Year: 2020

Terminology of Civil Procedure: What is “standing” (and how is it expressed in Spanish?)

rebeccajowers ES-EN Legal Translation

One of the major news items this weekend was the US Supreme Court’s order denying Texas Attorney General Ken Paxton’s motion to file a bill of complaint with the Court challenging the 2020 election results in Pennsylvania, Georgia, Michigan and Wisconsin. The Supreme Court’s ruling was short and sweet: “The State of Texas’ motion to file a bill of complaint is denied for lack of standing.”

But few reporting on this matter in Spain appeared to understand the concept of “standing:”

  • Using the terminology of criminal procedure, TV1 called the motion a denuncia and said that the Supreme Court had ruled that Tejas no está en posición de pedir que se anulen votos en otros Estados… .
  • Calling the motion a demanda, Antena 3 claimed that the Supreme Court declared that the plaintiff’s petition carece de fundamentos, despite the fact that the Court made no ruling on the merits;
  • Tele5 said that the Supreme Court desestimó la querella, likewise insinuating that there was a ruling on the merits, while also mixing the terminology of civil and criminal procedure;
  • LaSexta noted that the Supreme Court tumbó la demanda del Fiscal General de Tejas.
  • El País reported that the Court rechazó la demanda…,
  • while El Mundo indicated that it rechazó el recurso de Texas.
  • Both ABC and Público chose to translate the sole argument in the Supreme Court’s order, noting that Texas no ha demostrado un interés reconocible judicialmente sobre la manera en que otro Estado celebre sus elecciones.*
  • Europapress, like others, used the expression rechazó la demanda, and
  • once again, confusing this with a criminal proceeding, Agencia EFE said that the Supreme Court desestimó la querella.

As noted above, the State of Texas’ motion was denied for “lack of standing,” a concept that wasn’t accurately reflected in any of the Spanish news reports shown above. So what is “standing”? And more importantly for legal translators, how can the expression be rendered in Spanish?

In this context, “standing” (most often expressed in British English with the Latin phrase locus standi) is simply the “right to bring an action or challenge a decision” (Oxford Dictionary of Law). The corresponding concept in Spanish is legitimación, defined as la facultad de actuar en el proceso que tiene el titular de un derecho material concreto para ejercitarlo o defenderlo (Diccionario Jurídico Colex). So the US Supreme Court’s denial of plaintiffs’ motion for “lack of standing” means that it was rejected based on their falta de legitimación.

Related vocabulary that may be of interest to legal translators:

  • legitimación—standing to sue or be sued**
  • legitimación activa—plaintiff’s/claimant’s (E&W) standing; standing to sue
  • legitimación pasiva—defendant’s standing; standing to be sued
  • legitimación extraordinaria/indirecta—third-party standing
  • legitimación por sucesión procesal—standing acquired upon party substitution

View the State of Texas’ motion for leave to file a bill of complaint here

View the Supreme Court’s order denying the motion here

*“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

**A distinction is often made between legitimación ad processum, general standing in the sense of having the capacity to sue or be sued (adults of sound mind, not under a disability, etc.) and legitimación ad causam or standing to sue or be sued in a specific proceeding brought before the court.

Spanish-English Legal Terminology: Criminal Law and Criminal Procedure

rebeccajowers ES-EN Legal Translation

This week I’m teaching our final unit for the semester on Criminal Law and Criminal Procedure. For followers of this blog and, particularly, for my students of Legal English, here are links to previous posts for those interested in exploring the terminology of these legal disciplines:

1) General Terminology of Criminal Law and Criminal Procedure

2) Confusing Terms, Strange Expressions and False Friends in Spanish-English Criminal Law and Criminal Procedure (and suggestions as to how to translate them)

3) Specific Offenses

Weird Legal Spanish: What is a causídico/a?

rebeccajowers Español jurídico

This fairly obscure term is sometimes used in Spain as a synonym for procurador/a, being defined in the DLE as procurador o representante de una parte en el proceso. As examples, se dio traslado al causídico… simply means that “the procurador was notified” about the matter in question. Apoderamiento del causídico denotes “power of attorney granted to the procurador, while designación de causídico mediante comparencia ante el Secretario Judicial is a reference to a client’s appointment (i.e., grant of power of attorney) to his procurador in person in the presence of a court clerk (known formally as designación apud acta), rather than by submitting a poder notarial (“notarial power of attorney”).

Confusing Terms in Legal English: “executor” vs. “administrator”

rebeccajowers Confusing Terms

As used in inheritance law (Derecho de sucesiones) these are related terms that are sometimes confused. An executor of a will is an albacea testamentaria, that is, a person appointed by a testator in his will to carry out its provisions upon his death. A female executor was formerly known as an “executrix” (plural: “executrices”), a term now considered archaic, “executor” now being the preferred English designation for albaceas testamentarias of both sexes.

In contrast, a person appointed by a court to manage the estate of an intestate decedent (causante muerto intestado) or when no executor has been appointed is called an “administrator” (in Spanish, albacea judicial or albacea dativo). Although “administrator” is now used for an albacea judicial of either sex, a female administrator was formerly known as an “administratrix” (plural: “administratrices”).

Appellate Judgments in the US and UK (translating estimar and desestimar

rebeccajowers Legal English in the US and the UK

It is often difficult to translate estimar and desestimar in the context of appellate decisions, and the problem often lies in confusing American and British usage. When an appellate court accepts an appeal as having merit (estima el recurso), this is expressed in England and Wales as “the appeal is allowed,” while desestima el recurso is expressed as “the appeal is dismissed.” Thus British usage mirrors the Spanish in that both reflect the appellate court’s decision from the perspective of the appeal itself.

In contrast, in American usage the appellate court views the appeal from the perspective of the lower court’s decision. Rather than indicating that the “appeal is allowed” (se estima el recurso) as in England, in AmE the lower court’s judgment is “reversed” (literally, se revoca la sentencia en primera instancia). Likewise, to denote desestimación del recurso, in AmE the lower court’s judgment is “affirmed” (literally, se confirma la sentencia en primera instancia). And, in effect, the first thing that appears on opinions rendered in appeal proceedings in the US is the word “AFFIRMED” or “REVERSED” in capital letters.

If it is unclear whether a translation is intended for US or UK audiences, it may be helpful to use a “safe” (and admittedly rather wordy) rendering that combines both British and American usage. Thus, se estimó el recurso may be expressed as “the appeal was allowed, thus reversing the lower court’s decision,” while se desestimó el recurso would be “the appeal was dismissed, thus affirming the lower court’s decision.” In these translations both US and British readers would immediately see the key words that they recognize as indicating whether the appeal was accepted as having merit (“allowed,” “reversed”) or not (“dismissed,” “affirmed”).

In other respects, it should perhaps be noted that in this context “allowed” and “dismissed” do not mean admitido and inadmitido. In that regard, el recurso ha sido admitido (a trámite) merely indicates that it meets the formal requirements and has been admitted to prosecution for an eventual decision on the merits. An appeal that fails to meet formal requirements will be inadmitido, although defects can often be be cured (subsanados) and the appeal subsequently allowed to proceed.

Legal English: Labor Law Look-alikes “Job Safety” and “Job Security”

rebeccajowers Confusing Terms

The labor law look-alike expressions “job safety” and “job security” would appear to be synonymous and are sometimes confused in translation. But “job safety” refers to health and safety in the workplace, i.e., the proper conditions to ensure a worker’s safety on the job (in Spanish, seguridad en el trabajo). In contrast, “job security” refers to the probability that a worker will keep his job and to possible legal impediments that make dismissing workers more difficult or onerous for employers. Thus, “job security” in Spanish may be expressed as seguridad laboral, estabilidad laboral or estabilidad en el trabajo.

Legal Meanings of “stay”

rebeccajowers Common words with uncommon legal meanings

In nonlegal contexts “stay” is generally a synonym of “remain.” But in the language of court procedure “stay” (as a noun and as a verb) has a peculiar meaning, often referring to the postponement or suspension of a judicial proceeding. In that regard “to stay a trial” means suspender el juicio, while “stay of proceedings” may be rendered as suspensión de las actuaciones. And in reference to a court’s ruling, the expressions “stay of enforcement” and “stay of execution” both denote suspensión de la ejecución (de una sentencia). In that regard, although nonlawyers may associate the expression “stay of execution” specifically with the suspension of a death sentence, the expression may actually denote the suspension of the enforcement of any judgment.

Weird Legal English: What do you mean by “take against the will”?

rebeccajowers Legal English for Spanish-speakers

This seemingly cryptic expression “to elect to take against the will” denotes “a spouse’s statutory right to choose, upon the other spouse’s death, either the share under the deceased spouse’s will or the share of the estate as defined in the probate statute, which usually amounts to what a spouse would have received had he died intestate” (Black’s Law Dictionary). In this context “statutory share of the estate” refers to the porción sucesoria legal, while “share under the deceased spouse’s will” is the porción sucesoria dispuesta en el testamento. Thus, the surviving spouse’s “right to elect to take against the (other spouse’s) will” is el derecho del cónyuge supérstite de optar por la porción sucesoria legal en lugar de la dispuesta en el testamento del cónyuge difunto.

It should be noted that “take against the will” has sometimes been mistranslated as impugnar el testamento, which in English is more properly expressed as “to contest (or) to challenge the will.” When probate laws allow a surviving spouse to elect to take against the will, the spouse can choose to apply the provisions of the law rather than the provisions of his/her deceased spouse’s will. But in order to elect to take against a decedent’s will, the surviving spouse does not have to contest or challenge (impugnar) that will, but rather, depending on the jurisdiction, must usually appear before a probate judge to confirm that choice and to “file an election to take against the will form.” This implies filing a document certifying that the surviving spouse freely chooses to take against the will and fully understands the implications of doing so.

Legal Meanings of “file” and “to file”

rebeccajowers Common words with uncommon legal meanings

In nonlegal usage, “file” and its verb form “to file” are most often associated with the meanings archivo and archivar. In that sense, expediente is often the term that denotes a court’s (or a lawyer’s) “case file.” But in legal language “filing” is must often be translated as presentación while, as a verb, “to file” is generally rendered as presentar. In that regard, in procedural contexts “filing (or) entering an appearance (in the proceedings)” corresponds to a party’s personación (en la causa/en autos) in Spanish procedure. In civil litigation one may “file a complaint or counterclaim” (presentar una demanda o reconvención), while in criminal contexts one may “file (or) bring charges” (presentar una denuncia/querella). In family proceedings, a spouse may “file for divorce” (presentar demanda de divorcio), and in guardianship cases a potential guardian “files for guardianship” (promueve la constitución de la tutela). As a final example, in tax law contexts, one “files a tax return” (presenta la declaración de la renta).

Legal English in the US and UK: “stock” vs. “share”

rebeccajowers Legal English in the US and the UK

I think I may have blogged about this before, but I can’t figure out why some people have the notion that “shares” and “shareholder” are the British English terms for acciones and accionista, while the American English equivalents are “stock” and “stockholder.”

Although many online sources insist that “stock” is the US term for “share,” this is simply not the case. Indeed, “share” and “shareholder” are actually the terms used in the American Bar Association’s Model Business Corporation Act (MBCA) and its revised version (RMBCA), adopted in whole or in part in over half of the fifty US states.

In that regard, in the United States corporate law is state law, and which of these terms are preferred perhaps depends on the terminology chosen in a given state’s corporation law or code. For example, in the Delaware General Corporation Law it’s “stock” and “stockholder,” while the California Corporations Code uses “share” and “shareholder.”