Legal Writing, Therapeutic Jurisprudence, & Professionalism

In this blog Guest Blogger Shelley Kierstead, LLB, LLM, DJur, Assistant Professor, Osgoode Hall Law School of York University writes about legal writing, TJ and professionalism…

Words matter.  They matter to the clients to whom lawyers give advice, and they matter to the other professionals that lawyers deal with on a daily basis.  As members of a self-regulated profession, lawyers must aim to achieve a level of professionalism that demonstrates maturity, intelligence and thoughtfulness.  In my view, paying attention to the “human impact” of words written in the course of day to day correspondence can enhance lawyers’ professionalism.

Writing that is assertive yet respectful should consistently be part of the culture of communication between lawyers.  Not only would this approach make one’s practice more satisfying; it would also send a message to clients about the desirability of resolving legal issues in a civil, non-vitriolic manner.  Sadly, despite the fact that many rules of professional conduct contain an express directive that lawyers behave in a courteous manner toward all persons with whom they have dealings in the course of their practice, too often the directive is not followed.

Sometimes, even lawyers who most often behave professionally fall into a hostile communication exchange. Consider the letter excerpts below, which follow from an initial letter where one counsel quite civilly requests a change in trial venue.  In the first excerpt, one counsel adopts a condescending approach and accuses the other of not knowing the rules of civil procedure.

Dear Mr. Y:

We acknowledge receipt of your letter dated XX 201X.

With the greatest of respect, the issues recited in items (a) through (d) of your letter are completely irrelevant to the consideration of where the trial of this action ought to be heard.

Please provide us with dates when you are available for a Motion seeking to have action transferred to XX, which is the only logical venue for the trial of this proceeding, given the case law and the Rules of Civil Procedure. You may wish to consider Rule X in this regard.

In the event we are required to bring a motion in this regard, and are successful, we will be asking that the costs of the Motion be borne by your firm pursuant to Rule XXX. We do not expect your client to understand the obligations under the Rules of Civil Procedure. We do, however, expect opposing counsel to comply.

In response, the lawyer who originally requested the change in trial venue fires back a sarcastic rejoinder.

Dear Mr. Z:

… I prefer to save arguments of law for either judges or students …

I would characterize it [the earlier letter] as an attempt to bully. Children might take it seriously. I, on the other hand have been practicing law since 19XX. My skin is a bit thicker.

If you check the databases you will see something over 100 digested decisions with my name as counsel. It may or may not come as a surprise that I have a passing familiarity with the Rules of Civil Procedure.

There are layers of anti-therapeutic impact contained in these letters:

1. messages to clients that sarcasm and uncooperative approaches are appropriate ways of resolving disputes;
2. the negative impact on the lawyers as they receive each other’s correspondence
3. the negative impact on the clients copied on the correspondence, who no doubt will dig in their heels and become more litigious; and
4. the time/effort to craft the responses, for which clients will ultimately be charged.

Failure to write in a manner that is respectful is anti-therapeutic, and it fails the professionalism mandate. The reach of lawyers’ correspondence is extensive. To serve individuals and the public generally, the profession must adopt reasonable and respectful approaches while advocating strongly for clients’ positions. Teachers and mentors must help students to understand this from an early stage. Whether we specifically teach legal writing or not, we ought to be vigilant for opportunities to convey this message.

Note: The original letters were provided by a practitioner who consented to their use in this work. They are on file with the author.

Do you have an example of therapeutic or anti-therapeutic legal writing?  Post a comment below?