Unit 3A – Research and Writing Skills Flashcards
Golden rule
In legal practice, your main aim is to find the existing law and apply this to your client’s problem.
Elements of Legal Writing
❖ Clarity and being concise
❖ Tone
❖ Context
❖ Persuasive Argumentation
❖ Logical Organization
❖ Correct Citation of Sources
❖ Attention to Detail
❖ Ethical Considerations
❖ Target Audience
Use of Emoji’s – Could a “Thumbs Up” be considered binding?
➢ A Canadian Court determined that the common “thumbs up” emoji had the same legal effect as a signature.
➢ The ruling arose from a case in which a farmer was ordered to settle a R1.1 Million Debt for a contract that wasn’t delivered.
➢ The grain buyer broadcasted a text message to clients in March 2021, expressing his interest in acquiring 86 tons of flax for a certain price.
➢ He engaged over the phone with a farmer and then text messaged him asking him to confirm the contract.
➢ The farmer then responded with a thumbs-up emoji, which was held to have the same effect as a signature.
Stages of Research in Practice
❖ Problem
➢ Client approaches you with a problem
❖ Clarify
➢ Ensure that you understand the parameters of the problem as well as the clients expectations.
❖ Suggested Research Method
➢ Identify the subject area to allow you to consult various sources. This includes identifying relevant facts, the relevant areas of law that may play a role and whether the issue is
procedural or substantive in nature.
➢ A convenient starting point is the 35-volume legal
encyclopedia, LAWSA, which is published by LexisNexis.
➢ Textbooks are another convenient starting point for research. It is also a secondary source of law and does not constitute binding authority in a court.
➢ Law Journals sometimes contain useful articles on a particular topic, and may contain various references to other sources as well.
➢ Case Law may provide insights when comparing the facts of these cases to the client’s situation which may be comparable or distinguishable.
➢ Legislation may provide the insights needed to determine the exact legal provisions which are applicable to the clients situation. LexisNexis and Juta publish these resources.
➢ Use of computers and the internet resources like Jutastat available through university libraries contain the full text of certain Juta publications and include the South African Law Reports, a Constitutional Library, a Labor Law Library, Appellate Division Reports, Criminal Law Reports and a Tax Library. Furthermore it may provide South African Statutes, Government Gazettes and certain provinces’ Provincial Legislation.
❖ Document research findings
➢ Draft an office memorandum or legal opinion
❖ Conclusion
➢ Interpret the results in terms of your client and perform all steps necessary as advised/mandated by your client.
A More General View
❖ During your consultation/interview, you must establish firstly what the client wants and then determine the areas of law affecting your client’s matter; and
❖ South African Law is divided into substantive (private and public law) and adjective law (law of criminal procedure, law of civil procedure, law of evidence and interpretation of statute).
Starting Point: The Law of South Africa (LAWSA)
❖ The LAWSA is a 35-volume legal encyclopedia and should be available in most university libraries.
❖ LAWSA is published by LexisNexis and can also be found online.
❖ Your research should start with the index volume, such as Volume 34.
❖ LAWSA also has a current law issue that is looseleaf, published every four weeks, to provide updated to the law not contained in the yearly updates.
Other Sources
❖ Textbooks
❖ Law Journals
➢ Various free databases exist such as iSlapi (South African Legal Periodicals Index) and Saflii (The South African Legal Information Institute) as well as the Directory of Open Journals (DOAJ) for foreign journals;
❖ Case Law
➢ LexisNexis and Juta publish numerous indexes to help you search (Index to the South African Law Annotations to the South African Law Reports).
❖ Legislation; and
❖ Use of computers and the internet.
Drafting a Legal Opinion
(Format)
TO:
FROM:
DATE:
RE:
FACTS
1. Give a brief summary of the facts.
LEGAL QUESTION(S)
2. State the legal question or the legal questions presented.
SHORT ANSWER
3. Provide a summary of the answer of the problem. This is so that the client knows where we are going and can more easily
make sense of the rest of what is written.
APPLICABLE LEGAL PRINCIPLES
4. Here you would list all the legislation (with the sections), case law, journal articles and any other sources of law which help to answer the question.
APPLICATION
5. Here you apply the applicable legal principles to the facts to reach a conclusion.
SUMMARY AND RECOMMENDATION
6. Summarize your application and then recommend a course of action for the client to take.
Drafting and Office Memorandum
❖ Facts
➢ Summarize the most essential facts where the superior is
already aware what the facts are generally.
➢ However, report in detail if otherwise.
❖ Legal Question and Short Answer
➢ This provides your superior with the final answer at the
beginning.
➢ This way they know where the opinion is going.
❖ Applicable Legal Principles
➢ Discuss the relevant principles exhaustively.
➢ However, there is no need to report on trite (simple) legal principles as you can presume that your senior practitioner is well versed with many years of experience.
❖ Applying the Law to the Facts
➢ Apply each principle to the facts of the client’s case.
➢ Do some from the perspective of a neutral bystander.
❖ Conclusion and Recommendation
➢ Effectively summarize the applicable law and the facts, whilst providing the solution to the problem in a concise way.
❖ What is poor drafting?
➢ Poor drafting consists of a legal draft where there are various grammar, punctuation and spelling mistakes
Why does GOOD drafting matter?
➢ To ensure that the communication is clear and easy to follow.
➢ In law especially the spelling of certain terms is important as otherwise, it may lead the reader to confuse one term for another and draw incorrect conclusions.
➢ It allows the reader to be more confident that what they are reading is correct.
Why Structuring Advice To a Client Is Important
❖ Generally, most clients are not as well versed in the law as you or your superiors would be.
❖ Thus, any further difficulties imposed by poor structure are only more likely to confuse the client.
❖ By structuring advice in a uniform and easily navigable way, it allows for the client to more easily understand what it is that you are trying to communicate to them.
Drafting a Letter
image provided from Slides (Learn Format)
Statements without Prejudice
❖ Prior to going to trial/court, parties are advised and encouraged to try and settle disputes outside of court.
➢ Think of Harvey Spectre. He always wants to settle.
❖ Any documents that are shared during the settlement process are usually labelled as “without prejudice.”
❖ This is done to prevent the statements or information contained in those documents or anything discussed during the settlement
negotiations from being used in court if negotiations fail and the court case ensues.
The Bona Fide Rule
❖ Any such document which is labeled as being “without prejudice” is not sufficient, in of itself, to prevent it being used at trial.
❖ Labelling a document or stating that a communication is made without prejudice, will only prevent its production at trial if it is
done in good faith.
