Thirty page letters of advice strewn liberally with
legalese and Latin have become the legal cliché, but they simply won't cut it
in today's commercial world. Zoe Lyon investigates the benefits of going back to basics.
Long gone are the days when
flouncy Latin phrases and legalese were accepted by the business community as
par for the course when receiving legal advice. In an increasingly time-poor
world, businesspeople are demanding practical, commercially focused,
comprehensible advice - and the pressure is on in-house counsel and private
practitioners alike to deliver.
Katrina Johnson, the director of legal affairs at eBay, says that
being able to communicate legal concepts in plain English is critical for
in-house lawyers, because it enables them to develop trusted relationships with
their commercial colleagues.
"By speaking in plain English you're helping to remove some of the
mysteriousness of law, and that can help build an environment of trust and
credibility and confidence amongst your internal clients ... because they know
they can come to you for very practical and meaningful advice they can apply -
rather than a bunch of legal gobbledygook that may make no sense to them."
Developing this trust is essential, Johnson says, because it means
commercial decision-makers are more likely to view the lawyer as an asset,
rather than a hurdle to doing business, and are therefore more likely to seek
the lawyer's advice when issues arise.
"Obviously if they're comfortable raising issues with you, they'll
involve you at an earlier stage, which means the in-house lawyer can play a
much more effective role in risk mitigation and preventing problems from
occurring in the first place," she says.
"You've got to build that trust to make sure that there is no barrier
between the legal function and the business unit - and if you all speak a
common language it makes it much easier for the
business unit to see you as one of the team, working on their side."
Middletons
- which boasts the tagline "straight talking" - has a five-person team devoted
to developing and managing its precedents and ensuring plain English is used
consistently throughout all firm documents.
Partner
John Mann agrees that for both inhouse lawyers and private practitioners, being
able to communicate legal concepts to clients in plain English is no longer a
nice add-on, but a commercial necessity.
"Plain
English has become an essential plank of legal practice and I think it comes
down to the fact that clients, non lawyers - and possibly some lawyers - don't
understand advice and documents that are full of legalese and legal terms. And,
ultimately, if they don't understand it, they're not able to effectively use it
- so it's a competitive advantage if you can give advice that your client
easily and quickly understands," he says. "Gone are the days when lawyers could
get away with it - now [clients will] just use someone else."
He
adds that this is particularly important for in-house lawyers, who are relying
on their commercial colleagues to proactively seek their advice on issues that
may give rise to legal problems.
"Alternatively,
which is worse for everyone, [their colleagues] won't get any advice at all. Because if they
don't understand what you're saying, or it's just too difficult, then they won't
get advice and you're exposing yourself to risk. So I think it's in everyone's
interests to simplify the law ... in all forms of communication," he says.
DLA
Phillips Fox senior associate Peppy Mitchell is a dedicated plain English
trainer who runs workshops with both senior and junior lawyers on plain English
drafting. She says that plain English drafting should be viewed as a holistic
approach to communication, aimed at giving the client the information they
actually want.
"Plain
language has to be an embedded approach - it's not just about going through a
draft that you've done and 'plain language-ing it'. It's about understanding
your clients' needs and giving them what they want to know ... and 90 per cent of
the time they want an answer to a question - typically a 'yes' or a 'no' or an
action. Our clients are coming to us to interpret the law - not just to give it
to them, but to interpret it in their context," she says.
"Sometimes
a young lawyer might want to impress someone, they might want to show their
full breadth of knowledge of an issue, or they might want to repeat the
instructions they've received - but none of that is actually what the client
wants."
When
it comes to plain English in practice, eBay's Johnson advises in-house lawyers
to keep communication short, sharp and commercial. "When you're in-house you
really need to break it down into much more digestible pieces. Really [you
should aim] to give them three key principles, or a handful of issues they need
to be aware of, rather than some long, beautifully written prose that cites
case law and legal concepts."
Mann
agrees, suggesting in-house lawyers should aim to keep documents, whether it be
contracts or legal advice, as simple as possible.
"Simplicity
is always best - so use short sentences - get rid of excess wordage. I always
encourage people to put one idea or obligation in each paragraph or clause -
don't put multiple themes and obligations into single paragraphs. And the use
of headings is a very powerful tool in terms of communication, again for
simplicity," he says.
He
adds that letters of advice should always include an executive summary, and
should be kept to a maximum of two to three pages.
"People
don't like long letters of advice - they just won't read them," he says.
Mann
emphasises that when it comes to language unnecessary legal jargon should be
avoided. "Absolutely no old school language - no 'hereins', 'thereins',
'whereins' - none of them. And leave the Latin - never use legal Latin - people
hate it. And for most documents, if you're writing to a non-legally trained
audience, I would steer away from quoting cases," he says.
Mitchell's
advice to all lawyers when it comes to language is to write as you speak. "If
you were speaking to someone in a meeting, you'd use simple everyday language
and you'd be direct. You wouldn't hide behind pompous jargon ... you wouldn't use
Latin and you wouldn't speak in the third person. I think the best lawyers are
the ones that are unafraid to just be direct and to get to the point and give an
answer to the client's question," she says.
Johnson
agrees with Mann that case law, along with legislation, should be avoided in
dealing with non-lawyers, and suggests instead using practical commercial
examples that are more likely to resonate with commercially trained people.
"Try
to give real life examples of how other companies might have experienced
similar issues. So, for example, if you were advising on misleading and
deceptive conduct, show some examples of headlines other companies have used,
and where they've gone wrong, and where they've been caught out. It's much more
meaningful to businesspeople than to give them a piece of advice all about
section 52 [of the Trade Practices Act 1974]
and how it's been applied by the courts," she says.
Johnson
also advises in-house lawyers to master, and use, the internal language of the
business or industry itself, because this can help lawyers build trust and a
rapport with non-legal colleagues.
"At
eBay, for example, it's not uncommon for the teams here to talk in sentences
that are full of acronyms with no words in them. So you need to understand that
[language], and be able to translate that into legal concepts, then translate
it back into their language, so [internal clients] can truly appreciate what
you're saying," she says.
This
is important, she says, in building up the reputation of the legal team as an
"enabler" to the business, rather than a hurdle to overcome.
"[By
using business/industry language] your clients will actually know that you know
what you're talking about - that you understand their issues. And so by
communicating in the same language as them you'll get a greater trust from your
clients and a higher likelihood that they'll apply your advice in reality," she
says.
