Writing Skills

An advocate will also be expected to enter into written communications with the client as well as third parties such as experts and the court. Communication may take place in the form of letters, emails or telephone calls or telephone hearings.

3.3.1 Letter Writing Skills

A professional letter, whilst containing information about the case, may also need to contain additional information that meets the requirements of professional bod­ies. For example, the SRA Standards and Regulations (8.6 and 8.7) require you to give information to clients in a way that they can understand, including informa­tion about your costs. You are also expected to give clients information about how the services that you provide are regulated (8.10) and information about complaints handling (8.2-8.5).

When writing to a client you may need to convey important information and you may decide to use sub-headings throughout your letter to help signpost important information.

It is important that you summarise the nature of the client's case and any advice that you have given to the client so that there is a written record that both you and the client can refer to. If you are a trainee solicitor, you should also give the client details of your supervising solicitor.

When writing to the client you should also use language that is simple to understand and avoid using legal terminology or Latin expressions (for example, ‘res ipsa loqui­tur') as ‘legalese' will be meaningless to the client. Instead, you should use concise and precise words and phrases in plain English. You should aim to describe events or your advice using a simple ‘what', ‘why', ‘when', how' structure. You may occasionally include ‘who' when discussing the role of other parties.

You should also avoid referring to reported cases when writing to the client as this is unlikely to be meaningful to the client.

Keeping your sentences short will also help the client to read with speed and accu­racy. You can achieve this by cutting out any unnecessary words from your sentences; this will enable you to be concise. It is also important to adopt an appropriate tone (friendly rather than too formal) and to ensure that you use correct grammar and punctuation.

Always write using the firm's headed notepaper when writing to clients and those connected with your cases. Follow the rules for letter writing, so as a general rule, the recipient's name and address will appear at the top left-hand side of the letter and your firm's address will appear on the top right-hand side. If you start your letter with the more formal salutation, ‘Dear Sir/Madam', then you should end with ‘yours faithfully'. However, if you have referred to the client by name, for example, ‘Dear Mrs Portland' or ‘Dear Harriet' then you should end with ‘yours sincerely'. When writ­ing to a new client that you have not met before, it is better to maintain formality and address the client either using their surname, for example, ‘Dear Mrs Portland' or ‘Dear Madam'.

The letter should always be dated with the current date.

Try to write using an ‘active' voice rather than a ‘passive' voice. You should, make your verbs active. Here are some examples of passive sentences (to be avoided) and active sentences (to be encouraged):

“Your file has been passed to me” (passive).

“I have taken over your file” (active).

“Further advice can be obtained from me as your case progresses” (passive).

“I will give you further advice as your case progresses” (active).

Drafting Exercise 2

Consider the following extract from the letter below and highlight where you think this letter could be improved:

Confidence Exercise

Dear Mrs Portland,

Thank you for coming to see me yesterday to discuss your case. As you know, the senior partner has passed your case on to me.

I note that you are currently awaiting trial on a charge of fraud under section 2 and 3 of the Fraud Act 2006. This is in relation to your failure to disclose to Mr Forshall important information about the painting that he purchased from you. Mr Forshall alleges that you knew that the painting that he purchased from you was a reproduction but that you led him to believe that it was in fact an original painting by a well-known artist. It is alleged that you therefore made a false representation to him and that he relied on this to his detriment.

We discussed the fact that you were concerned that the prosecution has not disclosed all the available evidence. You state that a letter exists that you wrote to Mr Forshall after he had purchased the painting in which you told him that as a result of receiving further information you now had doubts about the authen­ticity of the painting that you had sold to him. This letter is of course important to the question of whether or not you have been dishonest, but you do not have a copy of this letter.

I promised to write to you with some further advice about this. The law in this area states that the original information you gave must have been deliberately untrue or misleading. You must also have been under either a legal or moral duty to disclose the information about the true origins of the painting. Whilst the 2006 Act does not define what is meant by a legal or a moral duty, some guidance on this can be found in the Law Commission Report (Law Com No 276) paragraphs 7.28-7.34.

My advice is that we should ask the prosecution to disclose the letter that you wrote to Mr Forshall and that we should do this through the process of ‘specific disclosure'.

I believe therefore that the letter is important and forms part of what would be regarded as ‘unused material'. The prosecution has an initial duty to dis­close such material according to section 3 of the Criminal Investigation and Procedure Act (‘CPIA') 1996. They also have a continuing duty under section 7A of the same Act.

In the case of R v DPP, ex parte Lee (1999) 2 Cr App R 304, the Court of Appeal emphasised the need for prosecutors to act responsibly and always consider the need for early disclosure of any information that might assist the defendant at an early stage, for example, when applying for bail or for a stay of proceed­ings. I would have expected the prosecution to have behaved more profession­ally and to be aware of their obligations under the Code of Practice set out in Part II section 23 of the CPIA 1996.

We can apply to the court by using the Criminal Procedure Rules to force the defendant to reveal the letter by making an application for specific disclosure under Part 15.5.

I hope this advice is helpful. Please do not hesitate to contact me if you have any questions arising from this letter.

Yours faithfully

A Laws

How much of this letter do you think the client is likely to have understood?

Whilst knowledge of the law is important, communication of that knowledge must be carried out in language that can be easily understood. For example, the same advice could have been given to Mrs Portland without the need to make reference to the primary sources. The letter also does not adhere to the formalities that we have previously discussed in terms of style and format.

3.3.2 Writing Emails

Emails are a quick way of communicating but should be reserved for short messages that require some action on the readers' part.

Business emails still require a degree of formality especially if writing to the client or the court and so it may still be appropriate to use ‘Dear' as the salutation. However, if you know the person well, such as a colleague or another legal professional, then you might use a courteous greeting such as ‘Hello'. Depending on the degree of famili­arity you might also replace the more formal ending of ‘yours faithfully' or ‘yours sincerely' with ‘Best wishes'.

It is important to include a subject line in your email and to also indicate if the mat­ter is urgent. Keep the body of the email relatively short. If you need to write a long email, ensure that you use sub-headings to divide the content.

Ensure that you end your email with a ‘signature' - this is a standard footer that is essentially your brand. It helps to identify you by your name, your position, your work address, and other contact information. It will usually contain details of your firm's website and be followed by an email disclaimer notice. This is a warning notice added to outgoing emails that warns the recipient that the email is intended solely for the recipient and that confidential information should be treated as confidential and private, and unauthorised use, disclosure or copying is not permitted. In some circumstances such information may also be protected by legal privilege (treated as confidential and exempt from disclosure in court). Such a disclaimer also protects your firm as it will usually stipulate that the views and opinions in the email belong to you and not the firm.

There are many formalities to observe when contacting and communicating with the court by email. For example, in civil proceedings, the Civil Procedure Rules Practice Direction 5B states that emails to the court must contain the name, address and contact telephone number of the sender and be in plain or rich text format (para 3.1).

3.3.3 Note-Taking for Record Purposes

It is a feature of open justice that court proceedings should be transparent. There is a convention (understood practice) that anyone attending court (including members of the public) are permitted to take notes without the judge's permission as long as it is not done for a wrongful purpose and does not interfere with the proper admin­istration of justice (see, for example, guidance contained in the Criminal Practice Direction 2015 (as amended) Division I 6D). This was confirmed in Ewing v Crown Court Sitting at Cardiff and Newport and DPP [2016] EWHC 183 (Admin). In addition, court transcripts are available for the public to purchase at a fee.

Brice (2007) argues that even where proceedings are recorded, and a transcript is available, personal notes of advocates are useful where findings of fact are ques­tioned on appeal. An advocate will be expected to take notes during most hearings. As such, note-taking is an important skill, yet it is not a skill that is routinely taught within law courses. Notes are also a useful reference point for the advocate during the hearing or trial so that they can keep track of the evidence or query any discrep­ancy in the evidence or indeed in the transcript itself. Writing down information also helps to ensure that the information is assimilated and processed by the brain. This also helps to aid concentration and keeps the advocate's mind focused on the evi­dence and issues heard in court.

An advocate is free to develop their own note-taking style using shorthand, as long as they are able to decipher their own notes at a later date. Try to keep any shorten­ing of words logical, for example, you might use ‘C' for claimant and ‘D' for defendant and ‘J' for judge. However, where you have more than one legal representative or counsel then abbreviations might be based on names or status, for example, ‘EofD' to represent the expert acting for the defendant. When taking a note of evidence, do not attempt to write down everything that the witness says, instead paraphrase the nature of the evidence; remember a transcript will be available. However, where a witness's reply or response is crucial to your client's case then try to get the exact wording of what the witness has said. This requires you to remain alert and focused throughout the hearing.

If the hearing or trial is taking place across more than one day, then be sure to make clear in your notes the date of the evidence. It might also be helpful to indicate if the evidence took place in the morning or afternoon in case a copy of the full transcript is needed at a later date.