May 31, 2012

BUSINESS IMPLICATIONS OF A U.S. SUPREME COURT RULING

written by Michael Launer

A Supreme Court ruling issued this week in a fairly obscure case may have important implications for international business, as well as for domestic disputes involving persons with “limited English proficiency” (LEP persons).

The case (№ 10-1472) involved a professional baseball player from Japan (Mr. Kouichi Taniguchi), who was injured while on vacation in the Commonwealth of the Northern Mariana Islands, a United States territory. Mr. Taniguichi sued Kan Pacific Saipan, Ltd. (KPS), the owner of the Marianas Resort and Spa where the incident occurred. The suit was denied, and Mr. Taniguchi was ordered to reimburse the costs incurred by KPS in its defense, including more than $5,000 spent to translate written documents from Japanese into English for use in court. That ruling was upheld in District Court and by the 9th U.S. Circuit Court of Appeals.

The U.S. Supreme Court overturned this ruling in a 6-3 decision and remanded the case “for further proceedings consistent with this opinion.” The majority opinion, written by Justice Alito, relied on its understanding of Congressional intent in 1978 limiting reimbursement to oral interpretation in court, excluding written translation. In her dissenting opinion, Justice Ginsburg cited precedents in which “federal trial courts have awarded document translation costs in cases spanning several decades,” noted that there was a certain ambiguity in the meaning of the two terms, and argued that written translations prepared for use in court were as vital to equity in such cases as was oral interpretation of the court proceedings themselves. Corporate attorneys will want to reference 2012 WL 1810216 (U.S.).

Interestingly, professional organizations of translators and interpreters filed amicus curiae briefs on both sides of this issue. In the opinion of Dr. Marilyn J. Young, President & CEO at RussTech Language Services, Inc. and a retired professor of speech communication at Florida State University:

“A perhaps unintended consequence of this ruling is that it instantiates in case law the fact that interpreting is oral and translating is for written material, a distinction often blurred, as people refer to translators when they mean interpreters. Interestingly, the reverse blurring seldom occurs; that is, people seldom say ‘interpreter’ when they mean ‘translator.’”

As with any Supreme Court ruling, this case will be cited in future decisions at all lower court levels in the United States. There is no doubt that it will have important financial ramifications for plaintiffs and defendants in any proceeding involving foreign corporations or LEP persons.

What this ruling means in practice is that the prevailing side must absorb the cost of all written translations required by its attorneys to understand the substance of a case and to present arguments to the court. So if you sue in court and win, particularly in complex cases that extend over a long period of time, you no longer can count on the judgment covering all the costs involved in protecting your interests. Equally important, even if a frivolous suit against you is thrown out of court, the plaintiff may not be required to pay all of the costs you have incurred in preparing a defense.

RussTech thanks Amanda Reid Payne, Ph.D., J.D.  an attorney and law professor in Jacksonville, FL  for this reference.
 

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