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.
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