When you finally finish the Priestley 11 and start practical legal training, you soon discover that it’s no longer about essays and problem solving questions; now your assignments are memos, letters of advice and court documents. Survive Law chatted with civil procedure lecturer Sonya Willis about how to approach legal drafting…
We often hear about the importance of adapting our writing style for the audience, why is this important?
Law is complex and lawyers have developed lots of jargon, which helps explain complex legal concepts quickly and easily provided the reader knows and understands the jargon. This means that explaining law to a fellow lawyer is very different to explaining it to a non-lawyer who doesn’t understand the jargon.
For example, telling a colleague, or submitting to a judge, that your client has a beneficial entitlement through the doctrine of promissory estoppel due to breach of a trust in a fiduciary relationship is a quick and neat way to explain a very complex legal situation provided your audience understands the jargon. If you were trying to explain to your client what his legal rights were, then, unless the client happened to be a lawyer, you would have to use very different (and far more expansive and probably inaccurate) language, to get the same message across.
Some students write letters to clients with numerous footnotes, while others don't refer to a single statute or case name – how much legal analysis and information about the current law should be included in letters of advice?
What goes in a legal advice letter depends greatly on the client. In-house legal counsel will often want case details, full legal analysis and are happy to see footnotes. Non-legally trained clients are likely to be bemused or bewildered by footnotes and may not wish to know about legislation or cases at all.
Writing hypothetical advice as a student introduces another level of complexity because your lecturer may wish to see the research underlying your advice in a way the real client might not. Always seek clarification before commencing your assignment and, if you are putting in footnotes solely for the lecturer’s benefit, explain this in your first footnote.
What is the best structure for a letter of advice or a memo?
I am a great believer in headings and summaries for almost any form of writing. Make it clear at the beginning what issues you will be addressing and then use headings for each issue so the reader can stay with you more easily. An executive summary up front is an excellent idea for lengthy advice particularly where there might be multiple individuals reading the advice, some of whom want the detail and others who just want to know the answer.
What writing style should students adopt when drafting court documents?
Court documents are formal and careful wording can be critical. Legal terminology is useful and acceptable because it is often relatively precise in its meaning.
When drafting court documents such as statements of claim, what are the common mistakes students make?
Drafting pleadings, such as statements of claim, is an art form which most lawyers are not very good at so students should not be too hard on themselves if they find it difficult. I recommend anyone drafting a pleading read the relevant civil procedure rules (eg Rule 14 of the Uniform Civil Procedure Rules (NSW) 2005) before they start drafting. Modern court rules are, actually, rather helpful and usually pretty simple to understand.
If students are unsure about their approach to a drafting assignment or class exercise, where can they find some examples for guidance?
Australian courts are putting more materials online so, for example, all the pleadings and submissions in the Ashby v Slipper litigation are now accessible to the public on the Federal Court of Australia website. This means law students can now read real life pleadings in cases still unfolding in the courts for examples of how it should be done.
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