A practical guide to lawyering skills

364 Pages·2012·8.011 MB·English

by  Fiona Boyle

A PRACTICAL GUIDE TO
LAWYERING SKILLS
Third Edition
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A PRACTICAL GUIDE TO
LAWYERING SKILLS
Third Edition
Fiona Boyle, BSc, Cert Ed
Solicitor and Senior Lecturer in Law
Deverai Capps, LLB, LLM, Cert Ed
Barrister and Principal Lecturer in Law
Philip Plowden, BA, LLM
Barrister, Solicitor and Associate Dean
all at the University of Northumbria, Newcastle upon Tyne
Clare Sandford, MA, Cert Ed
Solicitor and formerly Senior Lecturer in Law
R
Routledge
Taylor & Francis Group
LONDON AND NEW YORK
Third edition published in Great Britain 2005 by Cavendish Publishing Limited
This edition published in 2012 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, 0X14 4RN
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© Boyle, F, Capps, D, Plowden, P
and Sand ford, C 2005
First edition 2001
Second edition 2003
Third edition 2005
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording,
scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or
under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court
Road, London W1P 9HE, UK, without the prior permission in writing of the publisher.
British Library Cataloguing in Publication Data
A practical guide to lawyering skills - 3rd ed
1 Practice of law - Great Britain
I Boyle, Fiona
340'.023'41
ISBN 13: 978-1-859-41975-5
ISBN 10:1-85941-975-5
PREFACE
Lawyering skills are increasingly part of the curriculum, whether on undergraduate
law degrees, on joint honours degrees, on the postgraduate diploma in law, and (most
obviously) on the postgraduate vocational law courses, such as the Legal Practice
Course (LPC) and the Bar Vocational Course (BVC).
Once, there was a view that the study of practical lawyering skills was somehow
separate from and lesser than the study of 'proper' law - the 'Pericles and the
plumber' debate, as it became known.1 In other jurisdictions, such as America and
Australia, that debate is now of historical interest only: law is taught in all its forms -
the academic, the practical, the socio-political, the clinical. No one form needs to be
seen as more important than any other; no one form needs to be seen as undermining
the study of any other. We hope very much that this book will contribute to that
process in this jurisdiction.
This book is intended as a practical guide to the development of certain core
lawyering skills for all students - whether in the context of undergraduate or
postgraduate courses. We have been guided by the skills content of the two main
postgraduate courses (the LPC for solicitors and the BVC for barristers), but we have
tried to look more widely at the other skills that arc demanded of those who undertake
legal work in practice - in particular, at written communication skills, mediation skills
and at information technology skills.
We know that many students who read law at undergraduate level have no
intention of carrying on into legal practice. We also know from our own experience,
teaching on both vocational and undergraduate courses (and, in particular, the
Northumbria Exempting Degree which combines both elements), that the study of
black letter law is invariably enhanced by an understanding of the application of that
law in its practical context. The skills that are developed in this book are the core skills
that underlie the law that is taught at both undergraduate and vocational levels.
The hardest part of writing a book on lawyering skills is in deciding where to stop.
All of the authors can draw on experiences of law in practice, and invariably our
experiences are reflected in what we see as the core skills that students need to
develop. As authors, we must acknowledge our sources, and in this book those sources
are not simply the writings of the many learned authors on the practice of law, from
the classical writers on rhetoric to the many contemporary analyses of different aspects
of legal skills; nor are our sources simply our colleagues and students who have
contributed so much to this book; we also have to acknowledge our clients and our
fellow practitioners, who, for better or worse, have provided the foundation for this
book.
The Bar's Code of Conduct requires that all barristers:
... promote and protect fearlessly and by all proper and lawful means the lay client's
best interests and do so without regard to his own interests or to any consequences to
himself or to any other person.2
It is a principle that must underlie all legal work. It is our hope that this book will help
to develop the skills that will enable all students to do exactly that.
1 'A university is not a trade school for the production of plumbers': Twining, W, 'Pericles and
the plumber' (1967) 83 LQR 396, p 404.
2 Bar Council, Code of Conduct of the Bar of England and Wales, para 303. A similar provision
governs the conduct of solicitor-advocates.
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CONTENTS
Preface v
Table of Cases xi
Table of Statutes xiii
Table of Statutory Instruments xiii
Table of Acronyms xv
1 LEGAL WRITING: BASIC PRINCIPLES,
PLANNING, PLAIN ENGLISH AND PRESENTATION 1
Introduction 1
Writing and communication 2
Planning and writing 4
Plain English writing 10
Presentation: making it look easy 22
Conclusion 31
Further reading 31
2 LEGAL WRITING: APPLYING WRITING SKILLS -
LETTERS, MEMORANDA, BRIEFS, ATTENDANCE NOTES, REPORTS 33
Introduction 33
Dear Sir or Madam: the conventions of letter writing 34
If at first you don't succeed ... : the drafting process 35
Rules of client care 40
Letters before action 43
Recording information: attendance notes and memoranda 46
Counsel is instructed ... : writing a brief to counsel 47
Conclusion 50
Further reading 51
3 LEGAL RESEARCH 53
Introduction 53
The skill of legal research: what skills do you need? 53
Conclusion 75
Further reading 75
viii A PRACTICAL GUIDE TO LAWYERING SKILLS
4 PRACTICAL LEGAL RESEARCH 77
Introduction 77
What does PLR involve? 80
Common student problems 96
Exercises 99
Suggested points of answer to exercises 104
Further reading 111
5 OPINION WRITING 113
Introduction 113
What is an opinion? 113
Writing the opinion 115
Criminal advice on appeal 132
Exercises 134
Further reading 148
6 LEGAL DRAFTING: PLANNING, STRUCTURE
AND CONTENT OF FORMAL DOCUMENTS 149
Introduction 149
Good drafting - why is it important? 151
Use of precedents 153
What kind of case is this? 155
Preparing to draft 157
Structuring the document 161
Rules and conventions 167
The language of drafting 170
Contentious documents 174
Non-contentious documents 181
Conclusion 186
Further reading 188
7 ADVOCACY 189
Introduction 189
Preparation 191
The basic conventions of advocacy 205
Speeches 211
CONTENTS ix
Witness-handling 214
Conclusion 236
Further reading 237
8 INTERVIEWING/CONFERENCING SKILLS 239
Introduction 239
Preparation for the interview 239
The introduction 240
The main body of the interview 242
The conclusion 246
Other factors to consider when conducting an interview 247
Interview self-assessment checklist 250
Interview peer assessment checklist 251
Sample interview plan for a civil matter - personal injury 252
Sample interview plan for a criminal matter - plea before venue hearing 254
Further reading 256
9 NEGOTIATION 257
Introduction 257
A legal negotiation 261
Preparation 272
Logistics 277
Structure 278
The psychology of negotiation 281
Problems in negotiations 284
Conclusion 287
Further reading 293
10 MEDIATION: THE PROCESS AND PRACTICE OF
MEDIATION AS A FORM OF DISPUTE RESOLUTION 295
Introduction 295
Mediation - the skills needed 299
Is mediation appropriate? 302
Preparation 303
The process 308
Problems in mediation 314