Language skills for lawyers

1. Language skills for lawyers Topic 6

2. “ Plain English alone achieves nothing; to be useful it must run in tandem with clear thought. Simple and individually comprehensible words, if carelessly and inconsistently employed, are not likely to produce readily comprehensible phrases, sentences, paragraphs …..” Tadgell JA in R v Roach [1998] VR 665 at 669-670.

3. Grammatical function The hairy dog frequently chased my brother and me around a very dark park at night.

4. Australasian Temperance And General Mutual LifeAssurance Society Limited v Howe (1922) 31 CLR 290 Knox CJ and Gavan Duffy J (emphasis added) Now, what is the literal and popular meaning of the noun substantive "resident"? We say noun substantive" because in the English language the meaning of the adjectival form of a word is often extended while the substantive form retains its original literal meaning. This is a natural and even an inevitable evolution in the case of epithets, because they denote, not permanent things, but variable qualities. They are elusive, not necessarily conveying precisely the same meaning to any two persons, and they are constantly used to express imperfect analogies. For example, the words "attendant," "incumbent," "coadjutant," "respondent," "dependent," when used as substantives always denote an individual, while the same words used as adjectives are subject to no such restriction. This divagation has taken place in the use of the word "resident." Its meaning when used as a noun is, according to the Oxford Dictionary, "one," that is, a natural person, "who resides permanently in a place." But according to the same authority the adjectival form, while primarily applying to individuals, may also be used in relation to corporeal things and abstract ideas. Corporations are not residents in any literal sense, because they cannot perform the essential function which the term connotes: they cannot live in some particular part as distinguished from all other parts of the earth. But it sometimes happens that words lose their literal meaning when used in popular speech. Is that so with the word "resident" when used as a substantive?

5. Parts of speech • Nouns • Pronouns • Verbs • Prepositions • Adjectives • Adverbs

6. Commercial Bank of Australia v AmadioMason J at 462 “I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.”

7. Syntax • The grammatical structure of a sentence • A sentence • Must have a verb • Will have a subject • May have an object

8. Examples: The hairy dog chased the ball to my brother and me

9. Problem words • Know the meaning of the words you are using – the exact meaning, not a vague sense of what the word means. • When in doubt, look it up. • Distinguish between technical and common meaning of words.

10. Spelling “English spelling is notoriously irregular and can be downright difficult. It’s because our huge vocabulary (the world’s biggest) is made up of words from so many other languages.” – Melvyn Bragg, “ A History of the English Language”.

11. Spelling rules • Do set your spellcheck for Australian, or preferably British English. • Don’t rely on the settings which came with your computer. • Don’t automatically rely on your spellcheck.

12. Incorrect and inconsistent capitals • Madeleine, you Were driving North from Sydney towards hawks Nest on 1 march 2007. Unfortunately for You, you took Your trip too late. New legislation was passed by the Legislative Council on 22nd January, and received the governor’s assent 8 days later.

13. Spelling mistakes not picked up by spellcheck • We can use it hear because of the uncertainty of where the rain needs to be falling. • In order to advice Madeleine we must construe the relevant section, using all the relevant tools of statutory interpretation. • S34(2) allows us to use any speech in Parliament and so we can use the Speech by the Minister assisting the minister for roads in the legislative counsel where he said: “wet roads are slippery roads” • Anyway, it is a principal of statutory interpretation that criminal statutes are to be construed strictly (Re Bolton; exparte Beane)

14. Punctuation • Apostrophe • Full Stop • Comma • Capitals

15. Punctuation alters meaning • I saw a man eating shark at the beach today. • I saw a man-eating shark at the beach today. • Woman! Without her, man is but a savage. • Woman without her man is but a savage

16. Effective communication • Is targeted to a particular audience • Recognises the difference between spoken and written communication • Is logically structured • Uses clear, concise and plain language • Recognises that flowery words and overblown phrases often obscures meaning

17. Word choice • Choosing the right word does not simply involve choosing the word with the most syllables • Need for precision and clarity • Technical terms and terms of art • Use of ordinary and legal dictionaries

18. Rewrite: In the event that you are not in agreement with respect to the amount of rent due and payable at that point in time there is a provision in the abovementioned contract which provides for the submission of the dispute in accordance with the said contract. from Practical Legal Skills, Hyams. Campbell, and Evans, Oxford, 1998, p56.

19. Rewritten as: If you do not agree on the amount of rent due, the contract provides that the dispute may be submitted to an arbitrator, who shall decide the dispute in accordance with the contract.

20. Rewrite as shorter sentences: Upon the basis of the instructions provided to us and without having as yet conducted the necessary investigation of the facts or detailed research on the law, including the interviewing of witnesses and /or the examination of the documents, we have formed the opinion that your liability in this matter may be considered under three causes of action, one of which, that is strict liability, is based on the relevant statute, the second and third, that is, negligence and nuisance, both public and private, being based on the common law, although it is accepted that there is some degree of overlap ( the precise extent of which is yet to be judicially determined) between the three.

21. A good essay/answer: • is grammatically correct, properly spelt and punctuated. • Pore gramma distracts the Reader an’ makes IT harder for U to comunikate your messige. • The ability to communicate and attention to detail are key skills for lawyers – poor grammar indicates a lack of both.

22. A good answer: • Is clearly structured. • Has a beginning, middle and end. • proceeds clearly and logically. • Builds a coherent and cohesive argument. • Uses appropriate headings.

23. A good answer: • Reads (and responds) to the question carefully • Doesn’t just read the nouns, and provide a brain dump triggered by the nouns, but responds to the question as asked • Provides considered analysis, not a kneejerk response

24. Example: Question 3 “Judicial independence is an important safeguard of liberty, central to any democratic system of government. In the Westminster system, the judiciary may be the only truly independent arm of government.” Discuss. In your discussion you should concentrate on the Westminster system as it operates in the Australian context. You should also consider the historical origins of the concept of judicial independence and how (if at all) this concept is found in modern Australia. Support your answer with relevant authorities and examples from the Legal Institutions course.

25. A good answer: • Isolates all relevant issues • But only the relevant issues • Red herrings – problems with analysis • Irrelevant detail – problems with analysis and understanding • Padding – indicates lack of understanding

26. A good answer: • Identifies and applies the law • It is your legal reasoning, rather than your personal views, which is relevant

27. A good answer: • Is well supported • Always makes clear why, and on what authority, the argument rests • Primary authorities (cases, statute) are preferable to secondary authorities (eg texts) • Blogs are not authoritative

28. Common “question” words • Advise: Normally in connection with a person facing a particular fact situation. It does not mean write a letter of advice as if to a client, nor does it mean only give the ‘client’ good news. It means consider all the possibilities presented by the particular fact situation and advise whether any legal consequences flow. Where a matter is contentious, make a decision (‘advise’) and justify your decision.

29. Compare:Examine qualities, or characteristics, to discover resemblances. "Compare" is usually stated as "compare with": you are to emphasize similarities, although differences may be mentioned.Contrast:Stress dissimilarities or differences of things, events, or problemsCriticize:Express your judgment. Discuss the limitations and good points or contributions of the work in question. Define:Definitions call for concise, clear, authoritative meanings. Details are not required but limitations of the definition should be briefly cited. You must keep in mind the class to which a thing belongs and whatever differentiates the particular object from all others in the class.

30. Describe:In a descriptive answer you should recount, characterize, sketch or relate in narrative form.Discuss:The term discuss, which appears often in essay questions, directs you to examine, analyze carefully, and present considerations pro and con regarding the problems or items involved. This type of question calls for a complete and entailed answer.Enumerate:The word enumerate specifies a list or outline form of reply. In such questions you should recount, one by one, in concise form, the points required. Evaluate:In an evaluation question you are expected to present a careful appraisal of the problem stressing both advantages and limitations. Evaluation implies authoritative and, to a lesser degree, personal appraisal of both contributions and limitations.

31. Explain:In explanatory answers it is imperative that you clarify and interpret the material you present. In such an answer it is best to state the "how or why," reconcile any differences in opinion or experimental results, and, where possible, state causes. The aim is to make plain the conditions which give rise to whatever you are examining Illustrate:A question which asks you to illustrate usually requires you to explain or clarify your answer to the problem by presenting a concrete example. You do not need to provide actual illustrations or pictures, but need to paint word pictures using examples so that your discussion is grounded in fact rather than theory. Interpret:An interpretation question is similar to one requiring explanation. You are expected to translate, exemplify, solve, or comment upon the subject and usually to give your judgment or reaction to the problem.

32. Justify:When you are instructed to justify your answer you must prove or show grounds for decisions. In such an answer, evidence should be presented in convincing form – and supported by concrete examples.List:Listing is similar to enumeration. You are expected in such questions to present an itemized series or tabulation. Such answers should always be given in concise form. Outline:An outline answer is organized description. You should give main points and essential supplementary materials, omitting minor details, and present the information in a systematic arrangement or classification.Prove:A question which requires proof is one which demands confirmation or verification. In such discussions you should establish something with certainty by evaluating and citing evidence (such as particular case law or statute) or by logical reasoning.

33. Relate:In a question which asks you to show the relationship or to relate, your answer should emphasize connections and associations in descriptive form.Review:A review specifies a critical examination. You should analyze and comment briefly in organized sequence upon the major points of the problem.State:In questions which direct you to specify, give, state, or present, you are called upon to express the high points in brief, clear narrative form. Details, and usually illustrations or examples, may be omitted.Summarize:When you are asked to summarize or present a summarization, you should give in condensed form the main points or facts. All details, illustrations and elaboration are to be omitted.Trace:When a question asks you to trace a course of events, you are to give a description of progress, historical sequence, or development from the point of origin. Such narratives may call for probing or for deduction.