Legal Writing, Ethical Practice, and ADR in Contemporary Legal Landscapes

Q1. A quality legal writing demands attention and practice from legal practitioners. Correct legal writing completes a legal practice. Legal writing without quality will lead to wastage of courts’ time, confusion in implementing and enforcing law, and an increase in disputes. This briefing document will provide a list of few key elements of quality legal writing.

For producing an excellent written work, there are a diverse range of factors considered. A good written style does not stop at the descriptive part of an issue or a topic in hand. It also covers the analytical part of the work. The opinion and observation in the work must have authoritative backing justified through analytical discussion using research and factual evidence to support a statement. This will give a proper conclusion addressing an issue in hand with appropriate answer. The proper conclusion cannot be arrived at if the key elements necessary for legal writing are not accounted for. Some of these key elements will be discussed in this briefing document.

The use of language is at the heart of the common law legal tradition. Effective communication is the key to quality legal writing. It is, therefore, necessary to focus on writing skills. One of the foremost necessities in quality legal writing is the use of correct grammar. This is explained with support of the following example:

Example 1: “A bought a hammer and a saw from B’s shop. A return it as they were faulty goods.”

The given sentence is an example of an improper use of language. If A returned both the hammer and the saw, the use of the word, ‘it’ is not proper. Both the hammer and the saw were returned and thus, the word ‘them’ should be used.

A core element of quality legal writing is to communicate with clarity. Clarity will not just be on the language used, but also the structure of the language in terms of sentence structuring or points covered in the communication. This also means that ambiguity must be avoided.

1. Lisa Webley, Legal Writing (Taylor & Francis 2013).

Bringing clarity in legal writing encompasses many factors. For instance, it means providing complete and accurate information in the work. This could be achieved by adhering to necessary instructions and considering relevant background information, main issues, facts, applicable laws, or alternative resolutions. Not only that, but the words used in a work must convey the meaning intended. Thus, choosing the correct word, punctuation, or the form of sentence will ensure writing correct grammatical sentences. For example, a simple sentence produces more impact that a complex or a compound sentence. Refer to the following paragraph for a better understanding:

Example 2: “Murder is a common law offence. As the most serious form of homicide, it carries a mandatory life sentence thus the judge has no discretion in sentencing. Loss of control and diminished…”

A quality legal writing is found in a work that avoids common errors. Some relevant examples are as follows: a) starting a sentence with a conjunction; b) illogical predication errors found in the use of words “when” and “where” to describe a legal term; c) using commas to form run-on sentences; incorrect use of quotation and full stop; and d) incorrect use of apostrophe.

The elements considered here are the fundamental qualities of a quality legal writing that ensure clarity, conciseness, and attainment of intended meanings and goals.

Q2.

The SRA Code adopts an outcome-based approach governing the law practices and quality of outcomes for the clients. This approach represents the flexibility that law firms and individual lawyers can adopt to find ways of achieving the desired outcomes. The implementation of this new SRA further promotes the flexibility. This raises the question about the manner in which law firms and individual legal practitioners offer legal services in a less regulated environment.

1. Emily Finch and Stefan Fafinski, Legal Skills (Oxford University Press 2017) 227-235.
2. Janine Griffiths-Baker and Nancy J. Moore, ‘Regulating Conflicts of Interest in Global Law Firms: Peace in Our Time?’ (2012) 80(6) Fordham Law Review 2541.

The new SRA prescribes separate codes for the conduct of law firms and for individual legal practitioners. It seems the aim for such separation of codes is to cover a wider range of business structures in which individual law practitioners may work.

The new SRA allows firms more innovative opportunities to offer legal services. This means it provides a deregulated environment offering firms and attorney to solicit clients. The new SRA is criticised as being too flexible. Formerly, advertising of the profession or legal services was not allowed, as provided under the 2011 Code of Conduct at Outcome O(8.3). However, Regulation 8.9 under the new SRA allows solicitation and advertising to current or former clients.

As per Rule 10.2 of the Authorisation of Individuals Regulations, freelance solicitors are not subjected to such restriction and they can offer their services to the public. They must meet the conditions under Regulation 10.2(b). This means that the restriction of soliciting members of the public is not applicable to non-authorised businesses. The new SRA will allow non-reserved legal services by individual law practitioners in non-authorised providers. It will allow them to work on a freelance basis through non-authorised sole practices. This means it allows cold calls from will writing agencies.

The new SRA Code of Conduct for Firms allows disciplinary actions against managers and compliance officers and also against employees (Rule 1.2(c)) for the breach of the SRA Code of Conduct for Firms. This means the SRA Code provides for wider regulatory reach of the SRA Code. This means that there is a potential increase in the number of regulatory cases, which will be contributed from actions against employees.

1. Ibid.
2. The Law Society, ‘SRA Standards and Regulations’ (2019) accessed on 9 August 2021 .
3. Solicitors Regulation Authority, ‘SRA Code of Conduct for Firms’ accessed 9 August 2021 .

The new SRA Code of Conduct for Firms has also extended the application to the governance structures, arrangements, controls, and systems. It also covers aspects of financial stability and viability. This means that the Code is no longer limited to behaviour of the attorneys or solicitors. It provides for business compliance allegedly increasing business compliances of law firms.

The new SRA provides for a civil standard of proof to be applicable to disciplinary actions, as per Rule 5 of The Solicitors (Disciplinary Proceedings) Rules 2019. This may allegedly lower the burden of proof and bring more disciplinary actions or more charges of dishonesty.

To conclude, the new regulatory approach allows solicitors more flexibility in decision making towards complying with their obligations. However, elements such as lesser regulation on soliciting may go against public policy. The expansion of the SRA regulatory reach. To cover employees and the lowering of the standard of proof may increase the number of disciplinary cases. At the same time, the new regulation may increase the competition of the profession and also allow wider reach to the members of the public to legal assistance.

Q3. The Alternative Dispute Resolution (ADR) mechanism in the context of the pandemic has gained favourable arguments. For example, a mediation clause will offer parties to renegotiate positions in an urgent situation such as the COVID-19 pandemic. In this light, it is necessary to analyse the use and benefits of ADR mechanisms to settle disputes during the crisis.

1. Metka Potocnik, ‘Mediation and arbitration: An alternative forum for transnational dispute resolution in the music industries’ in Ann Harrison and Tony Rigg (eds.), The Present and Future of Music Law (Bloomsbury Publishing) 144.

It has been observed that the COVID 19 pandemic has increased the backlogs of pending cases. The pandemic has increased the number of disputes mainly due to failure of the companies to complete the contractual obligations. It is due to these reasons that parties in disputes are encouraged to pursue ADR options. The ADR options are encouraging given the presence of artificial intelligence (AI) based support helping online dispute resolution and negotiation support. This AI support aims for an equitable resolution to a conflict without favouring either parties in a dispute.

During the time of the pandemic crisis, it is observed that parties in a dispute show more willingness to seek negotiated solutions. Parties are facing similar constraints in regard to the professional obligation due to the pandemic. Focussing on a conciliatory or mediatory approach rather than a contentious route preferably mitigates risk effectively. While such is the case, parties have increased their reliance of the online ADR mechanism, which provides case management and communication support. For example, the British Columbia Civil Resolution Tribunal provides a full suite of dispute resolution services, including case management, advisory tools and communication tools, manual drafting of agreements, highlighting provision of advice. It diagnoses disputes and provides legal information and tools.

If the mediation approach does not guarantee resolution, there is always the arbitration option. It will allow the parties to use the pleadings and evidence already assembled for litigation purposes and adopt an agreed procedure to settle the dispute.

In the light of the discussion, the ADR mechanism supported by AI based support may become an effective and efficient addition to the normal court procedure. Parties must weigh the various complications regarding dispute resolution through the normal courts’ procedure against the chances of mitigating risks supported by the ADR options. The reason is that litigation will be costly. Arbitration procedures will also be costly and time-consuming. Thus, a conciliatory ADR with support of AI platforms will deliver the benefit of cost, time and more comprehensive way to resolve disputes.

Continue your journey with our comprehensive guide to Private Nuisance Analysis and Remedial Outlook for SH and the Smiths in the MI Case.

1. Niuscha Bassiri and Mohamed S. Abdel Wahab, International Arbitration and the COVID-19 Revolution (Wolters Kluwer 2020).
2. John Zeleznikow, ‘Using Artificial Intelligence to provide Intelligent Dispute Resolution Support’ (2021) Group Decision and Negotiation 1-24.
3. International Bar Association, ‘Pandemic places spotlight on ADR for in-house teams’ accessed 9 August 2021 .
4. John Zeleznikow, ‘Using Artificial Intelligence to provide Intelligent Dispute Resolution Support’ (2021) Group Decision and Negotiation 1-24.
5. Ibid.
6. International Bar Association, ‘Pandemic places spotlight on ADR for in-house teams’ accessed 9 August 2021 .

Bibliography

Books

Bassiri N and Mohamed S. Abdel Wahab, International Arbitration and the COVID-19 Revolution (Wolters Kluwer 2020).

Finch E and Stefan Fafinski, Legal Skills (Oxford University Press 2017)

Potocnik M, ‘Mediation and arbitration: An alternative forum for transnational dispute resolution in the music industries’ in Ann Harrison and Tony Rigg (eds.), The Present and Future of Music Law (Bloomsbury Publishing)

Webley L, Legal Writing (Taylor & Francis 2013).

Journals

Griffiths-Baker J and Nancy J. Moore, ‘Regulating Conflicts of Interest in Global Law Firms: Peace in Our Time?’ (2012) 80(6) Fordham Law Review 2541

Zeleznikow, J, ‘Using Artificial Intelligence to provide Intelligent Dispute Resolution Support’ (2021) Group Decision and Negotiation 1-24

Websites

International Bar Association, ‘Pandemic places spotlight on ADR for in-house teams’ accessed 9 August 2021

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1. International Bar Association, ‘Pandemic places spotlight on ADR for in-house teams’ accessed 9 August 2021 .

The Law Society, ‘SRA Standards and Regulations’ (2019) accessed on 9 August 2021 .

The Solicitors Regulation Authority, ‘SRA Code of Conduct for Firms’ accessed 9 August 2021 .