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A PRACTICAL GUIDE TO LAWYERING SKILLS Second Edition Cavendish Publishing Limit

A PRACTICAL GUIDE TO LAWYERING SKILLS Second Edition Cavendish Publishing Limited London • Sydney • Portland, Oregon A PRACTICAL GUIDE TO LAWYERING SKILLS Second Edition Fiona Boyle, BSc, Cert Ed Solicitor and Senior Lecturer in Law Deveral 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 Cavendish Publishing Limited London • Sydney • Portland, Oregon Second edition first published in Great Britain 2003 by Cavendish Publishing Limited, Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: info@cavendishpublishing.com Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5824 NE Hassalo Street, Portland, Oregon 97213–3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia © Boyle, F, Capps, D, Plowden, P and Sandford, C 2003 First edition 2001 Second edition 2003 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 Practical guide to lawyering skills—2nd ed 1 Practice of law—Great Britain I Plowden, Philip II Boyle, Fiona 340'.023'41 ISBN 1-85941-738-8 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 formsthe 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 are 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. CONTENTS Preface v Table of Cases xi Table of Statutes xv Table of Statutory Instruments xvii Table of Abbreviations xix 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 21 Conclusion 31 Further reading 32 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 41 Letters before action 44 Recording information: attendance notes and memoranda 46 Counsel is instructed…: writing a brief to counsel 48 Conclusion 51 Further reading 53 3 LEGAL RESEARCH 55 Introduction 55 The skill of legal research: what skills do you need? 55 Conclusion 77 Further reading 78 viii A Practical Guide to Lawyering Skills 4 PRACTICAL LEGAL RESEARCH 79 Introduction 79 What does PLR involve? 82 Common student problems 98 Exercises 102 Suggested points of answer to exercises 108 Further reading 116 5 OPINION WRITING 117 Introduction 117 What is an opinion? 117 Writing the opinion 119 Criminal advice on appeal 135 Exercises 137 Further reading 161 6 LEGAL DRAFTING: PLANNING, STRUCTURE AND CONTENT OF FORMAL DOCUMENTS 163 Introduction 163 Good drafting—why is it important? 165 Use of precedents 167 What kind of case is this? 169 Preparing to draft 171 Structuring the document 175 Rules and conventions 181 The language of drafting 185 Contentious documents 189 Non-contentious documents 196 Conclusion 201 Further reading 204 7 ADVOCACY 205 Introduction 205 Preparation 208 The basic conventions of advocacy 220 Speeches 226 ix Contents Witness-handling 230 Conclusion 253 Further reading 254 8 INTERVIEWING/CONFERENCING SKILLS 255 Introduction Preparation for the interview 255 The introduction 257 The main body of the interview 258 The conclusion 262 Other factors to consider when conducting an interview 263 Interview self-assessment checklist 266 Interview peer assessment checklist 267 Sample interview plan for a civil matter—personal injury 268 Sample interview plan for a criminal matter—plea before venue hearing 270 Further reading 272 9 NEGOTIATION 273 Introduction 273 A legal negotiation 277 Preparation 289 Logistics 294 Structure 295 The psychology of negotiation 298 Problems in negotiations 301 Conclusion 305 Further reading 311 10 MEDIATION: THE PROCESS AND PRACTICE OF MEDIATION AS A FORM OF DISPUTE RESOLUTION 313 Introduction 313 Mediation—the skills needed 317 Is mediation appropriate? 320 Preparation 321 The process 326 Problems in mediation 332 x A Practical Guide to Lawyering Skills The advantages and disadvantages of mediation 336 Conclusion 338 Further reading 340 11 INFORMATION TECHNOLOGY 341 Introduction 341 Computers in the legal world 341 Electronic conveyancing 349 Buying a home computer 349 Useful websites 354 Index 361 TABLE OF CASES Annodeus Entertainment Ltd v Gibson [2000] All ER (D) 115 114, 115 Attorney General v Guardian Newspapers Ltd (No 2) (Spycatcher case) [1988] 3 All ER 545 321 Attorney General’s References (Nos 24 and 25 of 2000) [2001]1 Cr App R(S) 237 228 Audergon v La Baguette Ltd [2002] EWCA Civ 10 114, 115 Balfour v Balfour [1918–19] All ER Rep 845 66, 67, 69 Bassett v Whiteley and Another (1983) 45 P & CR 87 112, 113 Biguzzi v Rank Leisure plc [1999] 4 All ER 934 114, 115 Burman v Mount Cook Land Ltd [2001] EWCA Civ 1712 112, 113 Carradine Properties Ltd v Aslam [1976] 1 All ER 573 112, 113 Director General of Fair Trading v Proprietary Association of Great Britain (also known as R Medicaments, etc (No 2)) [2001] 1 WLR 700 110, 111 Donoghue v Stevenson [1932] AC 562 57 Donovan v Gwentoys [1990] 1 All ER 1018 44 Dunbarv Plant [1997] 4 All ER 289 23, 25 Dunnett v Railtrack plc [2002] EWCA Civ 303; [2002] 2 All uploads/Litterature/ guide - 2023-05-31T032936.127.pdf