COMMUNICATION SKILLS FOR LAWYERS EDITED BY FOLA ARTHUR WORREY

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2 COMMUNICATION SKILLS FOR LAWYERS EDITED BY FOLA ARTHUR WORREY 1

3 FOLA ARTHUR WORREY Fola Arthur Worrey was the Solicitor General and Permanent Secretary, Ministry of Justice, Lagos State. He was also the Honourable Commissioner for Lands and the Director, Public Prosecution, Lagos State. He has been a resource person with the Nigerian Institute of Advanced Legal Studies, the Center for Democratic Studies and the Lawquest Continuing Education Series. Mr. Arthur-Worrey is also a renowned author. He has written and published severally on law and non-law related issues. He is the author of The Prosecutor in Public Prosecutions, The Diaries of MR. MICHAEL, a book on Cross Examination and various publications on the law pages of the Guardian, Vanguard and ThisDay newspapers. He has won numerous prizes for his literary and intellectual works. These include the Association of Nigerian Authors National Prose Prize for 2004 as well as the Innovative Thinkers Excellence Award for Fola Arthur-Worrey is the Associate Editor of the Nigerian Supreme Court Cases, Deputy Editor of the Lagos High Court Reports and Deputy Editor of the Justice Now Journal. Previous presentations made by him at the AlphaJuris Workshop Series include Mastering the Essential Skills of Negotiation, Practical Guide on Perfection & Administration Wills, Innovations and Reforms in the Justice Sector, Mastering the Essential Skills of Cross Examination, Essential Elements of a Successful Criminal Prosecution and most recently, Communication Skills for Lawyers. 2

4 COMMUNICATION SKILLS FOR LAWYER The Law is a profession of words: Language is the most important skill of a lawyer. As Lawyers, we need to be deft communicators, either in speech or in writing. When we are in front of a fact finder, client, colleague or other business associate, we survive and thrive on our ability to get our case or position or message across. When we communicate in writing the same rules apply. To successfully practice law, you need to be able to organize large amounts of information, identify objectives and create a structure for applying that information in an efficient way in order to achieve results. This principle applies whether you are preparing a statement of claim or defence, preparing an appellate brief, writing a letter on behalf of a client or preparing an agreement or deed or legal opinion or conducting negotiations or making a presentation on behalf of your firm. Communication skills are essential to personal, academic and professional success. Good communication skills fuel selfconfidence and enable a person to exert control. Such a person knows how to effectively research, conceptualize, organize and present ideas and arguments. Lawyers face unique communication challenges. There is a difference between knowledge of legal doctrine and principles (theory) and knowledge of legal skills (practice). Communication skills are critical to mastering legal skills, i.e. the application of legal knowledge to problem solving. Good communication is a reflection of good analysis. Why are communication skills important? Words spoken or written are our masters we are bound by them; on the other hand words unspoken or unwritten are our slaves. Remember this before you open your mouth to speak or put pen to paper. Do not fall into the trap of thinking that because you have qualified as a lawyer, you know it all. Some of the worst communicators have a legal background. 0

5 Lawyers make their living through the effective use of words, yet lawyers are commonly perceived as producing incomprehensible and confusing communication. We are perhaps the only common law country that does not have continuing legal education as a condition for remaining licensed as a lawyer and this has affected our ability to communicate in a professionally tailored manner. But it is important that we continuously strive to perfect our language skills. To effectively communicate, in addition to mastering the complexity of the law, lawyers need to continue to master another stage of development the ability to communicate their analysis of complex legal issues in a clear, concise and logical manner that meets the consumer s needs. But do not oversimplify. We still need to project that aura of special knowledge, that much hated learnedness. Miscommunication can increase the cost of conflict. There are direct costs, productivity costs (wasted time), opportunity costs and relationship costs rebuilding trust where miscommunication has wounded feelings and destroyed relationships. There are three critical skills required for successful communication: Technical skills Expert knowledge; Administrative skills Navigating bureaucracy; and People skills. Communication is a competence because actions can be learned and mastered. For instance, argument in court and cross-examination of a witness is an art. Usually, lawyers learn these skills by trial and error but there is a scientific method to it that can be taught. While education provides the basic knowledge, training imparts the skills Good legal research, oral and writing skills are vital to the practice of law. Unfortunately, there is widespread agreement that new lawyers do not write well, do not speak well and are generally unaware of this deficiency. The legal education system in this country does not emphasize the importance of legal communication skills and there is no statutory or Bar Association obligation to undertake continuing legal education. 1

6 What are the tests of good legal communication/writing skills? Concision; Clarity; Emphasis on organization; Directness point being made early; Proper grammar and composition; Logic; Intellectual honesty; Literate; Proper use of language; Brevity; Completeness; Simple language; Constructive; Persuasive theme; Being sensitive to the other side s concerns; Avoiding offence; Specifically address legal issues; Precision; Good analysis of issues; Legibility; Arguments well supported by authorities; Accuracy. Problems: Lack of focus; Failure to develop overall theme or theory of the case; Failure to use composition rules; Failure to be persuasive; Failure to discuss the relationship among multiple authorities; Grammar, spelling or punctuation errors; Failure to examine development of the law; Use of abusive words; Making unsubstantiated allegations; Overuse of threats; Overstating the case. Other failings in communication: Lack of preparation; Lack of proper analysis and understanding of the issues; Disorganization; Wordiness; Improper reference to facts and law (intellectual dishonesty); Repetition; Poor editing; Insufficient research; Poor proof reading; A good communicator should: 2

7 Show a clear grasp of the issues understand what s going on; Keep sight of the goal; Discuss client s case first; Defuse counter-arguments; Substantiate all statements; Use precedental facts; Avoid legalise; Minimise quotations; Use persuasive words; Change perceptions; Offer alternatives to conflict; Convince; Avoid emotion when they get emotional, you be factual; Avoid unrealistic deadlines; Avoid absolutes we may be compelled to take legal action rather than we shall take legal action ; Keep appointments don t delegate it shows you take them seriously and are ready for resolution. Good legal writing includes the effective communication of legal analysis rather than just technical proficiency with the rules of grammar, syntax and punctuation. Developing good communication skills is a continuous process. Clear communication has a market value. Good communication skills rather than plain substantive legal knowledge are deemed to be one of the most important skills for beginning lawyers. Good communication skills must be seen as problem solving skills remember that your client is not hiring a service, he is hiring a result Poor communication skills, both oral and written, that do not meet the minimum professional standards of quality weaken the public s confidence in lawyers and lead to inefficiency in court. Poor skills can result in a loss of integrity for the legal profession, disrespect for both the law and lawyers, increased legal fees and misled clients and citizens. Poor skills can increase the cost and length of time of disputes. Remember that non-lawyers are always defensive and resentful when dealing with lawyers. Work to break down that defensiveness by good communication. Be firm without being offensive. The communication should not escalate a conflict. 3

8 Obligations of the legal profession and its employers: Firms should indicate the importance of good writing and oral skills by testing these skills before hiring; The legal profession has an obligation to provide continuous training, supervision and feed back on legal writing and communication skills ; Junior counsels writing and oral skills should be critiqued by supervision articulating direct specific and constructive feedback. In offering a service to a client on a specific problem it is better to under-promise so as to avoid undue pressure and loss of trust. Over-delivery is always the best approach lawyers tend to communicate an almost God-like ability to deliver a service within a specified period. It is better to under-promise and over-deliver. For oral communication, especially during negotiation and client interviews, clarity and conviction are vital. To most effectively get the message across: Be in a relaxed physical state; Reduce tension and nervousness by taking deep breaths; Be positive but direct; Control the pace of delivery; Take pauses between sentences; Allow time to listen and process to absorb what has been said; Emphasise the first word of a sentence. De-emphasise the confrontational nature of the issues; Always be courteous. The importance of social skills to improved communication: Be informed; Develop a broad understanding of history (including the various factors (social, political, economic and cultural)) that have influenced your society; 4

9 Develop a fundamental understanding of political thought and the contemporary Nigerian political system; Develop a basic understanding of human behaviour and social interaction; Develop an understanding of diverse cultures of the various national and local institutions. Persuasive oral communication skills: Persuasion is critical especially when negotiating, convincing judges or the other side that you have a good case and during meetings to be persuasive, you need to be inquisitive ask or try to find out what the other party thinks and open in order to understand your audience s thoughts and beliefs and then align your arguments accordingly. It is a fallacy to believe that the more extreme your position, the more persuasive you are. Indeed, the old maxim is The harder you argue, the less persuasive you are. Do not be rigid leave space for adjustment; Be confident but not arrogant; Be accommodating where the other side shows signs of compromise; Control your emotions (except where useful); Deliver value ensure that your message is clear, succinct and understood; Listen critically; Explain points clearly; Ask questions to gain understanding; Adapt messages to different contexts; Assess yourself periodically during any oral communicationslow down and reflect. It is important also to ask yourself what result you want to gain from a conversation when you have determined the value of the conversation, then you can plan what you are going to say. Since conversations often don t go as planned, try and anticipate problems and prepare to address them: 5

10 Let go of assumptions; Be open to the possibility that you do not know what the other person may tell you; Be open to many different ways of looking at a problem; Try and understand the other party s point of view; Be creative and consider different ideas, strategies, options and courses of action; Deliver sound advice, and remember, it doesn t have to be strictly legal look to proffer solutions; issues; challenge your beliefs and improve your tolerance for uncertainty. Your position as lawyer demands that you structure and evaluate arguments for and against propositions that are susceptible to debate. Develop that habit of careful reading and comprehension of judicial opinions, statutes, documents and other written materials. Learn to appreciate the implications of the use of certain words, phrases and their context. Read complex material in literature, politics and economic theory, philosophy or history. Be a good listener. Remember that good communication builds trust and mutual regard be courteous and solicitous. Techniques to improve communication skills: You should engage in experiences such as general reading and other activities that will engage you in critical thinking about important Build bridges; It s not what you say but what they hear; Simple courtesies and accepting gracefully when one is wrong; 6

11 Recognise that people are different there are no difficult people, only different people; Listen carefully; Slow down and reflect; Show respect for the other party; Don t personalize the dispute. Finally, focus on the client s goals rather than the legal rules. Remember that you have been hired as a problem solver, not as a legal dictionary. Though working well with legal rules is a vital lawyerly skill, many human problems can be addressed without reference to them. If doing so would actually solve the problem more efficiently and effectively, then why not? Communication is to bridge a gap by word, deed or presence. 7

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