Commentary: Overcoming Language Traps in Depositions of Chinese-Speaking Witnesses

By Geoffrey Sant*

I.     Introduction

In recent years, there has been an explosion of lawsuits against Chinese companies.  For example, lawsuits against Chinese reverse merger companies tripled between 2010 and 2011, and litigation against Chinese companies represented 47.9 percent of all securities class action filings for the first half of 2011.[1]  The upward trend of U.S. litigation against Chinese companies has been continuing for years.[2] 

As litigation increases, there is a corresponding increase in the number of depositions of Chinese-speaking witnesses.[3]  A deposition of course, is an opportunity for counsel to obtain admissions intended for “later use in court.”[4]  As discussed below, however, when an attorney conducts an English-language deposition of a Chinese-speaking witness through a translator, there is a near certainty that significant miscommunication will occur.  Admissions may be lost due to mistranslation, or innocent statements may be interpreted incorrectly as admissions.  In either case, the result can be devastating.

II.   Chinese-Language Testimony is Susceptible to Mistranslation

A.   Generally

Let us consider a real-life example.  In a recent deposition, I questioned a hostile witness regarding an important conversation that he denied had ever occurred.  When I pressed him as to whether it was possible that he had forgotten about the conversation, he responded in Chinese, “tai yuan, tai yuan.”  Literally, this means “too far, too far.”  The interpreter then translated this answer as “You’re too far off.  Too far off.”  Although the interpreter’s words were one legitimate interpretation of the deponent’s answer, I knew that in Chinese, there was another possible meaning – namely, that the deponent was acknowledging that the events occurred “too far” in the past, and thus the deponent was agreeing with me.  By following up with further questions, I established that this was, in fact, the case: the deponent was agreeing with my suggestion and not denying it.  Here, the miscommunication was total.  A “yes” transformed into a strong “no.”

This example is just the tip of the iceberg.  Chinese verbs do not conjugate, and so do not necessarily distinguish between present and past tense.  Chinese nouns generally do not have singular and plural forms; and spoken Chinese does not distinguish between “he,” “she,” and “it” – if a phrase uses pronouns at all.  Interpreters must make assumptions about the speaker’s intended meaning repeatedly throughout the deposition, and some of those assumptions will likely be wrong. 

B.   Some Examples

To better see the problem, let us consider a couple hypothetical Chinese-language utterances and an English-language statement.

1.         You ren tou ta-de che.[5]

This sentence would likely be translated as “Somebody stole his car.”  Such a translation is so natural that even a native Chinese speaker may not recognize its assumptions and problems.  In reality, every single word in this translation is making an assumption – and each assumption may be wrong in its own way.  First, Chinese does not necessarily distinguish between time frames, and so it is unclear whether the speaker is saying that somebody “stole” (past tense) or “is stealing” (present tense).  Furthermore, because Chinese generally does not distinguish between singulars and plurals, the speaker could be saying “Somebody is stealing…” or “Some people are stealing…”  In fact, it is even possible that the thieves are stealing multiple cars.  Lastly, it is unclear whether the speaker is saying that “his” or “her” car is being stolen.

2.         Dang-ran dou zhi-dao.[6]

This statement – likely to come in answer to a question at a deposition – is even trickier.  The most obvious translation might be “Of course he knew everything.”  Once again, however, such a translation requires a laundry list of assumptions.  For one thing, like a number of other languages, Chinese does not require a speaker to mention an explicit subject, and it appears this sentence does not have one.  Thus, it is unclear if the speaker is saying “he,” “she,” or “they” knew everything.  But there is actually yet another possibility.  Although the word “dou” would probably be interpreted as the object of the verb (“…knew everything”), it could also be interpreted as the subject (“all of them knew…”).  Additionally, as discussed above, it is not clear whether the verb “to know” should be in the present or the past tense.

To this point, we have seen two examples of how Chinese is ambiguous and susceptible to multiple, distinct meanings in English.  This not only occurs when a Chinese statement is translated to English, but also when an attorney’s English-language statements are translated into Chinese.  Consider the following example.

3.         Did the boss know?

This might be translated as “Lao-ban zhi-dao ma?”  But this Chinese translation renders ambiguous both the time frame and the number of bosses under discussion.  Thus, the deponent could easily interpret the Chinese translation of this question as “Do your bosses know now?” rather than “Did the boss know [then]?”

Let us examine how these ambiguities play out in a hypothetical exchange in a deposition.  The questioner asks “Did the boss know?” and it is translated as “Lao-ban zhi-dao ma?”  The deponent then misinterprets the Chinese translation as asking, “Do your bosses know now?”  The deponent responds with the ambiguous phrase discussed previously: “Dang-ran dou zhi-dao.” (“Of course everyone knows.” / “Of course he knew everything.”)  The translator then interprets this answer as, “Of course he knew everything.”  In this case, the deponent is merely acknowledging that the bosses now know about the event being litigated (because they have been sued), but this innocent answer is transformed into a devastating admission that a specific boss knew everything at a specific time in the past.

III.  Real-Life Examples of Critical Mistranslated Chinese-Language Testimony

For an actual example of this kind of miscommunication through a translator, consider He v. Ashcroft.[7]  In He, both the original Immigration Judge and the Board of Immigration Appeals rejected as “not credible” an asylum petition by an individual named Wang He.[8]  The main episode singled out as “not credible” was Mr. He’s description of over ten men driving up and jumping out of a single vehicle.  The problem here is that Chinese does not normally distinguish between singulars and plurals, and it appears likely that Mr. He did not actually mean to express that these individuals all jumped out of one car: rather, it appears that the interpreter initially translated Mr. He’s reference to vehicle(s) as “a car” and then continued using the singular to translate Mr. He’s references to vehicle(s) even after it became apparent that there must have been more than one.

The problem began when Mr. He states (according to the translator), “I saw [a] few people jump out of the car.”  Because Chinese does not distinguish singulars and plurals, the interpreter guessed that Mr. He referred to only one.  The following exchange then occurred:

Q: How many people together were there, coming in that car?

A: At that time, I was in [a] hurry.  Seems like more than ten, or ten some people.

At this point, it already appears that the interpreter’s translation of both “few” and “car” were poor choices.  Nevertheless, the interpreter continues using the singular to translate the Chinese term for “vehicle(s)” even as an incredulous judge repeatedly asks Mr. He to confirm that ten or more people arrived in a single car:

Q: Ten people in the car, more than ten people you said?

Q: So there were ten people.  But, how many people in the car?  Can you tell me again?

Q: But, you’re sure it’s more than ten?

The Immigration Judge is clearly asking Mr. He to confirm his strange description of ten or more people jumping out of a car.  But once translated into Chinese, the import of the judge’s questions is lost.  For example, “Ten people in the car, more than ten people you said?” becomes in Chinese, “Ten people in the car(s), more than ten people you said?”  It appears, then, that an asylum petitioner was initially deemed “not credible” primarily because the interpreter made unfortunate guesses as to the speaker’s intended meaning.

In He, the problem appears to have been that the interpreter refused to correct her translation even after it became apparent that her initial translation was probably wrong.  In other cases, the opposite problem occurs.  Sometimes interpreters will translate the same English word in different ways on different occasions during the same deposition.  This can happen because the interpreter is trying to “fix” an earlier translation, or because the interpreter forgot the way the word was initially translated.  Sometimes this happens even in back-to-back questions.  In English, this would not be permitted: if the deponent stated that he “seldom” came to work late, and the follow-up question asked about “often” coming to work late, the defending attorney would object that this misstates prior testimony.  Yet when interpreters make this sort of linguistic change, it often goes unnoticed.

The susceptibility of Chinese to multiple interpretations is evidenced by a recent case in which my client was sued for alleged breach of contract.  The plaintiff presented a translation of the key contract.  We presented an opposing translation (and also highlighted problematic aspects of the plaintiff’s translation).  The plaintiff then submitted a new translation performed by a new translator.  The end result was three differing translations, by three translators, two of them for the same party.[9]

For yet another example of the problematic nature of translating Mandarin Chinese depositions, consider Max Impact, LLC v. Sherwood Group, Inc.[10]  In Max Impact, a Chinese-speaking vendor who manufactured products for both the plaintiff and the defendant was a crucial third-party witness to patent and copyright infringement claims.  Although the court recognized that this third-party manufacturer was “the person best situated to know” whether infringement occurred, the court entirely disregarded his testimony due to contradictory deposition answers: “It is unclear whether [his] testimony is compromised by the translation process . . . What is clear is that [his] testimony is inconsistent, and this Court need not give it much weight.”[11] 

The court reached this decision even though the third-party witness had submitted a declaration stating that the testimony had in fact been compromised by the translation process: “[he] either misunderstood the question based on the translation or [his] response was not translated correctly.”[12]  The result was that the plaintiff lost its leading witness for infringement and the court denied a preliminary injunction for lack of evidentiary support.[13] 

How then can parties avoid or minimize translation problems in depositions?  Parties defending a deposition should consider bringing their own translator (a “check translator”) to double-check the translations of the purportedly neutral interpreter.  Some courts even assert that parties “are responsible for providing competent translators in order to participate effectively in [the] litigation, including for their [own] depositions.”[14]  However, it is not enough to simply bring along check translators and assume that they will catch any errors or ambiguities.  As discussed above, in the majority of translation problems, the interpreter’s translation is valid (as one legitimate interpretation of the deponent’s words) and nevertheless incorrect (because it was not the deponent’s actual intended meaning).  In these circumstances, the check translator would have no reason to think the translation was objectively “wrong.”

The best practice is to work with check translators ahead of time to ensure that they understand each side’s theory of the case, as well as key contended issues.  This way, the check translator can be on guard to react when ambiguous testimony is translated in a harmful way.

For attorneys on both sides, it is useful to consider carefully how the following differences between the Chinese language and English might affect deposition testimony.

1. Time Frame.  Verbs do not conjugate in Chinese.[15]  It is possible for a questioner to be clearly discussing the past while the deponent thinks the question refers to the present, or vice versa.  Attorneys should think ahead of time about what aspects of the case revolve around timing (e.g., statute of limitations defenses).  Attorneys taking depositions can largely avoid timing ambiguities by using subordinate clauses to specify the exact time period as part of the overall question (e.g., “At the time you were working there…”; “Last year…”; etc.).  This is the way that Chinese-speakers clarify time frame in conversation; by doing it in English, the questioner can limit ambiguously translated questions and answers.
2. Numbers.  Nouns do not distinguish between singular and plurals.  Attorneys should keep in mind what aspects of the case involve the number of things or the number of times events occurred.
3. Pronouns, Possessives, and Adjectives.  Spoken Chinese does not distinguish between “he,” “she,” and “it” or between “his,” “hers,” and “its.”  The attorney taking the deposition can often avoid confusion by identifying the individual being discussed by name.  Additionally, the Chinese word shei can be troublesome because in different contexts it can mean anything from “who” to “whoever” to “anyone.”  Another tricky word is the adjective qita (其他), “other.”  Because Chinese generally does not utilize articles (such as “the” or “a”), it can be unclear whether qita means “the others,” “any other,” or “another.”

IV.  Other Practical Considerations

When depositions are conducted through a translator, it is wise to look up the opposing attorneys’ law firm biographies ahead of time to ascertain their Mandarin language skills, if any (which are almost always listed).

An attorney intending to object to translation may need to have the deposition recorded.  Without a recording, it can be difficult to object to translation in a manner that provides the court with a full record.  For example, the attorney may need to put ambiguous Chinese words on the record through phonetic spelling, or to make objections that explain Chinese grammar.  Yet in two recent cases, Chinese-fluent attorneys were sanctioned for making “lengthy interruptions” and “speaking objections” during attempts to put translation problems on the record.[16]

Another issue is the difficulty in obtaining full answers from deponents.  Interpreters sometimes skip portions of the answer, or worse, paraphrase.  In one recent case, the defendant alleged that “during the first hour of the deposition, on at least two occasions, [the Mandarin translator] left out part of [the deponent’s] answer…”[17]  The flip side of this problem is that deponents often stop in the middle of a lengthy answer give the interpreter a chance to translate what has been said up to that point, only to create the mistaken impression that the deponent finished answering.  The questioning attorney may then start asking the next question.  Attorneys should be aware of this problem and, where appropriate, confirm that the deponent has finished answering before continuing.

Attorneys taking a deposition may wish to prepare bilingual Chinese and English definitions of key terms ahead of time, in order to avoid purported linguistic ambiguities and disputes over translations.[18] 

Finally, when working with a check translator, an attorney may wish to prepare a list of translation-based objections.  This will allow the check translator to simply point at the problem area, so the attorney can quickly register an objection without it devolving into an improper speaking objection.

V.   Conclusion

Linguistic preparation is key in Chinese-language depositions.  Without linguistic preparation, an attorney may be confronted with “admissions” and “denials” that the deponent never intended.  By preparing ahead of time, a defending attorney can force opposing counsel to make sure all questions and answers are unambiguous in both English and in Chinese – a very challenging task.

Although this discussion is far from an exhaustive list of all the linguistic challenges facing attorneys in Chinese-language depositions, one thing is clear: linguistic preparation is unambiguously helpful.

* Geoffrey Sant is a litigation attorney at the New York office of Morrison & Foerster LLP.  In addition, he is a director of the Chinese Business Lawyers Association.