After events such as Hurricane Maria in Puerto Rico, where insurance contracts will be disputed under both federal and state law, one of the many challenges will be that most contracts or insurance policies are written in Spanish. Translation will be essential to establish the accurate coverage of what is included or excluded from the insurance policies. A true and correct interpretation will make a difference for insurance claims where translated evidence will be offered in judicial proceedings.
When translating a foreign language document many issues can be raised such as the effects an interpretation can have or if some terms are even subject to translation. Courts have held that a translator can be used to translate foreign evidence including contracts and other documents that will be submitted to the jury as evidence.1 The concern in the use of translations for evidence in courts, is whether a more proficient or accurate interpretation would likely had made a difference in the outcome of a proceeding.2
Courts may require written translations be accompanied by affidavits stating the translator’s qualifications to perform the translation and certifying it as true and correct. Translators have been considered by the courts to possess specialized knowledge but they shall not exceed the scope of their expertise by improperly translating or incorporating a legal opinion.3 Where certifications are required a party can object to all or part of the translation and if the court finds that the translator is not qualified the court may reject the offered translation without requiring alternative translation by the objecting party.4
In Federal Courts, including Puerto Rico’s District Court where Spanish is the primary language, everything is required to be committed to the English language, therefore all evidence and testimonies should be translated.5 This has been a concern in many cases questioning the detrimental and inhibiting effect on the right to access the courts and the right to redress under §1983 for violation of civil rights and constitutional rights.6 Claims under translation errors have been raised under the Jones Act which requires federal court proceedings to be conducted in English. In other cases, courts have not followed the Jones Act and have reviewed under “plain error” which is defined as an error that would seriously affect the fairness, integrity or public reputation of judicial proceedings.7
It is important to consider the effects a translation could have if it is not a true and accurate representation of the original insurance contract’s language.
1 Lopez v. State, 153 So. 3d 927, 934 (Fla. 2d DCA 2014).
2 Teng v. Mukasey, 516 F. 3d 12, 18 (1st Cir. 2008).
3 See Dogu Yayin Grubu A.S. v. DFH Network, Inc., 2014 WL 12585785. (Plaintiff objected to part of the licensing agreement contract translated from Turkish to English, because it did not give the accurate meaning of the Turkish phrase “yetkill olacaktir” that should translate to “shall be authorized” and not to “exclusive jurisdiction over any claim”).
4 W.S.A. 901.09
5 U.S. v. Rivera- Rosario, 53 Fed. R. Ser. 3d 627, 21 (2002).
6 Torres Santa v. Rey Hernandez, 279 F. Supp. 2d 124, 129 (2003).
7 U.S. v. Morales- Madera, 352 F. 3d 1, 11 (1st Cir. 2003).