A Practical Guide to Lawyering Skills

Fiona Boyle, Deveral Capps, Fiona Boyle, Deveral Capps

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351169745
• Edition: 4
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Legal skills are an important and increasing part of undergraduate law degrees as well as postgraduate vocational law courses. This fully updated fourth edition continues to bring together the theory and practice of these skills in an accessible and practical context.

The authors draw on their experience of teaching and of law in practice to develop the core skills taught on both undergraduate and postgraduate courses. Skills covered include:

• written communication;

• mediation;

• opinion writing;

• drafting;

• advocacy;

• interviewing;

• negotiation;

• legal research.

The text also considers the professional and ethical context of legal practice, provides an insight into the legal services landscape as well as offering valuable careers advice.

Diagrams and flow charts help to explain and develop each skill and each chapter ends with suggestions for further reading.

A Practical Guide to Lawyering Skills is essential reading for all undergraduate and vocational law students seeking to develop the necessary skills to work successfully with law in the twenty-first century.

Chapter 1

Legal writing: basic principles, planning, plain English and presentation

Introduction

Legal writing and lawyers

Writing is at the heart of what lawyers do. Whether as solicitors or barristers or lawyers in other employment, we are asked to scrutinise the written word, to analyse the written word and, above all, to advise using the written word.

Books about writing tend to start with a simple proposition: writing is about communication. But communication can take different forms. When you write to a client you may be advising, clarifying, reassuring, confirming. When you write to an opponent you may be threatening, negotiating, informing or arranging. Sometimes you may write simply in order to send out a message that you have not forgotten about the case. Communication is not always in what is written, but may arise from the fact of writing.

In this chapter, we first consider the special features of legal communication and the basic principles that underpin all effective legal writing. In the following chapter, we will look at the process of writing: how to use first and second drafts, how to review your own work, and the particular requirements of such elements of legal writing as letters of advice, internal and external memoranda, attendance notes, reports and briefs. We also touch on particular issues that arise from the rise in electronic communication – and particularly the use of email.

Writing in practice and in law school

Legal writing does not occur in a vacuum. When you are in practice as a paralegal or solicitor, you will be adjusting the style and content of your legal writing to fit in with the demands of a particular area of legal work, with its own conventions, and with the conventions of the firm/company you are working for.

A letter from a senior partner at one of the large law firms in the City to Margot Costanzo makes the point that different areas of work seem to have their own unspoken conventions:

Writing style in the firm is dictated by custom and practice, tempered by partners’ individual styles and preferences. Trainees also receive an extensive note on drafting, but this covers mainly agreements.

Typically, property and litigation lawyers write letters in the first person plural, often adopting a more formal tone than is necessary. We would advise that this is not a style which generally meets the approval of the writer of this letter.

Typically, a corporate lawyer adopts a less formal style with assistants, just as partners, writing letters in their own name and in the first person singular. I approve of this, as I am sure you do too, Margot.¹

On undergraduate law courses, you may be writing essays, coursework or exams, where the primary assessment will be of your legal knowledge, rather than directly focusing on your communication skills. Alternatively, the assessment may be a more skills-oriented one, and the primary assessment criteria may be your ability to write effectively or to draft appropriately. On the Legal Practice Course (LPC) and the Bar Course (currently the two postgraduate vocational courses for students who wish to qualify as solicitors or barristers in England and Wales), writing and drafting are formally assessed as ‘skills’.

On the LPC, skills are simply assessed on a competent/non-competent basis. On the Bar Course, the skills assessments are graded: outstanding, very competent, competent and fail. In an academic environment, you will find a variety of different assessment criteria clearly pointed out at the start of the course that are used to assess your ability; in practice, the criteria will not be overt.

In these two chapters, therefore, we also need to consider both the practical and the academic aspects of writing as a legal skill.

However, although academic assessments may be part of the development of an effective legal writing style, they are not the ultimate goal. Effective legal writing must take account of the demands of the particular task and the needs of the particular client, and it is for this reason that this chapter starts by looking at the different functions of communication for lawyers.

Why are these chapters about legal writing rather than drafting?

Most legal skills books now recognise that legal writing is a skill with a different focus from legal drafting. For this reason, the Essential Legal Skills series has separate books on the two separate areas. In her book, Legal Writing, Margaret Costanzo defines the difference in the following way:

Legal writing is essentially a process of solving problems and proposing options. Legal drafting is a process of defining relationships and setting out procedures. Much of legal drafting is about adapting precedents: more of legal writing is about original composition.²

In this book we use ‘legal writing’ to refer to informal communications, such as letters, memoranda, attendance notes and even briefs (the more formally drafted communications from solicitor to barrister). In chapters 5 and 6 (on opinion writing and on drafting), we consider the more formal legal documents, such as contracts, wills, statements of case in litigation matters, affidavits, and barristers’ written opinions on cases; all of these tend to require the writer to comply with certain formal procedural requirements which go beyond the mere process of communication itself.

Writing and communication

Being able to write effectively will not make you a lawyer. But if you cannot write effectively, it will always hamper your progress as a lawyer. Here is the stumbling block: most lawyers in practice believe they write effectively. The trouble is that their clients do not agree.

Lawyers have a reputation for communicating very badly with their clients, in the same way doctors have a reputation for indecipherable handwriting. Both reputations seem to be justified. The Legal Ombudsman records that for the year 2016/17 poor communication accounts for 10% of the complaints made to them³ as a primary cause of consumer dissatisfaction with legal services, and almost one fifth of complaints about barristers to the Bar Standards Board have their roots in poor communication between lawyers and their clients.⁴

What is the function of lawyers?

One pragmatic definition is that the function of a lawyer is to assist a client in protecting or asserting those rights that are defined by law. Lawyers acting as advocates, whether solicitors, legal executives or barristers, are generally under a professional duty to say for the client what the client would, if he or she possessed the requisite skill and knowledge, say for himself or herself. This is a good example of the principle that the primary duty of any lawyer is to provide his or her clients with the legal knowledge and skill that will enable them to look after their affairs.

Ultimately, the lawyer’s duty is to communicate effectively with the client so the client can decide what steps to take, and because of this duty all lawyers place a great deal of emphasis on informing, advising and assisting the client. Often, clients may be very dependent on the advice and analysis provided by their lawyer and even when they are themselves lawyers (as will generally be the case where barristers are advising their professional clients, solicitors), they will be keen to offload the responsibility for making decisions back on to the adviser. However, as lawyers, we all ultimately act on the basis of ‘instructions’, on what our clients tell us they want us to do. In order to be able to give sensible instructions, the clients must be in a position where they have been fully and properly informed and advised. And this is the reason why communication is at the heart of a lawyer’s skills.

Why communicate by writing?

Legal writing may have any number of different purposes. You may be writing to your client (a non-lawyer) to advise for the first time, or you may be writing to them to confirm advice you have already given face to face or on the telephone. You may be writing to another lawyer, whether friendly or hostile, to set out your client’s position. You may be drafting a memorandum to inform colleagues about relevant aspects of law, or an attendance note to record what steps have been taken on a particular case. Increasingly, all of these things may happen by email, making the process of communicating by writing a far speedier affair.

What each of these scenarios has in common is that you are being required to communicate in writing. But why is this the case? If you have already seen your client, and indeed spent a long time talking to them about their case, why then write to them simply in order to repeat all this information? Why would anyone need to write to another lawyer to set out their client’s position when you can simply telephone them? Why draft an attendance note when you know perfectly well what happened at the meeting? Are all these simply examples of lawyers creating extra work – extra billable work? The answer may well be different in each case. But the underlying purpose of using written communication, rather than relying upon oral or visual communication, is because written communication enables information to be recorded in a format accessible to other people in other places and at other times. As a consequence, a written communication is often treated as evidence of what was done or said at an earlier place and time.

In order to see how well this definition holds up to reality, let’s consider the functions of a standard letter to a client, confirming advice given during an interview. Why does the lawyer write this letter?

Part of the reason is to provide your client with a record of your earlier advice. It is, therefore, a way of making sure your client has remembered all the advice. What is more, having the advice set out or summarised in written form will give the client a chance to go over the information as often as they wish in order to make sure that they understand what is being proposed and why. Moreover, the letter serves as a permanent record of the advice, so that the client can go back to it at some later date to remind himself or herself why a certain course of action has been taken. The letter may also be given to other interested parties so they can see what the lawyer has advised, even though they themselves may not have been present at the original interview or conference. From the lawyer’s point of view, the written communication provides a valuable safeguard against any future claim for negligent advice; the lawyer can point to the letter as a record of what was advised, sometimes many years earlier, and often by a different lawyer.

Does all communication have the same purpose?

Writing is always about communication at some level, but you can come up with long lists of different reasons for communication. If you think about some of the different reasons why lawyers may need to communicate, you would probably include:

1. to advise;
2. to record;
3. to inform;
4. to confront;
5. to reply;
6. to confirm;
7. to justify;
8. to reassure.

Indeed, there are many other reasons for communicating that can be thought of. And, if there is such a range of different reasons for communicating, then there cannot be a single rule that defines what will make a communication effective. In order to work out if the communication is effective, we need, first, to consider the basic ground rules for all communication.

Planning and writing

You learnt to write so long ago you have probably forgotten the process. As you developed, what was required of you in your writing changed. One of the primary focuses of the education process is the development of written communication skills, so that, imperceptibly, you became able to analyse, organise and present material (whether in science, or history, or languages) in increasingly sophisticated ways. Exams and...