Lawyering Skills and the Legal Process

by Caroline Maughan , Julian Webb

• ISBN13: 9780521619509
• ISBN10: 0521619505
• Edition: 2nd
• Format: Paperback
• Copyright: 2005-11-14
• Publisher: Cambridge University Press

Summary

Lawyering Skills and the Legal Process bridges the gap between academic and practical law for students undertaking skills-based and clinical legal education courses at university. It develops oral and written communication, group working, problem solving and conflict resolution skills in a range of legal contexts: client interviewing, drafting, managing cases, legal negotiation and advocacy. The book is designed specifically to help students to practise and develop skills that will be essential in a range of occupations; develop a deeper understanding of the English legal process and the lawyer's role in that process; enhance their understanding of the relationship between legal skills and ethics; and understand how they learn and how they can make their learning more effective. This book provides a stimulating, accessible and challenging approach to understanding the problems and uncertainties of practising law that goes beyond the standard approaches to lawyers' skills.

Author Biography

Caroline Maughan is Principal Lecturer in Law at the Law Faculty, University of the West of England Julian Webb is Professor of Law, School of Law, University of Westminster

Table of Contents

Preface to the second edition	xvii
Table of Statutes	xix
Table of Cases	xxi
Introduction	1	(10)
Descent into the swamp	11	(23)
Objectives	11	(1)
Supports benchmark statements	11	(1)
A dinosaur snack?	12	(8)
Exercise 1.1 Is legal professionalism in crisis?	13	(6)
Exercise 1.2 Redefining knowledge	19	(1)
Where the action isn't	20	(1)
Exercise 1.3 What's the problem?	20	(1)
Where the action is	21	(3)
The skills of lawyering	24	(2)
Knowing in action	25	(1)
Exercise 1.4 When you were a child ...	25	(1)
The art of lawyering	26	(1)
The values of lawyering	27	(2)
Exercise 1.5 High ideals	27	(1)
Exercise 1.6 Swampy situations?	28	(1)
Learning the art of lawyering	29	(4)
Exercise 1.7 Crisis? What crisis?	29	(3)
Exercise 1.8 Concepts	32	(1)
Exercise 1.9 Review questions	33	(1)
Exercise 1.10 Learning points	33	(1)
Further reading	33	(1)
Learning to live in the swamp	34	(20)
Objectives	34	(1)
Supports benchmark statements	34	(1)
What is reflection?	35	(2)
Exercise 2.1 To smoke or not to smoke?	36	(1)
Exercise 2.2 An unexpected visit	36	(1)
Experiential learning and the learning cycle	37	(3)
Discrepant reasoning	40	(4)
Exercise 2.3 The discrepant solicitor?	40	(2)
Exercise 2.4 Write all I know about...	42	(1)
Distancing and disconnectedness	43	(1)
Summary	44	(1)
The learning diary	44	(4)
Exercise 2.5 Re-cycling	44	(3)
Exercise 2.6 More re-cycling	47	(1)
Student/teacher roles and relationships	48	(2)
Exercise 2.7 Re-learning	49	(1)
What kind of learner am I?	50	(3)
Exercise 2.8 The learning styles questionnaire	50	(2)
Exercise 2.9 Concepts	52	(1)
Exercise 2.10 Review questions	52	(1)
Further reading	53	(1)
Law talk and lay talk: lawyers as communicators	54	(27)
Objectives	54	(1)
Supports benchmark statements	54	(1)
Lawyers need to talk!	55	(1)
Why communication skills matter	56	(3)
Exercise 3.1 What makes a good teacher?	56	(1)
Exercise 3.2 The problems with `law talk'	57	(2)
How we communicate	59	(1)
Exercise 3.3 Communication models	59	(1)
Barriers and bridges to effective communication	60	(11)
Exercise 3.4 A Martian description	60	(1)
The effect of non-verbal cues	61	(1)
Exercise 3.5 The lights are on ...	62	(1)
Exercise 3.6 Body talk	62	(3)
Environmental factors	65	(1)
Personal factors	65	(2)
Cultural factors	67	(4)
Inter-cultural factors	71	(9)
Exercise 3.7 Straight to the point or circumlocution?	76	(3)
Exercise 3.8 Concepts	79	(1)
Exercise 3.9 Jury instructions: clarity or confusion?	79	(1)
Exercise 3.10 Testing the evidence or badgering the witness?	80	(1)
Further reading	80	(1)
You'll never work alone: group learning and group skills	81	(26)
Objectives	81	(1)
Supports benchmark statements	81	(1)
Stone age instincts	82	(3)
Exercise 4.1 Who am I?	84	(1)
Learning in groups: what is it good for?	85	(2)
Exercise 4.2 Groups I have known, groups I would like to know	85	(2)
Group theory and research	87	(4)
Higher achievement	88	(1)
More positive relationships	89	(1)
Psychological health	89	(1)
Exercise 4.3 Broken squares	90	(1)
Barriers to effective group learning	91	(3)
Exercise 4.4 What am I like in a group?	91	(3)
Group dynamics	94	(5)
Exercise 4.5 Fishbowl	94	(1)
Exercise 4.6 What are your preferred team roles?	95	(1)
Exercise 4.7 Roles in my group	95	(1)
Setting ground rules	95	(1)
How groups grow	96	(2)
Exercise 4.8 What's going wrong? Tackling problems	98	(1)
The dynamics of lawyer teamwork	99	(4)
Exercise 4.9 Powerful conspiracies or lost causes?	100	(3)
Feedback	103	(3)
Exercise 4.10 Concepts	104	(1)
Exercise 4.11 Tag wrestling	104	(1)
Exercise 4.12 Guilt by association?	105	(1)
Reflective exercise: what is your current group skill level?	106	(1)
Further reading	106	(1)
Interviewing: building the relationship and gaining participation	107	(45)
Objectives	107	(1)
Supports benchmark statements	107	(1)
The functions of the lawyer--client interview	108	(3)
Exercise 5.1 The objectives of interviewing	108	(1)
Exercise 5.2 The other side...	109	(2)
Assumptions about the relationship	111	(3)
Exercise 5.3 Who's in charge here?	111	(3)
Setting the scene: preparing for the interview	114	(3)
Consider your information needs	114	(1)
Exercise 5.4 You get what you ask for	114	(2)
Planning the physical environment	116	(1)
Welcoming: establishing a relationship in the interview	117	(4)
Exercise 5.5 Meet, greet and seat	118	(1)
Note-taking	118	(1)
Discussing costs	119	(1)
Territory	119	(2)
Listening and questioning	121	(7)
Listening	121	(1)
Exercise 5.6 Is anybody there?	121	(1)
Exercise 5.7 Hyperactive?	122	(1)
Questioning	123	(1)
Exercise 5.8 Me and Mrs Jones	124	(3)
Exercise 5.9 Tell me why	127	(1)
Pulling it all together	127	(1)
Exercise 5.10 The client interview	128	(1)
Advising and counselling	128	(11)
Lawyers as advisers	128	(1)
Exercise 5.11 Toast	128	(4)
Lawyers as counsellors	132	(2)
Exercise 5.12 Home sweet home	134	(1)
Exercise 5.13 Car trouble	135	(2)
Exercise 5.14 Handling emotion	137	(1)
Exercise 5.15 Pressing problems	138	(1)
Parting, and beginning the continuing relationship	139	(4)
Ending	139	(1)
Beginning	140	(1)
Exercise 5.16 Planning your next steps	140	(1)
Participating	141	(2)
Interviewing and empathic lawyering: a (re)vision of practice?	143	(8)
Empathy and participation	143	(1)
Exercise 5.17 Empathic interviewing	144	(1)
Towards a (re)vision of the relationship	145	(2)
Exercise 5.18 Concepts	147	(1)
Exercise 5.19 Blowing the whistle?	148	(2)
Exercise 5.20 Review questions	150	(1)
Learning points	151	(1)
Further reading	151	(1)
The `good lawyer': ethics and values in legal work	152	(53)
Objectives	152	(1)
Supports benchmark statements	152	(1)
Introduction	153	(8)
Exercise 6.1 Tinker, tailor...	155	(3)
Exercise 6.2 Does it matter?	158	(3)
The regulation of professional conduct and ethics	161	(5)
The nature of professional regulation	162	(1)
The codes of conduct	163	(1)
Disciplining lawyers	164	(2)
Exploring professional conduct and ethics	166	(32)
Using the ethics case study	166	(1)
Trouble on the High Street -- Part 1	167	(1)
Exercise 6.3 Jason arrives	167	(3)
Exercise 6.4 Bayview Developments	170	(5)
Exercise 6.5 The litigant in person	175	(2)
Trouble on the High Street -- Part 2	177	(1)
Exercise 6.6 Jason and KB Construction	177	(2)
Exercise 6.7 To lie or not to lie	179	(9)
Exercise 6.8 In whose best interests?	188	(2)
Exercise 6.9 Whose secret is it anyway?	190	(5)
Trouble on the High Street -- Part 3	195	(1)
Exercise 6.10 Bayview strikes again	195	(3)
Should we rethink legal ethics?	198	(6)
Ethics and problem-solving	198	(1)
Exercise 6.11 My station and its duties	199	(4)
Exercise 6.12 Concepts	203	(1)
Exercise 6.13 Review questions	203	(1)
Further reading	204	(1)
Clarifying language: making sense of writing	205	(51)
Objectives	205	(1)
Supports benchmark statements	205	(1)
Why it is important to write well	206	(6)
Exercise 7.1 What, when and why?	206	(1)
Exercise 7.2 Which is dense? The reader or the text?	207	(4)
Exercise 7.3 Lord Lucid	211	(1)
Learning from your writing experience	212	(2)
Exercise 7.4 Do you suffer from verbal diarrhoea?	213	(1)
Know exactly what you want to say	214	(6)
Exercise 7.5 The brick exercise	214	(1)
Differences between the spoken and the written language	214	(1)
Planning	215	(1)
Exercise 7.6 Plain thinking	216	(1)
Exercise 7.7 Who is my reader?	216	(3)
Exercise 7.8 Golden bull	219	(1)
Summary	220	(1)
Selecting appropriate language	220	(6)
Exercise 7.9 Who speaks good English? It is I!	220	(1)
Select an appropriate variety of English	221	(2)
Select an appropriate register	223	(1)
Exercise 7.10 Le mot juste	224	(1)
Select an appropriate level of formality	224	(1)
Select gender-neutral language	225	(1)
Summary	226	(1)
Say exactly what you mean to say	226	(10)
Exercise 7.11 Grasping grammar	226	(1)
Getting the fundamentals right	227	(1)
Exercise 7.12 Bad grammar	227	(4)
Exercise 7.13 Some people just don't know when to stop	231	(3)
Exercise 7.14 Whose who?	234	(1)
Use correct spelling	235	(1)
Summary	236	(1)
Moving towards artistry	236	(12)
Vocabulary	236	(2)
New use or misuse?	238	(3)
Sentence length and complexity	241	(2)
Exercise 7.15 Sense and nonsense	243	(1)
Paragraphing	243	(1)
Exercise 7.16 Link-hunting	244	(2)
Exercise 7.17 Take out the rubbish	246	(2)
Self-edit your writing	248	(1)
Exercise 7.18 Self-editing	248	(1)
Writing letters	248	(2)
Writing to clients: client care	248	(1)
Writing to other people	249	(1)
Exercise 7.19 Joyless in the Maldini	249	(1)
Good writing makes sense	250	(4)
Exercise 7.20 Concepts	251	(1)
Exercise 7.21 More rubbish	251	(2)
Exercise 7.22 Blowing the whistle? Part II	253	(1)
Review question	253	(1)
Learning points	254	(1)
Further reading	254	(1)
Self-editing checklist for writing	254	(2)
Manipulating language: drafting legal documents	256	(46)
Objectives	256	(1)
Supports benchmark statements	256	(1)
Legal documents are precision instruments	257	(2)
Exercise 8.1 Runaway trolleys	257	(2)
Legal documents and the three Cs	259	(7)
Exercise 8.2 Unravelling the regs	264	(2)
Legal language is powerful stuff	266	(8)
Legal language is not plain language	274	(6)
Exercise 8.3 Plain reflection	274	(5)
Exercise 8.4 Clause analysis	279	(1)
Legal language is unduly peculiar	280	(12)
Lawyers, not the people, decide what words mean	280	(2)
Exercise 8.5 Shovelling excrement	282	(1)
Put yourself in her position: deriving meaning from context	283	(1)
Exercise 8.6 Natural meanings	283	(1)
Exercise 8.7 Caution! Unforeseen hazard ahead!	284	(2)
Does it matter what it looks like? Layout and punctuation	286	(1)
Isolated sentences	287	(1)
Coherence and word order	287	(2)
Interceding with the Deity: pleadings	289	(1)
Exercise 8.8 Major surgery	290	(2)
The illiteracy of the well-educated	292	(1)
Defining your drafting principles	293	(4)
Exercise 8.9 A general checklist for drafting	293	(4)
Putting principles into practice	297	(4)
Exercise 8.10 Have a go	297	(1)
Defining your approach	297	(1)
Aim to be a critical composer, not a complacent copier	298	(1)
Exercise 8.11 Concepts	299	(1)
Exercise 8.12 Analysis	299	(1)
Exercise 8.13 Boilerplate redrafting	299	(1)
Exercise 8.14 What is reasonable doubt?	300	(1)
Review questions	300	(1)
Further reading	301	(1)
Handling conflict: negotiation	302	(48)
Objectives	302	(1)
Supports benchmark statements	302	(1)
Making decisions and resolving conflict	303	(2)
Exercise 9.1 Conflicts of interest	303	(2)
How do you deal with conflict?	305	(3)
Exercise 9.2 The shark and the turtle	305	(3)
The context of legal negotiation	308	(5)
Naming, blaming, claiming ... and negotiating	308	(1)
Exercise 9.3 Negotiate? What for?	309	(2)
The growth of Alternative Dispute Resolution	311	(1)
ADR and negotiation	312	(1)
What clients want from negotiation	313	(1)
What lawyers want from negotiation	314	(1)
Mind the gap	315	(2)
Learning the art of lawyer negotiation	317	(26)
Step 1: Identify the critical issues	318	(1)
Exercise 9.4 What is there to negotiate about?	318	(5)
Exercise 9.5 Pam and Wilf	323	(1)
Step 2: Select a negotiating strategy and style	323	(4)
Exercise 9.6 Have your cake and eat it...	327	(2)
Exercise 9.7 The Red--Blue exercise	329	(2)
Step 3: Sort out your ethics	331	(2)
Exercise 9.8 How low can you go?	333	(1)
Exercise 9.9 Hidden messages	334	(4)
Step 4: Work out your tactics	338	(2)
Exercise 9.10 Staying cool, calm and collected	340	(1)
Step 5: Keep your act together during the negotiation	341	(2)
Step 6: Keep a negotiation journal	343	(1)
Planning the negotiation	343	(1)
The critical issues and potential outcomes	343	(1)
Our strategy and tactics	344	(1)
Their strategy and tactics	344	(1)
Are lawyers poor negotiators?	344	(2)
Negotiation and mediation advocacy	346	(3)
Exercise 9.11 Concepts	348	(1)
Exercise 9.12 Yet another negotiation	348	(1)
Review questions	348	(1)
Further reading	349	(1)
Advocacy: case management and preparation	350	(47)
Objectives	350	(1)
Supports benchmark statements	350	(1)
Advocacy in context	351	(6)
The adversarial nature of advocacy	351	(1)
Recreating facts in the courtroom	352	(1)
Exercise 10.1 Evidential quiz	353	(2)
Exercise 10.2 The surgeon's story	355	(2)
A case study: the case of William Gardiner	357	(4)
Preparation	361	(33)
Developing a working hypothesis	361	(1)
Exercise 10.3 Malice aforethought?	362	(4)
Exercise 10.4 The money-lender and the merchant's daughter	366	(1)
Exercise 10.5 Gardiner: chronology and issues	367	(1)
Exercise 10.6 `Elementary, my dear Watson ...'	368	(1)
Constructing your theory of the case	368	(4)
Exercise 10.7 Making inferences	372	(1)
Exercise 10.8 Moriarty's a murderer	373	(1)
Exercise 10.9 Moriarty rides again?	374	(2)
Organising your material	376	(2)
Exercise 10.10 Maughan v Webb	378	(3)
Preparing your client and witnesses	381	(1)
Exercise 10.11 A crusty in court	382	(3)
Exercise 10.12 Jane's dilemma (1)	385	(1)
Exercise 10.13 Jane's dilemma (2)	386	(4)
Exercise 10.14 Superwitness	390	(4)
On the day -- a final checklist	394	(2)
Exercise 10.15 Concepts	395	(1)
Exercise 10.16 Review question	396	(1)
Further reading	396	(1)
Into court: the deepest swamp?	397	(36)
Objectives	397	(1)
Supports benchmark statements	397	(1)
The art of advocacy	398	(1)
Exercise 11.1 Advocacy as communication	398	(1)
Theme and method: advocacy as storytelling	399	(4)
The story model	399	(3)
Exercise 11.2 Let me tell you a story	402	(1)
Exercise 11.3 Making a case into a story	402	(1)
Speeches	403	(10)
Opening and closing speeches	403	(1)
Exercise 11.4 Gardiner: opening for the prosecution	403	(1)
Exercise 11.5 The road map	404	(5)
Exercise 11.6 Done to death?	409	(2)
Summary	411	(1)
Other narrative contexts	412	(1)
Exercise 11.7: Bailing out?	413	(1)
Examining witnesses	413	(17)
Examination in chief	413	(1)
Exercise 11.8 Twenty questions?	414	(1)
Exercise 11.9 R v Wainwright	415	(1)
Exercise 11.10 You, the jury	416	(2)
Exercise 11.11 The gestatory period of the African elephant	418	(1)
Exercise 11.12 You lead and I'll follow	418	(2)
Exercise 11.13 There are more questions than answers...	420	(1)
Summary	421	(1)
Cross-examination	421	(1)
Exercise 11.14 The worm turns?	422	(6)
Exercise 11.15 Anger	428	(1)
Summary	429	(1)
Exercise 11.16 Driven to distraction?	429	(1)
Re-examination	429	(1)
Conclusion: advocacy, ethics and adversarialism	430	(2)
Exercise 11.17 Concepts	431	(1)
Exercise 11.18 Review questions	432	(1)
Further reading	432	(1)
Index	433