Common Vices in Legal Writing and Translation

“To avoid nudity, the back-handed passive is almost obligatory: ‘It is suggested-,’ ‘It is proposed-,’ ‘It would seem-.’ Whether the writers really suppose that such constructions clothe them in anonymity so that people can not guess who is suggesting and who is proposing, I do not know. I do know that such forms frequently lead to the kind of sentence that looks as though it had been translated from the German by someone with a rather meager knowledge of English.” (Fred Rodell, Yale Law School)

As lawyer-linguists and translators, we’ve all had to suffer through circumlocution and stylistic weakness. We’ve all scratched our heads wondering what, if anything, the primary drafter intended to say, and more importantly, how, if at all, we can capture the intended message in the target language.

In an attempt to sound serious and dignified, most legal drafters resort to the same vices. And, what’s worse, in an attempt to convey that seriousness and dignity, most legal translators transfer those vices into the target language, lest they commit the deadliest of all translation sins and deviate, even slightly, from source! [insert deity of choice] forbid that a legal translator should in any way interpret the source text instead of resorting to blind literality!

Alas, legal writing has many vices and circumlocution is just one of them. Contrary to popular belief, circumlocution is never part of a legal strategy for rendering vague documents. Vagueness is not something legal drafters actively seek. Instead, it is often a weak attempt to hide criticism for fear of backlash.

But excruciatingly long sentences, awkward constructions, and weak wording are just some of the vices of legal writing, and by extension, legal translation. Let's take a look at this week's top picks and learn more about common vices in legal writing and translation:

1) Lack of brevity and clarity: Legal writing is often trifled with what Bryan Garner has described as “recurrent phrases that are the verbal equivalent of throat clearing.” Such verbiage can often be rooted out in translation, adding clarity and brevity to the target text, without affecting fidelity to source.

Let’s take the following example from a Spanish into English translation:

Translation 1: The G.O. has decided to partially allow the appeal by setting aside the first defect.

Translation 2: The G.O. partially upholds the appeal by revoking the first defect.

For those of you who read Spanish, the source text reads: “La DGRN ha acordado estimar parcialmente el recurso con revocación del primer defecto.” Those of you who don’t read Spanish will just have to trust me when I tell you that Translation 2 is just as faithful to source as Translation 1, yet superior in its brevity and clarity, which renders a more natural flowing English translation. 

2) Convoluted structure: By convoluted structure, I mean phrases like “we will revert to you by way of further correspondence” (when we mean “we will write back”) or contract clauses that look like this:

If Party B fails to remedy a breach of this contract within 7 days of receiving written notice from Party A, and provided that Party A has complied with the terms of this contract, Party A may sue Party B for damages if Party B breaches this contract without limiting the rights that Party A might otherwise have at law, but only if Party A notifies Party B of its election to do so pursuant to clause 7.

A literal word for word translation of this clause would be nonsensical in any language. But imagine what would happen if instead of blindly applying formal equivalence, we first restructured source for clarity and then translated it. That mouthful above would still be a mouthful, but at least it would be readable:

Party A may sue Party B for damages if: (a) Party B fails to remedy a breach of this contract within 7 days of receiving written notice from Party A and (b) Party B breaches this contract without limiting the rights that Party A might otherwise have at law; but Party A may only exercise this right if it has complied with the terms of this contract and it has notified Party B of its election to sue pursuant to clause 7.

You might come up with a much better way to restructure that text than I did. But how much easier is it to translate once we’ve restructured and made sense of it?

3) Unorganized arguments: Another common vice in legal writing are unorganized arguments or unorganized sequences of events when describing non-normative facts. Take the following example:

Her front door being ajar and her lock being open, when Mrs. Coyote returned to her apartment, she discovered indications that the apartment had been burglarized. She then proceeded to call the authorities once she saw that her television set and computer were missing.

How much more readable is this:

When Mrs. Coyote returned to her apartment, she found her front door ajar and lock broken. Once inside, she saw that her television and computer were missing, prompting her to call the authorities.

Again, this is just an example. And I’m sure you can come up with a better rephrase than mine. The point, however, is that rephrasing is a valuable exercise when prepping our source text for translation.

The Takeaway

Unless there’s an actual point to poor writing in the source text (e.g. when quoting testimony verbatim or certain discovery documents), there’s no reason to reflect poor writing in our translations. And it’s certainly not true that fidelity to source means reflecting source as is down to the comma. As translators we don’t have the liberty to rewrite the source text, although we often wish that we did. What we do have the liberty to do, however, is play around with it enough to adequately convey meaning in the target text. And if we can add clarity and readability in the process, why not do so?  

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