COMMUNICATION SKILLS FOR LAWYERS

This course is for students who would acquire skills for reading, understanding, writing and
expressing in a legal framework of communication. It orients law students and other learners to
the concept of legal communication, communication process in general, theories of
communication that apply in legal communication, study skills, library skills for lawyers, statute
reading and writing, as well as case reading and writing. Also, various conventions of citation
and referencing both legal and non-legal have been dealt with in this course. Thus, students and
other lawyers will be able to acquire skills in, among other things, interpreting statutes, cases,
and citing both statutes and cases.
The importance of communication skills for lawyers within the framework of legal studies
cannot be over-emphasized. The courts have to administer justice in line with thorough
understanding of the laws established in the country. Since law is principally communication,
understanding the meaning of words and statements given during legal communication is not
only important but vital.

CHAPTER ONE

INTRODUCTION TO LEGAL COMMUNICATION

Introduction

Good communication skills are vital to a successful, rewarding practice. You need to
communicate well with your clients, staff, partners, associates, other lawyers, and vendors.
Improving your communication skills will let you express yourself with more confidence; more
confidence will help you attract more clients and influence your peers and referral sources.
Master good communication, and your practice will be more enjoyable, because if you are
communicating well with people they will trust and like you, and that will make it easier to like
and enjoy helping them. Your practice will also be more profitable because clients will be more
likely to pay your bill.

Law and communication

Law is basically communication, it represents creative work in general jurisprudence with an

obvious focus on the communicative nature of law, and it sheds new light on our understanding
of law and legal discourse. It is informed by theories of communicative action, psychology,
linguistics and autopoietic theories of law (Ladeur, 1999).

The central idea of the book is that law provides a framework for human action a framework of
communication. In this perspective, legal relations including legislative and adjudicative
activities are understood in terms of conversation, dialogue, and communicative processes,
rather than of traditional models that focus on power relations, such as imposition and
acceptance or command and obedience. Here the legal highway allows at least two-way traffic,
not just one. Legal systems are never closed systems, but they provide room for negotiation and
consultation. Communication and the psychology of the communicators are crucial to
understanding the workings of a legal system and the legal reality it generates.
Since human action implies interpersonal relations that require communication, the framework
law offers for human action also creates a framework for human communication. Moreover,
law itself is also based on communication between legislators and citizens, between courts and
litigants, between contracting parties, and among the various participants of a trial just to name
a few examples. Under a communication rubric, law is seen as a means for human interaction
and not as some autonomous end. Law is not a closed system, but remains open-ended,
allowing a broad and pluralistic analysis and accommodating exchange of different points of
view. Legal communication, thus, functions to order society and to facilitate human interaction.
In facilitating human interaction legal communication plays a very important role. (Leonard,
2010) In linguistic as well as other types of communication, a message can hardly be
understood, if it is not linked to the communicative relationship between the sender and the
receiver. Similarly, with regard to regulation by norms, if the norm-sender wants to ensure that
a purpose will be fulfilled, the norm message must be transmitted adequately to norm-receivers
(Tiersma, 2000).

Communication in law is found and articulated through paradoxical formations that begin from
the structures of humanistic language. Therefore, the paradoxes of social typification nature and
culture primarily are examined as deep structures that bind legal meaning to particularly
important and repetitive human events (Schane, 2012).

Meaning of Communication

Communication is a two-way process of reaching mutual understanding, in which participants

not only exchange (encode-decode) information but also create and share meaning.
Communication is a matter of effectiveness, which is dependent on the interlocutors’
communication competency. In other words its effectiveness is dependent on one’s competency
in communication. Communication involves intents and efforts from both the sender of the
message and the receiver. “Understanding” is the essence of communication. This only happens
when there is an intention of understanding and being understood by those involved in a
communication situation. Communication is therefore not what is said whether verbally or non-
verbally, but what is understood. It is also defined as the process by which people interactively
create, sustain and manage meaning (Conrad and Poole, 1998).

Other scholars such as Jain, Bhatia and Sheikh (2008) define communication as the process by
which we exchange meanings, facts, ideas, opinions or emotions with other people. As such,
communication both reflects the world and simultaneously helps create it. Communication is
not simply one more thing that happens in personal and professional life; it is the very means by
which we produce our personal relationships and professional experiences it is how we plan,
control, manage, persuade, understand, lead, love, and so on. All of the theories presented in
this book relate to the various ways in which human interaction is developed, experienced, and
understood.

Communication needs to be effective in legal firms, organizations or institutions; this is because

of the following reasons:
(i) Communication is essence of legal undertakings. The basic functions of legal institutions
cannot be performed well without effective communication.
(ii) Communication involves constant flow of information.
(iii) Feedback is an integral part of communication.
(iv) Organizations these days are very large and thus they involve a large number of people
interacting one another (Griffin, 1997). Also, there are various levels of hierarchy in an
organization. The greater the number of levels, the more difficult is the job of managing
the organization.

Communication here plays a very important role in the process of directing and controlling the
people in the organization. Immediate feedback can be obtained and misunderstandings, if any,
can be avoided. There should be effective communication between superiors and subordinates in
an organization, between organization and society at large (for example between management
and trade unions). It is essential for success and growth of an organization. Communication gaps
should not occur in any organization (Gupta, 2004).

Communication is goal oriented. The rules, regulations and policies of a company have to be
communicated to people within and outside the organization. Communication is regulated by
certain rules and norms. In early times, communication was limited to paper-work, telephone
calls etc. But now with advent of technology, we have cell phones, video conferencing, emails,
and satellite communication to support communication. Effective communication helps in
building goodwill of an organization (Griffin, 1997).
Elements and Process of Communication

Communication is a process and as such contains many elements to enable it to happen. The
elements or components of communication process have been identified by Hellen (2004) as
follows;

(a) Context: Communication is affected by the context in which it takes place. This context
may be physical, social, chronological or cultural. Every communication proceeds with
context. The sender chooses the message to communicate within a context.

(b) Sender Or Encoder: It is a person who sends the message. A sender makes use of symbols
(words or graphic or visual aids) to convey the message and produce the required response.
For instance, a training manager conducting training for new batch of employees. Sender
may be an individual or a group or an organization. The views, background, approach,
skills, competencies and knowledge of the sender have a great impact on the message. The
verbal and non-verbal symbols chosen are essential in ascertaining interpretation of the
message by the recipient in the same terms as intended by the sender.

(c) Feedback: Feedback is the main component of communication process as it permits the
sender to analyze the efficacy of the message. It helps the sender in confirming the correct
interpretation of message by the decoder. Feedback may be verbal (through words) or non-
verbal (in form of smiles, sighs etc.). It may take written form also in form of memos,
reports etc.

(d) Message: It is the expression which can be through signs and symbols. Symbols here
denote the verbal mode; or the use of words whereas the signs are non-verbal. In other
words it is the intended idea, thought, desire, purpose that the sender wants to communicate.
 It is the sign or symbol that elicits the response of recipients. Communication process
begins with deciding about the message to be conveyed. It must be ensured that the main
objective of the message is clear.

(e) Medium (Channel): Channel is the means through which the encoded message travels or
gets transmitted. The channel is the medium such as e-mail, face to face or phone
conversation, letter, presentation. The sending and feedback channels may not be
necessarily the same. The type of communication viz. formal and informal communication
is an important aspect in choosing the most appropriate channel for communicating
effectively. For example, an oral medium is chosen when spontaneous feedback is required
from the recipient as misunderstandings are cleared then and there.

(f) Recipient /Decoder: Is a person for whom the message is intended or aimed or targeted.
The degree to which the decoder understands the message is dependent upon various factors
such as knowledge of recipient, their responsiveness to the message and the reliance of
encoder on decoder.

Characteristics of Communication in General

 It is purposeful: Communication takes place with a purpose or objective, so a
communicator should be aware of the objective of communication clearly. Aimless
communication may not help one to achieve his or her objectives.

 It is interactive: Generally, communication is a two-way process. It happens between

two or among more parties (sender and receiver). Senders need the opportunity to share
their feedback, opinions and thoughts with receivers.

 It involves exchange of ideas: This is an important feature where people exchange

information in order to achieve objective.

 It entails mutual understanding: Communication involves mutuality of understanding

between sender and receiver. They should understand the subject matter of the
communication. If there is no understanding then there is no communication.

 It is a continuous process: It has to take on regular basis or at a regular interval to

enhance performance and achievement of objectives.

 It is both direct and indirect: It can be face to face or through an intermediary where
one has to use someone else to send the information to the receiver.

 It uses words as well as symbols: Words and symbols are used to transmit the message.
Ideas are encoded in words or symbols or signs that people can interpret (decode) and
understand. If the idea is not encoded then it can be difficult for someone to understand
what one intends to communicate.

 It is rone to noise/barrier: Noise is an interruption or disturbance to the message sent

in the communication processes that distort the meaning of the message. Inferences or
 obstructions are common in communication. Barriers can be physical, psychological,
semantic, physiological and so on.

 It is context oriented: It varies with social-cultural context in which it takes place.

Context determines the style of communicating, time to communicate, choice of words
and the type of language to use.

Steps involved in two way communication processes

(a) Develop an idea: The right step is to develop an idea that the sender wants to transmit.
(b) Encode the idea in suitable words, charts of other symbols for transmission: In this step
the sender decides the method of transmission so that the words and symbols may be
organized for transmission.
(c) Transmit the message by the chosen method: Senders also try to keep their communication
channel free from barriers so that their messages have a chance to reach receivers.
(d) Allow another person to receive a message: At this point initiative is transferred to the
receiver. If the receiver does not function, the message is lost.
(e) Decode the message so that it can be understood: The sender wants the receiver to
understand the message exactly as it was sent. Understanding can occur only in a receiver’s
mind. A communication may make others listen, but there is no way to make others
understand. The receiver alone chooses whether to understand or not. Many employers
overlook this fact when giving instructions. They think that telling someone is sufficient,
but communication is not effective until there is understanding.
(f) Use the communication: The last step in the communication process is for the receiver to
use the communication. The receiver may discard it, perform the task as directed, store the
information or do something else (Gupta, 2004).

Role/ Purpose of Communication

1. Managing the human resource. Communication is the tool with which we exercise influence
on others, bring about changes in the attitudes and views of our associates, motivate them
and establish and maintain relations with them. The primary element in the skills of
management is competence in communication.

2. Communication is central to the success of everything that we do in an organisations

(objectives); our family, school/college, office, hobby group, community group, our
city/town are the organisations in which we live and act. Our activities succeed or fail, and
our goals are achieved or not achieved, according to our ability to communicate effectively
with other members.

3. Building positive interpersonal relation. Communication plays a foundational role in the

development of any healthy interpersonal relationship. It can strengthen a mutual sense of
commitment; it also helps to bridge the gap between people who have misunderstandings.
Indeed, communication plays a critical role in all phases of interpersonal relations, from
creating a relationship to maintenance of relationships.
4. Communication is the glue that holds an organisation together, whatever its business or its
size (creates unity and harmony). Without communication an organisation cannot function
at all. Without effective communication, information cannot be collected, processed, or
exchanged; words and data would remain isolated facts. With effective communication,
multinational organisations which are spread all over the world can function like a single
unit.

5. Communication enables an individual to express ideas thoughts and feelings effectively in

writing and in speech. The most important foundation skill for anyone in the new world of
work is the ability to communicate; being able to express your ideas effectively.

6. Communication helps in team building and team-work. Owing to advances in information

technology, companies downsize and decentralize, and work is increasingly carried out by
teams. Team members must be able to work together to identify problems, analyse
alternatives, and recommend solutions. They must be able to communicate their ideas
persuasively to others. Ability to work well in teams, to manage your subordinates and your
relationships with seniors, customers and colleagues, depends on your communication skill.

7. Marketing the products and services. Communication in the form of advertisement and
public relations is needed in order to inform the public and to persuade potential customers
to buy the products. Production of goods is of no use if potential buyers have no information
about the product. Communicating to the public about the product is the essence of
business.
8. Delegation of work horizontally and vertically.
9. Transacting business: through internal and external communication.
10. Building positive public relations

Types of Communication

1. Verbal Vs Non-Verbal
a) Verbal communication: This is the type of communication that involves the use of
words of the mouth or written symbols to send a message from one point to another.

b) Non-verbal communication: This is the process of communication through sending and

receiving wordless cues between people. It is sometimes mistakenly referred to as body
language (kinesics), but non-verbal communication encompasses much more, such as
use of voice (paralanguage), touch (haptics), distance (proxemics) and physical
environment/appearance. Non-verbal communication involves the processes of encoding
and decoding. Encoding is the act of generating the information such as facial
expressions, gestures and postures. Decoding is the interpretation of information from
received sensations from previous experiences (Shumbusho and Mwaijande, 2002)

2. Oral Vs Written
a) Oral communication: This is communication by the word of a mouth. It is a subtype of
verbal communication. Oral communication can be face to face conversation, telephonic
conversation etc.
 b) Written communication: In this type, information or messages are communicated
internally or externally through written media like letters, reports and memoranda
(Shumbusho and Mwaijande, 2002). Formal Vs Informal (Grapevine Or Rumors)

3. Formal Vs Informal (Grapevine Or Rumours)

a) Formal communication: It is the type of communication that follows the channels of
formal relationships of authority and responsibility in the organization structure.
Communication takes place between different levels of hierarchy strictly according to
the formal organizational relationships established by the management (Koontz, 2001).

b) Informal communication: This is quite often described as “grape-vine”. It takes place

between persons or groups at the same or different levels of hierarchy on the basis of
informal relationships. Information passes informally between persons or groups as they
come in contact with each other in the course of performing their jobs. Although not
officially recognized by management, it is useful in increasing the effectiveness of
formal communication (Koontz, 2001).

Importance of communication
 Effective Communication is significant for managers in the organizations so as to
perform the basic functions of management, i.e., Planning, Organizing, Leading and
Controlling. Communication helps managers to perform their jobs and responsibilities.
Communication serves as a foundation for planning. All the essential information must be
communicated to the managers who in turn must communicate the plans so as to
implement them. Organizing also requires effective communication with others about
their job task. Similarly leaders as managers must communicate effectively with their
subordinates so as to achieve the team goals. Controlling is not possible without written
and oral communication.
 Managers devote a great part of their time in communication. They generally devote
approximately 6 hours per day in communicating. They spend great time on face to face
or telephonic communication with their superiors, subordinates, colleagues, customers or
suppliers. Managers also use written communication in form of letters, reports or memos
wherever oral communication is not feasible.
 Thus, we can say that “effective communication is a building block of successful
organizations”. In other words, communication acts as organizational blood (Gupta,
2004).
Importance of communication in an organization can be summarized as follows:

 Communication promotes motivation by informing and clarifying the employees about

the task to be done, the manner they are performing the task, and how to improve their
performance if it is not up to the mark.
 Communication is a source of information to the organizational members for decision-
making process as it helps identifying and assessing alternative courses of actions.
 Communication also plays a crucial role in altering individual’s attitudes, i.e., a well-
informed individual will have better attitude than a less-informed individual.
 Organizational magazines, journals, meetings and various other forms of oral and
written communication help in moulding employee’s attitudes.
 Communication also helps in socializing. In today’s life the only presence of another
individual fosters communication. It is also said that one cannot survive without
communication.
 As discussed earlier, communication also assists in controlling process. It helps
controlling organizational member’s behavior in various ways. There are various levels
of hierarchy and certain principles and guidelines that employees must follow in an
organization. They must comply with organizational policies, perform their job role
efficiently and communicate any work problem and grievance to their superiors. Thus,
communication helps in controlling function of management.
 An effective and efficient communication system requires managerial proficiency in
delivering and receiving messages. A manager must discover various barriers to
communication analyze the reasons for their occurrence and take preventive steps to
avoid those barriers. Thus, the primary responsibility of a manager is to develop and
maintain an effective communication system in the organization.

Effective Communication

Communication needs to be effective to be understood by the participants. Effective

communication is the one which is free from barriers, that is, free form anything that will cause
poor communication.

Meaning of legal communication

Legal communication refers to the exchange, imparting, or transmission of ideas, information,

opinions, or thoughts, transmitted electronically or by gestures, speech, or writing pertaining to
legal aspects and binding in nature. Legal communication takes place in various scenarios such
as interaction in the court of law, drafting legal documents such as contracts, affidavit, legal
case reports, constitution and statutes. This type of communication is used by lawyers such as
attorneys, judges, counsels or solicitors, and/ or any other persons practicing law (Schane,
2012).

Characteristics of legal communication

In order to be able to participate effectively in legal communication, one has to understand its
salient features. Some of the features that characterize legal communication (Schane, 2012)
include the following:

 It is purposeful: Legal communication is carried out to achieve certain legal purpose such
as prohibiting unwanted behavior, giving and order or directives, presenting judgements
and enhancing remedy to aggrieved parties.
 It uses technical language: Legal communication employs legal language that is technical
in nature employing specific vocabulary, complex and particular.
 Legal communication takes place between or among parties.
 Legal communication involves exchange of ideas, opinions, feelings, information,
thoughts, knowledge and experiences.
  It involves mutual understanding between and among different parties.
 It entails both oral and written legal communication.

Barriers to effective Legal Communication

Barriers to communication are conditions or things which lead to poor communication or

communication breakdown. There are various barriers to effective communication (Shumbusho
and Mwaijande, 2002) which are identified as follows:

1. Physiological Barriers

A physical barrier to communication is the result of a sensory dysfunction, either on the part of
the receiver or the sender. Speaking, hearing and seeing are fundamental parts of effective
communication. For a person who is not able to speak, hear or see certain measures must be
taken to provide alternative communication options and methods and ensure communication is
possible. Therefore, inability to speak, hearing impairment and inability to see are examples of
physiological barriers to effective legal communication (Shumbusho and Mwaijande, 2002)

Psychological barriers refer to an individual’s state of mind. For example if an individual is

suffering from personal issues such as health or martial problems this is most likely to affect
them. Psychological barrier are closely linked to emotional barriers; emotional barriers play an
important role in the communication of a message. An example of this may be when receiving a
message you cannot properly interpret the message because you are emotionally blocked at the
moment in time. Reasons as to why you may be emotionally blocked are due to internal issues
such as fear, worry, suspicious, anger and mistrust. Other psychological barriers can include:
lack of attention, generalizations and bias or prejudice.

2. Semantic Barriers

Systematic barriers to communication may exist in structures and organizations where there are
insufficient or inappropriate information systems and communication channels or where there is
a lack of understanding of the roles and responsibilities for communication. In such
organizations, individuals may be unclear of their role in the communication process and
therefore not know what is expected of them. Semantic barriers also can be caused by use of
ambiguous words, language differences, accents/pronunciations and use of difficult
vocabularies (Shumbusho and Mwaijande, 2002; Konar 2011).

3. Information Overload

This occurs when there is too much information transmitted from a sender to a sender or from a
speaker to a listener. When there is too much information, one may not remember all things
said or written and hence fail to implement or do what he or she is supposed to do (Konar
2011).

4. Lack of Common Experience

Lack of common experience leads to difference in knowledge and experiences. This in turn bars
people sharing of ideas or information (Konar, 2011).
5. Cultural Barriers

 Language and accent; language is one cultural barrier that is observed in people
coming from different parts of the world. Many of us hesitate to communicate with a
foreigner because we are unable to understand his language or accent. For example, an
Asian may not feel comfortable talking to an Australian owing to his or her heavy
English accent (Pearce and Cronen, 1980)
 Cultural background; people coming from different countries may not find comfort in
communicating or coordinating easily with one another. When people from different
countries come together, their way of thinking varies. Some might be shy to
communicate while others open for communication. Owing to their difference in
cultural background, there is difference in their upbringing due to which there is a
difference in their views and beliefs. Even the communication etiquette differs across
the different countries, thus making it difficult for communication to even start (Pearce
and Cronen, 1980).

Strategies for Enhancing Legal Communication

Barriers to effective legal communication can be overcome by employing the following

strategies;
a) Focus on the topic; A speaker or presenter should focus on the theme or topic at
hand when communicating. Poor or lack of focus can distract listeners and make
them disinterested in listening.
b) Understanding the audience; one has to do what we call audience analysis. This is
a process of analyzing the audience so as to understand the type and nature of
audience you want to communicate with. It helps in understanding their state of
emotion, their attitudes towards a speaker and their interests where possible. By
understanding the audience one can communicate what is relevant.
c) Use of simple language; Use of simple and clear words should be emphasized. Use
of ambiguous words and jargons should be avoided.
d) Reduction and elimination of noise levels; Noise is the main communication
barrier which must be avoided on priority basis. It is essential to identify the source
of noise and then eliminate that source.
e) Active listening; Listen attentively and carefully. There is a difference between
listening and hearing. Active listening means hearing with proper understanding of
the message that is heard. By asking questions the speaker can ensure whether his or
her message is understood or not by the receiver in the same terms as intended by the
speaker.
f) Avoid information overload; The managers should know how to priorities their
works. They should not overload themselves with the work. They should spend
quality time with their subordinates and listen to their problems and feedback
actively.
 g) Consistency; One should be consistent in the presentation of facts, use of
vocabulary, spelling (American or British English), format or style of writing and so
on.
h) Proper Media selection; The lawyers should properly select the medium of
communication. Simple language should be conveyed orally e.g. face to face
interaction or meetings. Use of written means of communication should be
encouraged for delivering complex messages. For significant messages reminders
can be given by using written means of communication such as memos, notices etc.

Eight C’s of Effective Communication in General

Like any other type of communication, communication needs to be effective in the sense that it
is understandable and hence convincing. There are various principles for achieving
effectiveness in communication. These include;

 Completeness; The communication must be complete. It should convey all facts

required by the audience. The sender of the message must consider the receiver’s mind
set and convey the message accordingly.

 Conciseness; Conciseness means wordiness, that is, communicating what you want to
convey in least possible words without forgoing the other C’s of communication.
Conciseness is a necessity for effective communication.

 Consideration; Consideration implies “stepping into the shoes of others”. Effective

communication must take the audience into consideration, that is, the audience’s
viewpoints, background, mindset, education level etc. Try to envisage your audience,
their requirements, emotions as well as problems. Ensure that self-respect of the
audience is maintained, and their emotions are not harmed.

 Clarity; clarity implies emphasizing on a specific message or goal at a time rather than
trying to achieve too much at once. Clarity in communication has the following features;
o It makes understanding easier to Complete clarity of thoughts and ideas enhances the
meaning of message to Clear message makes use of exact, appropriate and concrete
words.

 Concreteness; Concrete communication implies being particular and clear rather than
fuzzy and general. Concreteness strengthens the confidence.

 Courtesy; Courtesy in message implies the message should show the sender’s
expression as well as should respect the receiver. The sender of the message should be
sincerely polite, judicious, reflective and enthusiastic.

 Correctness; Correctness in communication implies that there are no grammatical errors

in communication.
  Convincing power; Communication needs to be convincing. This means that it should
be able to persuade or influence listeners in terms of presenting strong arguments, facts
and evidence.

Rationale for studying Legal Communication Skills

There are a number of reasons that justify law students to learn communication skills (Konar,
2011). They include;
 To acquire the ability to write properly various legal documents.
 To develop the ability to interpret legal documents effectively.  To attain ability to
express various legal issues effectively.
 To attain the ability to present effectively before the audience
 To be able to speak and write persuasively or convincingly
 To acquire interrogative skills
 To learn to listen to other arguments and appreciate or challenge them constructively
 To attain self-confidence in giving one’s views and facing the challenging expression or
arguments.

Cooperative Principle In Legal Communication

In social science generally and linguistics specifically, the cooperative principle describe how
people interact with one another. As phrased by Paul Grice who introduced it, it states “make
your contribution such as it is required, at the stage at which it occurs by the accepted purpose
or direction of the talk exchange in which you are engaged”. Though phrased as a prescriptive
command, the principle is intended as a description of how people interact or behave in
communication.

Listeners and speakers must speak cooperatively and mutually accept one another to be
understood in a particular way. The cooperative principle describes how effective
communication in conversation is achieved in common social situations. The cooperative
principle can be divided into four maxims, called the Gricean maxims. The principle goes both
ways: the speakers (generally) observe the principle and the listeners assume that the speakers
are observing it.

GRICE’S MAXIMS

Maxim is a short statement expressing general truth or rule of conduct. In as far as principles of
effective communication are concerned the four Grice’s maxims are as follows;

Maxim of Quality: be truthful

 Do not say what you believe to be false
 Do not say for which you lack adequate evidence

Maxim of Quantity: Quantity of information

 CHAPTER TWO

NOTE TAKING AND NOTE MAKING

There are various techniques which can help in taking good notes from a lecture. They involve
the following;

Reading in advance on the topic: Since lecturers tend to provide course outlines, students are
supposed to read in advance about the topic. They can use books or internet. Reading in
advance can make a student follow the lecture very well and even understand better.

Attending class punctually: A student is supposed to attend lectures and arrive in the lecture
room punctually. Students who come late tend to miss some of the points during introduction.

Effective listening: Listening is an important tool in the learning process. Hence, during note
taking listening helps much in discovering the points from a lecture. Without listening a student
cannot write good notes. Effective listening involves paying attention to what a lecturer says at
the same time jotting down some main points.

Selection of main points: A student should be able to discover or select points during lecture.
The clues or hints that can help a student in discovering points during lecture include; writing
on board, repetition of sentence or statements, use of signal words such as firstly, secondly,
moreover, furthermore etc.

Brevity: When taking notes a student is supposed to be brief. He or she should summarize in
order to keep pace with the speed of the lecturer. Writing all details during a lecture is not
possible since the lecturer speaks at a higher speed than that of writing. So, it is important to be
brief.

Brevity in note taking can be achieved through the following;

(a) Ignoring unnecessary words or sentences e.g. greetings, personal stories

(b) Use of abbreviations and acronyms e.g. NSSF instead of National Social Security Fund,
BBA instead of Bachelor of Business Administration, i.e. (Id est means “that is”), T.V
instead of Television etc.
(c) Clipping of some words e.g. Hon for honorable, Prof for Professor, Art for Article etc.
 (d) Paraphrasing (use of alternative words) e.g. a person who influences his power over
other people due to his position (this is replaced by the word “a leader”)
(e) Use of signs, symbols, bullets, numbers etc.

Good Organization of Notes

The notes taken should be well organized for easy understanding. The notes should show the
flow of points. There should be separation between points. Organization of notes can be in
various formats such as/linear format, branching format or tabular format or any other format as
chosen by a student and depending on the nature of the topic and the context of the lecture.

Note taking from Written Materials

Hints for taking notes from written materials include:

 Finding the relevant source of information which will answer the question at hand
 Surveying the source, skimming and scanning.
o Surveying-looking at titles, introduction, chapters and headings in the contents.
o Skimming-looking at headings, first paragraph and topic sentences.
o Scanning-looking at specific details like indexes etc.
 Reading intensively: reading for the sake of getting detailed information so as to have a
comprehensive picture about the topic or subject matter.
 Selecting main points:In selecting the main points the following hints are important:
o Look at headings and subheadings o Look at font styles. Main points can be written
in a different font style such as Italic o Look at signal words like: firstly, secondly,
additionally, furthermore, conclusively etc.
o Look at topic sentences: Topic sentences are sentences that contain main ideas of the
paragraphs. In deductive paragraphs a topic sentence comes first while in deductive
paragraphs a topic sentence comes last.
 Be brief: one has to summaries the information. Brevity can be achieved through the
following techniques:
o Avoiding repetition of words or sentences
o Using alternative words to represent long sentences or expressions
o Clipping of words e.g. Hist instead of History, ind instead of independence etc.
o Using some contractions e.g. can’t instead of cannot; I’m instead of I am.
o Use of abbreviations and acronyms e.g. etc., NATO, TCU
 Organize the notes properly/logically using outline format, branching format or tabular
format.
 Record: Author, title, edition number, place of publication, name of publisher, volume
number, issue number, page number etc. These details will help in writing a list of
references or citations.

Format in Note Taking and Note Making

1. Outline/linear format: Points are listed down with bullets, numbers or letters. Linear notes
are what most people are used to do. They are written down a page with headings and
subheadings. Here are some suggestions for making linear notes more useful.
 Use loads of HEADINGS for main ideas and concepts
 Use subheading for points within those ideas
 Stick to one point per line
 You can use numbering to keep yourself organized
 Use abbreviations and don’t worry about using full sentences
 Use plenty of space for adding details and for easy reading

2. Tree like branching format: Notes organized in hierarchical order in a tree like pattern.
The main point starts, and other points branch out in a logical manner following the order of
importance. Example of tree like branching format is tabular or charting format (using
table/chart)

How long should a note of a hearing be? Which parts of the proceedings can be left out? Do
other people have to be able to read them.
Note-taking is one of those judicial skills that everyone is expected to know without being
taught. But it gives rise to many questions, some of which are considered below. Although the
answers are based on the practice in the VAT and Duties Tribunals, they could be of more
general application.

Is there a legal necessity to take notes?

A tribunal chairman is acting in a judicial capacity and has a judicial duty to make notes of the
proceedings, including the evidence, for the assistance of any appellate court.
If you are lucky enough to be provided with a transcript of the proceedings, then there is no need
to take a note, although most chairmen do. If the proceedings are recorded, then the need to
make notes of the evidence may not be so pressing. But there will be a need to record other
events occurring during the proceedings. (In the VAT and Duties Tribunals, whether a transcript
is to be provided is for the parties to decide as they have to pay for it, not the tribunal. Nor are
proceedings recorded.)

What help are they?

Even if an onward appeal from the decision of a tribunal only lies on a point of law, the notes of
evidence before the tribunal can be relevant if the findings of fact are questioned. Permissible
grounds for questioning the findings of fact are where a party alleges: either that there was no
evidence to support a particular finding of fact; or that the tribunal failed to make some relevant
finding of fact; or that the tribunal misunderstood the evidence; or that a finding of fact by the
tribunal was perverse in the sense that no tribunal, properly directed, could have made that
finding on the evidence before it.

The requirements

Where an onward appeal lies to the High Court, the requirements about notes of evidence will be
found in the Civil Procedure Rules. Part 52 contains a Practice Direction. Paragraph 5.6 of the
Practice Direction describes the documents that must accompany a notice of appeal to the High
Court. Paragraph 5.6(7) refers to ‘other documents which the appellant reasonably considers
necessary to enable the appeal court to reach its decision on the hearing of the appeal’. The
documents mentioned under heading 5.6(7) include at (c): ‘any relevant transcript or note of
evidence’. Paragraph 5.15 provides that, when the evidence is relevant to the appeal, an official
transcript of the relevant evidence must be obtained. Paragraph 5.16 provides that, if evidence
relevant to the appeal was not officially recorded, a typed version of the judge’s notes of
evidence must be obtained.
Thus, on the occasion of an appeal to the High Court from the decision of a tribunal, there is an
obligation on the person appealing to provide the chairman’s notes of evidence. However, the
obligation is restricted to notes of evidence relevant to the appeal – in other words, notes of
evidence that may be reasonably necessary to enable the High Court to reach its decision. Notes
of evidence will thus be required if the appeal to the High Court involves one of the permissible
grounds for challenging the findings of facts.

The purpose

What about the overall purpose of note-taking? Are notes merely an aide-memoire for the
chairman’s private purpose? The main purpose of note-taking is to provide notes of the evidence
that will be available to the appellate court if required. However, other important purposes are:
to provide a comprehensive account of the hearing in case it is needed in the future (for example
if an appellant claims not to have had a fair hearing); and to assist the chairman in writing his
decision. Note-taking also aids concentration. A note that, say, a chairman informed an
unrepresented appellant of the need for evidence rather than relying on simple assertions might
be the only record that such a statement was made during the hearing.

How much?

As to whether the notes should be confined to the evidence or include all the proceedings,
although the notes of evidence must be available for an onward appeal, the notebook should
ideally record all the proceedings. For example, if there is a short adjournment to enable a party
to consider late evidence, the fact of the adjournment and the length of it could be noted. Again,
if there is an application during the course of the proceedings, the notebook may be the only
record of the application being made and of the direction given.
Notes can be taken in shorthand or on computer or, indeed, in any other convenient way. They
do not have to be taken in longhand in a blue notebook.

Who should take notes?

Should tribunal members as well as the chairman take notes? Paragraph 5.16 of the Practice
Direction in the Civil Procedure Rules only refers to the ‘judge’s notes of evidence’. Although,
therefore, it appears that there is no requirement for the notes of evidence made by a lay or wing
tribunal member to be produced on appeal, it is highly advisable for all tribunal members to
take notes. Some appellants to the High Court have asked for the notebooks of tribunal
members as well as that of the chairman. If a specific direction is given, the notes should be
produced. In one case an appellant asked the High Court to direct production of the notebook of
the tribunal member as well as that of the chairman. The High Court gave such a direction and
so the member’s notebook was produced. Apart from being a good aid to concentration and a
record for the member to refer to when considering the draft written decision, the member’s
notes may complement those of the chairman especially when, for example, the chairman is
himself asking questions or dealing with procedural points and cannot conveniently make a full
note as well.

Recording timings

It is not obligatory to record timings (of, for example, the start and end of a witness’s evidence)
but it is regarded as good practice. Timings could record, say, a late start and the reasons for it.
Also, in long appeals of, say, five days, some advocates when commenting on the evidence
given earlier in the hearing refer to it by reference to the date and time it was given. So, if times
have been recorded, it is easier to locate the notes of the evidence referred to.
Similarly, although it is not obligatory to record breaks in the proceedings for example, short
adjournments to consider applications made during the hearing or before giving a decision it is
best practice to do so. The notebook can also record the reasons for allowing or dismissing the
application or appeal.
Legal argument

It is most useful for the chairman to make a note of the legal arguments of the parties and the
authorities cited. In many cases there will be skeleton arguments and so the notebook need only
refer to numbered paragraphs in the skeleton. Frequently, however, skeleton arguments are
either not referred to at all or are departed from quite considerably and so the definitive record of
the arguments should be in the notebook with appropriate references to the skeleton arguments
where necessary.

It is also useful to record in the notebook those authorities actually cited at the hearing
frequently the skeleton argument will refer to many authorities that are not mentioned orally at
all. Finally, when referring in your notebook to documents, this can most easily be done by
cross-referencing to pages in the bundles of documents as the bundles are kept by the tribunal
center (at least until the time for appeal has passed).

Questions and answers

When taking notes of evidence, it is not necessary to record both the questions and the answers,
so long as the evidence of the witness is fully recorded. Some chairmen find it helpful to record
both as this maintains the flow of the proceedings. Others keep a very good note of what the
witness says without the questions.
The notes of evidence do not need to record every word that is said. It is also useful to make a
note when evidence in chief ends and cross-examination begins and when cross-examination
ends, and re-examination begins.
Legibility: Because notes can be recorded in shorthand or in a computer, they do not have to be
legible to all, but you must be able to read them and to provide a typed version of any notes of
evidence that may be necessary for an onward appeal. Some chairmen write legal shorthand,
which is, of course, acceptable.

Tense: It does not matter whether notes are in the past or present tense, as long as they
adequately record the proceedings.

Interrupting the flow: Many chairman feel concerned about what they should do when they are
asking questions of the witnesses, and who should then take a note of the answers. The answer is
that it is most helpful if the tribunal member or members could take a full note of questions
asked of a witness by the chairman and the answers. Also, it is helpful if members could take a
full note of any procedural matters or applications dealt with orally by the chairman during the
proceedings. If there is no member, then the chairman should make his own note even though
this may slightly delay the proceedings. As to what is more important to take a full and accurate
note but to delay the proceedings or to take a note that does not interrupt the flow of the
proceedings unduly, it is desirable to find a method of note-taking that is both full and accurate
but that does not unduly interrupt the flow of the proceedings.

At the end of the hearing: If you are a part-time chairman and you have written your decision,
it is good practice to return all the papers and your notebook to the tribunal center. However,
some chairmen prefer to keep their notebooks. The important thing is that the notebook should
be available if there is any onward appeal.

Appeals: Do you have to produce your notebook to the parties before they appeal? The
standing arrangements of the VAT and Duties Tribunals are that notebooks are not released
until the notice of appeal to the High Court has been lodged. It is only then that a decision can
be made as to whether the notes of evidence are relevant to that appeal in the light of the
grounds of appeal and whether the notes will be necessary to enable the High Court to reach its
decision.

And if you are asked to produce your notes, are you required to turn them into a typed version
or at least into a form intelligible to others? There is no requirement to turn long-hand notes of
the whole appeal into a typed version, or to verify a typed version of the notes of the whole
appeal prepared by an appellant, if either of these would by unduly burdensome. However, it
would be usual, if the appellant indicated specific passages that were both reasonably short and
relevant to his appeal, either to have these passages typed or to offer to verify a typed version
prepared by the appellant.

CHAPTER THREE

READING STRATEGIES
INTRODUCTION
It is perhaps a truism that law and its practice are overwhelmingly about the written word:
reading words, explaining words, and reducing thoughts and incidents to words. Legal analysis
is built on, and built with, words; legal rights and duties are expressed in words. The ability to
critically read legal documents is therefore a fundamental threshold skill for law students.

Until minimum competency is acquired, students will have difficulty reading primary legal
sources in the way the legal profession expects them to be read or extracting principles to apply
to different scenarios. They may face significant challenges in understanding core topics if
reading skills are the assumed method of accessing bodies of rules and principles. These
difficulties are likely to be greater in the current environment where students’ reading and
writing abilities and inclinations differ from those of previous generations.

In terms of information processing, we are shifting toward a shallow mode of learning

characterized by quick scanning, reduced contemplation, and memory consolidation. This can
be attributed to the increased presence of hypertext environments that reduces the cognitive
resources required for deep processing. … the ease of online information retrieval …reduces the
need for deep processing to commit information to memory. Relying on technology as an
external memory source can result in reduced learning efforts as information can be easily
retrieved later.

DEFINITION OF READING

Reading is an important skill that any student in any field, apart from law, is supposed to
acquire. Effective reading leads to success as it enhances understanding of written texts and
graphics. Effective readers understand better than ineffective readers. For lawyers, reading
various documents is one of the tasks that they encounter in their lifetime. A lawyer who is lazy
in reading will basically become incompetent as he or she won’t be well informed about various
aspects related to the legal field and other fields as well.

Reading is a process of looking at and comprehending the meaning of written or printed matter
by interpreting the characters or symbols of which it is composed. In as far as reading in law is
concerned, it is a process of constructing meaning from a legal text or texts. People read for
meaning and understanding what has been written. Reading is an art form and good readers do
certain things that get them the meaning that the process is designed to extract. From reading
people learn.

Reading Techniques and Skills

Reading techniques or skills are the ways or procedures and competencies that a person uses in
reading. These techniques are also referred to as strategies. They include skimming, scanning,
intensive reading (reading for understanding), critical reading, extensive reading and contextual
guessing.

1. Skimming

Reading method that involves rapidly moving the eye over a text for the sake of getting the
general picture or main idea about the chapter or passage. Look at titles, subtitles, headings,
topic sentences, conclusion, figures and tables. Skimming helps in several ways e.g. It helps to
understand who the audience is, whether the text is written for professionals, laymen, a
particular target group etc., what kind of text it is (whether it is a report, letter, article etc.)

2. Scanning

Reading in search of specific details like names, figures, key words etc. Also finding a source to
answer the question at hand entails scan reading. In law, a lecturer can ask a student during
examination to find the name of the judge in a particular case report. One can also be asked to
identify some legal issues in a case report as well as the verdict. The process of finding the
judge’s name, legal issues and verdict in the case report involves scanning.

3. Intensive reading

Reading for high degree of comprehension and retention over a long period of time. It is a
strategy commonly used by students when preparing themselves for examinations. In intensive
reading a reader gets a lot of information or details pertaining to the topic.

4. Extensive reading

Reading for pleasure of reading not focusing on every single detail in the text. Extensive
reading takes place when a reader intends to go through many pages of a written material like a
book or various newspapers. People who read long novels within few days engage themselves
in extensive reading. Extensive reading is useful when one intends to improve the reading
speed, masterly of pronunciation, fluency in speaking, vocabulary and logical thinking.

5. Critical reading

Reading in order to get full understanding and analyzing the source. It also involves examining
or analyzing the information in the source; that is looking at the strengths and weaknesses.
Critical reading is common in book or article review.

6. Contextual Guessing

This is a technique in intensive reading whereby a reader predicts the meaning of the word by
looking at the context in which the word has been used. In most cases the neighboring words
and sentences help in finding the meaning of the word which is ambiguous or new to the reader.
It is the ability to apply contextual guessing that a reader can be able to know the meaning of
the word without looking at the dictionary. For example, what are the raisons d’etre for the
introduction of the Public Procurement Act in Tanzania? (what does raisons d’etre mean?: it
means “reasons”) Or law is the conditio sine qua non in the administration of justice since the
efficacy of any legal system depends on the effective application of its principles. (what does
conditio sine qua non mean?: it means “necessary conditions”)

Barriers to Reading

There are various barriers to reading; Konar (2011:155) identified the following barriers;
 a) Lack of attention by a reader when reading. He/she might be reading but absent minded
or thinking of something else or even doing another activity like listening to music or
writing a message on the phone.
b) Poor sight such that one fails to see the writings properly. Poor sight might lead to errors
in recording information.
c) Weak vocabulary: this makes a person fail to understand what is written in case the
writer has used some new vocabulary that a reader is not conversant with, and the
dictionary is not around.
d) Inadequate pre-reading preparation can lead to poor reading and understanding of the
text. A person is supposed to prepare well in advance for reading and if possible should
set some questions to guide the reading process.
e) Social-political and cultural differences between a writer and a reader can also be a
hindrance to reading. If someone knows that the writer belongs to a certain party or
follows certain ideology she or he might not read what the other person has written.

Other barriers include: Poor handwriting, faint writings to low level of ink in the printer or
photocopier, poor light in the reading room etc.

Tips for Effective Reading

Start Reading Early; Reading in college or university is much easier if you give yourself as
much time as possible. For example, trying to read an entire chapter of a dense legal system text
a day before the corresponding lecture will be difficult and time consuming. Understand
vocabulary; often if you don’t understand vocabulary in a reading, you are wasting your time
doing the reading. For example, if you don’t know what Obiter dictum is, you might be
completely lost in reading for a legal text. When you come across unfamiliar vocabulary, make
sure you look it up and learn it. If you have to, write the definition on a notecard and keep it
nearby.

Take Notes; Keep on writing down the main points as you read. This is better than doing
nothing, but it is good to jot down notes on a separate sheet of paper or to type thoughts in a
new document. The notes can help you for quick revision in the future. Also, writing notes
when reading enhances understanding of what has been written. Know when to stop; if you find
that you are getting bored during a reading, stop for a while. It is better to be mentally fresh for
a while readings than to force yourself to “finish” and retain only the first few pages that you
looked at. If this means that you have to limit yourself to 20 or 30 minutes of reading at a time,
so be it. Just make sure that you are focused during these periods of time and not distracted by a
cell phone or Facebook. If you know that it takes you a long time to get through a reading, start
earlier.

Have A Discussion Buddy; After completing reading assignments, different people will
sometimes have different understandings or interpretations of the materials. For this reason, it is
beneficial for you to find someone else with whom you can discuss reading assignment outside
of class. You may find that you both shed light on different aspects of reading and you may
notice gaps in your understanding of complicated material.
Setting Questions; you can also set questions before you start reading. The questions can guide
you what to read and what to ignore during the reading process.

Sample Questions: Discuss the benefits of studying Communication skills for Lawyers.
Explain salient features of human communication

Reading Strategies for Cases

Problematizing and rhetorical reading strategies can be applied to any type of reading to produce
better comprehension and recall. That said, as previously noted, most of your reading
assignments in law school – especially in your 1L year – will be cases. Effective case reading
actually involves pre-reading, reading, and post-reading strategies. The following text provides
some suggestions for specific critical reading strtegies at each of these stages.

1. Pre-Reading Strategies
a) Read Like an Advocate or a Judge.

A lawyer typically reads cases to solve a legal problem faced by his client. As the lawyer reads
the case, he is trying to identify the applicable legal rules and determine how those rules will
affect his clients.

A judge typically reads cases in connection with a case pending before her. Much like the
advocate, she is reading to identify the applicable rules and determine whether and how the case
affects the decision she will render in the case.

Both the lawyer and the judge realize that in reading the case their role is not simply to gather
the information set forth by the court. Rather, they are developing their own understanding
about what the case means, not only for the parties to the case, but also for the judges, lawyers,
and parties who come after. They are figuring out how the case can be stretched to fit their own
facts or compressed to avoid their own fact.

By identifying a similar purpose, e.g., by taking on the role of a lawyer reading the case on
behalf of a client who might be affected or a judge reading the case before resolving a similar
pending matter, you lay the foundation for using problematizing and rhetorical strategies when
you read the case. That is, you put yourself in a mindset that looks for strengths and weaknesses
in the court’s analysis, sees the bias of the court,12 and seeks to construct meaning instead of
merely gather information.

b) Contextualize the Case.

As you read earlier, rhetorical strategies include strategies that connect the text to the reader’s
pre-existing knowledge or experiences. Those strategies are helpful because it is easier to
understand and recall new information if we connect it to pre-existing knowledge. So, before
reading the case, place it in the broader context of the course.

To do that, you must first gather information about the structure of the course and how the
different concepts covered in the course relate to each other. This information will provide you
with an organized knowledge base that you can connect to as you read new material. Consider
the following sources:

 Course Syllabus & Casebook Table of Contents. Both the syllabus and the casebook
table of contents can provide broad context so that you can draw tentative conclusions
about the topic covered by your assignment and how the topic connects to other topics
in the course as well as how the specific reading assignment fits into the overall
structure of the course.

 Introductory Text for Each Chapter, Section, or Subsection. Some students skip over
the introductory text on the theory that class discussion is likely to focus on the cases.
That is a mistake. Indeed, it may well be a good use of your time to read the
introductory text even if it isn’t assigned. This text often provides an overview of the
topic or subtopic and may even identify the specific legal issues that the cases in the
chapter, section, or subsection will cover. Additionally, the introductory text often
explains the connections between the previous readings and the readings to come. Thus,
the introductory text will provide you with background information that will help you
expand your knowledge of the structure of the course and connect the new information
you are about to learn with the information you learned earlier in the course.

 Questions & Notes Following The Assigned Case. The notes and questions at the end
of a case often identify key issues in the case, identify weaknesses in the court’s
analysis, and explain connections to cases or principles previously discussed in the
course. Thus, reading these questions and notes before reading the case can make
reading the case easier because you will have an idea of what to look for as you read the
case.

c) Note the Details. When you brief a case, you will most likely make a note of certain factual
details, like the issuing court, the date of the opinion, party names, and perhaps even the
authoring judge. But what do you do with that information besides make a note of it in your
case brief? Expert readers attend to these details because they remember that these details
can impart meaning to the case. Consider the following when you read cases:
 The issuing court is critical because it tells you where the case fits in the hierarchy of
authority. But you should also think about whether the court is located in a traditionally
conservative state or a traditionally progressive state and the extent to which that
impacted the decision.
 The date of an opinion tells you how the case fits into the timeline of related decisions.
But you should also consider what it tells you about where we were in history when the
decision was issued (e.g., economic boom or bust?) and how the authoring judge might
have been influenced by the society in which he lived.
 The party names may help you get a handle on the case facts, but they can also provide
you with some insight into the unspoken facts. Were the parties rich? Famous?
Powerless? Hated? Did the status or identity of the parties affect the outcome?
 The author of the opinion may also tell you something about the case. Some judges are
well known as experts in certain areas or as judges who take a certain view on
interpreting the law.
d) Preview the Case. Before you read the case, skim the case using a strategy aimed at
understanding the structure of the case and identifying the issues covered by the case:
 Read all of the headings in the case.
 Read the first sentence of each paragraph, which will usually be a topic or thesis
sentence. By drawing on these sentences, you will likely be able to develop a basic
understanding of the rules relied on by the court as well as the holding. You may also
get key details about the facts in the case and the arguments considered by the court.
 Previewing the case in this way will make it easier for you to understand the full case.

e) Predict What You Will Learn From the Case. Drawing on the knowledge you have
developed through the previous pre-reading steps, you should be able to identify several
questions that will be answered by the case. Like establishing a purpose for your reading,
this strategy lays the foundation for problematizing and rhetorical strategies as you read. If
you identify the questions before you read, you are more likely to actively look for the
answers to your questions as you read. Certainly, you would expect the case to answer
information-gathering questions, like who the parties were and what result the court
reached. But expert readers go beyond these information- gathering questions and develop
questions that require them to use the information found in the case.

f) Read for Your Purpose.

Recall that one of our pre-reading strategies was to identify a purpose (e.g., representing a client
with a certain set of facts). Of course, identifying a purpose won’t be a very effective strategy if
you don’t follow through on it when you read the case. That is, the benefit is not in the act of
identifying a purpose; the benefit is in the approach to reading the case that doing so
encourages. So, as you read the case, periodically remind yourself of your purpose and consider
how what you’ve learned from the case connects to your purpose. For example, are the facts for
your imaginary client analogous to the case? If so, what does that mean for the client? If the
outcome is undesirable, what are the best arguments for the client based on the strengths and
weaknesses in the court’s reasoning? If the outcome is desirable, what are the arguments that
your imaginary opponent will make based on the strengths and weaknesses of the court’s
reasoning? If your imaginary client facts were not specific, what questions do you need to ask
your client? How will the answers affect the client in light of what you’ve learned from the
case? By reconnecting to your purpose in this way, you will engage with the material in a way
that will increase comprehension and enhance retention and recall by applying the new
information and giving it meaning and associations.

g) Seek the Answers to Your Questions.

Another pre-reading strategy that we discussed was to identify questions that we expected the
case to resolve. The point of identifying the questions is to prepare you to engage with the
materials when you read. Expert readers keep those questions in mind as they read the text and
actively seek the answers. Moreover, after expert readers finish reading the case, they will
revisit the case, skimming over it to find the appropriate section that would contain the answer
to any question that remains, and then reread that section to find the answer.
h) Develop New Questions & Find the Answers.

As you gain a better understanding of the case, develop and answer new comprehension and
connection questions. For example:
 If I changed the facts of the case in this way _____________, would the outcome be the
same? Why or why not?
 The court didn’t address the losing party’s arguments, but surely the losing party had an
argument or two. What were they?
 What's the purpose of this rule?
 What is the court really trying to accomplish (even if it isn’t saying so)?
 Why did the judge frame _____ (the issue, the fact, the rule, etc.) that way?

i) Talk Back to the Case:

To be a critical reader, you must be a true critic. As you read a case, remember that courts are
fallible, judges write to persuade others that their holdings are correct, and the rules can change.
Don't just accept what the court said as an absolute truth. Look for mistakes or holes in the
court's reasoning, description of the facts, etc. Argue with the court in your margin notes.
Evaluating the case talking back to it in this way is part of constructing meaning out of the case.

j) Create Graphic Depictions When Necessary.

When faced with complex details or concepts, expert readers often turn to graphic depictions.
Creating a graphic depiction of text helps you create both a visual and a verbal memory for the
same information, thus strengthening the memory and your ability to recall it. For example, a
timeline can help you understand the timing of events relative to each other, a family tree can
help you understand party relationships, and a flowchart can help you understand the
relationships between topics, subtopics, and even rules within the topics. Of course, the need for
graphic depictions and which graphic depiction will work best will vary depending on the case
details.

k) Resolve Confusion Before Moving On.

If you don't understand a sentence, work through it before moving on. Revisit the text before
and after the case for context. Look at the text surrounding the sentence for context clues to
help you understand. If you don't recognize a word in the sentence, try to garner its meaning
from context and then look it up for confirmation. Then, with knowledge of the word’s
meaning, make sure you understand the sentence. If you still don’t understand, consult with a
colleague or your professor. At a minimum, make a note about your confusion to resolve later.

With time, you’ll find yourself struggling to understand a sentence far less often. You will
become more fluent in the language of the law, which means you’ll have more context clues
available, and you’ll need to look up fewer terms. For now, however, realize that learning the
vocabulary of the law is going to take conscious effort.

2. Post-Reading Strategies
a) Brief the Case.
The process of case briefing will be covered separately. For current purposes, realize that it is a
mistake to think about case briefing as an exercise intended simply to provide notes that will get
you through class and perhaps be incorporated into an outline. Rather, the benefit of case
briefing is the process of creating the brief and thus engaging with the case. This process forces
you to memorialize your understanding of the case and impose a structure on the court opinion
by reorganizing the text into the categories you've identified for your case brief.

You can maximize the learning that you achieve through this exercise with two related
strategies. First, put the details of the case in your own words. This requires you to use the
information in a way that builds stronger neural connections than simply copying text verbatim.
Second, brief the case after you read it. Fill in the details from memory and then review the case
and your margin notes to confirm and fill in the gaps. Knowing that you will be relying on your
memory will encourage more engaged reading. Additionally, recalling the details of the case
from memory strengthens the neural connections that are critical to retention and recall.

b) Synthesize.

Now that you have read the case, it’s time to complete the task of placing the case into the
broader context of the course. You do this by developing an understanding of the relationships
between this case and the other cases you have read on the topic or subtopic. Consider the
following questions:
 Did the new case introduce a new topic (e.g., a new claim) or subtopic (e.g., a new
element of a claim)?
 Did the new case reach a different outcome than a previous, similar case? o If so, did the
new case change the law? - If so, how? - If not, what explains the different outcomes?
(Factual differences?
 Jurisdictional differences? Minority rule versus majority rule? If the case
outcomes were the same, what does this new case add to your understanding of the law?
Did the court frame the rules in different language? Did it add a new rationale for the
rule? Did it expand the rule?

c) React, Evaluate & Apply: Hopefully, you began reacting to the case, evaluating it, and
thinking about how the rules from the case would apply to different scenarios during the
reading stage when you connected the case to your purpose, asked comprehension and
connecting questions, and talked back to the case. Now that you have a fuller understanding
of the case, having read it in full, however, you should take some time to:
 React. How do you feel about the case? Was this the right outcome? What about future
cases that are now stuck with this rule?
 Evaluate. Did the court adequately support the opinion? What questions do you have
about this case?
 Apply. Create scenarios that implicate the rules from the case. What outcome would a
court reach based on the rules and reasoning of the case? Why?

Conclusion: Initially, you may feel overwhelmed by all these strategies and wonder where you
will find the time. Ultimately, however, these strategies result in more efficient reading by
increasing comprehension. Additionally, these strategies ensure that you are getting maximum
value from your reading time because you are not only gathering information but also
strengthening your ability to recall and apply that information. Moreover, the more you practice
these strategies, the more efficient you will become at using them. Eventually, this will just be
the way you think when you read a case.

Reflection Questions

The goal of the following questions is to provide you with the opportunity to reflect on the
reading strategies you have employed in the past and to think about whether those strategies
will be useful to you as you transition to reading for law school.
a) Thinking about the strategies you employed for your undergraduate courses, would you
say that you primarily used default reading strategies or problematizing and rhetorical
strategies?
b) Think about the successful reading strategies you used before law school. List the two
most successful strategies you used and briefly describe (1-2 sentences) the extent to
which you think each strategy will be helpful to you as you transition to reading for law
school.
c) Select three of the pre-reading, reading, or post-reading strategies discussed above
(excluding case briefing) that you believe will help you understand cases better. For
those three strategies, answer these three questions:
 Is the strategy new to you?
 Why do you think the strategy will help you understand the cases better?
 Would the strategy have been useful to you as an undergraduate? Why/why not?

CHAPTER FOUR

ESSAY WRITING AND PRESENTATION SKILLS

The word “essay” derives from the French infinitive “essayer”, “to try” or “to attempt”. In
English essay meant “a trial” or “an attempt” and this is still an alternative meaning. The
Frenchman Michel de Montaigne (1533-1592) was the 1st author to describe his work as
essays; he used the term to characterize these as “attempts” to put his thoughts into writing.
Therefore, essay can simply be defined as written composition, usually prose and short on any
subject to express one’s own personal ideas or opinions on some topic, giving information on
any given subject or details about anything.

Characteristics of a Good Essay

 Unity: Sentences should focus on one theme or topic with a definite purpose
 Order: Logical organization of ideas or organization
 Brevity: Essay should not be too long. At least 300 words.
 Style (formal style): No slang, colloquial terms or contractions. Language should be
simple, direct and nature.
 Coherence: Ideas in sentences should be related to one another logically. Coherence
helps the reader to follow the flow of writer’s ideas. Coherence in essay is attained by
using transitional markers (words) such as and, also, furthermore, likewise, for instance,
as follows etc.
  Completeness: This means that the subject of the essay should be adequately developed
by providing details, explanations, definitions, evidence etc. This will make the reader
get satisfied and not left with vague expressions or unanswered questions.
 Personal touch: An essay should reveal personal feelings or opinions of the writer. One
has to express his own views in an essay rather than just quoting other people’s ideas.
People have to know your stand.
 Use of citations and references: Proper citations and referencing.

Essay Writing Process

Essay writing is a process that takes place before one starts writing an essay. The major stages
that an essay writer has to go through are; pre-writing stage, writing stage and post writing
stage.

1. Pre-Writing Stage
In this stage, the following activities are done;

 Reading and understanding instructional words such as discuss, evaluate, describe.

 Preparing an outline of relevant points: The points which you think answer the
question. The outline helps in creating a logical flow of ideas when one starts writing
the essay.

 Writing the thesis statement: A thesis statement is a sentence that explains the
controlling idea of the whole essay. It is prepared in advance so that it can be placed in
the essay during the writing process. It is usually put at the end of the introductory
paragraph of your essay. For example, the thesis statement “the major argument in this
essay is that corruption in Uganda prevails in various sectors and has contributed to the
decline of the general economic and social development in the country. Some of the
major causes include low salary, immoral behavior. This statement can then be placed at
the end of the introductory paragraph of an essay which might be titled as “causes of
corruption Uganda…….”

2. Writing Stage

The writing stage involves writing the essay itself. It takes place after a person has understood
the demands of the question, has prepared an outline of points and has developed a thesis
statement. The stage entails the following;
 Introduction: Defining terms, presenting background information, indicating the
organization of the essay and writing the thesis statement. Remember that you are not
supposed to provide a full discussion of your essay in the introduction.

 Main body: Is the section where the writer provides all the required arguments, details,
reasons and examples. The arguments are organized in paragraphs. The paragraphs
should have unity, coherence and cohesion. They should also be clear and complete.
Each paragraph should have a topic sentence. Topic sentence refers to a sentence that
carries the main idea of a paragraph. It tells what the paragraph is all about.
  Conclusion: conclusion, just like introduction is the difficult part for most students.
This is the last and emphatic part of the essay. The conclusion should be convincing. It
involves the following activities: restating the thesis statement, summarizing main ideas,
providing concluding remarks and then giving the final statement. It is in the conclusion
one can show him or her own stand. Indication of one’s stance in the conclusion shows
the personal touch of the essay.

3. Post Writing Stage

This stage is very important though students and other writers tend to ignore it for various
excuses like time and claim of being confident with what one has written. The following
activities are supposed to be done during the post reading stage:
 Proofreading the essay to identify the areas of weaknesses
 Editing the essay in order to have the correct version for submission
 Adding more information if some details are lacking and completing sentences that are
not complete
 Checking grammar and spelling. Ensure whether it is British or American English
throughout
 Make sure that necessary details like your name, program of study
 and other specifications are provided.
 Submit an essay on time.

General Principles of Effective Essay Writing

 Have a well-defined thesis. Start with a thesis statement/research question or statement

of intent. Make sure you answer your question or do what you say you set out to do.
 Provide evidence to back up what you are saying. Support your arguments with facts
and reasoning.
 The essay should concise. Make your point and conclude your essay. Don’t make the
mistake of believing that repetition and over stating your case will score points with
your readers.
 Be well organized. Plan what you want to write before you start. It is a good idea to
know exactly what you your conclusion is going to be before you start to write. When
you know where you are going, you tend to get there in a well organised way with a
logical progression.
 Use tenses properly.
 Be “objective”. Avoid using the first person too much. For example, instead of saying “I
think Msaka is imaginative because…………”, try; it appears that Msaka has a vivid
imagination because………”
 Do not use colloquial or slang (the language of informal speech)
 Do not use contractions

Presentation Skills

Presentation is one of the tasks that a law student can expect to do while in the college or
university. Students are usually asked to present on certain topics and are given scores
depending on how well they have presented. It is, therefore, very important for a law student to
know various techniques for achieving effective presentation. The guidelines below are of great
help in achieving effective presentation.

Pre-Delivery Stage

Before you make a speech or presentation, consider the following guidelines

1. Set your goals in advance. You should be clear of what you are going to talk about
2. Take a deep breath and relax to avoid stage fright and fear
3. Develop positive attitude/ positive thinking about yourself and others
4. Rehearse on what you are going to present
5. Prepare a summary or an outline of the presentation
6. Take time to imitate other good speakers
7. Identify your audience, their age, background etc.

Delivery Stage

 Break the ice. Great the audience and then ask a simple question
 Provide a short introduction about the presentation
 Avoid funny stories about yourself
 Speak and act with confidence. Lackof confidence can lead to unimpressive
presentation
 Talk in an organized way so that listeners can follow and understand
 Your volume or voice should be audible enough for every person to hear what you are
saying
 Use relevant examples
 Avoid talking from notes. Do not read everything
 Show that you are interested in the subject and arouse the audience.
 Limit your subject. Too long presentation is boring
 Use simple language to enhance understanding
 Fill your talk with relevant illustrations and examples
 Use suitable quotations, proverbs or anecdotes where possible
 Talk without injuring the listeners’ personalities
 Provide a summary of what you have said

The need to write well

As a lawyer, you spend much of your time writing – so why not do it well. You may think you
are an excellent lawyer, but you will not be a successful practitioner unless you can
communicate the law effectively in writing to the person who must read and act on your letter
or document. If you use these guidelines, your writing will be clearer and more effective. Good
lawyers use plain English and avoid jargon and legalese. Good writing is effective
communication and a sign of professionalism that enhances your reputation.

There is no one formula for writing well. However here are two that might help:
 a) KISS: “Keep It Short and Simple”, ie where possible, use short words, short sentences,
short paragraphs, active voice and avoid repetition.
b) APLE: Consider the Audience, the Purpose, the Language and Effectiveness as you
write.

Context is always important. What works for one letter or document, or type of reader or
purpose may not work for another. You need to decide when and how to apply the guidelines
outlined in this chapter. The guidelines aim to help you think about what you are doing,
including why you are writing your document and to remind you of things to look out for as
you write. If this is new to you, aim to apply each guideline one at a time rather than all at once.
However, keep in mind the best way to learn to write well is to read a lot, and write often.

The advent of email has changed the way many lawyers communicate. It has led to informal
styles and heightened risk of inaccuracies and ill-considered comments, or replies sent without
pause for review. Other risks of email involve the ease of forwarding messages to others not
intended by the writer, and permanent storage for future use. On the other hand, the speed of
email can enable quick resolution of disputes if handled carefully in appropriate situations.
Good lawyers need to decide when and how to use email rather than letters for professional
communications.

1. Consider your reader

a) Write for the reader:

Law schools usually train lawyers to write for examiners. However, the most important
audience for legal documents is the reader, whoever that is. It could be your client, a witness,
another lawyer or party, a court registrar or a judge. Having a clear idea of your audience is the
first principle of good legal writing. For example, if one family lawyer writes to another lawyer
that “the judge gave a section # certificate”, the meaning is clear to the other lawyer. But if you
tell your client this, the client is unlikely to understand fully. It is more likely that they will ask
you for an explanation, or worse, they may retreat, or feel too foolish to ask. It is far easier for
you to Effective writing for lawyers write – “the judge decided that the arrangements for the
care of your children are satisfactory”.

Even better, add a reason, “the judge needed to do this before making your divorce final”. Try
to know your reader before writing so you can better pitch your style. Writing to another lawyer
often means you can be more direct and use more legal expressions than when writing to your
client or another person. Be careful to remain respectful at all times to all readers. Never show
anger, be condescending or patronize the reader, and if responding to a patronizing letter use the
opportunity to demonstrate your professional integrity by being as helpful and considerate as
possible.

You may need to consider cultural and language issues of your likely readers. For example, the
ability to understand English, the role of silence, the reaction to direct addressing, their
experience of law and police, the need to agree, and specific politeness rituals or expectations.

b) When not to write at all

Lawyers generally like to put things in writing, but it may not be always in the client's interest.
For example, it may be quicker and more efficient to telephone the lawyer acting for your
client's spouse to find out why child support has not been paid. You could then call your client
and relay the reason, before writing a brief file note for both calls.

Similarly, you could find out available court dates simply by a telephone call to the court
registry. You could then confirm a date in writing by email to the court, with a copy to your
client. Emails have taken over from communication by letters in much of legal practice. The
main advantages of email are rapid communication, low cost and permanent records.
Conventions of email legal writing are changing however there is growing acceptance of less
formality and fewer traditional formalities or courtesies. For example, using “Dear…” at the
start and “Yours faithfully” or “Regards” at the end of an email is no longer required.

c) Write for a Purpose

The second principle of good writing is to have a clear idea of your purpose, or why you are
writing to your reader. The purpose of your writing as a lawyer will determine the style you use.
Emails are usually direct. Letters are more formal and therefore are often longer and take more
time to draft. Court documents like forms and affidavits are the most formal and need great
care.

Clarity is essential regardless of the purpose. Avoid ambiguity and complexity. Be direct: not
circuitous or vague. Say what needs to be said and no more. Effective writing for lawyers It was
crucial you cited authorities and referenced correctly in your writing to avoid allegations of
plagiarism. As a lawyer, precedents for forms and letters are commonly used as guides for
writing and there is no need to always cite the source when using other references. However,
context is always important, and you still have a duty to respect the intellectual property of
another.

d) Tone

The tone is in the style and feeling of writing. Take care with any hidden “message” you may
send your reader by your tone. It is important to imagine the reader's circumstances and likely
response so that you can choose your style of writing for that reader and use the appropriate
level of formality, tone and respect. Avoid jargon like “the writer” when referring to yourself.
Be clear with pronouns as appropriate such as “I” and “you”.

Tone in emails is usually more direct and informal than letters. However it is important not to
forget that your emails may be stored for future use, be copied or forwarded to other people,
and used for any purpose by people you never intended to see them. For that reason your tone in
emails, as in letters, should always be respectful.

e) Questions to ask

It is easy to start writing as soon as you sit down to write a letter, email or document. But wait a
moment. Think before you write. First ask some quick questions:
 who will read and use this document? Who is the reader?
 why are you writing this document? What is its purpose?
  what do you want to say? What do you need to cover in its content?
 what do you want your reader to do? Sign something? Agree to your request? Send you
some documents? Pay money?
 what does the reader want to know and need to know? Re-focus your content back to
your particular reader and their likely attitude, reading ability, interests and needs.

Your writing as a lawyer sculpts your reputation, so it needs to be considered and done with
care.

f) Ensure your writing is legally accurate

This chapter focuses on writing skills. However, your responsibility as a lawyer is to make sure
that what you advise your reader is legally accurate, sufficiently comprehensive and precise. So
called “time honoured” expressions are no longer acceptable in legal practice unless they
contribute to clear communication of your intended meaning. For more reading about these
issues, see particularly Macdonald and Clarke-Dickson (2010). Effective writing for lawyers

2. Organize and structure the information

a) Planning

When you need to write an important document, use your answers to the questions and jot down
a quick plan before you write. Alternatively, use a precedent to see how the ideas are structured.
If you prefer to think as you write, then make time after you've written to draw back and look at
the big picture. There are many different methods of planning, and different ones work for
different writers. Perrin (1990) outlines a number of effective methods.

b) Give a context first

Introducing the information with an overview or synopsis gives the reader a context in which to
interpret the information. It is then easier for the reader to understand the rest of your document.
In deeds, recitals are often used by default for this purpose. Other legal documents open with a
list of definitions, or a letter begins “We refer to your letter dated #”? Why not open the legal
document with a summary or with the major clause – and move the definitions to the end? It is
more helpful to the reader to open the letter with, “you wrote to us on [date] asking about the
sale of your property”, than “I refer to your letter of [date]” which sends the reader back to their
original letter.

c) Ideas and organisation

Organise ideas in the way the reader will want them. For example, if you are writing a letter of
advice about a litigation case, the reader is probably most interested in the merit of their case,
that is whether they will win if it goes to court and how much money they will get – and then
how much in costs they may have to pay. The reader is less likely to be impressed by first being
given your extensive research on the tort of negligence. Keep this research as an annexure to a
brief letter of advice.

Group relevant information together. Avoid using the structure of the relevant legislation unless
it is useful to do so – especially when different statutes overlap. It may be easier for you but
could be confusing for your reader who may want to know why there are three clauses about the
same area. An alternative is to order the document by subject or by chronology, if relevant. If
you need to quote the legislation, an explanation for example may be useful. Useful guidelines
for organisation are:
 put the most important ideas first (these may be your advice or conclusions);
 put qualifications and exceptions second;
 add procedures and administrative issues, such as time-lines and costs; and annex
research and supporting information.

d) Show structure of your logic

Show the structure of your logic and the relative importance of the ideas and how they relate to
each other. Ways of doing this include:
 use of numbering systems;
 use of headings and sub-headings; and
 use of design principles such as layout, font, positioning of sub-headings and points.

e) Use alternatives to words

Graphs, tables, diagrams, symbols and pictures translate ideas into visual images. Often this
helps readers grasp the concept faster. For example, this table makes lists of information easy to
find.

3. Think about the content of each sentence and paragraph

a) Chunk your information

When you do begin to write, you need to make sure the information is divided into “chunks”
that are easy to use for the reader. “Chunking” reflects the way our thinking is structured and
helps readers to absorb, understand and remember the information. Most people can only
remember between five and nine chunks of information in one attempt the best communicators
use this to assist readers.

b) Keep your words, sentences and paragraphs short

Avoid large words where possible. They are often unnecessary, consist of jargon and suggest
arrogance which can confuse or alienate some readers. As an average, aim for 15 to 25 words
per sentence and five to six sentences per paragraph. According to linguists, these are
equivalent to five to nine “chunks” of information. You can vary this from time to time with
short “sit up and take note” sentences or longer, more complex ones to suit the purpose and
context.

c) One idea per sentence

Keep to one overall idea per sentence – and one theme per paragraph.
Only include necessary information: Legal precision requires that you make sure the document
is accurate and complete. However, be careful not to repeat yourself in the aim to be precise or
to emphasise a point. Try to state your point once – perhaps with an example or a reason – then
move on.

4. Think about the language you use

a) Use the active form of verbs

In the past lawyers tended to over-use the passive voice, making their writing heavy, dull and
indirect, as well as adding unnecessary words. Contemporary use of plain English in legal
writing relies on the active form of verbs which speeds reading and assists understanding. The
active verb speaks directly to the reader and ensures the person who must do the action is
included. For example, it is better to write, “the judge decided the case” than, “the case was
decided by the judge”.

b) Use verbs not nominalisations

Another guideline is to combine active voice with “powerful verbs” that is, make sure you have
not changed your verbs into static nouns. Avoid Use made the decision decided to take into
consideration consider come to theconclusion conclude for the simplifying of to simplify

c) Emphasise the positive

Lawyers often need to identify risk and so legal documents frequently focus on what people
cannot do. However, readers are more likely to accept and remember something if it is positive
or conceptualised from a positive point of view. More people obey “keep left unless
overtaking” than “slow vehicles use left lane”. Avoid, “you must not drive a car unless you are
18 years or older”. Aim for, “you may only drive a car if you are 18 years or older”. Similarly,
double-negatives no longer have a place in legal writing. Where does “not unreasonable” fall
on the scale of unreasonable to reasonable?

d) Keep subject-action-object close together

At times legal writers, if they are not thinking, but then perhaps even if they are, may, but more
commonly do, separate out not only the verb but also leave, until the very end of the sentence or
paragraph, the point. In contrast, clear sentences identify the subject who must do the action,
then state the action required, and then identify the object or consequences. You can use another
sentence for qualifications or examples, or to clarify further if the point is complex.

e) Draft in the singular

Often ignored, drafting in the singular is a fundamental principle of good legal drafting. It
makes drafting easier and clearer and speaks directly to the reader. Also, Interpretation Acts
provide that the singular includes the plural. The word “none” is formally singular as in “none
of the parties is bankrupt”. However, common usage now allows for it to be plural, especially
after following a plural noun as in “none of the parties are bankrupt”. “Each” and “every” are
also singular, however usage now allows for them to be plural as in “every party must file their
documents”.

f) Use gender inclusive language

Using gender inclusive language is now obligatory in legal writing. Some guidelines to avoid
sexist writing are:

Guideline Example

Use “he or she”: The tenant must show a concession card before he or she qualifies for a
discount. An alternative here is to use the plural: “….before they qualify for a discount.” repeat
the noun The tenant must show a concession card before the tenant qualifies for a discount.

Use the plural: Tenants must show a concession card before they qualify for a
discount.Effective writing for lawyers

Use “You” You must show a concession card before you qualify for a discount. It is also
important to write in ways that are not discriminatory and are inclusive of diversity regarding
ethnicity, age, disability, sexual preference, religion or disability. A good guide to this area is
Pauwels (1997).

5. Think about your choice of words

a) Use ordinary everyday words as far as possible

The best legal writing relies on simple and familiar concepts and words. If complex or technical
words are not necessary, do not use them. Watch out for words that you may know but a non-
lawyer may not, eg “search”, “service”, “discharge”, “encumber”, “damages”. Avoid words that
are used in a different sense in the law such as “discovery”, “demise” or “execute”. There are
lists of preferred words in books (see under “Resources”) such as Macdonald and Clark-
Dickson (2010) and Asprey (2010). Use names of parties rather than abstract concepts (eg
replace “Releasor” and “Releasee” in a deed of release with names). Do not rattle off jargon.
Think about your reader before you use standard phrases and remember that legal writing is
about clear communication – it is not prose, poetry or mere convention.

b) Use terms consistently and clearly

It is important to be consistent in your writing. Use one term for the same concept – and do not
change or switch to another word halfway (like I just did). Readers, and courts, will try to work
out whether you intended the new word to have a different meaning. Never change your
language unless you want to change your meaning. It may help to think about the everyday
words you do use. For example, when you use the expression “the court”, do you mean the
physical courthouse, the judge or magistrate making the decision, or the more abstract concept
of the circumstances of the decision? And do you use the word in the same sense throughout
your document or letter?
c) If you use a technical word

At times you do need to use a technical legal word. This is a word that is common in legal
practice but has a complex or multi-faceted meaning. Examples are indemnity, mortgage, and
guarantee. To help your reader understand the word, think about including a clear definition,
explaining its meaning in a particular context, or giving an example of its effect.

d) Do not use shall

Shall has at least three meanings – and sometimes all are used in the one legal document with
Effective writing for lawyers often ambiguous and misleading results. It can also be difficult to
work out the real intention. For example, what is the meaning of “the director shall be one of
the governors of the hospital”? Instead of “shall”, use “must” for an obligation and “may” for a
permission. At times “shall” can be replaced by the verb to be. For example, “this Act is
governed by the law of Australia”.

e) Omit unnecessary words and phrases

It can be difficult to write plainly, but it is important to pare down your writing by avoiding
verbiage. Aim to be concise. Unless they serve an intended purpose in correspondence, avoid
throat clearing phrases such as, “as you know” or, “it is important to note that”. At the end of a
letter it may be good to ask the reader to contact you if they do not understand something, but
there is no need to add “We of course continue to value our important relationship”. In legal
documents, phrases such as “unless the context otherwise permits” or “notwithstanding any
other clause to the contrary in this deed” suggest jargon and signal careless thought. If the
context otherwise permits, then show this in the other context. If it is truly a “notwithstanding”
clause, it should be moved to the beginning of the document, so it qualifies all other clauses.
Instead of Latin terms such as “ab initio” or “circa” use their plain meanings: “from the
beginning” and “around”.

f) Take care with doublets and triplets

Many lawyers use the magic incantations such as “signed, sealed and delivered”, “give, devise
and bequeath”, “null and void” or “due and proper” without questioning their legal meaning.
Often the phrase can be replaced by a single ordinary word. At times the phrase is misleading.
For example, in the phrase “null and void”, courts have read “void” to mean “voidable” on the
basis that the writer used two words to show two different meanings. As well as dictionaries, an
excellent reference is Greenberg (ed) (2012).

g) Avoid overusing the thesaurus

Lawyers often try to be precise and cover all possible circumstances by using all the synonyms
they can find to cover a situation. For example, “the tenant must maintain, replace, repair, and
keep the property in good and substantial repair, working order and condition”. This encourages
other lawyers to seek out loopholes. It is better to clearly state your intention – begin with a
broad policy statement, followed by any extra detail. For example, “the tenant must keep the
property in good condition. This includes repairing any damage caused to the walls or floors”.

h) Be aware of interpretation principles

By using good effective and plain writing, you aim to keep your documents out of court. If your
document does end up in court, the courts will not interfere if the meaning and intention is
clear. A guide to interpretation principles is found in Asprey (2010). Four main principles apply
to understanding private documents:

 words are given their literal, “popular”, ordinary or natural meaning, except technical
words;
 words are given their grammatical and ordinary sense, unless this leads to absurdity or
inconsistency with the rest of the document;
 the document is read as a whole; and
 the intention of the parties is respected.

Other principles apply, but these may be inconsistent or contradictory. For example, in a list of
objects, the ejusdem generis rule (restricting general words to the same category as specific
words) may conflict with the expression unius rule (a list of examples is treated as the entire
category, despite any general words). By knowing these principles, you can write clearly to
avoid having to deal with them.

CHAPTER FIVE:

LEGAL LANGUAGE IN LEGAL COMMUNICATION

 Introduction
 Historical development
 Distinguishing Features of Legal Language
 Plain Language

Language: Legal and non-legal language; Writing: the art of writing; styles of writing in legal
profession and difference with other styles of writing; special language; plain language (clarity
of communication).

Legal writing and drafting is a skill, which a lawyer cannot afford not to have among many other
attributes. It is a skill, which makes a lawyer effectively write and draft in different legal
situations. The course explores the different attributes of an effective legal writer and drafter
Legal English/legal language:

Legal English is the style of English used by lawyers and other legal professionals in the course
of their work. It has particular relevance when applied to legal writing and the drafting of
written material, including:

 Legal Documents: Contracts, Licenses etc. court pleadings: summonses, briefs,

 Judgments etc. laws: Acts of parliament and subordinate legislation, case reports legal
correspondence

"Legalese" means words other than "terms of art" which are typical in legal documents but not
in ordinary English. Terms of art are those terms whose meaning is fairly well agreed to among
lawyers and whose use eliminates a lengthier phrase written in ordinary English. An example of
a term of art is "stare decisis."

Historical development

The legal language and legal tradition changed with waves of conquerors over the following
centuries. (a) Following the Roman conquest of Britain (beginning in 43 CE), the legal
language in Roman Britain was, naturally, Latin, and followed Roman legal tradition (b) the
Anglo-Saxon invasion of Britain, the dominant tradition was instead Anglo-Saxon law, which
was discussed in the Germanic vernacular (Anglo-Saxon, Old English), (c) Norman invasion
of England in 1066, Anglo-Norman French became the official language of legal proceedings
in England for a period of nearly 300 years (and continued in minor use for another 300 years),
while Latin was used for written records for over 650 years and written in Old English since
circa 600.

In legal pleadings, Anglo-Norman developed into Law French, for which many words in
modern legal English are derived. These include property, estate, chattel, lease, executor, and
tenant.

In 1363, the Statute of Pleading was enacted, which stated that all legal proceedings be
conducted in English (but recorded in Latin). This marked the beginning of formal Legal
English.

1. Language: Legal and Non-Legal Language;

Legal English contains a number of unusual features. These largely relate to: terminology,
linguistic structure, linguistic conventions, and punctuation.

During the Medieval period lawyers used a mixture of Latin, French and English. To avoid
ambiguity lawyers often offered pairs of words from different languages. Sometimes there
was little ambiguity to resolve, and the pairs merely gave greater emphasis , becoming a
stylistic habit. This is a feature of legal style that continues to the present day. Examples of
mixed language doublets are: "breaking and entering" (English/French), "fit and proper"
(English/French), "lands and tenements" (English/French), "will and testament" (English/Latin).
Examples of English only doublets are: "let and hindrance", "have and hold."

Further, legal English is useful for its dramatic effect: for example, a subpoena compelling a
witness to appear in court often ends with the archaic threat "Fail not, at your peril"–what the
"peril" is isn't described.

Distinguishing features of Legal Language

As noted above, legal English differs from standard English in a number of ways. The most
important of these differences are as follows:

 Use of terms of art: Legal English employs a great deal of terminology that has a technical
meaning and is not generally familiar to the layman (e.g. waiver, restraint of trade,
restrictive covenant, promissory estoppel).

 Extensive use of words and phrases derived from French and Latin eg property, estate,
chattel, lease, executor, and tenant.. English vocabulary is approximately ¼ Germanic, 1/4
French, and 1/4 Latin (the balance being from other languages).

 Use of ordinary words in apparently peculiar contexts: For example, the familiar term
consideration refers, in legal English, to contracts, and means, an act, forbearance or
promise by one party to a contract that constitutes the price for which the promise of the
other party is bought (Oxford Dictionary of Law). Other words often used in peculiar
contexts in legal English include construction, prefer, redemption, furnish, hold, and find.

 Lack of punctuation: One aspect of archaic legal drafting, particularly in conveyances

and deeds, is the conspicuous absence of punctuation. This arose from a widespread idea
among those in the legal profession that punctuation was ambiguous and unimportant, and
that people should gather the meaning of legal documents only from the words used and the
context in which they were used. In modern legal drafting, punctuation is used to give
clarification about meaning.

 Use of doublets and triplets: There is a curious historical tendency in legal English to string
together two or three words to convey what is usually a single legal concept. Examples of
this include null and void, fit and proper, perform and discharge, dispute, controversy or
claim, and promise, agree and covenant. Such constructions must be treated with caution,
since sometimes the words used mean, for practical purposes, exactly the same thing (null
and void); and sometimes they do not quite do so (dispute, controversy or claim).
 Unusual word order: At times, the word order used in legal documents appears distinctly
strange. There is no single clear reason explaining this phenomenon, although the influence
of French grammatical structures is certainly a contributing factor. For example, will at the
cost of the borrower forthwith comply with the same.

 Use of unfamiliar pro-forms: Very frequently they do not replace the noun which is the
whole purpose of pro-forms but are used as adjectives to modify the noun For example, the
 same, the said, the aforementioned etc. The use of such terms in legal texts is interesting
since. For example, the said John Smith.

 Use of pronominal adverbs: Words like hereof, thereof, and whereof (and further
derivatives, including -at, -in, -after, -before, -with, -by, -above, -on, -.upon etc.) are not
often used in ordinary English. They are used in legal English primarily as a way of avoiding
the repetition of names of things in the document – very often, the document itself. For
example, the parties hereto instead of the parties to this contract. -er, -or, and -eel name
endings. Legal English contains a large number of names and titles, such as employer and
employee, or lessor and lessee, in which the reciprocal and opposite nature of the relationship
is indicated by the use of alternative endings. This practice derives from Latin.

 Use of phrasal verbs: Phrasal verbs play a large role in legal English and are often used in a
quasi-technical sense. For example, parties enter into contracts, put down deposits, serve
[documents] upon other parties, write off debts, and so on.

 Lengthy and complex sentences: Studies show that sentences in legal language are quite a
bit longer than in other styles, and also have more embeddings, making them more complex.
Sometimes there seems to be an attempt to state an entire statute or linguistic principle in a
single sentence.

 Wordiness and redundancy: Lawyers are very prone to use wordy and redundant
phraseology, including what is sometimes called boilerplate. Lawyers also tend to use
ponderous phrases (such as at slow speed or subsequent to) where a single word would
suffice (slowly; after).

 Conjoined phrases: Conjoined phrases consist of words like by and or, as in I give, devise
and bequeath the rest, residue and remainder... They have been used since Anglo-Saxon
times. Conjoining words is still extremely common in legal language. One reason for such
lists of words is to be as comprehensive as possible. They also can add emphasis.

 Unusual sentence structure: Lawyers make use of unusual sentence structures eg by

separating the subject from the verb or splitting the verb complex, as in a proposal to effect
with the Society an assurance, which is taken from an insurance policy. Often these unusual
structures result in separating the subject from the verb, or splitting the verb complex, which
can reduce comprehension.

 Negation: Legal language seems to use an inordinate amount of negation. To some extent
this may result from the tendency to regulate by prohibition; judges prefer negative
injunctions.

Impersonal Constructions

A related characteristic of legal style is impersonal constructions. The best example is avoidance
of first and second person expression (I and you). Using the third person in statutes does make
some communicative sense (as in Sex offenders shall register with the police...) because the
statute "speaks" not only to sex offenders, but to the police and the courts; you might therefore
be inappropriate or ambiguous. Elsewhere (as in the tendency of judges to refer to themselves as
the court rather than I) it creates an impression of objectivity and authority, thus helping to
legitimate the legal system. Multi-judge panels seem less reluctant to use we and will even use
this pronoun to refer to a decision made by their predecessors long ago. Here, the first person
stresses the continuity and perceived timelessness of the law.

PLAIN LANGUAGE

Plain language means language that is clear and readily understandable to the intended
readers. Those who advocate for Plain language and abolition of Legalese claim that
incompetence, status , power, cost, and risk are a formidable set of motivations to keep legalese.
Their tenacity should not be underestimated. One observation must be made, however. These
motivations lack any intellectually or socially acceptable rationale; they amount to assertions of
naked self-interest. Legalese is unintelligible to lay persons and, on occasion, to lawyers.

A typical remark by one Judge to Legalese was :

I read briefs prepared by very prominent law firms. I bang my head against the wall, I dash my
face with cold water, I parse, I excerpt, I diagram and still the message does not come through.
In addition the structural content is most often mystifying.

Why Plain Language?

Lawyers should use plain language and eliminate legalese simply because it makes sense that
writing be readable and understandable. Even Jeremy Bentham, the great nineteenth century
utilitarian, urged that "legislation be written in such a way that discourages dissembling and
concealment, requires elected legislators to bear honestly their responsibilities for legislating,
and makes the words of law more intelligible to ordinary people.

How to determine whether Plain Language used (Test) Plain language legislation
generally uses one of two standards – an "objective “or a "subjective" standard.

a) Objective Standard: tests based on sentence length have been the basis of the objective
standard. The theory behind this standard is that a sentence containing fewer words or
syllables is more readable and understandable. The standard has been rightly criticized. Just
because a sentence contains fewer words or syllables does not mean that it is more readable
or understandable than a longer sentence.

b) Subjective standard: requires clear communication, not just a maximum number of words
per sentence or paragraph. It requires legal documents to "be written as understandably as
the subject matter allows" and "be designed in a way that helps readers understand the
document.

Wydick's and Mellinkoff's plain language rules

(From R. WYDICK, PLAIN ENGLISH FOR LAWYERS (3d ed. 1994); D.

MELLINKOFF, LEGAL WRITING: SENSE & NONSENSE (1982)).
In his book, Plain English for Lawyers, Richard C. Wydick suggests:

a) Omit surplus words; e.g. Rest, residue and remainder

b) Use base verbs, not nominalizations; Nominalizations are nouns derived from verbs (e.g.,
injury from the verb injure). Like passives, they can be used to obscure the actor (the
injury occurred at 5:30). A legitimate function of nominalizations is that they allow the
law to be stated as generally and objectively as possible. Lawyers often use passives and
nominalizations strategically, E.g. In the schoolyard, “Johnny tried to hit me.” Now, after
law school, we would probably say, “An attempt was made by Johnny to assault me.”
Somehow, the attempt becomes the focus. This is called nominalization of verbs—taking
a perfectly good action verb and turning it into a noun.

c) Prefer the active voice; Eg we are going to watch a movie tonight

d) Use short sentences;

e) Arrange your words with care;

f) Use familiar, concrete words;

g) Avoid language quirks; and

h) Punctuate carefully.

N.B language quirks: Wydick tells the reader to avoid "elegant variation" (using two different
words to identify the same object or person), "noun chains," "multiple negatives," "cosmic
detachment" (writing in a detached manner as if human beings were not involved), and "sexist
language." He tells the reader to "use strong nouns and verbs.

David Mellinkoff states his seven rules

1) Rule 1: The Language of the Law Is More Peculiar Than Precise. Don't Confuse
Peculiarity With Precision. Precision is sometimes peculiarly expressed, but don't be taken
in by the peculiar expression of nonsense. In the above Mellinkoff is referring to terms of art.
Certain terms of art do have their place in legal writing. But "[a]s it must all words, a time
comes in the history even of a term of art when something else says it just as well, or even
better. Then that day arrives, the term of art is on its way out."

2) Rule 2: Don't Ignore Even the Limited Possibilities of Precision. The Price of Sloppy
Writing Is Misunderstanding and Creative Misinterpretation. Someday someone will
read what you have written, trying to find something wrong with it. This is the special burden
of legal writing, and the special incentive to be as precise as you can.

3) Rule 3: Follow the Rules of English Composition. If it's bad writing by the standards of
ordinary English, it is bad legal writing. If it's good writing by the standards of ordinary
English, it is more likely to be good legal writing.
4) Rule 4: Usually You Have a Choice of How to Say It. Choose Clarity. Lack of clarity is a
common but not necessary feature of legal writing. It is not an inevitable by-product of
precision. Clarity depends more on how you say it than on what you have to say. As you
write, keep asking, "Clear to whom?"

5) Rule 5: Write Law Simply. Do Not Puff, Mangle, or Hide. The only thing about legal
writing that is both unique and necessary is law. To simplify legal writing, first get the law
right. You can't simplify by omitting what the law requires or including what the law forbids.
The better you know the law the easier to decide what law ought to go in, and what is
overkill or window dressing.

6) Rule 6: Before You Write, Plan. In the quiet time before you become excited with your own
words-on-paper, plan. Talk over goals with those who know more facts than you do, and
maybe even more law. Mull, jot, fret, read, outline. Then write. If you start from a plan, the
writing will help your thinking and writing. Unplanned, the flow of words becomes a
distraction.

7) Rule 7: Cut It in Half! Repeat the operation until you run out of time or material. Don't say
the same thing twice inadvertently. Rewrite. Rewrite. Rewrite

A communication is in plain language if its wording, structure, and design are so clear that the
intended readers can easily find what they need, understand what they find, and use that
information.

The International Plain Language Federation. Plain Legal language is the same but focus on
legal communications. To draft a successful plain language law, contract, policy or information
guide, you must adopt a rigorous approach which implies these 4 steps :
 To fully understand your reader’s profiles and needs and adopt their point of view in the
drafting process
 To carefully define the purpose of your content
 To rethink the structure, the wording and the graphic design to make your content easily
scannable and understandable
 To choose the relevant and useful information for your users

It is not dumbed down content: When done right, a legal document in plain language is as
accurate as a document written in legal jargon. As a matter of fact, often a plain language
document is even more precise. Plain language leaves no room for ambiguity or lack of
transparency.

It is not patronizing to readers: To the contrary, a legal document written in plain language
empowers readers. Legislation written in plain language requires no translation for laypeople to
understand.
It is not only pertinent for people with no legal knowledge: Experts love plain language as
much as anyone else! Documents written in plain language save everyone time by being easy to
read and understand. In fact, studies have shown that people with medium to high literacy levels
benefit the most from plain language. In short, you have every reason to adopt plain language
within your organization, whoever your main audience is and whatever type of documents you
work on.

Benefits of Plain Legal Language

1) Increased autonomy for individuals

Plain language gets the message across without the need for help or clarification. People feel
empowered when they can find, understand and use information on their own.

2) Better access to justice

Citizens need to understand the law and legal decisions that affect them. Inaccessible legal
writing generates confusion and frustration. It can even result in unnecessary charges, like
failing to appear in court or breaching probation. Plain language allows people to understand
what’s being said to them and about them in the justice system.

3) Trust between legal professionals and their clients.

Think legal jargon makes you sound clever? Think again! A compelling study by Professor
Christopher Trudeau (University of Arkansas, 2017) shows people are at best unfazed, at worse
irritated when legal advice is full of complex jargon and obscure terms. This comes as no
surprise: clients want to understand the advice they receive and the documents they sign. It
gives them confidence in themselves, and in the legal system.

4) Big savings and new opportunities for organizations

Complexity has a tremendous cost. From the number of calls and emails to customer service, to
the duration of calls and meetings, errors by employees and customers, training time, printing
and document management costs, loss of productivity…These costs add up and can cripple
organizations. To the contrary, organizations that embrace simplicity can expect savings, an
improved public image and greater customer loyalty.

How to Implement Plain Language

a) Vision: Documents will not simplify themselves, and it’s unlikely any employee will wake
up with a burning desire to review complex contracts or regulations. Leaders must show how
committed they are to changing things. Be honest and motivated, and others will follow.
b) Courage: Change causes resistance! Long-used contracts or standard legislation drafting feel
safe to many, even when they’re hard to read. Rethinking their structure, content and style
 can be destabilizing. There will be doubters. Be considerate, but press on, and bet on early
adopters.
c) Competence: If your employees and managers are eager to participate, beautiful! People
who know the organization, its culture, objectives and methods are essential to any plain
language endeavor. However, simplifying complexity is far from simple. Seek advice from
plain language experts to guide and accompany your team through the process.
d) Time: Don’t rush things. A serious plain language project requires reflection time and
benefits from the thought process of those involved.

An Idea as Old as Language (Or Almost!)

Plain language is not a new idea. Greek and Roman thinkers discussed its importance as far
back as antiquity. As expressed by the famous Roman teacher and lawyer Quintilian, “We
should not speak so it is possible for the audience to understand us, but so that it is impossible
for them to misunderstand us”.

The importance of plain language for legal matters has also long been known. The King of
Sweden instructed the Royal Chancellery to produce documents written in clear, plain
Swedish… over 300 years ago!

In recent years, public awareness of the importance and effectiveness of plain language has
increased. This has led to significant new laws and regulations around the world. In the U.S.,
federal agencies are now legally required to use plain language in their public communications.
New European regulations on privacy matters have set a high standard of transparency and
clearness. This could be the start of a golden age for plain language. Will you be a part of it?

CHAPTER SIX:
LISTENING SKILLS

Active listening requires that an attorney listen carefully to his client's story and respond in a way
that makes the client feel that he has been understood. As a result, the client is less likely to omit
important facts or view the lawyer as a hostile interrogator.

MANY LAWYERS are good inter-viewers and counselors who can bring a problem into focus
by asking probing questions. Yet lawyers can improve their interviewing and counseling skills
by learning to listen actively to their clients and to delay asking questions.

Active listening is the most effective and easiest learned skill that can enable lawyers to improve
their communication and rapport with their clients, increase their clients' satisfaction, and
improve the preparation of cases. Active listening is the lawyer's verbal response that reflects
back to the client, in different words, what the client has just said. Lawyers can use the skill of
active listening during interviews, counseling sessions, negotiations, conferences with judges,
jury selections, and office meetings.
The purpose of this article is to describe the process of active listening, discuss its benefits, and
provide a step-by-step approach for making active listening responses. Although examples from
typical legal situations will be used, the technique of active listening can be employed almost any
time two people communicate. To employ effectively the technique of active listening, lawyers
must develop two distinct skills: discrimination and communication.

Discrimination and Communication

Discrimination is the skill of listening to and judging accurately what a client has said. In other
words, it is the ability to understand cognitively the client's statement. Thus, the lawyer's first
step in active listening is to hear and understand the content and the feeling of a client's
statement. The second step in active listening is really a communication skill rather than a
listening skill. In this stage, a lawyer must communicate back to the client what the lawyer
has heard from the client. This is called the active listening response.

Research has shown that active listening improves rapport between a lawyer and his client and
encourages clients to talk. Thus, a lawyer is likely to learn more from the client and have more
facts to work with in the case by employing this technique. Active listening, however, is not
easy. Hearing a speaker accurately and then immediately verbalizing, in different words, the
content or the speaker's feelings is a difficult and analytic task. In this respect, active listening
embraces what many people consider the essence of being a lawyer-the ability to think on one's
feet or, in this case, in one's seat while interviewing.

Content and Feelings

A client's statement can be analyzed either from the perspective of content or of feelings.
Example I
(Content) Client: "The Countiss contract is the one that is holding us up. As soon as we take
delivery, we can finish the job in three days."

Lawyer: "The Countiss contract is holding things up now."

Example 2 (Feelings)
Client: "I worry that I'll get blamed if the Countiss contract doesn't work out."
Lawyer: "If the Countiss contract doesn't come through, you're afraid that you will be in trouble."

As these examples demonstrate, either the content (example 1 -being held up by the contract) or
the feelings (example 2-fear) in a client's statement can be the focus of the lawyer's active
listening. Content is comprised of the people, places, things, and experiences that usually are
considered facts. Feelings are the emotional dimensions of the client's statement. They can be
expressed directly, as in, "I was shocked and hurt when my husband announced that he wanted a
divorce and that he was moving out of the house," or can be implied from the facts
communicated, as in, "One day after dinner, my husband announced that he wanted a divorce
and that he was moving out of the house." Active listening typically connotes working with the
feelings of a client. When used to respond exclusively to feelings, an active listening response
often is called empathy, which is a basic listening skill for personal counseling that has enormous
potential for legal counseling.

Actively listening for content is extremely useful for the practice of law, and it can be used even
more frequently than actively listening for feelings. When lawyers first begin to learn and
practice the technique of active listening, they usually find it easier to listen actively for content.

After the enormous potential of active listening becomes apparent and lawyers become more
proficient, they become more comfortable discussing feelings. Eventually, an active listening
response may be directed at either the content or the feeling in a statement, or at a combination
of both.

Active listening differs slightly from the normal manner of communicating in that an active
listener is explicit about what he understands. In other words, a lawyer can either tell a client that
he understands the client's problem or he can prove that he understands it. Active listening is
simply verbal proof of that understanding.

By contrast, passive listening does not give a client any assurances that his lawyer has actually
understood what was said. Typical passive listening responses are, "Hmm," "I understand,"
"Sure, sure," "Yes," or nods of the head that suggest the lawyer hears and understands the client.
These passive listening techniques, so prevalent in conversations, require a leap of faith by a
client to believe that the lawyer has actually understood him.

PURPOSES

The principal purposes of active listening are to build rapport with and to obtain in formation
from the client. The lawyer thereby demonstrates that he understands the client's view of the
situation.

Gathering facts from a client is really the goal of all interviewing. Facts are critical to the
practice of law because they are the building blocks of cases. A lawyer's failure to elicit
important facts can lead to in appropriate legal advice and an improper choice of alternatives.
Missing facts may result in a lost case or malpractice. To avoid these problems, lawyers elicit
facts by using a great deal of questioning. Once the lawyer determines the type of case the client
has, e.g., child custody, contract, or shoplifting, he bombards the client with questions.

Certainly at some point in the interview a lawyer must ask questions to clarify what the client has
said and to seek information to test legal theories and defenses. But a lawyer cannot ask every
conceivable question, and sometimes important information about the client and his legal
problem is not logically connected to the problem the client first expresses. Probably every
practicing lawyer has had the experience of a client dropping a factual bombshell late in the
preparation of the case. When asked why he didn't tell this information to the lawyer sooner, the
client often replies, "I didn't think it was important. I thought you would ask me if it was
important." The client's perception that this bit of information was not important is strengthened
by the typical lawyer's pattern of interviewing-an almost never-ending series of questions.
Active listening can go a long way toward the accurate development of the facts of a case. The
essential difference between active listening and the way most lawyers interview clients is
characterized by the difference in the client responses received after the lawyer asks a question
or makes an active listening statement.

Client: "I bought a car from Big John's Used Car Lot a couple of months ago and the engine
blew up. The car's a piece of junk now."

Lawyer #1: "Did you have a written contract?"

Lawyer #2: "It must be frustrating to have spent money for a car that doesn't run any more."

Lawyer #1 immediately takes complete control of the interview and forces the client to start
answering questions on the lawyer's agenda for discussing the problem. The lawyer implicitly
tells the client: "I know what is important; I will decide what we talk about." This is particularly
unfortunate because the information the lawyer is asking about-the existence of a written
contract-is certain to arise at some point in the interview. The client, who is rarely interviewed by
a lawyer, is knocked off stride and may quickly become passive. On the other hand, Lawyer #2
provides an active listening response of both content (broken car) and feelings (frustration). The
client is clear about what the lawyer understands and is given implicit permission to discuss
content, feelings, or both. The client probably senses greater rapport with Lawyer #2 and is
encouraged to talk fully about the problem.

Experimental evidence has shown that speakers who receive active listening responses tend to
divulge more information. Talking about feelings may also be a good way to obtain information
about the underlying facts, which may be of legal significance to the case. In addition, a client
who is preoccupied with feelings often cannot listen well to the lawyer and may give the lawyer
inaccurate or incomplete information.

Nevertheless, many lawyers fail to recognize that emotions are also critical to a client's case.
These lawyers see the practice of law as a series of legal problems to be solved like puzzles, not
as a means of assisting people whose problems have both factual and emotional dimensions. This
is partly explained by a lawyer's legal training. In law school, human beings who have been
involved in legal problems are reduced to anonymous defendants and plaintiffs. A law student is
exposed to so many legal predicaments that these plaintiffs and defendants have gotten
themselves into that he has no time to worry about their emotional experiences. Indeed, if the
student did concentrate on the feelings underlying these legal situations and tried to empathize
with the parties, little time would be left for learning the law or the process of legal reasoning.

In the practice of law, however, an attorney is confronted with living persons, not paper plaintiffs
and defendants, and remaining a detached fact finder is no longer enough. Facts and emotions
are intertwined. Effective legal counseling should include empathetic understanding to help the
client communicate better. This is especially important to lawyers who must rely on as few as
one or two interviews with a client to learn about the client's problem.

CLIENTS' EMOTIONS
Having a legal problem is an emotionally trying experience. Plaintiffs voluntarily come to
lawyers when they feel they have been cheated, physically injured, discriminated against, or
otherwise wronged. Defendants involuntarily come to lawyers with feelings that someone wants
their money or wishes to restrain their liberty. They feel unjustly accused, harassed, tormented,
or, in some cases, that they were in the wrong. Any party to a suit might be embarrassed about
the situation or feel foolish for allowing himself to get in to the situation in the first place.

Most people are probably more reluctant to see a lawyer than to see a doctor. Potential clients
may fear that a lawyer will take advantage of them. Even a business client who may trust his
lawyer may be embarrassed to have a problem he cannot handle himself or to have caused the
problem through an oversight or mistake.

Finally, some clients may fear that they, their family, and friends will receive unwanted publicity
if a suit is filed or the case goes to court. The possibility of having to testify in court and being
subject to cross-examination may upset otherwise competent and capable professionals.

Counseling

Active listening also can be useful to the lawyer with a sincere personal desire to help clients
through counseling. Indeed, lawyers should be counselors in the broad sense of helping clients
choose between various possible alternatives. Only through good counseling, which allows a
client to express his feelings, can the lawyer adequately assist him in evaluating the social,
economic, and personal consequences of available alternatives to his legal problem.
ECONOMIC BENEFITS

Lawyers must be businessmen as well as lawyers, and active listening makes good business
sense. In the marketing of legal services, the first interview with a prospective client has changed
considerably during the last decade and is often free of charge. Whether to hire a particular
lawyer is the client's decision, which will not be made until after the client has evaluated the
lawyer in this first interview. Active listening, since it increases rapport, also increases the
probability that the client will want to hire the lawyer.

Lawyers are likely to discover that active listening saves time. The few extra minutes spent with
a client are likely to produce a wealth of additional information. Client rapport and improved
lawyer client relations are beneficial in another business sense. Many clients are unaware that
most legal cases end in negotiated, compromise settlements and that even a substantial judgment
won in a civil case will be diminished by high legal expenses and contingent fees. In other
words, all clients are likely to be dissatisfied to some degree with the result. If rapport between
the lawyer and client remains strong, however, the client is likely to be satisfied with his lawyer.
A satisfied client brings a lawyer repeat business and sends him referrals. Furthermore, a
satisfied client does not file agrievance claim or institute a spurious malpractice action against
his lawyer.

A CCURACY, INTENSITY, AND FORM

Active listening responses can be viewed from three perspectives:

 Accuracy-whether the listener correctly identified the content or the feeling expressed by the
speaker; intensity-whether the listener correctly identified the strength or level of the feeling
expressed; and
 Form-whether an introductory phrase was used to begin the active listening response.
Examine the following active listening response for accuracy, intensity, and form: Client: "I
felt really weird having to face that scowling man who sold me the materials and was
demanding payment right then. And I had to tell him the general contractor hadn't paid me
yet." Lawyer: (Attempting to listen actively.) "I can understand how you would be a bit
angry with the general contractor about that." This lawyer did not respond appropriately from
an active listening perspective. The response was inaccurate, lacked the appropriate level of
intensity, and, by using the introductory phrase "I can understand" as part of the form of the
response, may have created additional problems.

The response was inaccurate in terms of both feeling and content. The primary feeling expressed
by the client, "really weird," indicated embarrassment, not the anger that the lawyer identified.
The content of the client's statement was directed toward the confrontation with the materials
seller, not with the general contractor's failure to pay. In terms of intensity, the lawyer was again
incorrect. Feeling "really weird" is an intense feeling, as shown by the use of and emphasis on
the modifier "really." Even if the lawyer had correctly identified the client's feeling of
embarrassment, the lawyer's use of the phrase "a bit" reflected back only a mild intensity of
feeling.

The process of active listening is usually self-correcting, however, at least insofar as accuracy
and intensity are concerned. When a client hears that his lawyer's response is incorrect, the client

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Communication Skills for Lawyers
typically corrects the lawyer. In a sense, the client will have begun to listen actively to the
lawyer. For example, the client might say, "No. I mean it was real awkward with the materials
guy." No harm results from the lawyer's incorrect active listening response, if the client makes
the correction. In fact, the conversation generally improves.

Introductory Phrases

A more correct active listening response would result if the lawyer were to drop the introductory
phrase, "I can understand." This phrase frequently causes clients to say to themselves, "This
lawyer can't possibly understand," which thereby disrupts the communication between the
lawyer and client. Especially when differences in gender or financial or social status exist
between the lawyer and client, the client may not believe the lawyer "can understand."

A lawyer's use of standard, and presumably natural, introductory phrases such as, "It seems that
you feel," "As I see it," or "What I hear you saying," may seem phony, rather than empathetic, to
the client. Instead of encouraging communication, the lawyer blocks it. The awkward
introductory phrase attracts attention. Clients of long standing may even ask the lawyer what
book he just read about communication techniques.

In short, attorneys should discontinue the practice of using these introductory phrases. Active
listening responses are better without them. Rather than saying, "It sounds to me like you are
very anxious about the Martell contract," a lawyer should simply say, "You're very anxious about
the Martell contract." Moreover, active listening responses need not even be stated in complete
sentences.

Accuracy in Reflecting Feelings, Accuracy of content or feelings, which is the major component
of active listening, should be of paramount concern to someone who is new at active listening.
Achieving accuracy in content requires practice; accuracy in feelings is another matter. Some
people lack a sufficient vocabulary for accurate active listening in the area of feelings. The
following list, which presents a wide variety of feelings, should be of use to lawyers: happy
depute ,fet~iil hurt, lonedy, guilty, fakVp, bored, diswpointa.

Accurately reflecting a client's feelings also requires considering the client's nonverbal and voice
dimensions. How the client speaks to his lawyer may be more important than what he says.
Emotions may be mixed; some may be unstated. For example:
Client: (Speaking slowly, in a low tone, and with head down.) "I'm glad I'm able to discuss the
will with you today."

Lawyer: "You are pleased to be here and also troubled at the same time." This lawyer correctly
reflected back both the verbal ("pleased") and the nonverbal ("troubled") messages. Accuracy
requires paying attention to the client's current emotional state.

Client: "When the accident first happened I was very angry, but now I'm really doing well."

Lawyer #1: "The accident made you mad."

Lawyer #2: "Life is very good now."

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Communication Skills for Lawyers
Although Lawyer #1 reflected past feelings, it may not be useful to discuss those feelings now.
Present exploration of past feelings will sidetrack the discussion and may even put a damper on
the conversation, since the client may assume those past feelings. Prior feelings should be
reserved for a discussion of the assessment of damages. If talking about past feelings is not
appropriate now, then Lawyer #2 makes the better active listening response by emphasizing
present feelings. Active listening should not be used to focus indiscriminately on just any
feeling the client brings up. The focus should have a purpose. Although lawyers should strive to
reflect accurately the statements of the client, they must be careful not to use the client's exact
words.

Client: "I felt really bad after the job was over."
Lawyer: "It sounds like you felt really bad after the job was over." The client has come to the
lawyer for advice and some empathy. If the client's statements to the lawyer are merely echoed,
the communication immediately breaks down, and the client becomes impatient with the lawyer.
Parroting makes an active listener sound phony and reveals that the lawyer is attempting to use a
communication technique.

Finally, when listening actively, the lawyer should not answer the client's question immediately.
A client's question is merely verbal evidence of his confusion. As the following example
indicates, active listening can be an effective response to a question.

Client: "Well what do you think I should Lawyer: do?" "You sound concerned about what
alternative to pick."

Client: "Yeah. You know if I go through with Dvorkin's first proposal, I'll end up. .. ."
A lawyer almost never has to answer the client's question the first time it is asked, since
moreremains to be learned from the client. Putting at ease the rare, insistent client who brushes
off the active listening response is easy.

Client: "But I want to know what you think I should do."

Lawyer: "And I promise I will tell you as soon as I get a little more information. But first I need
to know what it is that bothers you about Dvorkin's proposal." To use active listening effectively,
lawyers also should become conscious of some frequently used responses that inhibit, rather than
encourage, lawyer-client communication. Lawyers extensively use questions, reassurance, and
advice in their communication with clients.

Unfortunately, in many situations these three techniques act as roadblocks to good

communication.
Although asking questions would seem to be the principal communication technique for an
effective lawyer, questions often prevent a lawyer from getting information. Bombarding a
client with questions, especially leading questions requiring only one word answers, adversely
affects a
client's openness and willingness to communicate. For example:

Client: "Getting that contractor to add a new room to my house has sure messed up my life."

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Lawyer: "Did you have a written contract?"
Client: "No."
Lawyer: "Is the job done?"
Client: "No."
Lawyer: Who is the contractor?"
Client: "Taylor Construction Company."
Lawyer: "Tell me more."
Client: "Well, that's about it."
The lawyer's questions subtly teach the client not to volunteer information by discouraging him
from talking about what he thinks is important to the case. The implied message is that the
lawyer asks the questions and controls the subjects because he knows what is important. The
corollary is that if the subject were important, the lawyer would ask about it.

Reassurance
A lawyer's reassuring response also can be a roadblock, especially if the client's problem has a
strong emotional component.

Client: "Every time I think of that guy he gets me so mad I could just, just-I don't know."
Lawyer #1: "Don't worry about it. You will get over it."
Lawyer #2: "That guy gets you so upset you are not sure what you'll do."

Lawyer #1 tries to be helpful by being reassuring, but the client will not be so easily satisfied.
The client is behaving emotionally, not rationally. Talking about getting over it in the future
ignores the client's present state and demonstrates a failure to see the matter from the client's
perspective. If you had a headache, and someone told you that your head would feel better
tomorrow, you would feel that your present feelings were being ignored. Similar attempts to
make the client feel better by reassuring him that the future will be brighter or by trying to talk
the client out of his feelings can hurt the lawyer-client relationship.

Lawyer #2 in the example above directly communicates his understanding by actively listening.
Since the client feels that his lawyer obviously understands him, the client can talk more about
these feelings if he wishes. Once the client has expressed his anger, he is able to cooperate better
with the lawyer. In addition, the client is likely to discuss the facts that led to his anger.

Advice

Giving advice is another technique that often fails to help a client and actually becomes a
roadblock. The problem with advice is that it is usually given prematurely.
Client: "Boy, it was sure dumb of me to give up when the salesman said I couldn't return it."
Lawyer #1: "Next time you should insist he take it back and return your money."
Lawyer #2: "You sound like you are embarrassed because you think you were taken by the
salesman."

Lawyer #1 has given advice that is not useful at this time. The client is not discussing what to do
the next time; he is concerned about what happened this time and how he reacted. The client's
negative feelings are being cut off by this lawyer's response. The lawyer is not listening to the

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emotional aspect of the client's problem. By immediately telling the client how to solve the
problem, the lawyer conveys the message that the client is incompetent. This may cause the
client to withdraw from the lawyer and become defensive.

Lawyer #2, on the other hand, listens actively to the client in a way that promotes good
communication. The client knows that he has been understood and feels that he probably can
discuss his problem further if he wishes. Either now, or after he discusses his embarrassment, the
client will be ready to discuss the facts that the lawyer needs.
Useful Techniques

These three roadblocks-questions, reassurance, and advice-certainly should not be dropped from
a
lawyer's repertoire of communication techniques. The lawyer should only use them after
recognizing their effects. Advice and reassurance are perfectly appropriate after a client has had
an opportunity to discuss his problem and after the lawyer has demonstrated through active
listening that he understands the client's situation. Bear in mind that active listening demonstrates
only that the lawyer understands the client's view of the situation. It does not mean that the
lawyer agrees with the client's view.

For example:

Client: "If that guy in front of me had just driven through the yellow light, I never would have
rear-ended him."
Lawyer #1: "I agree. It was his fault."
Lawyer #2: "If he had just kept going, there would be no problem."

Lawyer #1 is not listening actively; he is making a judgment. This response may later cause
problems for the lawyer because he has reinforced the client's view of the situation.

Lawyer #2, on the other hand, accurately reflects back the client's statement but does not state a
position on fault. The response encourages the client to keep talking but does not agree directly
with the client's position. In addition, if Lawyer #2 must later tell the client that the accident was
his fault, the client is more likely to accept the lawyer's view because he can be sure that he was
understood by the lawyer.

Techniques that are roadblocks in one situation can be useful in communication when the desired
effect is to create a roadblock. For example, a question can be consciously used in this fashion,
as when a lawyer might decide not to allow the client's feelings to be expressed.

Client: "Every time I think about it, I just almost can't stand it. I go to pieces. I just-just. . ."
(hangs head and is close to crying).
Lawyer: "Now, where were you on the morning just before the accident?"
Client: "Let's see." (Regaining composure.) "I think I had just stopped by the drug store to .... "
In the above example, the lawyer's question required the client to shift to a less emotional topic
and thereby blocked the emotions from being expressed. A lawyer should consider his and the
client's reactions before using this technique, since a client generally feels much better after
being given a chance to release the emotional tension. Allowing clients to express emotions or

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remaining silent during part of an interview while the client responds can be an effective
interviewing technique.

CONCLUSION

By using the technique of active listening and applying the simple checks of accuracy, intensity,
and form, lawyers can elicit more and better information from a client and also be sure that the
information obtained is correct. Furthermore, active listening can help build rapport between
lawyer and client and contribute to the improvement of the lawyer's practice.

Active listening, however, is not an invitation for lawyers to act as amateur psychiatrists or do
something that is totally out of their province. If a client seems to have a significant emotional
problem, he should be referred to a mental health professional.

If the lawyer notices that the client's emotional condition is affecting their communication, it is
best to comment on the client's emotional state rather than ignore it. You can easily show a client
that you relate to his or her crisis simply by repeating the problem back to the client. Clawar &
Rivlin, Are Your Clients Getting the Most Out of You? Wis. B. BuLL., May 1983, at 17, 18.

The ostensible reason for withdrawing was the client's failure to pay fees, but at the withdrawal
hearing the lawyer justified his motion by his client's failure to review documents in preparation
of the case. Neither reason, however, was held sufficient to justify withdrawal so soon before
trial, especially in view of the extra time the lawyer had received to prepare this case. The lawyer
was fined $6,500 for the extra expense and burden he had caused the Government by his motion.
In re Cordova Gonzalez, 726 F.2d 16 (1st Cir. 1984).

DON'T PUT IT ON PAPER. Two lawyers were less than truthful, much to their regret, in filed
documents in the following cases. In Myers v. Virginia State Bar ex rel. Second District
Committee, 312 S.E.2d 286 (Va. 1984), a Virginia lawyer was suspended for six months after he
filed an estate accounting listing his fee as $500 for work on the estate, when he actually charged
his client $4,910. The lawyer claimed, but could not prove, that his bill represented non-estate
work for the client, and he told his client that the Commissioner of Accounts had approved the
$4,910 as a fee from the estate.

A New Jersey lawyer ran into similar trouble when, in an effort to help a client get a mortgage,
he
misrepresented the sale price of the house as $107,000, instead of its actual $100,000, in an
application to a Savings and Loan Association. The lawyer compounded his problem by
suggesting, when the seller's attorney raised questions about the $107,000 figure, that two
closings-one real, the other sham-be conducted to hide the subterfuge. For his deception the
lawyer was suspended from practice for one year. In the Matter of Labendz, 471 A.2d 21 (N.J.
1984).

MALPRACNCE : The Bitter with the Sweet.

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According to the Washington Supreme Court, one who practices law without a license is held to
the same standards as licensed attorneys. In this case, a title insurance company's escrow closer,
who was not an attorney, practiced law when she drew up certain closing documents that left
plaintiff-vendors unsecured in the sale of their property in exchange for a note. The escrow
closer's failure to act ethically-in working simultaneously for conflicting interests and in failing
to warn the unrepresented vendors that they should obtain independent counsel was deemed to
justify a finding of liability against the defendant for the vendors' injuries. Bowers v.
Transamerica Title Insurance Co., 675 P.2d 193 (Wash. 1983).

JUDGES THE XYZ AFFAIR.

The Pennsylvania Supreme Court, which has been attacked in the past year for allegedly
unethical conduct by some of its members, refused to hear a petition from a judicial review board
member that the investigative record on an unnamed judge be made public. Under the state
constitution, the court could not act until the review board took final action. The dissent
complained that one of the justices in the majority should have recused himself from the vote,
since everybody knew he was "XYZ," the "member of the judiciary" referred to in the petition as
being under investigation. Application of Surrick, 470 A.2d 447 (Pa. 1983).

ISCELLANEOUS: IT'S PRO SE AND I'LL TRY IF I WANT To... Criminal defendants are
permitted to defend themselves, but a court may appoint "standby" counsel to help them. In
McKaskle v. Wiggins, 104 S. Ct. 944 (1984), the Court found no absolute ban against standby
counsel giving a pro se defendant unsolicited advice during the trial, as long as the defendant
keeps
control of his case and the lawyer's intrusions do not destroy the defendant's pro se image before
the jury. When a defendant does call on standby counsel, however, counsel's subsequent
suggestions are presumed to occur with the defendant's acquiescence, unless the defendant
expressly asks counsel to keep silent.

. . . You SHOULD TRY TOO IF YOUR PROCESS Is DUE. When a defendant corporation's
local attorney was suspended and ultimately disbarred for unethical conduct, the corporation
mistakenly failed to transfer this case to a new attorney. The disbarred attorney continued to
represent himself to the plaintiffs as the defendant's counsel of record and to receive service of
discovery matters. He did nothing else on the case, however, and defendant only learned of its
mistake when plaintiff obtained a default judgment. The default judgment was vacated since the
defendant had no actual or constructive notice of the procedural omissions that produced it. A
suspended attorney is no longer an agent of his client, the court reasoned, and thus service on the
attorney is not constructive notice to the client. While the defendant shares some blame in this
matter, it was the disbarred attorney's active fraud that kept the defendant in the dark and
justified voiding the default judgment. Lovato v. Santa Fe International Corp., 198 Cal. Rptr.
838 (Cal. Ct. App. 1984).

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 CHAPTER SEVEN

QUOTATION, CITATION AND REFERENCING

Reference to primary sources is important in all types of legal writing. Facts, rules, and
holdings from these sources must be incorporated into your writing for your argument to have
weight. What is the best way to incorporate these things into your paper without the paper being
choppy or imprecise?

There are two basic ways to incorporate someone else’s ideas into your paper (without
plagiarizing, that is!): quotations and paraphrasing. Quotations use the exact wording from the
original source, while paraphrasing uses the concepts from the original while changing the
wording. Knowing when and how to use each of them will make your paper easier to read and
therefore more persuasive.

Generally, deciding whether to quote or paraphrase and how to go about it is highly context-
specific, but here are a few basic rules to make the decision easier:

 Most of the time, you should go out of your way to avoid long quotations, especially
block quotes.
 Only quote the source when the exact language is needed or if the wording in the original
is particularly powerful or persuasive.
 For most things, you should paraphrase.
 The two are not mutually exclusive! You can combine quotation with paraphrasing.
 Don’t try to shoe-horn a quotation into your paper – use ellipses and brackets to make the
quote work for you. This Due Diligence Guide focuses on how to quote effectively and
correctly.

1. Block Quotes

According to the Bluebook rules, any quotation that is 50 words or longer must be formatted as
a block quote. Because of the way block quotes are separated from the rest of the text, many
readers do not read them. You may have noticed this in your own reading. When you come to a
block quote, at most you skim it to see what it’s about, then skip down to see what the author
has to say about the quotation. For this reason, it is best to avoid block quotes unless they are
absolutely necessary.

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Communication Skills for Lawyers
Block quotes should be used primarily in two situations: when quoting a statute or when
quoting from the record (e.g., what a witness said during deposition or what the opposing party
posted on Facebook). These are situations in which the precise wording is very important. As
such, you should not try to paraphrase, and it is often difficult or impossible to avoid having
your quotation be fewer than 50 words. This makes block quotes unavoidable.

Oftentimes when quoting statutes, there will be long sections that are irrelevant to your
argument and need not be quoted. You may remove these sections by using ellipses according
to Bluebook rules. You only want to be presenting to your reader the parts of the statute that are
relevant to what is at issue in your paper. For Example – Using a Block Quote to quote from the
Record.

After Moore was released from CAI as part of its reduction in force, Ian Rollo, President of
Volant (“Rollo”), wrote a letter to CAI and Welch on October 5, 2009. CP 127. In this letter,
Rollo stated the following:

Mr. Moore has requested that Volant extend an offer of employment to him, and Volant has
agreed to do so, but only if said offer of employment does not violate any non-compete or other
restrictive covenants existing between Mr. Moore and CAI. ....

I am requesting that you acknowledge and agree on behalf of CAI that Volant's offer of
employment to Mr. Moor is not objectionable to CAI and will not violate any agreement.

In the example above, an entire paragraph was removed from the quoted material and was
replaced with an ellipsis on its own line, where the paragraph would have been. This is required
by Bluebook Rule 5.1(a)(iii).

For Example – Block Quote with the Addition of Brackets and Ellipsis.

A comment to Rule 32.6(c) states that this section “instructs the court to make a final
adjudication of all the petitioner’s claims--those lurking in the background as well as those
specified.” Id., cmt. to Rule 32.6(c) and (d). The comment continues:

If the court finds from the pleadings and record that all of the petitioner’s claims are frivolous
and that it would not be beneficial to continue the proceedings, it may dismiss the petition. . . .
However, if the court finds any colorable claim, it is required by Townsend v. Sain, [372 U.S.
293 (1963)], to make a full factual determination before deciding it on its merits.

Note three things about the example above: the ellipsis, the brackets, and the citation. The
ellipsis contains four periods. This follows Bluebook Rule 5.3, which requires four periods
instead of the usual three when the ellipsis separates two sentences. The writers also used
brackets to add in the citation to Townsend, which was not included in the comment. Finally,
the citation for the block quote, in this case the “Id.,” is placed on the next line after the block
quote and was not indented, as required by Rule 5.1(a)(ii).

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Finally, it is important that you introduce block quotes in a way that lets the reader know
upfront why the quote is important. This is especially true when you are quoting from a case
rather than from a statute or the record. Try not to introduce a quote with phrases such as “In
this case, the court held:” or “The witness stated in her testimony:”. Instead, briefly summarize
the court’s holding before quoting the opinion, or explain why it is important that the witness
testified the way she did.

For Example-- Introductory Sentence Giving Context to a Block Quote.

Simply put, CAI was acting to protect from possible disclosure the trade secrets it owned. Such
action is expressly permitted under Washington law:

The defendant is . . . permitted to interfere with another’s contractual relations to protect his
own present existing economic interests, such as the ownership or condition of property, or a
prior contract of his own, or a financial interest in the affairs of the person persuaded. He is not
free, under this rule, to induce a contract breach merely to obtain customers or other prospective
economic advantage; but he may do so to protect what he perceives to be existing interests.

Deep Water Brewing, 152 Wn. App. at 264 (quoting W. Keeton, Prosser and Keeton on Torts, §
129, at 986 (5th ed.)) (emphasis supplied).

In this example, the writer introduces the quoted material with a phrase that summarizes why it is
important. The reader thus knows that the quote is presented to prove that the client’s actions
were permitted by that state’s law. Also note the ellipsis within the block quote and the
placement of the citation.

2. Short Quotations

Short quotations, fewer than fifty words, are formatted the same way as the rest of your text.
Because of the formatting consistency, your reader is much more likely to read short quotes
than block quotes. However, the presence of quotation marks slightly disrupts the flow of
reading. For this reason, among others, it is still best to avoid quotations unless the exact
wording is significantly preferable to paraphrasing.

It is not always clear whether to quote or paraphrase. Generally, you should quote when the
exact wording is needed, as when quoting the law or the record, or when the wording in the
original is germane to the legal issue or is particularly powerful and persuasive.

For Example—Quoting Material that Contains Fewer than Fifty Words. In Arizona v. Evans,
514 U.S. 1, 7 (1995), this Court reaffirmed the presumption that state court decisions are on the
merits rather than on [other] state law grounds, “to obviate the ‘unsatisfactory and intrusive
practice of requiring state courts to clarify their decisions to the satisfaction of this Court.’”

In this example, the court’s phrasing is especially persuasive for the writer’s argument,
describing the proposed course of action as “unsatisfactory and intrusive.”

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Just as you would with block quotes, you should only present to your reader those parts of the
source wording that are necessary. Eliminate unnecessary words by using ellipses according to
the Bluebook rules. However, when doing so, be careful not to change the meaning of the
original. In addition, keep in mind that you can always change verb tenses and add or delete
wording for purposes of clarity through the use of brackets.

For Example—Using Brackets.

Further, the proffered expert opinions did not explain how Klein could have been shot in the
bedroom doorway even though his body was found on the living room couch. They did nothing
to advance the implausible defense scenario that “the drug-addled, intoxicated, 5'10", 155
pound Johnson [c]would have [performed] an athletic feat of nearly Olympic proportions [by
moving] Klein from the bedroom doorway to the couch” without leaving any smears or a trail
of blood.

In this example, the writers changed the quoted material so that it worked grammatically in
their sentence. They changed “would” to “could” by putting the “c” in brackets. They replaced
words or phrases from the source material by adding their own words (“performed” and “by
moving”) in brackets. They didn’t, however, change the overall meaning of the words quoted.
Brackets and ellipses can be very effective tools for the legal writer.

READING, INTERPRETING AND APPLYING STATUTES

Whether you are working in a law firm, a government agency, or a public interest organization,
it is likely that you will be required to analyze and interpret statutes. Understanding the tools
and techniques of statutory interpretation will help you to understand the possible implications a
statute may have on your client’s interests. Although the task of statutory interpretation can be
quite nuanced and complicated, this handout will provide you with a few handy tools that will
help you to discern the meaning of a statute, even when the terms of the statute seem unclear or
ambiguous. In particular, this handout will address what to do before you begin interpreting a
statute (Part I), tools of statutory interpretation (Part II), and theories of statutory interpretation
(Part III) that can help inform which tools of interpretation you employ.

1. Preliminary Steps

There are three important preliminary steps you should take before attempting to interpret a
given statute:

a) Read the statute. The primary language of the statute should always serve as the starting
point for any inquiry into its meaning.2 To properly understand and interpret a statute,
you must read the text closely, keeping in mind that your initial understanding of the text
may not be the only plausible interpretation of the statute or even the correct one.

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 b) Understand your client’s goals. Make sure that you have a firm grasp of your client’s
goals and the underlying facts of your client’s legal problem so that you will be able to
determine which statutes are relevant to your case.
c) Confirm the statute is still good law. Be sure to Shepardize or Key Cite the statute to
determine:
 whether the statute or parts of the statute have been repealed or otherwise
invalidated;
 whether the statute has been amended; and
 whether there are any court decisions that can guide your analysis of the statute.

2. Tools of Statutory Interpretation

Although some statutes appear simple and straightforward at first glance, you may find, upon
further examination, that the terms of the statute are ambiguous or do not directly address your
legal issue. There are several tools that can help you to determine the meaning of an ambiguous
statute or to choose between multiple plausible interpretations of the same statute. These tools
fall into the following four categories: (A) the text of the statute; (B) legal interpretations of the
statute; (C) the context and structure of the statute; and (D) the purpose of the statute.

Additionally, certain techniques of statutory construction have been used so often that they have
become “formalized” into “canons of construction.” While these canons may not be particularly
useful for discerning the meaning of a statute, many courts find them persuasive, and you may
use these canons to justify and provide support for a particular interpretation of a statute. Be
aware, however, that for each canon that supports your interpretation, there is often an opposite
canon that can be used to defeat your interpretation or support an alternative interpretation of
the statute in question. Additionally, your audience may find some canons more persuasive than
others.

Each of the sections below addresses the tools of statutory interpretation and identifies relevant
canons of construction5 that you can use to justify and support your interpretations.

a) StatutoryText

(i) Statutory Definitions

Many statutes contain a “definitions” section that sets forth and defines the key terms used in
the statute. You might find these definitions either in the section of the statute you are analyzing
or in one of the first sections of the entire act. Sometimes these specific terms are codified as
definitions for a chapter or title of the relevant statute, meaning that they are intended to apply
to the entire chapter or title (unless otherwise specified). These definitions are important
because they suggest that legislatures intended for a term to have a specific meaning that might
differ in important ways from its common usage.

b) Plain Meaning
(i) Ordinary or Reasonable Understanding

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Courts generally assume that the words of a statute mean what an “ordinary” or “reasonable”
person would understand them to mean.6 Moreover, some courts adhere to the principle that if
the words of a statute are clear and unambiguous, the court need not inquire any further into the
meaning of the statute. Thus, you can often begin by looking at the ordinary or reasonable
understanding of a statute’s text based on your own experience and understanding of language
and grammar.

(ii) Dictionary Definitions

Dictionaries can also be helpful in interpreting the meaning of statutory language. It will likely
be more effective to compare and contrast definitions from multiple dictionaries to obtain a
broader consensus on the meaning of words. Analyzing interpretations from multiple sources
will help you to reduce the risk of choosing an interpretation that may have been approved by
one source but rejected by many others.8 If you are asked to interpret a statute that was enacted
a long time ago, you might consider digging up dictionary definitions (as well as other sources
such as encyclopedias) from the time period in which the statute was enacted.

Be aware however, that if a statute deals with a technical or specialized subject (e.g., ERISA,
tax, telecommunications, etc.), the words in the statute may have meanings that differ from their
ordinary usage. In such circumstances, courts may interpret the text dealing with a technical or
specialized subject in a manner consistent with the way those words are used in the relevant
industry or community.

(iii) Common Law Definitions

Similar to words that have a technical or an industry-specific meaning, some statutory words can
have a meaning in common law that is widely understood and accepted. In such cases, courts
will adopt the common law meaning.10 For example, the Supreme Court has noted that
“extortion” is a common law word, and it has interpreted that term by reference to its meaning at
common law.

c) Commonly Used Terms

The chart below describes several terms that are commonly found in statutes and often used
purposely to define the scope and function of the statute.

Terms Function
“And” typically signifies a conjunctive list, meaning each

And v. Or condition in the list must be satisfied, while “or” typically signifies
a disjunctive list, meaning satisfying any one condition in the list is
sufficient
May v. Shall Generally, “shall” signifies that certain behavior is mandated by

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 the statute, while “may” grants the agent some discretion
Unless Except These terms usually signify an exception to the statute
Subject to... These terms may limit the scope of the statute, or may indicate that
Within the meaning of For a certain part of the statute is controlled or limited by another
the purposes of section or statute
If...then... Upon Before/After Generally, these terms indicate that for one part of a statute to take
Provided that... effect, a precondition or requirement must be satisfied
Literally, “in spite of,” this term usually signifies that a certain
Notwithstanding term or provision is not controlled or limited by other parts of the
statute, or by other statutes
These terms commonly limit the class of objects that are either
Each/Only Every/Any/All
included in or excluded from the statute

Relevant Canons of Construction I. Omitted-Case Canon

Nothing is to be added to what the text states or reasonably implies; that is, a matter not covered
is to be treated as not covered. Essentially, this means that even though legal texts can
sometimes be incomplete because they fail to address certain situations, courts should not fill in
these gaps with rules of their own. For example, in one Supreme Court opinion, a taxpayer
underpaid his taxes by $7,000, but was only found to have negligently underpaid by $700. The
taxpayer argued that the statute imposing a penalty for underpayment of taxes should be read to
require payment in “an amount equal to 5% of the amount of the underpayment attributable to
negligence.” The Court, however, refused to fill in the gaps of the statutory language that
simply required payment in “an amount equal to 5% of the underpayment,” even though this led
to an arguably less reasonable result.

CASE READING, WRITING AND CITATION

Citations

Legal citations, in general, are used to identify the source of information supporting a particular
point in a legal document (such as a motion, a brief, or a decision). Citations that refer to court
decisions identify where a particular decision has been published in a reporter; they are laid out
in a specific and consistent manner so that a reader can easily find the text of the decision in a
reporter. The typical form of a citation to a decision includes:

 the names of the lead parties (in most cases, the plaintiff or appellant versus the defendant
or appellee),
 a number representing the volume of the reporter,
 an abbreviation of the name of the reporter,
 a second number providing the first page of the decision, and
 in parentheses, an abbreviation for the court and the year the decision was issued.

For example, the citation Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011),
identifies a decision in a case between an appellant, named Stearns, and an appellee, named

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Ticketmaster Corporation. The citation indicates that the decision was published in volume 655
of the Federal Reporter, Third Series (identified by the abbreviation “F.3d”), beginning on page
1013. The citation also shows the decision was issued by the United States Court of Appeals for
the Ninth Circuit (abbreviated as 9th Cir.), in 2011.

The ability to write a clear and succinct case note is useful in and of itself as a legal skill,
particularly in common law legal systems which operate a doctrine of precedent whereby
judicial decisions form part of the law of the land. It is also important in case comment writing
since a clear understanding of the essential elements of a judicial decision forms the basis of
accurate analysis and enables an author to set out a brief summary of the judicial decision at the
outset.

In order to write a case note it is necessary to learn how to deconstruct a legal argument set out
in a judicial decision and identify various parts of the judgment. The various parts serve
different purposes.

A case citation tells where a full copy of the court’s legal opinion in a case may be located. A
complete citation includes the names of the parties in the case, the volume number of the court
reporter, the court reporter abbreviation, the page number of the reporter where the case begins,
and the year the case was decided.

Roe v. Wade, 410 U.S. 113 (1973).

Case Name – Roe v. Wade, 410 U.S. 113 (1973)

At the trial level the first name in a case citation refers to the plaintiff and the second to the
defendant. If the case is at the appellate level, it may be reversed depending upon which party is
bringing the appeal. For example, in Roe v. Wade at the trial level Roe is the plaintiff. If Wade
loses at the trial level and appeals, the case name at the appellate level would be Wade v. Roe.

Volume Number and Case Reporter – Roe v. Wade, 410 U.S. 113 (1973)

410 is the number of the particular volume of the relevant case reporter in which the opinion is
located. It is important to note that the volume number must be read in conjunction with the
case reporter as there are a number of different reporters. Decisions of the United States
Supreme Court are available in three separate reporters, U.S. (the United States Reports), S. Ct.
(the Supreme Court Reporter), and L. Ed. (United States Supreme Court Reports Lawyer’s
Edition). Each reporter will have the case in question, but the volume numbers will vary
depending upon the reporter used.

Page Number and Year – Roe v. Wade, 410 U.S. 113 (1973)

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The number following the reporter abbreviation is the first page of the case. Reporter volumes
typically contain numerous different cases. The year the case was decided is the final element
of a case citation.

STATUTE READING: By Deborah Maranville

Introduction

For the past century, and more, the dominant approach to legal education has been the “case
method” in which students are said to learn the law, and the glory of the common law system of
precedent and stare decisis, by reading appellate cases. Because of this emphasis on appellate
cases, especially in the first year of law school, many students graduate with skewed instincts
for approaching a legal research task: they start their research by looking for appellate cases.
Yet we live in what former Yale Law School Dean and Commissioner of Major League
baseball Guido Calabresi termed “The Age of Statutes.” Statutes are everywhere, regulating
ever-increasing portions of modern life. Few legal areas are now immune from statute-creep.
Thus, for the vast majority of legal problems, the primary source of law is statutory. As a result,
learning how to read a statute has become at least a co-equal task with learning how to read a
case. Yet although a veritable cottage industry has developed that purports to teach students
how to “brief” cases, introductory resources on how to read a statute are more limited. Legal
education lacks a short, snappy, introductory overview of the skill. The following pages attempt
to fill that gap.

Overview: The Cardinal Rule

The basic stages of reading a statute can be summarized in three steps, easily remembered using
the acronym MAP:

M = Method
A = Ambiguity
P = Purpose, Policy, Protocols

But before you proceed to these three stages, you need to take a deep breath and remember the
cardinal rule of statute reading: SLOW DOWN. Or, to emphasize the point in a different way:

Slow Down
Many issues of statutory interpretation revolve around extremely picky questions concerning
how the statute is organized, or just which word the legislature used. A classic example is “did

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the legislature say ‘and’? Or did it say ‘or’?” Thus, while you should always use your skimming
skills to understand where a specific statutory provision fits into the larger whole, save your
speed reading skills for another occasion.

Method

The first step in reading a statute (that is, the first step in actually studying the statute, after you
breathe, and after you skim the provisions surrounding the statute you will study in detail, to see
how the specific provision fits into the larger whole), is Method. Identify the structure of the
statute, and break it into pieces, methodically, step by step. If you are lucky, you will have one
or more professor in the first year who will go through this process with you in detail and
demonstrate his or her own method for reading a statute.

Approaches to statute reading vary, just as approaches to briefing cases vary. Some people try
to break the statute into “elements,” the key activities that together will trigger a particular legal
result. Others use an “If . . . then” structure, for the same purpose: identify the “if’s”, the
predicates that trigger the statutory “then’s”. A third approach is to diagram the statute much as
English grammar teachers sometimes teach students to diagram sentences (or used to!),
identifying especially the subjects and verbs, scrutinizing the conjunctions (and, or), and the
modifiers with care. Any method is fine, if it gets you pulling the statute apart in a way that you
can understand it accurately.

Additional Sources:

 Linda Holdemann Edwards, Legal Writing: Process, Analysis and Organization (3rd ed.
2002), Chapters 2 and 3 (analysis applies to judicially created rules, as well as statutes;
the example is the ABA model code of professional responsibility, which is structured
similarly to many statutes)
 Deborah A. Schmedemann and Christina L. Kunz, Synthesis: Legal Reading, Reasoning,
and Writing (1999), Ch. 5, Reading a Statute, especially pp. 56-63
 William P. Statsky, Legislative Analysis and Drafting (2d ed. 1975), Ch. 4, Elements,
Issues, and Memos

Ambiguity

Many lawsuits involve a dispute over the meaning of a statute. Typically these disputes arise
either because the language of the statute is ambiguous in some way, or because the result
reached through a literal application of the statute seems absurd, or inconsistent with what the
legislature seems to have intended. Thus, in reading statutes the second step is to look for the
ambiguities. Did the legislature use what might be uncharitably termed “weasel words”, that is
words like “reasonable” or “substantial” that will predictably generate disagreement over their
meaning? Is the statute grammatically ambiguous, perhaps because it is not clear what word a
phrase modifies? For instance, in the Florida election cases from 2000, a significant question
was how to interpret a statute that provided: “If [a] manual recount indicates an error in the vote

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tabulation which could affect the outcome of the election, the county canvassing board
shall . . ..” Was the statute directed at all errors in the vote tabulation because any errors might
affect the outcome? Or was it aimed at limiting relief to a limited subset of errors so significant
that the outcome could predictably be affected.1

Predicting when a court will find a statute to be ambiguous takes both experience and good
judgment. As you read cases, be alert to the arguments parties make about when statutes are
ambiguous, and how the courts respond, so you can hone your skills in this area.

Protocols: Plain Meaning, Precedent, Purpose, Policy, etc.

The third step in reading statutes is to learn the “protocols,” or “codes of correct conduct” that
courts use in resolving ambiguities in statutes. Entire books are written on this subject, entire
courses taught on it, and within the legal profession, we lack agreement on which approaches
are “correct” or permissible. Thus, any brief introduction will inevitably oversimplify. The
United States Supreme Court is divided as to which “protocols” are legitimate, but most
advocates and lower courts will draw on all of them, as they seem useful. At this stage, you
should become familiar with the following protocols, and the sources relied on by followers of
each approach.

 Protocol: The plain meaning rule (also known as “textualism”). Sometimes a court will
simply announce, by fiat, that no ambiguity exists, and claim that the “plain meaning” of
the statute, typically using dictionary definitions, is unambiguous. (This can be amusing
in a case that reaches the U.S. Supreme Court, where the court splits 5-4 and reverses the
lower courts.) Justice Scalia is particularly fond of this protocol.

Sources: Dictionaries and Canons of Construction. In arguing “plain meaning,” lawyers

often resort to rules of interpretation, known as canons of construction, that are usually
referred to by their Latin names. A widely used example is expression unius est exclusio
alterius. (The expression of one specific thing is the exclusion of another.) Karl
Llewellyn, the famous legal realist theorist of the mid-twentieth century, argued that
these canons are indeterminate, because they come in matched and contradictory pairs. 2

 Protocol: Legislative Intent (also known as “originalism”). A second approach is to

interpret the statute in the fashion that will best further the intent of the legislature. In
trying to determine the intent of the legislature, a court will often look at the legislative
history of the statute.

Source: Legislative History. What did the committees that drafted or considered the
statute say in committee reports? What claims did supporters make in legislative

1
The problem and the quoted language are taken from Alex Blashausser, From the Electoral College to Law
School: Research and Writing Lessons From the Recount, PERSPECTIVES: TEACHING LEGAL RESEARCH AND
WRITING (2001)
2
Karl Llewellyn, THE COMMON LAW TRADITION (App. C)

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 hearings, or debate on the floor of the legislature, about how the statute should be
interpreted?

 Protocol: Precedent. Sometimes, the court will interpret a statute in a particular way
because that’s the way it’s always been done. In other words, the court will rely on prior
precedents.

Sources: The cases in all those opinions you’re reading.

 Protocol: Purpose. Often the court will engage in “purposive reasoning,” trying to
identify the purpose for the statute by asking, “What was the legislature trying to
accomplish?” and “What interpretation will best further that purpose”?

Sources: Historical context. What were the issues of the day when the legislature
enacted the statute? What social problems was the legislature trying to address?

 Protocol: Policy (often relied on by proponents of “dynamic” interpretation). Courts (and

law professors asking their students to be pretend-judges) often ask “Which interpretation
will lead to the ‘better’ result?” with “better” being evaluated in light of “policies“, such
as certainty or predictability, efficiency, or fairness.

Sources: Current contexts and public values. In evaluating policy, the courts will look at
the current social context and evolution of societal values. For instance, they might
evaluate how social and technological changes have altered the way a statute operates in
practice. Should statutes or rules that specify how a lawyer must deliver court papers to
an opposing lawyer be read broadly to permit delivery by e-mail or FAX technology?
Or would that require a new or amended statute or rule?

Additional Source:

 Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949)
(Classic article using a case about cave explorers reduced to cannibalism to demonstrate
how different jurisprudential approaches lead to different interpretations of a murder
statute)

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