CLAIMS AGAINSTCLAIMS AGAINSTTRANSLATORSTRANSLATORS

What Are They And HowWhat Are They And HowCan They BeCan They Be

PreventedPrevented

MitigatedMitigated

DefendedDefended

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

150 E. 42nd Street

New York, New York 10017

Martin M. Ween, Esq.Martin M. Ween, Esq.

Senior PartnerSenior Partner

CLAIMS COUNSELCLAIMS COUNSEL

Professional Liability Professional Liability Insurance Program Provided Insurance Program Provided by Underwriters at Lloyds’, by Underwriters at Lloyds’, through National Professional through National Professional Group, to the Members of the Group, to the Members of the American Translators American Translators AssociationAssociation

WHY IS IT IMPORTANT TO KNOW WHY IS IT IMPORTANT TO KNOW ABOUT DEALING WITH CLAIMS?ABOUT DEALING WITH CLAIMS?

No matter what you do, there is always the possibility No matter what you do, there is always the possibility an error or omission may occur, which can lead to an error or omission may occur, which can lead to claims against youclaims against you

Claims that are dealt with quicker and Claims that are dealt with quicker and more efficiently make smaller problemsmore efficiently make smaller problems

Claims can be problems to you, both onClaims can be problems to you, both ona business basis, as well as financiallya business basis, as well as financially disruption of businessdisruption of business time demands on stafftime demands on staff possible damage reputationpossible damage reputation

WHY IS IT IMPORTANT TO WHY IS IT IMPORTANT TO KNOW ABOUT CLAIMS?KNOW ABOUT CLAIMS?

The possibility of Claims being made against The possibility of Claims being made against you is why you purchase insurance coverage you is why you purchase insurance coverage for professional liabilityfor professional liability

It doesn’t matter whether you actually committed It doesn’t matter whether you actually committed an error or omission - if a claim is asserted against an error or omission - if a claim is asserted against you, steps must be taken to protect your interestsyou, steps must be taken to protect your interests

The nature and severity of Claims can impact on The nature and severity of Claims can impact on your future insurance coverageyour future insurance coverage

IN WHAT WAYS CAN A TRANSLATOR BE IN WHAT WAYS CAN A TRANSLATOR BE HELD RESPONSIBLE?HELD RESPONSIBLE?

Your services are performed pursuant to a contract; Your services are performed pursuant to a contract; therefore, you will be held responsible for breach of therefore, you will be held responsible for breach of that contractthat contract

A breach of contract will exist if:A breach of contract will exist if:

the contract sets forth a duty or obligationthe contract sets forth a duty or obligation

that duty or obligation is not performed, that duty or obligation is not performed, or not performed in accordance with the or not performed in accordance with the contractcontract

damages are sustained by the other party damages are sustained by the other party to the contract as a result of the breachto the contract as a result of the breach

WHAT IS THE STANDARD OF WHAT IS THE STANDARD OF CARE FOR THE CONDUCT OF A CARE FOR THE CONDUCT OF A

TRANSLATOR?TRANSLATOR?

In order to determine whether a duty or obligation In order to determine whether a duty or obligation has been breached, a “Standard of Care” will be has been breached, a “Standard of Care” will be used to judge the conduct of a Translatorused to judge the conduct of a Translator

As a Professional, the Translator will generally be As a Professional, the Translator will generally be held to the standard of “what a reasonable and held to the standard of “what a reasonable and prudent Translator in the same area would do under prudent Translator in the same area would do under the same circumstances” the same circumstances” EXCEPTEXCEPT

Where your contract specifies another standard Where your contract specifies another standard of care, such as of care, such as

IN WHAT WAYS CAN A TRANSLATOR IN WHAT WAYS CAN A TRANSLATOR BE HELD RESPONSIBLE?BE HELD RESPONSIBLE?

• Professionals generally do not guarantee or warrant their work

• However, this is typical in purchase orders and other However, this is typical in purchase orders and other preprinted forms - preprinted forms - read the back of these forms read the back of these forms carefully!carefully!

• These purchase orders may operate to convert your These purchase orders may operate to convert your professional services to merely providing a “good or professional services to merely providing a “good or product”product”

Gross negligence or intentional misconductGross negligence or intentional misconduct Strict liability, based on guarantees or warrantiesStrict liability, based on guarantees or warranties

WHAT TYPES OF CLAIMS CAN BE WHAT TYPES OF CLAIMS CAN BE MADE AGAINST A TRANSLATOR?MADE AGAINST A TRANSLATOR?

Errors in the substance of the translated materialsErrors in the substance of the translated materials

use of the “wrong words”, that is, a failure to use of the “wrong words”, that is, a failure to properly translate otherwise unambiguous properly translate otherwise unambiguous languagelanguage

use of difference nuances of meaning, such as where use of difference nuances of meaning, such as where a word or phrase can have more than one reasonable a word or phrase can have more than one reasonable translation, or the misinterpretation of idiomstranslation, or the misinterpretation of idioms

grammatical errors, such as tenses or gendergrammatical errors, such as tenses or gender

WHAT TYPES OF CLAIMS CAN BE WHAT TYPES OF CLAIMS CAN BE MADE AGAINST A TRANSLATOR?MADE AGAINST A TRANSLATOR?

Errors in “filling in the gaps”, that is, Errors in “filling in the gaps”, that is, supplying missing or lost words, supplying missing or lost words, phrases, or termsphrases, or terms

Ministerial errors, such as errors in Ministerial errors, such as errors in computation, lists, or transposition of itemscomputation, lists, or transposition of items

Failure to deliver the services, such as Failure to deliver the services, such as transcriptions, on time, or at all transcriptions, on time, or at all

(CONT’D)(CONT’D)

WHAT TYPE OF CLAIMS CAN BE MADE WHAT TYPE OF CLAIMS CAN BE MADE AGAINST A TRANSLATOR?AGAINST A TRANSLATOR?

Conflicts of interest, breaches of Conflicts of interest, breaches of confidentiality and inadvertent disclosure of confidentiality and inadvertent disclosure of informationinformation

(CONT’D)(CONT’D)

WHAT IS A “CLAIM”? When do you know whether a “Claim” has been made When do you know whether a “Claim” has been made

against you and why is it important?against you and why is it important?

This involves both a legal and an insurance analysisThis involves both a legal and an insurance analysis

Most insurance policies require, as a condition to Most insurance policies require, as a condition to obtaining coverage, that you report “claims” to the obtaining coverage, that you report “claims” to the insurer as soon as possible; a delay could therefore insurer as soon as possible; a delay could therefore jeopardize any coverage you have for the claimjeopardize any coverage you have for the claim

A delay in responding to a claim can also lead to A delay in responding to a claim can also lead to greater problems, such as causing a lawsuit to be greater problems, such as causing a lawsuit to be filed, or losing the opportunity to obtain an early filed, or losing the opportunity to obtain an early resolutionresolution

WHAT IS A “CLAIM”? However, a “Claim”, for purposes of insurance However, a “Claim”, for purposes of insurance

coverage, is not limited to a lawsuit - it can also be:coverage, is not limited to a lawsuit - it can also be:

An oral or written demand for damages, or for An oral or written demand for damages, or for services, based on an error or omissionservices, based on an error or omission

An oral or written communication indicating an An oral or written communication indicating an intention to hold you responsible for an error or intention to hold you responsible for an error or omission, omission, regardless of the validity of the assertion regardless of the validity of the assertion or the lack of a specific monetary demandor the lack of a specific monetary demand

(CONT’D)(CONT’D)

WHAT IS A “CLAIM”?

An arbitration demand, or a request for mediation or An arbitration demand, or a request for mediation or other alternative dispute resolution procedure, other alternative dispute resolution procedure, based on an error or omission (your contract may based on an error or omission (your contract may specify a procedure to be followed for resolution of specify a procedure to be followed for resolution of disputes)disputes)

A counterclaim against you in proceedings you A counterclaim against you in proceedings you institute, such as lawsuits to collect unpaid feesinstitute, such as lawsuits to collect unpaid fees

(CONT’D)(CONT’D)

HOW CAN A CLAIM BE HOW CAN A CLAIM BE PREVENTED OR MITIGATED?PREVENTED OR MITIGATED?

It may not be possible to prevent a claim from It may not be possible to prevent a claim from being made against you - a letter can be sent or a being made against you - a letter can be sent or a telephone call can be made and there is free telephone call can be made and there is free access to the court systemaccess to the court system

However, there are ways to deter possible However, there are ways to deter possible claimants and make claims less likely to be claimants and make claims less likely to be made, or less significant if assertedmade, or less significant if asserted

WAYS TO PREVENT OR WAYS TO PREVENT OR MITIGATE CLAIMS:MITIGATE CLAIMS:

CONTRACTUAL PROTECTIONSCONTRACTUAL PROTECTIONS The provisions of your contract can make your The provisions of your contract can make your

clients think twice before making a claim, or make clients think twice before making a claim, or make it easier for you to defend and resolve a claimit easier for you to defend and resolve a claim

Have a Have a written written contract, with all of the terms contract, with all of the terms spelled out clearlyspelled out clearly

Have your contract form reviewed, if possible by Have your contract form reviewed, if possible by an attorney with experience in the areaan attorney with experience in the area

Utilize standard contract provisions developed by Utilize standard contract provisions developed by the ATA and other sourcesthe ATA and other sources

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:CONTRACTUAL PROTECTIONSCONTRACTUAL PROTECTIONS

Make sure your client understands the provisions Make sure your client understands the provisions and, by signing the contract, acknowledges that and, by signing the contract, acknowledges that understandingunderstanding

Clearly define the scope and nature of your work Clearly define the scope and nature of your work - what you are retained to do may be different - what you are retained to do may be different from what your client thinks you should be doing from what your client thinks you should be doing and these differences often lead to claimsand these differences often lead to claims

Put limiting and protective clauses in your Put limiting and protective clauses in your contract, if possible, such as:contract, if possible, such as:

(CONT’D)(CONT’D)

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:CONTRACTUAL PROTECTIONSCONTRACTUAL PROTECTIONS a more limited standard of care, such as liability a more limited standard of care, such as liability

on your part only in the event of gross on your part only in the event of gross negligence, or willful misconductnegligence, or willful misconduct

limitations on the amount of damages for which limitations on the amount of damages for which you can be responsible, such as the cost of the you can be responsible, such as the cost of the services, or some specific liquidated amountservices, or some specific liquidated amount

no responsibility for “consequential damages”, no responsibility for “consequential damages”, such as lost future profitssuch as lost future profits

The validity of contractual limitation clauses is a The validity of contractual limitation clauses is a matter governed by state law, but many states matter governed by state law, but many states uphold these provisions.uphold these provisions.

(CONT’D)(CONT’D)

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:CONTRACTUAL PROTECTIONSCONTRACTUAL PROTECTIONS

Disclaimers and warnings can be addedDisclaimers and warnings can be added

deny any express or implied guaranty or deny any express or implied guaranty or warranty of accuracywarranty of accuracy

explain that the work, or any certification as to the explain that the work, or any certification as to the work, is only an expression of professional work, is only an expression of professional opinion opinion

state the criteria and methods to be utilized, such state the criteria and methods to be utilized, such as stylistic changes, or the fact that the presence as stylistic changes, or the fact that the presence of different dialects may result in different of different dialects may result in different meaningsmeanings

(CONT’D)(CONT’D)

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS: CONTRACTUAL PROTECTIONS CONTRACTUAL PROTECTIONS

However, contractual limitations cannot However, contractual limitations cannot protect you from claims by third partiesprotect you from claims by third parties

(CONT’D)(CONT’D)

You may want to consider putting in your contract provisions You may want to consider putting in your contract provisions for your client to indemnify, hold you harmless and defend for your client to indemnify, hold you harmless and defend you, in the event of a third party claim against you for your you, in the event of a third party claim against you for your workwork

Avoid, or limit, to the extent possible, any Avoid, or limit, to the extent possible, any indemnity, hold harmless and defense indemnity, hold harmless and defense provisions running from you to your clientprovisions running from you to your client

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:BUSINESS MANAGEMENTBUSINESS MANAGEMENT

Often, the successful avoidance or defense of Often, the successful avoidance or defense of claims depends on the existence and nature claims depends on the existence and nature of the documents and information that are of the documents and information that are developed, maintained and availabledeveloped, maintained and available

““Make a paper trail”, that is, document Make a paper trail”, that is, document everything you do, to the extent possible, everything you do, to the extent possible, including drafts, notes, etc.including drafts, notes, etc.

Maintain your file for a reasonable period of Maintain your file for a reasonable period of time, such as the stature of limitations in your time, such as the stature of limitations in your jurisdiction for breach of contract actionsjurisdiction for breach of contract actions

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:BUSINESS MANAGEMENTBUSINESS MANAGEMENT

Properly research and verify the Properly research and verify the qualifications of your employees and qualifications of your employees and independent contractors prior to and at the independent contractors prior to and at the time of hiring, document your findings and time of hiring, document your findings and maintain your recordsmaintain your records

Research and confirm the nature of your Research and confirm the nature of your client and its needs - what are they, what do client and its needs - what are they, what do they want and when do they want it?they want and when do they want it?

(CONT’D)(CONT’D)

Make sure there are no conflicts with your other Make sure there are no conflicts with your other clients and workclients and work

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:BUSINESS MANAGEMENTBUSINESS MANAGEMENT

Make sure your billing procedures and format are correct and comply Make sure your billing procedures and format are correct and comply with the client’s requirements - billing disputes often lead to claimswith the client’s requirements - billing disputes often lead to claims

(CONT’D)(CONT’D)

Clearly indicate when your services are starting and when they are Clearly indicate when your services are starting and when they are completed - this will avoid undue expectations on the part of the clientcompleted - this will avoid undue expectations on the part of the client

Make sure you have appropriate and effective Make sure you have appropriate and effective insurance coverageinsurance coverage

WAYS TO PREVENT CLAIMS:WAYS TO PREVENT CLAIMS:BUSINESS MANAGEMENTBUSINESS MANAGEMENT

sufficient limits of liabilitysufficient limits of liability a manageable deductiblea manageable deductible covers the right persons and entitiescovers the right persons and entities remains in force, especially to the extent it remains in force, especially to the extent it

is a “claims made” coverageis a “claims made” coverage provides for a defense, as well as provides for a defense, as well as

indemnity for damagesindemnity for damages

If a Claim is made against you, report it If a Claim is made against you, report it immediatelyimmediately to your insurer - this will: to your insurer - this will:

DEFENDING CLAIMS:DEFENDING CLAIMS:WHAT TO DO WHEN A CLAIM IS MADEWHAT TO DO WHEN A CLAIM IS MADE

help to avoid issues of late notice, prejudice help to avoid issues of late notice, prejudice to the insurer and other coverage problemsto the insurer and other coverage problems

allow the insurer an opportunity to investigate, appoint allow the insurer an opportunity to investigate, appoint defense counsel and possibly resolve the matter at an defense counsel and possibly resolve the matter at an early stage, if appropriateearly stage, if appropriate

Gather all documents and information about the claim as Gather all documents and information about the claim as soon as possible, segregate and separately maintain them soon as possible, segregate and separately maintain them from other materials from other materials

Avoid “self-help”, or direct contact with the Avoid “self-help”, or direct contact with the claimant without the knowledge or consent of claimant without the knowledge or consent of the insurerthe insurer

DEFENDING CLAIMS:DEFENDING CLAIMS:WHAT TO DO WHEN A CLAIM IS MADEWHAT TO DO WHEN A CLAIM IS MADE

this can create coverage problemsthis can create coverage problems you may make statements that could make you may make statements that could make

defense of the claim more difficultdefense of the claim more difficult even if the claim is within the deductible, if even if the claim is within the deductible, if

you report the claim, the insurer has a right you report the claim, the insurer has a right to make sure that the claim is properly to make sure that the claim is properly defended or resolveddefended or resolved