A word of warning on lawyers' poor communication

The general deterioration of writing standards in society is also an issue in the legal sector, and this deficiency has the potential to cost firms money and clients, writes Trish Carroll.

Lawyers trade in words. Yet despite that, clients consistently complain about their poor communication.

The 2016/17 Annual Report of The Office of the Legal Services Commissioner (OLSC) (NSW) reports that the most common types of complaints involve negligence, followed by poor communication and then ethical matters. In Queensland’s OLSC’s report for the same period, the top four types of complaints are about quality of service, costs, ethical matters and communication.

Why aren’t lawyers worried about their words? If what I’ve learnt by checking with some mid-sized, multi-state law firms is indicative, then it might have something to do with slim budgets for learning and development, or organisational development. Operations are typically too lean to support strong curriculums aligned to current and emerging business needs, such as good writing. The impact of this is compounded by the mentoring that is provided by supervising younger lawyers, who are not great writers themselves.

None of the firms I spoke with have plain-language writing training in place. Some have run random acts of writing training in the past. Often this was done because a partner demanded it after becoming irate at the paucity of writing skills shown in the work they supervise. For a profession with a currency in words, this lack of training seems peculiar. It suggests there’s an assumption that everyone who comes out of university writes well. Hmmm. That’s not an assumption firms such as King Wood Mallesons, Minter Ellison and Herbert Smith Freehills made when many years ago they invested heavily in training their staff in plain-language writing and developed and maintained writing style guides and training designed to instil a consistently used plain language.

Keep it simple

It’s not easy for lawyers who have been taught at university to use complex, technical and jargon-based language to write in plain language. For the younger lawyers, it’s even harder as many were never taught formal grammar at school.

An exchange of views about teaching English occurred in The Australian in the letters section a few years ago and contributor Dr Tony Shinkfield put it perfectly: “The teaching and learning of our language in our schools has floundered for at least two generations to the point where redeeming lost ground appears nearly impossible … Not only are the basic tenets of grammar and syntax no longer being meaningfully taught in schools, the tragic reality is that many teachers themselves do not understand the basic fundamentals of our language. Like the basic errors of advanced tertiary students which so disturbed the writer, I have been appalled by similar ignorance of fundamental English usage by doctoral students whose theses I have been invited to examine.”

Once basic language fundamentals were taught at primary and secondary levels in our schools, and were respected. Then in the 1970s, avant-garde educationalists decided that creativity was being destroyed by the imposition of restrictive language formalities and fundamentals and their functions. Some of my best friends led this laissez-faire charge. While such an approach was ideal for some students, it left most without an understanding of the functions of our language.

Obviously some of these people became teachers and then perpetuated these language deficiencies, again without the ability to analyse with students where they were at fault.

The closest one of my granddaughter’s teachers came to correcting her English expression was to ask the question: “Does this sound right to you?”

Complaints aplenty

It’s not only The Office of the Legal Services Commissioner that receives a high number of complaints about lawyers’ poor communication. When I’ve engaged with clients of law firms while conducting various forms of sentiment gathering and listening programs, I’ve frequently heard clients complain about the lack of clarity and conciseness in the writing they receive from their lawyers; or worse, how they’re left still not knowing what decisions they need to make or what their options are even after reading the advice through a few times.

In the Commissioner’s introduction to the 2016/17 OLSC’s Annual Report, he remarks towards the end: “So as to be able to most effectively serve their clients’ best interests within the over-riding context of safeguarding the system of justice, I believe that an improvement in the skill of communication, in all its facets, will be required by lawyers in the future.”

While I completely agree with the Commissioner’s sentiment and would like to say I couldn’t have said it better myself, I think I could. So here it goes: “Future lawyers will need better, broader communication skills to best serve their clients’ interests and safeguard the justice system.”

Finally, let’s turn to Mark Tredinnick, another lawyer, who wrote in The Little Black Book of Business Writing: “Writing at work is too often performed as an act of conformity with a narrow rubric of usages – a template of polysyllabic words, phrases and sentences.” Among the many wisdoms in Tredinnick’s book is this vital advice:

• think straight in plain language;
• organise your thought and design your document to reveal, rather than hide, your message and the logic behind it;
• express yourself on all topics, especially those most likely to tax a reader, in everyday language;
• keep the writing trim; and
• reward a reader’s attention by making the writing lucid and simple and easy to stay with.

Here, here.

If you remain unconvinced this is a real problem, then consider these two cases:

• The American case of O’Connor & Anor v Oakhurst Dairy & Ors 16-1901 (1^st Circ.2017) was determined by a missing Oxford comma in a Maine state law resulting in a US$5million settlement to a group of employees. Who said punctuation didn’t matter? Do you know what an Oxford comma is, do your lawyers?
• In Australia, the case of Namrod v Ebedeh-Ahvazi [2017] NSWCA 310 ought to be enough to get writing training back in your budget because in this case the NSW Court of Appeal found that the seemingly interchangeable words of “the completion date” and “by completion” had disparate meanings. That little slip caused the loss of a $146,000 deposit.

In these days of artificial intelligence, digital disruption and algorithm structured robotic advice applications, it’s easy to get distracted. But right now, right here, your clients still need you to communicate with them in language they can understand. There’s an opportunity for firms who invest in teaching their staff to communicate well because it will endear them to their clients and will possibly elevate them above their competitors.

George Bernard Shaw said that the most important things in life were words. He might just be right.

Trish Carroll is the principal of Galt Advisory, a firm focused on helping law firms devise and implement successful marketing and business development strategies. She can be contacted at trish@galtadvisory.com.au.