Certified Translation of Foreign Documentary Evidence
Certified Translation of Original Foreign Language Evidentiary Documents
Translator’s Affidavit, also known as “Certificate of Accuracy”, or as “Affidavit of Translation“, that is often used when submitting foreign language documents translated to English as evidence plays an important role in the practice of law. Three recent cases that took place in New York have shed light on additional challenges that attorneys may encounter when presenting essential evidence on behalf of non-native English speakers. These cases involved personal injury claims, and in each instance, one party’s case was significantly weakened due to the exclusion of crucial evidence. In this blog, we will explore these cases in more detail to provide a better understanding of the challenges faced by attorneys tasked with getting foreign language evidence admitted while representing non-native English-speaking clients.
Certification of a Missing Foreign Language Document Ineffective Without Actually Producing it
In the case of Krokh v. Page Taxi Corp., the Plaintiff filed a lawsuit against a taxi company and its driver for causing personal injury as a result of a rear-end collision. Evidence presented in the case included a police report and a personal affidavit provided by the Plaintiff. The affidavit detailed that the Defendant admitted fault at the scene of the accident. To ensure the accuracy of the affidavit’s factual statements provided to the Plaintiff’s bilingual attorney in Russian, the Russian-speaking attorney translated the Plaintiff’s original statement from Russian to English, and then from English to Russian to confirm that her understanding of her client’s statements provided in Russian and then translated to English was correct. This process was supported by an affirmation from the bilingual lawyer who acted as translator attesting to the statement’s accuracy.
However, the Defendants moved to exclude the lawyer-translator’s affidavit as inadmissible, claiming that it did not comply with New York law. They contended that they did not have a chance to compare the submitted affidavit to the Plaintiff’s original Russian statement. Unfortunately for the Plaintiff, the court sided with the Defendants and excluded the affidavit. Consequently, the court also denied the Plaintiff’s motion for summary judgment. It was a significant setback for the Plaintiff, and it appeared as though the Defendants had gained an advantage in the proceedings. The decision highlighted the importance of adhering to proper legal procedures and complying with the law to avoid unfavorable outcomes.
The court’s decision serves as a timely reminder for attorneys that when submitting affidavits from non-native English-speaking parties, it is crucial to follow the proper procedure. Specifically, attorneys should draft an application in the language of the party along with an English translation and an affidavit from a translator attesting to their qualifications and the accuracy of the translation.
It is important to note that when hiring a translator to produce a certified English-language version of a client’s statement, submitting the original foreign-language documents or statements upon which the translation is based is equally important. This step is necessary for the opposing party to have the opportunity to review and compare the original foreign-language document to the translated version.
Missing Translator Certification of Affidavit Can Exclude Evidence Even if Not Based on an Underlying Foreign Language Document
The second case we will discuss, Cupeles v. Carballosa, highlights another important aspect of presenting evidence in court on behalf of non-native English-speaking clients. In this case, the Plaintiff sued a maintenance company and its driver for personal injuries sustained in a rear-end collision in New York City. The Plaintiff submitted a copy of an English-language accident report where the Defendant admitted fault. In response, the Defendant submitted an English-language affidavit, denying the prior admission and outlining a different sequence of events. However, the Defendant did not speak English, and the affidavit was prepared with the assistance of a Spanish-language translator/ interpreter.
The Plaintiff asked the court to preclude the affidavit as inadmissible evidence, as the Spanish translator/ interpreter did not submit a certification of accuracy. The Defendant argued that the New York rules around admission of translated documents did not apply because the plain text of the law requires that “where an affidavit… annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator/ interpreter stating his qualifications and that the translation is accurate.” Counsel for the Defendants claimed that Carballosa’s affidavit was not a foreign language document submitted in English and the Spanish translator/ interpreter did not play any part in preparing it, so there was nothing for the Spanish translator/ interpreter to certify.
However, the court granted the Plaintiff’s motion and precluded the Defendant’s affidavit as inadmissible. The court emphasized that even though the submitted affidavit was not technically a foreign language document, the purpose of the law is to require proof that the affiant actually understood what they swore to, and this applies to requiring an affidavit from the Spanish translator/ interpreter used to communicate with Carballosa in the preparation of his affidavit.
This case serves as a reminder to attorneys representing non-native English-speaking clients that they must be diligent in following the proper procedures for presenting evidence in court. This includes ensuring that all the documents submitted on behalf a non-English-speaking person are accompanied by an affidavit from a qualified translator stating their qualifications and attesting to the accuracy of the translation, regardless of whether the documentary evidence is technically in a foreign language or not.
Unqualified Certification is as Good as No Certification at All
In Salazar v. Kellari Parea, LLC, the Plaintiff filed a personal injury lawsuit against the owner and tenants of a premises after he fell on a staircase while using a hand truck. The Plaintiff alleged that the Defendants were negligent in maintaining the staircase, providing adequate lighting, and installing proper handrails, and that the staircase violated various building code provisions.
However, the lower court granted summary judgment in favor of the Defendants, dismissing the complaint. The court found that the Plaintiff’s accident was caused by his own loss of control of the hand truck, rather than negligent acts by the Defendants. The court also rejected the Plaintiff’s affidavits with evidence to the contrary, even though they were accompanied by a translator’s affidavit, because the Spanish translator’s qualifications were not listed. Without the Plaintiff’s documentary evidence, there was no remaining triable issue of fact. As a result, the appellate court affirmed the lower court’s dismissal and ordered the Plaintiff to pay the Defendants’ court costs.
This case shows the importance of not only obtaining and submitting a translator affidavit with foreign-language materials, but also making sure to comply with the specific requirements of the translator affidavit, such as stating the translator’s qualifications and vouching for the accuracy of the translation.
Making Certified Translation of Foreign Documentary Evidence Admissible in Court
In this blog post, we have discussed three recent cases from New York where evidence was thrown out due to improper translation or certification. It’s a good reminder to always submit to the court both the original foreign language document and a certified translation when offering foreign language documentary evidence, and to always submit a certification when offering an affidavit or statement prepared with the help of a translator/ interpreter. Failing to comply with these rules may result in the exclusion of crucial evidence and adversely affect the outcome of your case.
The cases are Krokh v. Page Taxi Corp., 2020 NY Slip Op 33488 (U) (Sup. Ct. Kings Cty. Oct. 5, 2020); Cupeles v. Carballosa, 2022 NY Slip Op 50342 (U) (Sup. Ct. Bronx Cty. May 2, 2022); and Salazar v. Kellari Parea, LLC, 189 AD 3d 1490 – NY: Appellate Div., 2nd Dept. 2020.
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