English was, since as far as we were concerned, its primary purpose was to make the text more clear, not less.

Six people said plain legal English was good, but only to an extent. And only a mere seven of the people who were positive about plain legal English said it depends on the context or purpose of the text.

A few people seemed to imply that using plain legal English meant not using legal terminology.

Four people were against using plain legal English in contract translation, giving as a reason that legal documents should always be very formal. Some people who were pro-plain legal English also mentioned the contract should stay formal…so where that leaves us on the relationship between plain English and formality, only God knows.

48 people were not clear on whether they liked the use of plain legal English or not. People would say things like “clarity is key” or “the clearer the contract the better”, but they did not specify whether they thought plain legal English would make it clearer or less clear.

Question 2: What is the translator’s role in choosing register?

Again, the answers varied widely. We appreciated the candor of a legal translation agency that simply said “Client’s don’t give a f**k [about the register]”. Clients simply want their contract translated. Furthermore, and according to our survey answers, customers neither want to deal with the translation (hence hiring us) and have never considered the answer to this question. But they are hiring us as experts, so it is our job to care.

In our survey, about 62 (nearly half) people said that indeed, translators have a role in choosing register. Eighteen said our role is limited or nilch. The remaining answers were either not completed or unclear.

Thirty people said translators should not, cannot, will not change the register, while 46 said that yes, we can change it. As full-time professionals, neither Richard nor I had the time to cross-check these answers and see how these answers correlated to the earlier ones. This would be interesting for future research.

The range of responses, again from translation professionals and translation buyers, went from ‘using a different register would be a mistranslation’ to the [legal] translation should sound as if it were written in the target language’.

Next steps

If you’ve read Part 1, you’ll know that this year Richard and I will be developing this research a bit further with the limited time that we have. We will be giving a workshop at the CIOL Translation Division on Saturday 19 May in London and hope you will be able to join us, if this subject is of interest to you. The day is aimed at legal translators and will feature talks by Sue Leschen in the morning.

For more, please see the Further Reading section or our article Putting on the (legal) style: should translations use modern or traditional drafting? (© ITI Bulletin 2018).

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