Legal Terminology and Communication: A Comprehensive Report

This report delves into the multifaceted realm of legal communication, exploring its theoretical underpinnings and practical applications. It begins by examining various communication models, including the Shannon-Weaver, cybernetic, and social models, and their relevance within the legal environment. The report then analyzes different communication methods, such as written, verbal, nonverbal, visual, and electronic, highlighting their significance and impact on legal practice. It also discusses the role of technology in legal communication, emphasizing the importance of relevant legislation. Furthermore, the report outlines principles of effective communication, including clarity, brevity, and simplicity, and addresses common barriers. The analysis includes the application of these principles in scenarios such as client interactions and communication with colleagues, providing a comprehensive overview of legal communication strategies and techniques.

LEGAL TERMINOLOGY AND COMMUNICATION 2
Table of Contents
Task 1- Theory of Communication..................................................................................................3
Communication models and systems used in the legal environment..........................................3
Communication methods and technology in the legal environment...........................................7
Making communication effective................................................................................................9
Task 2– Oral Communication........................................................................................................11
Task 3 – Communication in Writing.............................................................................................11
Legal Memorandum...................................................................................................................11
Memorandum.........................................................................................................................11
Email to colleague.....................................................................................................................14
Letter to a client.........................................................................................................................16
Bibliography..................................................................................................................................19
Primary Sources.........................................................................................................................19
Cases......................................................................................................................................19
Statue and Statutory Instruments...........................................................................................19
Secondary Cases........................................................................................................................19
Books.....................................................................................................................................19
Journals..................................................................................................................................20
Websites and Blogs................................................................................................................21

LEGAL TERMINOLOGY AND COMMUNICATION 3
Task 1- Theory of Communication
Lawyers are deemed as the professional communicators and their principal tool is
language. From the time they begin their law school to transitioning into the legal practice, the
lawyers obtains different information regarding the law and about the human problems, where
they organize these and think about the information, along with assimilating ad communication
this information to other people. There are only a handful of professions which require
communication in such constant manner. Thus, communication becomes a key part of the profile
of lawyers1. This section would therefore attempt to shed some light on the theories of
communication, which are prevalent and which are used in the legal environment.
Communication models and systems used in the legal environment
The communication models are the basic models which help in explaining the human
communication process. The basic concept under this revolves around the communication being
deemed as a process of sending and receiving the messages or the transfer of information from
one party, i.e., the sender, to another party, i.e., the receiver2.
The first key model in communication was developed by Claude Elwood Shannon in
1948, which was published with the introduction covered by Warren Weaver3. Under the
Shannon-Weaver model, there were four basic parts including the sender, the message, the
channel and the receiver. This model was designed for mirroring the functioning of telephone
and the radio technology. The channel was telephone and the sender was part of telephone in
1 Luc J. Wintgens, The Law in Philosophical Perspectives: My Philosophy of Law (Springer Science & Business
Media 2013)
2 Christoph A. Hafner and Vijay K. Bhati, Transparency, Power, and Control: Perspectives on Legal
Communication (Routledge 2016)
3 Janice Richardson, Law and the Philosophy of Privacy (Routledge 2015)

LEGAL TERMINOLOGY AND COMMUNICATION 4
which the person speaks in, the receiver was part of phone through which they can hear the other
person. This model also recognizes the background or static noises which interfere with the
conversation process, which are referred to as noise and some background noises as an indicator
of absence of signal. In simple model, i.e., the standard view of communication or the
transmission model, the content or the information is sent in certain form from the encoder/
emissor/ sender to the encoder/ destination/ receiver. So, communication is deemed as a manner
of sending and receiving the information4.
The communication models which are trending and which are referred to as cybernetic
and social ones, also holds significance in this context. The cybernetic model is focused on the
interest on processes of communication where the framework is controls, monitors, processes
and retrieves the information. The social model covers the subjective communication processes
which are treated as a manner of creative the inter-subjective communication between the social
actors and the social systems. This system also takes into account the sender and recipient’s
position regarding information in the communication process, which shows the transmission
model, and convergence model; where the first model is linear and is deemed as a stimulus
response sequence; and the second model is responsive and cooperative in character in which the
sender can be the recipient simultaneously5.
4 Helen Xanthaki, Enhancing Legislative Drafting in the Commonwealth (Routledge 2016)
5 Tomasz Bekrycht, ‘Communication Models in Law’ (2014) Masaryk University Journal of Law and Technology,
8(2), 157

LEGAL TERMINOLOGY AND COMMUNICATION 5
(Source: Bekrycht, 2014)
Another leading theory is the one given by Schramm, which provides that that
communication has certain key dimensions, which includes a message, the sender, the form, and
the destination in terms of a receiver. He indicated that there was a need to examine the impact
of the message on the target of such message. In his view, communication between the parties
conferred the experiences and knowledge, where questions are asked and even advice and
commands are given. This model was governed by three key levels of semiotic rules. The first
was syntactic, which included formal signs and symbols. The second one was the pragmatic view
which was related to the relation amidst the user and the expressions/ signs. Last one was
semantic which covered the relationship between the symbols and signs, and what they
represented6.
A new communication model, particularly in context of legal communication is the
sensory experience and the representational system. A communication theory has to recognize
the human experiences which are sensory based. The physical world covers a number of qualities
which can be properly perceived through the human beings, particularly their sensory systems.
These channels are of five senses, i.e., of smell, taste, sound, sight and touch. These senses help
6 Peter Simonson and David W. Park, The International History of Communication Study (Routledge 2015)

LEGAL TERMINOLOGY AND COMMUNICATION 6
in creating the maps of experience and each sense gives a different base component. Though,
such maps are never complete, which leads to the majority of information going undetected. The
sensory modes of expression are known as representational system. These sensory modes of
expression are known as the representational system7.
When it comes to the legal environment, these models can be applied in order to get the
information from the clients and also in context of providing them with the necessary
information. When it comes to the transmission model, the lawyer takes the position of being
only the recipient of the message and the client sends the message. Here, the communication
becomes strictly instrumental where the communication is used only for managing the recipients
as a manner of tool of transmitting the information. This communication system is usually
adopted in such cases where the communication is done with seniors, in context of a paralegal
forming a report on the basis of a case for the lead lawyer, where the lead lawyer just wants the
key information, instead of a to-and-fro communication. When it comes to the convergence
model, the same is used in dealing with the clients where the lawyer not only listens to the
information given by the client but also searches for more information and provides information
regarding the legal options available to the clients. This approach thus adopts a to-and-fro
approach.
For an effective communication system in place, particularly for the existing and
potential clients, the best approach is the one given under sensory model, as the human element
is given significance in this model. These are particularly helpful in attaining information
through the physical reactions of a client. In this regard, the theory given by Schramm is also of
7 John L. Barkai, ‘A New Model For Legal Communication: Sensory Experience And Representational Systems’
(2017) <http://hl-128-171-57-22.library.manoa.hawaii.edu/bitstream/10125/35153/1/Barkai_29ClevStLRev575.pdf>
accessed 28 November 2017

LEGAL TERMINOLOGY AND COMMUNICATION 7
significance as the symbols and signs are included in this. This approach helps in building
confidence with the client and being aware about the client. And for the communication with
colleagues, the communication model based on the hierarchy level can be applied. For instance,
in cases of giving the information to the senior lawyer, a transmission model is helpful, and in
other cases, the convergence method is to be adopted. The matter would be the decider and
would have to be analysed to adopt the best communication model
Communication methods and technology in the legal environment
Technology plays an important part in the legal environment and different modes are
used in this sector for both formal and informal communications. The key modes of
communication include written, verbal, nonverbal, visual, and electronic methods.
When it comes to the written communications, the information is sent and the same is
received in a written mode. This mode helps in clearly stating what the information is and leaves
very less scope for the statement being inferred in a wrong manner. This is often deemed as the
best manner of communicating in the legal environment. This is because the terms or the
wordings of every law are very specific and while communicating these, care has to be taken that
the exact meaning of the law is transmitted8. For instance, if a client is being told that he has the
option to claim damages for the breach of contract, there is a need to explain it to the client if he
can apply for specific performance or injunction as the remedy. Where the client is told that he
can apply for both as a remedy, due to the communication error, the same would be wrong
advice for the client as only one of these can be used as a remedy for breach of contract. In such
a case, where the communication is written, the wordings are not lost in transition and the client
can be clearly told of his options. Even though it is still possible that the written statement also
8 William H. Putman, Legal Analysis and Writing (4th edn, Cengage Learning 2012)

LEGAL TERMINOLOGY AND COMMUNICATION 8
covers wrong advice, but the same can be proved as the same is in writing; whereas the same
would not be possible where this communication was in oral form, and can result in dispute
between the law firm and the client. In cases of ambiguity, the exact term can be interpreted as
per the theme of the document. Thus, written communications helps in putting every point in a
clear manner9.
The verbal form of communication is also a common parlance in legal environment as
every aspect cannot be put down in writing. It is preferable form of communication when it
comes to discussing the different options with the clients, or communicating with the colleagues
when a particular case is to be discussed. Through verbal communication, the personal touch can
be given on an advice, which makes the communication even more effective due to the client’s
needs being given proper significance. This is usually used as an informal mode of
communication and to save time and resources which have to be devoted in written
communications10. This does not mean that liability is not raised in such communications. The
common law is particularly harsh in this regard, when it comes to vitiating factors like
misrepresentation or duress, where a verbal communication can raise liabilities for the lawyer
giving wrong advice to the client, where such advice encompasses a statement of fact, owing to
the position of the person to know the truth behind such statement11.
The electronic model of communication is another key mode of communication and is
gaining a lot of interest. Different legislations have been drawn specifically for electronic
9 Lynn Bahrych, Jeanne Merino and Beth McLellan, Legal Writing and Analysis in a Nutshell (5th edn, West
Academic 2017)
10 Caroline Maughan and Julian Webb, Lawyering Skills and the Legal Process (2nd edn, Cambridge University Press
2005)
11 Steven Schneider, The Everything Guide To Being A Paralegal: Winning Secrets to a Successful Career! (Simon
and Schuster 2006)

LEGAL TERMINOLOGY AND COMMUNICATION 9
communications in different nations, for instance, the Electronic Transactions Act, 199912 is
applicable in Australia, and the Electronic Communications Act, 200013 is applicable for UK.
While communicating using the electronic methods, there is a need to keep these legislations into
consideration. For instance, where a contract is being created for a client, there is a need to keep
the provisions of this act into consideration. This helps in instantly getting across the written
communication instantly, i.e., in speed of a verbal communication, thus bringing out the best
combination of two worlds. The other modes of communication include the visual ones, which
are often used in the verbal communications, and the nonverbal ones, which are encompassed in
the written and electronic communications. Depending upon the receiver of such
communication, these communications take the formal and informal form.
Making communication effective
For any communication to be effective, certain principles of effective communication
have to be followed. The first requirement is of clarity where the communication is required to
be clear without any distortion or loss of information due to interruptions and noises. There is
also a need to follow the principles of brevity, where the communication has to be brief, which is
sufficient and necessary14. This is particularly important when the legal advice to the client is
being given, which has to provide them about their rights and remedies available, instead of
dictating what the law covers. There is also a need to adopt the principle of simplicity, along
with timeliness, and integrity. There is a also a need to adopt the principle of control, where not
only the language used is controlled, but so are the hand gestures and the other signs used. The
12 Electronic Transactions Act, 1999 (Cth)
13 Electronic Communications Act, 2000
14 Business Communication, ‘10 Most Important Principles of Effective Communication’ (2013)
<https://www.businesscommunicationarticles.com/principles-of-effective-communication/> accessed 28 November
2017

LEGAL TERMINOLOGY AND COMMUNICATION 10
most important principle is focusing on the needs of the user, where there is a need to undertake
rich and clear interactions and make the content user-friendly15.
There are some common barriers which make the communications less effective. The
first barrier in this regard is the use of jargon, where over-complicated, technical or unfamiliar
terms are used. In order to remove this obstacle, the communication has to be done in simple
terms, where the client can clearly understand what their position is. The next barrier is
associated with the emotional barriers and use of off-limit topics16. This can be dealt with by
carefully discussing the crucial topics like the incident of rape and at the same time ensuring that
the victim is not hurt; and there is also a need to avoid such issues which are not necessary and
which can result in being barrier. The barriers of lack of attention, distraction and irrelevance can
be removed through being vigilant on the needs of the receiver. The language and cultural
differences can be given away by using simple language, which avoids any derogatory term for
any culture or any such sign which might be deemed as negative in a particular culture. For
instance, there is a need to avoid swastika symbol, which is deemed as a positive sign by the
Hindus and a negative sign by Jews17.
15 Legal Tech Design ‘Design Principles’ (2017) <http://www.legaltechdesign.com/communication-design/design-
principles/> accessed 28 November 2017
16 Skills You Need, ‘Barriers to Effective Communication’ (2017) <https://www.skillsyouneed.com/ips/barriers-
communication.html> accessed 28 November 2017
17 DevianArt, ‘Swastika? Which One?’ (2017) <https://hyperactive-activate.deviantart.com/art/Swastika-Which-
One-155072724> accessed 28 November 2017

LEGAL TERMINOLOGY AND COMMUNICATION 11
(Source: DevianArt, 2017)
Task 2– Oral Communication
This section constitutes an aptitude assessment to be done orally.
Task 3 – Communication in Writing
Legal Memorandum
Memorandum
To: Arthur Weasley (Senior Manager, Law Division)

LEGAL TERMINOLOGY AND COMMUNICATION 12
From: Newt Scamander (Paralegal)
Date: 27th November 2017
Subject: Claims regarding negligence
The claims of negligence are often difficult to establish due to the need of establishing
the presence of different elements of negligence, before a case can be made in the court of law
for getting an order of damages to be paid to the client. The case of Megan Fox had been
provided for evaluating the chances of her success in negligence case and so, the same has been
analysed in the following parts to decide if she would be successful in her claims against
Raymond Black. In doing so, as per the instructions provided, a detail of the basic concepts has
also been given.
Negligence is deemed as the breach of duty of care which results in the aggrieved party
being hurt or injured, as is the case with Megan in this case. Negligence is a tort law which
results in civil obligations being raised for the duty breaching party18. The duty of care is raised
in cases of negligence as the actions of one party have the ability of affecting the other party.
Where the person fails in taking the requisite care and the other party is injured or harmed due to
this failure of the first person, liability is raised under the tort law19.
The first element which is required to be shown is the duty of care being owed by one
person to the other person. In this regard, the case of Donoghue v Stevenson20 proves to be of
help. In this case, the plaintiff had consumed ginger beer from the bottle manufactured by the
defendant and in this bottle was a dead snail. Upon consuming the liquid, the plaintiff got sick
18 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (5th edn, Oxford University Press 2013)
19 William P. Statsky, Essentials of Torts (3rd edn, Cengage Learning 2011)
20 [1932] UKHL 100