Skills for lawyers

i

SKILLS FOR LAWYERS

ii Skills for Lawyers

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SKILLS FOR LAWYERS

Annabel Elkington, MA (Hons), Dip Law, Barrister

John Holtam LLB (Southampton), LLM (Edinburgh), Solicitor

Gemma M Shield LLB (Hons), Solicitor

Tony Simmonds BA, MA, MCLIP

iv Skills for Lawyers

Published by

College of Law Publishing, Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA

© The College of Law 2010

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or

by any means, including photocopying or recording, without the written permission of the copyright holder, application for

which should be addressed to the publisher.

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.

ISBN: 978 1 907624 01 8

Typeset and Designed by Style Photosetting Ltd, Mayfield, East Sussex

Printed in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire

v

Preface

Knowledge of how the internal combustion engine works and what the Highway Code states does not

necessarily make a good driver. In the same way, knowledge of the law does not necessarily make a good

lawyer. The practice of law requires not merely an understanding of law and procedure but also the skills

necessary to utilise that knowledge effectively.

The purpose of this book is to help prospective practitioners to develop fundamental skills which will prove

essential in their later careers. Those skills are as follows:

(a) writing and drafting;

(b) legal research;

(c) interviewing and advising clients;

(d) negotiation; and

(e) advocacy.

The chapters covering each of these skills are essential preparatory reading for practice of the relevant skill on

the Legal Practice Course. It is hoped that they will also prove useful in later years for the trainee or qualified

solicitor, both to monitor one’s own development and to evaluate others, learning from their successes and

their failures.

Thanks are due to authors of the constituent Parts in earlier editions for originating and developing various

chapters. They are:

Part I Rachel Hawes, Priscilla Sarton, Gill Morgan

Part II Carol Moore, Alison Baigent, Ian Cross, James Greene, Stephen Sellers, Joanne Tomlinson and Susan

Scorey

Part III Martin Iller, Peter Mott, Deborah Green, Michael Petley

Needless to say, the current team of authors bears responsibility for any failings in this edition.

The origins of Part III lie in a series of Professional Development courses which The College of Law ran for the

solicitors’ profession for a number of years. In mounting the interviewing and negotiating courses, the College

received invaluable assistance from Dr Karl Mackie (now Chief Executive of the Centre for Dispute

Resolution). Similarly, the courses on advocacy benefited greatly from the advice and help of His Honour Judge

Groves, Her Honour Judge Marian Norrie, His Honour Judge Nigel Fricker QC and Tony Edwards, solicitor. In

addition, we would wish to express our gratitude to the many solicitors who attended the courses and

contributed their know-how to them, and consequently to these chapters.

vi Skills for Lawyers

Contents vii

Contents

PREFACE v

CONTENTS vii

CASE SCENARIOS xi

Road traffic accident / Personal injury case study xi

Potential transaction xii

Part I WRITING AND DRAFTING 1

Chapter 1 WRITING AND DRAFTING 3

1.1 Introduction to writing and drafting 3

1.2 Preparation and research 3

1.3 Planning 4

1.4 Drafting 9

1.5 Checking 17

1.6 Practical and ethical considerations 17

1.7 Writing letters 18

1.8 Writing reports and memoranda 20

1.9 Spelling and grammar 22

Part II PRACTICAL LEGAL RESEARCH 27

Chapter 2 INTRODUCTION TO PRACTICAL LEGAL RESEARCH 29

2.1 Why should I read this section? 29

2.2 The role of legal research in the office 29

2.3 Problem-solving 29

2.4 Principles of practical legal research 32

Chapter 3 ELECTRONIC VERSUS PRINTED SOURCES 37

3.1 Introduction 37

3.2 Advantages of printed sources 37

3.3 Advantages of electronic sources 37

3.4 Accessing electronic sources 38

3.5 Guidelines for searching electronic databases 38

3.6 JustCite 40

3.7 The free Internet: Google and beyond 40

Chapter 4 GETTING STARTED 43

4.1 Introduction 43

4.2 Halsbury’s Laws of England 43

4.3 Practitioner books 47

4.4 Widening the net 48

Chapter 5 RESEARCHING CASE LAW 55

5.1 How are cases published? 55

5.2 Which source of cases has the most authority? 56

5.3 How do I cite cases? 56

5.4 How do I find a case with an incomplete citation? 57

5.5 How do I update a case? 60

5.6 How do I find cases on a subject? 61

Chapter 6 RESEARCHING LEGISLATION 65

6.1 Introduction 65

viii Skills for Lawyers

6.2 How do I cite legislation? 65

6.3 Where can I find Acts? 66

6.4 How do I establish whether an Act has come into force? 70

6.5 Where can I find statutory instruments? 71

6.6 Legislation on LexisLibrary 73

6.7 How do I update legislation? 74

Chapter 7 RESEARCHING EUROPEAN UNION LAW 77

7.1 Introduction 77

7.2 General sources 77

7.3 Primary legislation 79

7.4 Secondary legislation 79

7.5 Case law 81

Chapter 8 RESEARCHING FORMS AND PRECEDENTS 83

8.1 Introduction 83

8.2 Atkin’s Court Forms 83

8.3 Encyclopaedia of Forms and Precedents 84

Chapter 9 THE RESULT OF LEGAL RESEARCH 87

9.1 Recording research 87

9.2 Reporting research 87

Part III ORAL COMMUNICATION SKILLS 89

Chapter 10 INTRODUCTION TO ORAL COMMUNICATION SKILLS 91

10.1 The importance of oral communication skills 91

10.2 Listening 93

10.3 Questioning 94

10.4 Non-verbal communication 95

10.5 Conclusion 95

Chapter 11 INTERVIEWING AND ADVISING 97

11.1 Why is it important for a solicitor to be a good interviewer? 97

11.2 Objectives of a solicitor/client interview 98

11.3 Common failings 98

11.4 Two ingredients for success – skills and structure 98

11.5 The skills 99

11.6 Client care and costs information 107

11.7 An overview of the structure of the interview 108

11.8 Structure and management of the initial interview 109

11.9 The secret of success – practice 125

Chapter 12 NEGOTIATION 127

12.1 Introduction 127

12.2 The ethical aspects of negotiating 128

12.3 Negotiating styles 128

12.4 Preparation for a negotiation 131

12.5 The forum for the negotiation 139

12.6 Other considerations before a meeting 140

12.7 Overview of a negotiation 141

12.8 The opening 142

12.9 The middle phase: discussion and bargaining 143

12.10 The end: closing a negotiation 145

12.11 ‘Dirty tricks’ 146

12.12 Alternative dispute resolution 147

Chapter 13 ADVOCACY 151

13.1 Introduction 151

Contents ix

13.2 Skills 152

13.3 The basics 153

13.4 Opening the case 158

13.5 Examination-in-chief 159

13.6 Cross-examination 162

13.7 Re-examination 164

13.8 Closing the case 164

13.9 Ethical issues 165

13.10 Criminal cases: bail and mitigation 166

13.11 Civil cases: chambers applications 182

13.12 Conclusion 200

BIBLIOGRAPHY 201

INDEX 203

x Skills for Lawyers

xi

Case Scenarios

Road traffic accident / Personal injury case study

Summary

An accident occurred at the junction of Larkhall Road and Forest Road on Tuesday, 15 January

2009. A white van heading south on Forest Road was turning right into Larkhall Road. As the

van was turning right it collided with a car heading north up Forest Road. The collision also

involved a cyclist who was travelling alongside the car at the moment of impact.

Vehicles and drivers involved

Van White Ford company van owned by Armitage Deliveries and driven by Adam Worcik.

Mr Worcik is a polish national living in the UK and working as a driver for Armitage

Deliveries. He sustained minor whiplash as a result of the accident.

Car Silver Vauxhall Zafira owned and driven by Caroline Wantage, a senior midwife who

works for her local NHS trust. Ms Wantage suffered serious whiplash, a broken collar

bone and a cut to her forehead which required seven stitches as a result of the accident.

She has serious ongoing symptoms in relation to the whiplash injury, and the cut has

left a permanent scar on her forehead (there is the possibility of further surgery to

improve the appearance of this).

Cycle Red Trek 200 ridden by Paul Chester, a freelance musician. Mr Chester suffered a

broken left wrist and a cut to his arm which required 13 stitches.

Liability

Liability is disputed. Mr Worcik claims that Ms Wantage was driving far too fast and that she

was using her mobile phone when the accident happened. Ms Wantage claims that Mr Worcik

suddenly pulled into her path without indicating as she pulled out of the junction. Mr Chester

the cyclist does not have a clear recollection of what happened.

ForestRoad

Pointofcollision

LarkhallRoad

N

xii Skills for Lawyers

Solicitors for the parties

Potential transaction

Robert Grove Ltd is a large company specialising in restaurants/retail food outlets. Toast & Tea

is a small chain of upmarket cafes owned by two brothers, Mark and Dominic Flowers, and a

friend of theirs, Florence Lowe. The Toast & Tea owners are seeking to find a buyer for their

company, and Robert Grove Ltd has expressed an interest in purchasing the chain.

Sellers

The owners of Toast & Tea have decided to sell, as their interests in the business are beginning

to diverge. The chain has been very successful and currently owns 16 outlets in prime

locations in central London. The cafes are old fashioned in design with a focus on service and

quality which is reflected in the prices. Each cafe offers a children’s room where under-8s

undertake supervised play. The cafes have won many awards for both food provided and

provision for children/families.

The owners are keen for the transaction to progress quickly, as two of them have other

ventures in which they would like to invest. They hope to achieve a purchase price of £22

million, but accept that in the current economic climate and given the current property

market they may have to accept a figure closer to £18 million. Most of the value of the

company is in ownership of cafe properties which have been purchased as freeholds/long

leaseholds and in most cases have undergone valuable development work. The Flowers

brothers were the major investors in the company and have a bigger stake, but Florence Lowe

has acted as CEO and has been very hands-on in managing the chain.

Solicitors for the seller:

Mace McKenzie

Frobisher House, City Road, London EC2 5BR

0207 422 2134

Buyer

Robert Grove Ltd owns a range of pubs, restaurants and retail food outlets across the UK and

Ireland. It has been looking to expand into the ‘luxury’ market. Toast & Tea’s award-winning

combination is attractive to it as a complement to its existing portfolio, and Robert Grove Ltd

believes that given greater economies of scale it can make the business highly profitable.

Robert Grove Ltd would like to see Florence Lowe continue in her role or accept a position as

an advisor for an agreed handover period. It is happy to proceed quickly but would ideally like

any deal to include structured payments over a 12-month period. The current suggested

purchase price of £22 million is based on valuation of Toast & Tea including its premises made

at a time when commercial property prices were significantly higher.

Solicitors for the buyer:

Salinger & Rye

40–47 City House, Cornhill Square, London EC1 4RT

0207 836 9368

Acting for Mr Worcik

the van driver

Acting for Ms Wantage

the car driver

Acting for Mr Chester the

cyclist

Shea & De Sousa

67 Longbridge Road

Stockwell

London SW9 4RT

0207 479 4791

Alexa Hughes & Co

33 Millennium House

Teddington

KT4 6RB

0208 221 3445

Marshalls

114–116 Market Street

Kingston KT1 4RT

0208 566 3228

[email protected]

1

Part I

WRITING AND DRAFTING

2 Skills for Lawyers