ByLawyers News and Updates

Practice management for small law firms

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Practice management is both one of the most important and one of the most frequently neglected aspects of being a lawyer. The imperatives of doing the clients’ work too often mean that practice management takes a back seat and the future direction, expansion and profitability of the firm becomes an afterthought.

The 11 Habits of highly successful small law firms is an article by Richard Hugo-Hamman, the Executive Chairman of LEAP Legal Software, who has been helping small law firms to make more money for over 25 years. This very informative and inspirational article was recently published on LinkedIn and Richard has kindly permitted us to reproduce it within the Reference Materials folder in the By Lawyers Practice Management guide.

The article contains numerous valuable insights for anyone running a small law firm or thinking of doing so. Richard draws on his enormous international experience to distil the key habits that define highly successful small law firms.  In summary he concludes that:

  1. They are efficient;
  2. They enjoy practising law;
  3. They employ smart people and treat them really well;
  4. They have selected areas of law they like and focus on them;
  5. They dedicate time to building the firm as a business;
  6. They are early adopters of technology;
  7. They confront the challenges of getting paid and solve them;
  8. They have standard processes and procedures in place for all matters;
  9. They make compliance a natural consequence of running a firm well;
  10. They become experts in customer service;
  11. They understand their finances.

We highly recommend reading Richard’s article, which calls upon you to ACT!

Practice Management — Enhanced reference material — 101 Policy and Procedures

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Our reference guide — 101 Policy and Procedures has been enhanced.

This guide forms part of our Practice Management publication and provides a ready reference for all team members in a law firm about all aspects of the practice. A few excerpts:

Client service and communication standards

The firm strives to deliver the highest level of service and value to its clients. This means that team members are expected to be well mannered, engaged and responsive to phone calls, emails and other correspondence….

Cost disclosure and billing practices

In all matters, use the Retainer Instructions provided in the matter plan under Getting the Matter Underway and disclose costs in writing. Costs disclosure must be by way of a formal Costs Agreement where costs are likely to exceed $3000, or otherwise disclosed in the initial correspondence, as done for example in the precedent letters in the matter plan for conveyancing matters….

Supervision of practice and staff

The system adopted by the practice, if followed, will ensure that the practice is run efficiently and safely to the satisfaction of all participants. This simply involves adherence to all policies and procedures. …

Other topics covered include Asset register, Closing files, Email policy, Petty cash, Sexual harassment and Trust accounting.

Practice Management — New reference material — 101 Trusted and useful sites by area of law

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Here at By Lawyers we spend a lot of time researching and fact-checking, in all of the areas of law that our publications cover. Over time we have compiled a list of credible and helpful websites which we regularly use – and that list is now available to you, with the publication of our new reference tool — 101 Trusted and useful sites by area of law.

This handy resource brings together in one place hyperlinks to some of the most trusted and useful websites you might need, organised according to areas of law.

The new reference tool is located as a separate guide in the By Lawyers Practice Management publication.

By way of example, these are the Federal websites we have included for the Business & Franchise area of law:

FEDERAL

Business & Franchise
GST and Taxes – Australian Taxation Office (ATO)
Franchises

There are also sites under that subject heading for each state. There are subject headings for all of the areas of law covered by our publications.

As with all of our publications this resource will be regularly updated.

This ready reference tool is a convenient starting place for everyone in the firm seeking trusted information to assist clients in any area of on any practice.

Data breaches – Mandatory reporting of eligible data breaches from 22 February 2018

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Mandatory reporting of eligible data breaches from 22 February 2018

Amendments to the Privacy Act come into force from 22 February. As holders of ‘personal information’ as defined in the Act, law firms which experience a data breach must:

  • Notify the Office of the Australian Information Commissioner, AND
  • Notify ALL affected individuals.

To cater for these changes, we have today added a new chapter to our Practice Management commentary: Data Breaches.

Taking the time to review your level of data protection is well worth the effort. This includes protective software and an efficient system of information management.

For more information please read our commentary.

Plain concord – Clarity’s ten commandments

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Plain language – A paper by the Hon. Michael Kirby AC CMG*

OPENING LAWYERS’ MINDS TO PLAIN LANGUAGE

It is not always easy for lawyers to write and speak plain language. For many of us, we need to be rescued from our “heretofores”, “whereas” and “party of the first part”. Desirably, the process has to start early in our lives. We have to learn in our childhood the beauty and elegance of simple expression. By the time we get to law school (and certainly when we ascend to a judicial bench or the professorial seat) it may be too late.

In my upbringing, I was fortunate in the choice of my parents. Both of them had great comprehension and verbal skills which they deployed and communicated to their children. My father was, and is, a fine storyteller. From him, I learned the importance of clear speaking. And from my mother, clear writing. And it was copperplate in those days.

Learning how to tell a story is quite important for communication in life. For a life in the law, it is essential. Every case that comes before a court is a story of sorts. Our bookshelves are full of the human tales of greed, lust, envy, cruelty and love. The greatest of judges have a gift in telling the law’s stories in a brilliant way. Lord Denning was probably the greatest legal story teller in my lifetime. Who else would start a judicial opinion with the immortal words: “It was bluebell time in Kent”?

Learning the great classics of the English language is also important for plain expression. In my day, people like me learned from the King James Bible and The Book of Common Prayer. The beauty of Thomas Cranmer’s language in the latter has always stayed with me. My partner tells me that he is fed up with hearing me declaim its words in the bathroom.

I grew up in Concord, then a western suburb of Sydney. Now, it is fashionably “inner west”. As an infant, I attended St. Andrew’s Anglican Church just across Parramatta Road in Strathfield. Actually, I would often pretend that I lived in ‘Strathfield’, because it was a far more fashionable suburb than Concord. However, every Sunday, I would learn from the second Collect, for Peace that Concord had a special place in God’s love1:

“Oh God, who art the author of peace and lover of concord. Whose service is perfect freedom. Defend us … in the same through thy mighty power. That we, surely trusting in thy defence, may not fear the power of any adversary. Through the might of Jesus Christ Our Lord. Amen.”

The beauty and simplicity of this language burst into my brain like rays of sunlight. It is still there. Sixty years later, I still search for this capacity of plain speaking. And it was always comforting to know that the Almighty is paying particular attention to us who came from Concord.

My training in the law was fairly orthodox, except for the instruction I received in jurisprudence and in interna­tional law from Professor Julius Stone. It was he who taught the law students at the University of Sydney Law School in the 1950s, about the judicial choices that exist; about the considerations of principle and policy that influence their outcomes; and about the duty of judges and other lawyers to be transparent about such considerations. And to explain them simply so that all citizens would understand2.

My most specific instruction in plain language, however, came after university. It was as well that it did. For in those days, even more than today, there was little or no instruction at university in plain speaking, drafting and writing. Nevertheless, it was a fine university scholar, who gave me the instruction.

I refer to Professor David St. L. Kelly. He was the first full-time Commissioner of the Australian Law Reform Commission. In 1975 I had taken up appointment at the inaugural Chairman of that Commission (as the office was then called). David Kelly was the first full-time Commissioner, apart from myself. He came to us from Adelaide. Like an Old Testament prophet, he was constantly full of fire and brimstone.

David Kelly taught me two very important lessons that have stuck with me throughout my career as an appellate judge. The first was the importance of conceptual thinking. The defect of the common law is that it tends to stumble from case to case. It is a highly pragmatic system. But it often lacks concepts and readily discernible principles. David Kelly taught me, in law reform, to search for those principles. That search continued throughout my judicial life.

His second lesson was about the importance of plain language. I do not know whether he had a deep knowledge of that subject before he came to the Law Reform Commission. However, he was soon put in charge of two projects, each of which attracted his interest to plain language. The first was a project on debt recovery3. Because we were dealing with often disadvantaged people, complex forms and contracts were commonly a source of legal and other problems for them. The need for clear expression in legal documents was specially apparent.

It became more so in the project to reform the law of insurance contracts. The report on that subject analysed hundreds of such contracts. It concluded that there was a need for clearer expression, for standard plain language contracts, and for fairer principles of law4.

In the course of undertaking these projects, David Kelly made contact with a legal scholar in the United States, Professor Vernon Countryman. He was an early expert in the “plain English” movement, as it was then described. I remember a lengthy telephone consulta­tion with him, in the United States, when Professor Countryman elaborated the fairly simple rules that could be followed in expressing legal concepts and docu­ments in clearer language. By the time my service in the Law Reform Commission concluded in 1984, I was a convert.

It was at about this time that two great Australian scholars entered the field of plain expression. I refer to Professor Robert Eagleson and Professor Peter Butt. The former was not a lawyer at all, being an expert in linguistics. The latter was one of the finest lawyers in the land. His chosen area of discipline has been land law. This is not a topic for the faint-hearted. He threw himself into dialogue with Robert Eagleson. Between them, they initiated the plain movement in Australia. They link us to the world Clarity movement. They are doyens of plain language in this country. Rightly, they are honoured for their outstanding contributions, devotion and persistence.

I am here to honour such brilliant Australian scholars. But also the scholars from other lands who are joined in this common enterprise.

There are, of course, limits on the extent to which we should change too quickly established ways of doing things, and saying things in the law. Some legal expressions in the Latin language, for example, are still commonly used. Yet, because very few students, and thus lawyers, now study Latin at school, a switch to English language equivalents is essential. My one-man campaign during my service on the High Court, to get my colleagues to drop “lex loci delicti” failed5. However, the time will come when even Australian judges will substitute the simple English words: “the law of the place of the wrong”. What is so hard about that? Perhaps the answer is that those who conceive of themselves as members of an expert priestly caste, prefer a dead language because it conveys the mystery of technicality. English, after all, is a very mixed up tongue. And clients may be more willing to pay more for Latin.

Complex ideas are sometimes inescap­able in law. Taxation legislation and statutes of limitations are prime examples of complexity. Yet simpler expressions can often be secured by analysing more closely the concepts that are at stake. It was not a coincidence that David Kelly’s legal obsessions were conceptualisation and plain expression. The two are intimately connected.

PLAIN STORIES FROM MY PAST

The earliest contribution of mine to this subject dates from March 1982, when I was under the spell of David Kelly. In an address to a luncheon of the Constitutional Association of Australia, I described “the monumental task of simplifying the law”6. The reference was to the statutory obligation of the Australian Law Reform Commission to “reform, modernise and simplify” federal laws. Not long after, in another speech to the Australia Britain Society at the Plain English-speaking Awards at the Sydney Opera House in August 1993, I gave an aria on “Plain English and the Power of a Wink and a Sniff”7 . The reference in the title was to the capacity to communicate in many ways, including by body move­ments and facial expressions8. Yet most legal communication is made in words and hence the attention paid to them.

Rummaging through speeches I have given over the past thirty years, I found a number on plain writing of the law. The earliest was on “Plain Legal Language”, attributing wisdom to Professor John Lindsey, another American expert on the topic. This was given in 19909.

In July 1998, I gave a talk, later published, on “Speaking to the Modern Jury – New Challenges for Judges and Advocates”10. I explained that the jury of the 1990s was more than likely made up with a sprinkling of jurors from Generation X. Now, jurors from Generation Y and later generations have joined their ranks. The different capacities and inclinations of those raised on electronic communica­tions, to listen to a talking head for hours, obviously affects the way in which judges and advocates must today speak to such a group of individuals.

In 2006, I undertook an interview by Kathryn O’Brien on judicial attitudes to plain language and the law11. I had to confess to her the element of resistance to plain language in judicial ranks. Not to put too fine a point on it, some judges are positively hostile to the endeavours of the plain language movement to support clearer statutory expression and simpler judicial communication. My interrogation followed the publication in 2006 of my very favourable review of the excellent book by Professor Joe Kimble, Lifting the Fog of Legalese12.

These and other efforts on my part show, at the very least, a longstanding commitment to the plain movement. For this, I have been rewarded with appointment as a patron of Clarity, the global body committed to simpler and clearer expression in legal language.

It is not all that difficult to improve the simplicity of legal expression. Long ago, Professor Kimble gave a number of very simple rules that all of us can follow. During my judicial years, I certainly tried:

  • Complex statements of facts and law should begin with a summary to let the reader know where he or she will be travelling;
  • Short sentences and shorter words should replace long;
  • The passive voice should generally be banished and replaced with active voice. This assumes that lawyers of today have learned what „active‟ and „passive‟ voice means. But it can be explained.
  • Words of connection should be at the beginning of sentences. Words of emphasis should generally be at the end.
  • Where there is a choice, the shorter word (ordinarily from a Germanic root) should be preferred to the longer word (ordinarily from the French language of the Norman Conqueror);
  • Sexist and obviously ambiguous language should be removed;
  • Vagueness is sometimes necessary in legal drafting. However, ambiguity should generally be tackled head on;
  • Those old potboilers “whereas”, “hereinunder”, “cognisant”, “requisite” should be deleted;
  • Lay out is a technique of communica­tion that matters. It can assist human understanding. As can headings and sub-headings; and
  • In legal texts that will cross borders, it will generally be necessary to be especially careful in the use of words. Mr. Keating found this when he used the word “recalcitrant” in describing the attitudes of the then Prime Minister of Malaysia. Seemingly, the word had a more pejorative meaning in Malay than in the English language.

If we all observed these simple rules in our legal communications, how much clearer would our voices be. One of the reasons why students feel attracted to my reasons in the High Court of Australia, they tell me, is that I followed the Kimble commandments. I also used layout and white space to take the eye through the reasons. Even so great a judge as Sir Owen Dixon sometimes wrote in uninterrupted prose. Just take a look at the reasons published in the Communist Party case13. Great prose. But frequently obscure and hard to keep in one’s mind. Likewise, the use of graphs and tables and other means of communication, photographs, charts and maps can often improve the clarity of judicial, statutory and other expressions14.

These are not hard rules to follow. They should be taught to every law student. But are they taught? The answer is a resounding no. Are they embraced by the judiciary of this country? The answer is, not wholly. I find it significant that no judge in the entire hierarchy of the judicature of Australia has attended this conference. But I am here. And will continue to support the endeavours of David Kelly, Robert Eagleson, Peter Butt, David Sless and all of you present. Clarity International could strike a blow for plain expression by propounding the foregoing Ten Clarity Commandments. If they alone were observed by increasing numbers of lawyers worldwide, the result would be a marked improvement in written and oral legal expression.

NEW CHALLENGES AND A NOBLE CAUSE

I conclude with words of thanks and praise for those who participate in the plain language movement. Do not be discouraged. The movement continues to gather force. We must press on with the effort to include in every law course and every legal practice course education in clear expression. It is not very hard; but it needs instruction. Above all, it needs examples and good illustrations. All of us must contribute to this endeavour.

With each new generation of lawyers, there are fresh challenges to plain language. Because the English language changes over time, according to usage (and no learned committee of experts dictates the permissible course that it will be allowed to take), a never-ending stream of new words and expressions enters the language. Some of these present new challenges to the aims of plain language, including in legal expressions. Take, for example, the rapid introduction of computer language with its words (“website”, “webmaster”, “download”, “upload”, “hard copy”, “tweet” etc) adapted from earlier generic words. Take also the abbreviated spelling of words in new text, designed for use in “texting” as in the social networks such as Twitter). Examples include the use of “b4” for “before” and “cu” for “see you”. Will these changes become standard and accepted in legal language? Stranger things have happened. Only time and the market place of mass practice will answer this question.

Some contemporary use of language agitates writers who pride themselves on clear and elegant prose. Books are now being written aimed at stopping this development in its tracks. Attempts to debase the English language with a new generation of clichés and politically correct expressions. Don Watson, at Australia master of clear and powerful political speech, has written a new text targeted at his special hates in this respect, (such as “homeland security”, “mission statement”, “factual matrix”, “medical termination”, “a range of foci”)15. Just when the proponents of plain language thought they had the objects of their reforming zeal in sight, fresh challenges have presented for the attention of the next generation of disciples.

At stake in the plain movement is not just the theoretical objective of improving the understanding of the law by lawyers. It is the noble objective of making the law speak with a clearer voice to the people who are bound by the law. This is an idea central to the notion of democratic governance. It is a concept that gives a moral dimension to the plain language movement and to the worldwide mission of Clarity International.

* Patron of Clarity International. Past Justice of the High Court of Australia.
1. The Book of Common Prayer, Eyre and Spottiswoode, London, 1558, (1951), Service of Morning Prayer, 54.
2. J. Stone, Social Dimensions of Law and Justice, Maitland, Sydney, 1966, 649.
3. Australian Law Reform Commission, Insolvency: The Regular Payment of Debts, AGPS, Canberra, ALRC 6, 1977, 52-3 [118].
4. Australian Law Reform Commission, Insurance Contracts, AGPS, Canberra, ALRC 20, 36 [58].
5. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 563 [157]; cf at 539 [84]; 544 [103].
6. M.D. Kirby, “The Monumental Task of Simplifying the Law”, unpublished, Constitutional Association of Australia, 15 March 1982 (Kirby Speeches 314).
7. M.D. Kirby, “Plain English and the Power of a Wink and a Sniff”, unpublished, Australia-Britain Society, 19 August 1983 (Kirby Speeches 450).
8. Cf. Levy v. Victoria (1997) 189 CLR 579 at 637-638.
9. M.D. Kirby, “Is Law Properly Written? Plain Legal Language”, ALJ 1990 (Kirby Speeches 1091)
10. M.D. Kirby, “Delivering Justice in a Democracy. The Jury of the Future”, (1998) 17 Australian Bar Review 113.
11. M.D. Kirby, “Judicial Attitudes to Plain Language and the Law” – Interview 1 November 2006 (Kirby Speeches 2143).
12. M.D. Kirby, Review of J. Kimble Lifting the Fog on Legalese: Essays on Plain Language, Carolina Ac. Press, NC, 2006 published in (2006) 80 Australian Law Journal 623.
13. Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
14. See e.g. the use of tables and graphs in Forge v Australian Securities and Investment Commission (2006) 228 CLR 45 at 97-109 [135]-[154].
15. Don Watson, Bendable Learnings. The Wisdom of Modern Management, Knopf, Sydney, 2009.

Acknowledgement
Reproduced with the kind permission of The Hon. Michael Kirby AC CMG.

This paper was first presented at the Plain Language Conference Sydney, 17 October 2009.

Practice Management

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Practice Management

September 
  • Commentary added on receipting of trust money in NSW
May 
  • Expanded non-compliance with cost disclosure obligations and added new anti-voiding rule 72A – disapplication of s 178(1) and (2) of the Uniform Law.
March 
  • Updated – Trust statement requirements where balance of the ledger account or record is zero – Recent amendments to Rule 52 of the Legal Profession Uniform General Rules 2015 – VIC and NSW.
  • Commentary added on the Law Practice Confirmation and Trust Money Statement – Requirement in NSW – Link to dedicated Law Society login page added.

 

Effective communication skills for solicitors

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Clear communication

Lawyers are not taught communication skills in university. It is something that they learn ‘on the job’ and often with little supervision. It is little wonder that it is the root cause for many complaints made by clients about their lawyers. This is most evident in the area of costs, where clients complain that the lawyer has failed to communicate the way that costs are calculated, or indeed that costs would be charged for certain work. It is for this reason that parliament has seen fit to legislate minimum levels of information that must be disclosed by a lawyer to a client in relation to costs.

Lawyers spend much of their time communicating with other lawyers, engaging in legal-speak. Successive generations of lawyers fall under this spell as it is assumed that something that has worked in the past will continue to work in the future. But this fails to recognise that society changes and as the wider community has become more educated it has been less prepared to accept the obfuscation of the legal profession’s modes of communication.

Lawyers need to recognise that modern clients want advice communicated to them in a language that they can understand. This applies to both face-to-face contact and written advice. Client interviews need to be conducted in an environment where the client feels relaxed and not intimidated and written advice needs to confirm the problem, summarise the applicable law and give the client clear alternatives for further action.

It goes without saying that the costs consequences of those actions needs to be clear.

Client interviewing – principles and techniques

The interview room

If it is accepted that a client needs to feel comfortable in an interview, then it is reasonably obvious that reasonable efforts should be taken to make the client feel comfortable and thereby to increase the prospects that the client will instruct – and continue to instruct – the firm. Simple things matter – like being on time, or having the client notified if you are delayed; offering the client a glass of water, or tea and coffee; taking the time to ask how their day has been before launching into the deepest secrets of their life.

Client may feel more comfortable in a dedicated interview room, with a ‘round-table’ environment, as opposed to an across-the-desk interview in the lawyer’s office. Many firms have adopted an interview room where the client can feel that they are participating in a process, rather than being subjected to an examination. Additionally, the absence of clutter – a perennial problem with lawyers’ offices – in a dedicated interview room allows the client to feel confident that the client is, at least for that moment, the sole focus of the lawyer’s attention, rather than just another of the lawyer’s many problems. It also suggests that the lawyer is well-organised and professional. However, a stark interview room with just table and chairs is not particularly inviting and efforts must be made to make the environment warm and friendly. Plants, cushions and some nice prints or photos can do wonders!

If a separate, dedicated room is not possible then the lawyer’s office should be as tidy as possible and any documents or files which might identify any other client must be removed or obscured. A client is hardly likely to be filled with confidence if they see other people’s personal details spread out on the desk so that they can see them – they instantly think that next week their details will be similarly exposed to the next new client.

Preparing for a client interview

Preparation is essential for a good interview. But this applies equally to both sides. The lawyer must be prepared with a basic idea of the matters to be discussed, but equally steps must be taken to prepare the client. Requesting that the client make some notes before coming to the interview, indicating the basic questions that will be asked and ensuring that the client brings any relevant information will aid in ensuring that the interview proceeds smoothly.

Review the By Lawyers Retainer Instructions before the conference – and use them in the client interview – to ensure that no relevant information or issues are overlooked. Also review the By Lawyers commentary for the area of law about which the client is coming to see you – having the law and practice fresh in the mind when taking instructions prompts the lawyer to ask the right questions and give the right advice.

Make sure you have sufficient time for the interview – don’t schedule appointments too close together, especially if you don’t really know what a client is coming to discuss. A complicated narrative which raises many issues cannot be squeezed into twenty minutes and once instructions are provided there may be consequent or urgent matters to attend to immediately.

Also make sure you will not be interrupted. If there are urgent things requiring your attention – a call to take, a document to sign – tell the client this at the start of the interview and seek their permission for you to attend as required. It will never be withheld, but it is courteous and professional to ask for it.

Taking a witness statement

All of the comments relating to client interviews apply equally to interviewing witnesses and taking their statements. Witnesses can be critical to a client’s case and should be treated with care and respect. Witnesses are also, frequently, future clients.

Interviewing and the use of interpreters

The need for an interpreter can dramatically complicate an interview. Lawyers can become frustrated by the ‘downtime’ involved in translations. Clients can be frustrated when, despite an interpreter, they feel disconnected from the interview. Extra care must be taken to ensure the client understands the advice and that clear, cogent instructions are received.

Expense often militates against a professional interpreter and a friend or relation of the client undertakes that role. This can lead to the interpreter putting their own ‘spin’ on the interview. Using a member of staff to interpret can overcome this difficulty but is not always possible and cultural differences can impact on that arrangement. Patience is required in abundance and consideration should be given to scheduling two interviews to obtain the information that might be obtained from one interview not involving an interpreter.

Giving advice – identifying options

There is never one answer to a legal question. Lawyers know that a decision may come down to a 4/3 split in the High Court, but clients believe that there can only be one answer and it will favour them. All possibilities, from the worst to the best, must be identified and then some attempt made to predict the most likely. The client must know and understand that the lawyer does not guarantee any particular outcome and that severe consequences may flow from an unfavourable decision. The lawyer must protect him or herself by a detailed letter setting out those possible results.

How can I be sure my client understands me?

Confirmation of oral advice in writing is the only way that a lawyer can prove the advice that was given. As to whether the client understands that advice, the lawyer can never be too sure. Asking a client in an interview may elicit a positive result and asking a client to sign and return a copy of the written advice will at least provide objective evidence of the advice. But there is no way of knowing absolutely that the client truly understands the advice.

One basic step that should always be taken is to ask a client if they can hear and see properly, if they can read and if they understand English. Many people are, for example, embarrassed that they cannot read, so asking them to read something is not a guarantee that they have understood it. If in doubt, ask questions – and make notes of having done so.

Plain language advice

One way of improving the possibility that the client will truly understand the advice is to adopt plain language. Lawyers who communicate in legalese including obtuse Latin phrases virtually sentence their clients to ignorance and it is accordingly hardly surprising that when the client gets a result that were not expecting, the client refuses to pay the bill and lodges a complaint. It can be even more rankling for the lawyer when the client achieves an outcome that the lawyer regards as successful, but the client still complains as the client has not been able to understand the advice and that a successful outcome has been achieved.

Plain language letter writing

Writing in plain language is simply writing from the recipient’s point of view and expressing yourself in clear, straightforward language within a structure that is simple and logical. Avoiding repetition and tautology – the lawyer’s favourite mistake – will go a long way to simplifying letters. Avoiding long paragraphs, by setting out a series of thoughts in dot-point form, will make the letter easier to read. Always think of it from the client’s point of view and write accordingly.

Negotiation – principles and techniques

Dealing with clients is only one of the essential skills that a lawyer requires. Dealing with other lawyers is another. The practice of law is about being able to sift from a set of facts what is important and what is not and then understand the possible legal consequences of those facts. There is never one legal answer, there are a range of possibilities and it is the lawyer’s function to achieve the best outcome for the client in the circumstances. This is where negotiation skills are important, again a skill that is not taught at law school and must be acquired on-the-job.

Negotiation – the principled approach vs. the positional bargainer

There are a range of methods of negotiation; from the bull-at-the-gate blusterer who tries to intimidate the opposition, to the silent assassin who lays in wait until the very last minute, then pounces. Most people however adopt a middle ground, designed to leave some room for the other side to manoeuvre in. Most experienced lawyers can pick a person operating at the edges and maintain their position, but occasionally the ‘positional bargainer’ will enjoy success. However that success is not usually repeated a second time round.

Brinksmanship is a common, but dangerous, negotiating tool. If adopted, always retain the means of climbing back from the brink and be prepared to eat humble pie if the need arises.

All the ethical constraints attached to court proceedings are equally applicable to the negotiation process as to any litigation at the end of that process: see for example Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352 – probate matter, which also makes the point that merely attaching a ‘without prejudice’ label to communications will not excuse professional misconduct.

Mediation

The lawyer should be the ideal person to be involved in a mediation, either as a representative of a party or as a mediator. The lawyer is trained and experienced in distilling the important facts in any given situation and identifying the crucial issues. And the lawyer knows that achieving a 100% outcome from a legal dispute is at best, very expensive and at worse, very unlikely. Indeed, some lawyers have embraced the mediation model of dispute resolution very successfully, but the average lawyer is in fact not well suited to mediation. This is because the average lawyer still relies heavily on processes that delay decision making and serve to confuse and mystify participants. Mediation to such lawyers is an unwelcome challenge.

Clients are best served by lawyers who embrace and facilitate mediation.

That 90% of settlements appear to be achieved in the last half hour of an all-day mediation is probably no more due to the tactics of the lawyers than the intransigence of the clients.

A lawyer is prohibited from misleading their opponent during the conduct of court proceedings. That prohibition applies equally to mediation: Legal Services Commissioner v Mullins [2006] LPT 012 (Queensland).

Drafting terms of settlement

Terms of settlement can often be drafted in an emotional and stress-charged environment. Great care needs to be exercised and some preparation by way of having draft terms of settlement ready should always be undertaken.

A client must be provided with information relating to legal costs at the time of settlement: Section 177 Legal Profession Uniform Law.

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