Language skills Language skills for lawyersfor lawyers

Topic 6Topic 6

“ “ Plain English alone achieves Plain English alone achieves nothing; to be useful it must nothing; to be useful it must run in tandem with clear run in tandem with clear thought. Simple and thought. Simple and individually comprehensible individually comprehensible words, if carelessly and words, if carelessly and inconsistently employed, are inconsistently employed, are not likely to produce readily not likely to produce readily comprehensible phrases, comprehensible phrases, sentences, paragraphs …..”sentences, paragraphs …..”

Tadgell JA in Tadgell JA in RR v v RoachRoach [1998] VR 665 at 669-670 [1998] VR 665 at 669-670..

Grammatical functionGrammatical function

The hairy dog frequently The hairy dog frequently chased my brother and me chased my brother and me around a very dark park at around a very dark park at nightnight..

Australasian Temperance And General Australasian Temperance And General Mutual LifeMutual Life Assurance Society LimitedAssurance Society Limited v v HoweHowe (1922) 31 CLR 290 (1922) 31 CLR 290 Knox CJ and Gavan Duffy J Knox CJ and Gavan Duffy J (emphasis added) (emphasis added)

Now, what is the literal and popular meaning of theNow, what is the literal and popular meaning of the noun noun substantive "resident"? We say substantive "resident"? We say nounnoun substantive" because in substantive" because in the English language the meaning of the the English language the meaning of the adjectival formadjectival form of a of a word is often extended while the substantive form retains its word is often extended while the substantive form retains its original literal meaning. This is a natural and even an inevitable original literal meaning. This is a natural and even an inevitable evolution in the case of epithets, because they denote, not evolution in the case of epithets, because they denote, not permanent things, but variable qualities. They are elusive, not permanent things, but variable qualities. They are elusive, not necessarily conveying precisely the same meaning to any two necessarily conveying precisely the same meaning to any two persons, and they are constantly used to express imperfect persons, and they are constantly used to express imperfect analogies. For example, the words "attendant," "incumbent," analogies. For example, the words "attendant," "incumbent," "coadjutant," "respondent," "dependent," when used as "coadjutant," "respondent," "dependent," when used as substantives always denote an individual, while the same words substantives always denote an individual, while the same words used as adjectives are subject to no such restriction. This used as adjectives are subject to no such restriction. This divagation has taken place in the use of the word "resident." Its divagation has taken place in the use of the word "resident." Its meaning when used as a meaning when used as a nounnoun is, according to the is, according to the Oxford Oxford DictionaryDictionary, "one," that is, a natural person, "who resides , "one," that is, a natural person, "who resides permanently in a place." But according to the same authority the permanently in a place." But according to the same authority the adjectival formadjectival form, while primarily applying to individuals, may , while primarily applying to individuals, may also be used in relation to corporeal things and abstract ideas. also be used in relation to corporeal things and abstract ideas. Corporations are not residents in any literal sense, because they Corporations are not residents in any literal sense, because they cannot perform the essential function which the term connotes: cannot perform the essential function which the term connotes: they cannot they cannot livelive in some particular part as distinguished from all in some particular part as distinguished from all other parts of the earth. But it sometimes happens that words other parts of the earth. But it sometimes happens that words lose their literal meaning when used in popular speech. Is that so lose their literal meaning when used in popular speech. Is that so with the word "resident" when used as a substantive? with the word "resident" when used as a substantive?

Parts of speechParts of speech

NounsNouns PronounsPronouns VerbsVerbs PrepositionsPrepositions AdjectivesAdjectives AdverbsAdverbs

Commercial Bank of Commercial Bank of

Australia v AmadioAustralia v Amadio Mason J at Mason J at 462462

““I qualify the word "disadvantage" by the I qualify the word "disadvantage" by the adjective adjective "special" in order to disavow any "special" in order to disavow any suggestion that the principle applies suggestion that the principle applies whenever there is some difference in the whenever there is some difference in the bargaining power of the parties and in bargaining power of the parties and in order to emphasize that the disabling order to emphasize that the disabling condition or circumstance is one which condition or circumstance is one which seriously affects the ability of the innocent seriously affects the ability of the innocent party to make a judgment as to his own party to make a judgment as to his own best interests, when the other party knows best interests, when the other party knows or ought to know of the existence of that or ought to know of the existence of that condition or circumstance and of its effect condition or circumstance and of its effect on the innocent party.”on the innocent party.”

SyntaxSyntax

The grammatical structure of a The grammatical structure of a sentencesentence

A sentenceA sentence– Must Must have a verbhave a verb– Will Will have a subjecthave a subject– May May have an objecthave an object

Examples:Examples:

The hairy dog chased The hairy dog chased the ball to my brother the ball to my brother and meand me

Problem wordsProblem words

Know the meaning of the words Know the meaning of the words you are using – the exact you are using – the exact meaning, not a vague sense of meaning, not a vague sense of what the word means.what the word means.

When in doubt, look it up.When in doubt, look it up. Distinguish between technical Distinguish between technical

and common meaning of words.and common meaning of words.

SpellingSpelling

““English spelling is notoriously English spelling is notoriously irregular and can be downright irregular and can be downright difficult. It’s because our huge difficult. It’s because our huge vocabulary (the world’s vocabulary (the world’s biggest) is made up of words biggest) is made up of words from so many other from so many other languages.” languages.” – – Melvyn Bragg, “ A Melvyn Bragg, “ A History of the English Language”.History of the English Language”.

Spelling rulesSpelling rules

DoDo set your spellcheck for set your spellcheck for Australian, or preferably British Australian, or preferably British English.English.

Don’t Don’t rely on the settings which rely on the settings which came with your computer.came with your computer.

Don’t Don’t automatically rely on your automatically rely on your spellcheck.spellcheck.

Incorrect and Incorrect and inconsistent capitalsinconsistent capitals Madeleine, you Were driving Madeleine, you Were driving

North from Sydney towards North from Sydney towards hawks Nest on 1 march 2007. hawks Nest on 1 march 2007. Unfortunately for You, you took Unfortunately for You, you took Your trip too late. New Your trip too late. New legislation was passed by the legislation was passed by the Legislative Council on 22nd Legislative Council on 22nd January, and received the January, and received the governor’s assent 8 days later.governor’s assent 8 days later.

Spelling mistakes not Spelling mistakes not picked up by picked up by spellcheckspellcheck We can use it We can use it hearhear because of the uncertainty because of the uncertainty

of where the rain needs to be falling. of where the rain needs to be falling. In order to In order to advice advice Madeleine we must Madeleine we must

construe the relevant section, using all the construe the relevant section, using all the relevant tools of statutory interpretation.relevant tools of statutory interpretation.

S34(2) allows us to use any speech in S34(2) allows us to use any speech in Parliament and so we can use the Speech by Parliament and so we can use the Speech by the Minister assisting the minister for roads in the Minister assisting the minister for roads in the legislative the legislative counsel counsel where he said:where he said:““wet roads are slippery roads”wet roads are slippery roads”

Anyway, it is a Anyway, it is a principal principal of statutory of statutory interpretation that criminal statutes are to be interpretation that criminal statutes are to be construed strictly (construed strictly (Re Bolton; exRe Bolton; ex parte Beaneparte Beane))

PunctuationPunctuation

ApostropheApostrophe Full StopFull Stop CommaComma CapitalsCapitals

Punctuation alters Punctuation alters meaningmeaning I saw a man eating shark at the I saw a man eating shark at the

beach today.beach today. I saw a man-eating shark at the I saw a man-eating shark at the

beach today.beach today. Woman! Without her, man is but Woman! Without her, man is but

a savage.a savage. Woman without her man is but a Woman without her man is but a

savagesavage

Effective Effective communicationcommunication Is targeted to a particular audienceIs targeted to a particular audience Recognises the difference between Recognises the difference between

spoken and written communicationspoken and written communication Is logically structuredIs logically structured Uses clear, concise and plain Uses clear, concise and plain

languagelanguage Recognises that flowery words and Recognises that flowery words and

overblown phrases often obscures overblown phrases often obscures meaningmeaning

Word choiceWord choice

Choosing the right word does Choosing the right word does not simply involve choosing the not simply involve choosing the word with the most syllables word with the most syllables

Need for precision and clarityNeed for precision and clarity Technical terms and terms of artTechnical terms and terms of art Use of ordinary and legal Use of ordinary and legal

dictionariesdictionaries

Rewrite:Rewrite:

In the event that you are not in In the event that you are not in agreement with respect to the amount agreement with respect to the amount of rent due and payable at that point of rent due and payable at that point in time there is a provision in the in time there is a provision in the abovementioned contract which abovementioned contract which provides for the submission of the provides for the submission of the dispute in accordance with the said dispute in accordance with the said contract.contract.

from Practical Legal Skills, Hyams. Campbell, and Evans, Oxford, 1998, p56.from Practical Legal Skills, Hyams. Campbell, and Evans, Oxford, 1998, p56.

Rewritten as:Rewritten as:

If you do not agree on the amount If you do not agree on the amount of rent due, the contract provides of rent due, the contract provides that the dispute may be that the dispute may be submitted to an arbitrator, who submitted to an arbitrator, who shall decide the dispute in shall decide the dispute in accordance with the contract.accordance with the contract.

Rewrite as shorter Rewrite as shorter sentences:sentences:

Upon the basis of the instructions provided Upon the basis of the instructions provided to us and without having as yet conducted to us and without having as yet conducted the necessary investigation of the facts or the necessary investigation of the facts or detailed research on the law, including the detailed research on the law, including the interviewing of witnesses and /or the interviewing of witnesses and /or the examination of the documents, we have examination of the documents, we have formed the opinion that your liability in this formed the opinion that your liability in this matter may be considered under three matter may be considered under three causes of action, one of which, that is strict causes of action, one of which, that is strict liability, is based on the relevant statute, the liability, is based on the relevant statute, the second and third, that is, negligence and second and third, that is, negligence and nuisance, both public and private, being nuisance, both public and private, being based on the common law, although it is based on the common law, although it is accepted that there is some degree of accepted that there is some degree of overlap ( the precise extent of which is yet to overlap ( the precise extent of which is yet to be judicially determined) between the threebe judicially determined) between the three..

A good essay/answer:A good essay/answer:

is is grammatically correct, properly grammatically correct, properly spelt and punctuated.spelt and punctuated.

Pore gramma distracts the Reader an’ Pore gramma distracts the Reader an’ makes IT harder for U to comunikate makes IT harder for U to comunikate your messige.your messige.

The ability to communicate and The ability to communicate and attention to detail are key skills for attention to detail are key skills for lawyers – poor grammar indicates a lawyers – poor grammar indicates a lack of both.lack of both.

A good answer:A good answer:

Is Is clearly structuredclearly structured.. Has a beginning, middle and end.Has a beginning, middle and end. proceeds clearly and proceeds clearly and

logically. logically. Builds a coherent and cohesive Builds a coherent and cohesive

argument.argument. Uses appropriate headings. Uses appropriate headings.

A good answer:A good answer:

Reads (and responds) to the Reads (and responds) to the question carefullyquestion carefully

Doesn’t just read the nouns, Doesn’t just read the nouns, and provide a brain dump and provide a brain dump triggered by the nouns, but triggered by the nouns, but responds to the question as responds to the question as askedasked

Provides considered analysis, Provides considered analysis, not a kneejerk responsenot a kneejerk response

Example:Example:Question 3Question 3““Judicial independence is an important Judicial independence is an important safeguard of liberty, central to any safeguard of liberty, central to any democratic system of government. In the democratic system of government. In the Westminster system, the judiciary may be Westminster system, the judiciary may be the only truly independent arm of the only truly independent arm of government.”government.”Discuss. In your discussion you should Discuss. In your discussion you should concentrate on the Westminster system as concentrate on the Westminster system as it operates in the Australian context. You it operates in the Australian context. You should also consider the historical origins of should also consider the historical origins of the concept of judicial independence and the concept of judicial independence and how (if at all) this concept is found in how (if at all) this concept is found in modern Australia. Support your answer with modern Australia. Support your answer with relevant authorities and examples from the relevant authorities and examples from the Legal Institutions course.Legal Institutions course.

A good answer:A good answer:

Isolates Isolates allall relevant issues relevant issues But But onlyonly the relevant issues the relevant issues Red herringsRed herrings – problems with – problems with

analysisanalysis Irrelevant detailIrrelevant detail – problems – problems

with analysis with analysis andand understanding understanding PaddingPadding – indicates lack of – indicates lack of

understandingunderstanding

A good answer:A good answer:

Identifies and applies the lawIdentifies and applies the law It is your legal reasoning, rather It is your legal reasoning, rather

than your personal views, which than your personal views, which is relevantis relevant

A good answer:A good answer:

Is well supportedIs well supported Always makes clear Always makes clear why,why, and on and on

what what authorityauthority, the argument rests, the argument rests Primary authoritiesPrimary authorities (cases, (cases,

statute) are preferable to statute) are preferable to secondary authoritiessecondary authorities (eg texts) (eg texts)

Blogs areBlogs are not not authoritative authoritative

Common “question” Common “question” wordswords Advise:Advise:

Normally in connection with a person Normally in connection with a person facing a particular fact situation. It facing a particular fact situation. It does not mean write a letter of advice does not mean write a letter of advice as if to a client, nor does it mean only as if to a client, nor does it mean only give the ‘client’ good news. It means give the ‘client’ good news. It means consider all the possibilities presented consider all the possibilities presented by the particular fact situation and by the particular fact situation and advise whether any legal advise whether any legal consequences flow. Where a matter is consequences flow. Where a matter is contentious, make a decision (‘advise’) contentious, make a decision (‘advise’) and justify your decision.and justify your decision.

Compare:Compare:Examine qualities, or characteristics, to discover Examine qualities, or characteristics, to discover resemblances. "Compare" is usually stated as resemblances. "Compare" is usually stated as "compare with": you are to emphasize similarities, "compare with": you are to emphasize similarities, although differences may be mentioned.although differences may be mentioned.

Contrast:Contrast:Stress dissimilarities or differences of things, Stress dissimilarities or differences of things, events, or problemsevents, or problems

Criticize:Criticize:Express your judgment. Discuss the limitations and Express your judgment. Discuss the limitations and good points or contributions of the work in question.good points or contributions of the work in question.

Define:Define:Definitions call for concise, clear, authoritative Definitions call for concise, clear, authoritative meanings. Details are not required but limitations of meanings. Details are not required but limitations of the definition should be briefly cited. You must keep the definition should be briefly cited. You must keep in mind the class to which a thing belongs and in mind the class to which a thing belongs and whatever differentiates the particular object from all whatever differentiates the particular object from all others in the class.others in the class.

Describe:Describe:In a descriptive answer you should recount, In a descriptive answer you should recount, characterize, sketch or relate in narrative form.characterize, sketch or relate in narrative form.

Discuss:Discuss:The term discuss, which appears often in essay The term discuss, which appears often in essay questions, directs you to examine, analyze questions, directs you to examine, analyze carefully, and present considerations pro and con carefully, and present considerations pro and con regarding the problems or items involved. This type regarding the problems or items involved. This type of question calls for a complete and entailed of question calls for a complete and entailed answer.answer.

Enumerate:Enumerate:The word enumerate specifies a list or outline form The word enumerate specifies a list or outline form of reply. In such questions you should recount, one of reply. In such questions you should recount, one by one, in concise form, the points required.by one, in concise form, the points required.

Evaluate:Evaluate:In an evaluation question you are expected to In an evaluation question you are expected to present a careful appraisal of the problem stressing present a careful appraisal of the problem stressing both advantages and limitations. Evaluation implies both advantages and limitations. Evaluation implies authoritative and, to a lesser degree, personal authoritative and, to a lesser degree, personal appraisal of both contributions and limitations.appraisal of both contributions and limitations.

Explain:Explain:In explanatory answers it is imperative that you clarify In explanatory answers it is imperative that you clarify and interpret the material you present. In such an and interpret the material you present. In such an answer it is best to state the "how or why," reconcile answer it is best to state the "how or why," reconcile any differences in opinion or experimental results, any differences in opinion or experimental results, and, where possible, state causes. The aim is to make and, where possible, state causes. The aim is to make plain the conditions which give rise to whatever you plain the conditions which give rise to whatever you are examiningare examining

Illustrate:Illustrate:A question which asks you to illustrate usually A question which asks you to illustrate usually requires you to explain or clarify your answer to the requires you to explain or clarify your answer to the problem by presenting a concrete example. You do problem by presenting a concrete example. You do not need to provide actual illustrations or pictures, but not need to provide actual illustrations or pictures, but need to paint word pictures using examples so that need to paint word pictures using examples so that your discussion is grounded in fact rather than theory.your discussion is grounded in fact rather than theory.

Interpret:Interpret:An interpretation question is similar to one requiring An interpretation question is similar to one requiring explanation. You are expected to translate, exemplify, explanation. You are expected to translate, exemplify, solve, or comment upon the subject and usually to solve, or comment upon the subject and usually to give your judgment or reaction to the problem.give your judgment or reaction to the problem.

Justify:Justify:When you are instructed to justify your answer you When you are instructed to justify your answer you must prove or show grounds for decisions. In such an must prove or show grounds for decisions. In such an answer, evidence should be presented in convincing answer, evidence should be presented in convincing form – and supported by concrete examples.form – and supported by concrete examples.

List:List:Listing is similar to enumeration. You are expected in Listing is similar to enumeration. You are expected in such questions to present an itemized series or such questions to present an itemized series or tabulation. Such answers should always be given in tabulation. Such answers should always be given in concise form.concise form.

Outline:Outline:An outline answer is organized description. You An outline answer is organized description. You should give main points and essential supplementary should give main points and essential supplementary materials, omitting minor details, and present the materials, omitting minor details, and present the information in a systematic arrangement or information in a systematic arrangement or classification.classification.

ProveProve::A question which requires proof is one which A question which requires proof is one which demands confirmation or verification. In such demands confirmation or verification. In such discussions you should establish something with discussions you should establish something with certainty by evaluating and citing evidence (such as certainty by evaluating and citing evidence (such as particular case law or statute) or by logical reasoning.particular case law or statute) or by logical reasoning.

Relate:Relate:In a question which asks you to show the relationship or to In a question which asks you to show the relationship or to relate, your answer should emphasize connections and relate, your answer should emphasize connections and associations in descriptive form.associations in descriptive form.

Review:Review:A review specifies a critical examination. You should analyze A review specifies a critical examination. You should analyze and comment briefly in organized sequence upon the major and comment briefly in organized sequence upon the major points of the problem.points of the problem.

State:State:    In questions which direct you to specify, give, state, or In questions which direct you to specify, give, state, or present, you are called upon to express the high points in present, you are called upon to express the high points in brief, clear narrative form. Details, and usually illustrations or brief, clear narrative form. Details, and usually illustrations or examples, may be omitted.examples, may be omitted.

Summarize:Summarize:When you are asked to summarize or present a When you are asked to summarize or present a summarization, you should give in condensed form the main summarization, you should give in condensed form the main points or facts. All details, illustrations and elaboration are to points or facts. All details, illustrations and elaboration are to be omitted.be omitted.

Trace:Trace:When a question asks you to trace a course of events, you When a question asks you to trace a course of events, you are to give a description of progress, historical sequence, or are to give a description of progress, historical sequence, or development from the point of origin. Such narratives may development from the point of origin. Such narratives may call for probing or for deduction.call for probing or for deduction.