November 30, 2013

Message Received.

The textbook comments that five common objects for legal communication are to understand, to explain and advise, to negotiate, to advocate and to persuade.[1]

For me to be able to understand a client, I need to make them feel comfortable and act in a manner so as to promote a trustworthy attitude and personality.  Once they feel at ease to provide me with the information needed, I will be able to ascertain their perception of the issue at hand.[2]  Another great way to assist in understanding the message that a client or colleague is trying to impart, is to exercise active listening.  I feel that this is a very effective tool to show people that you are hearing them.

Ask questions.  Double-check and confirm instructions.  Clarify your understanding of what has just been communicated.  Use attentive body language.  Respond and comment to what is being said.[3]

I must also be mindful of adjusting my communication techniques where the way I am communicating is not suitable for the particular person I may be communicating with (i.e. if English is not their first language, if they have literacy problems, they may be of a different culture or may not understand formal legal language).[4]  It may be that I am required to communicate complex legal issues in plain and simple English and I must have the flexibility and skills to do so.[5]

Effectively understanding what is being conveyed to me will help me to explain the legal issues to my client and advise them in a clear and concise manner.  While a thorough knowledge and diligent research of the law is required to advise a client accurately about their legal rights and obligations, there are many other aspects to explaining and advising.[6]  Communication skills are vital.  The textbook mentions that it is important to be clear with clients about realistic expectations in regards to the outcome of their matter.[7]  I would not want to lead a client on with the belief that they are absolutely acting reasonably by suing an entity for millions of dollars, and that they can expect to receive every penny that they assume they are owed, when it is obvious to me that it is a pipedream.  Lawyers need to be aware of the client’s desired outcome, or goal of their legal action, but being a competent advisor means letting a client know when these goals are unreasonable or unrealistic.

This leads me to another important part of explaining and advising clients.  Show empathy.  If a person requires legal advice and assistance, majority of the time, this person is not experiencing the highlight of their life.[8]  There is a fine line between showing empathy and becoming emotionally involved, and as a legal professional it is important not to become emotionally involved.  But showing genuine empathy will ensure the client feels that they have been heard and respected and will create a professional relationship based on trust and rapport.[9]

To negotiate effectively, knowledge of the client’s desired outcome is required.  Determine what the client would ideally like to achieve, and once it has been established whether it is realistic, work toward that goal.[10]  There are different types of negotiation and it would prudent to establish which approach is likely going to achieve the desired outcome.  Particularly in alternate dispute resolution, an interest-based approach would be used to provide the most mutually satisfactory outcome for the parties involved.[11]

Legal advocacy is normally performed in a courtroom.[12]  Personally, I am not interested in becoming a barrister, but advocacy is definitely a valuable quality to learn and practice, and something that will be useful in other areas of the legal profession.  The main point I got from the textbook regarding being a good advocate is to be well prepared.[13]  Research the case and related topics so that you have a thorough understanding of the facts.[14]  Plan the structure of your argument.[15]  Practice your argument.[16]  Know the substantive law and the procedural rules of the applicable jurisdiction.[17]

The textbook highlights the point that both negotiation and advocacy share a common integral aim – to persuade.[18]  This is definitely a skill I would love to sharpen.  I am eager to learn and quickly recognise logical fallacies so that I am able to avoid using them in my arguments.  The ability to recognise these fallacies will also enable me to identify flaws in arguments against my position.  This skill will also then help to make my argument more convincing to others, and will build trust and a credible reputation with clients and colleagues, as they will be able to see that my arguments are based on facts and sound reasoning.[19]  And what can be more persuading than fact?

I am determined to communicate well in both verbal and written form, to convey my message clearly and concisely, and to ultimately be an effective, appropriate and persuasive legal communicator.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 309.
[2] Ibid.
[3] Ibid 326.
[4] Ibid 315.
[5] Ibid.
[6] Ibid 310.
[7] Ibid 311.
[8] Ibid 328.
[9] Ibid.
[10] Ibid 311.
[11] Ibid.
[12] Ibid 312.
[13] Ibid 313.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid 314.
[19] Ibid.

November 23, 2013

Thou Shalt Not Commit Logical Fallacies.

Visit to see a full size copy of this poster.

Intellectual Troublemaking.

Quite recently, my personal life has thrown events my way that have required me to engage in some serious personal growth. In particular, I have learnt the invaluable yet daunting quality of critical thinking. Thinking in general is something I am a big fan of. I am generally not quick to comment, but prefer to assess my thoughts quietly until I know what I want to say for sure. I am constantly trying to improve and expand these thinking skills. Not only to grow in my knowledge of the world around me, but to be able to better evaluate the information that I receive, to be able to broaden the way that I think, to think creatively, and to constantly evolve and grow. 

The word 'critical' should not at all be viewed in a negative context in the term ‘critical thinking’. Critically thinking about a particular topic does not necessarily mean that I disagree with the opinion that has been presented to me. It is a 'careful and thoughtful questioning' and may be an 'informed criticism'.[1]

A critical thinker should be inquisitive, alert, self-confident, open-minded, flexible, fair-minded, self-honest, prudent, diligent and persistent.[2] These qualities do not come easy, but with a genuine willingness, hard work and regular self-evaluation, they are certainly attainable. 

My favourite of these qualities is self-honesty. To successfully think critically, I must be ‘honest in facing personal biases’.[3] This strikes me as being one of the fundamental and most fascinating qualities of critical thinking. It is something that only I can assess, and the fidelity to this honesty is something that will only ever be self-recognised. This impels me to believe in critical thinking as an implicit facet of my personality, and especially of my professional identity as a law student and ultimately, a lawyer. It is a quality that will benefit my peers and eventually my clients, but for the most part, it provides me with self-confidence and personal satisfaction. 

Further to these qualities, to purposefully think differently to my peers and to challenge orthodoxy and ‘go against the grain’ is extremely difficult, and takes an immense amount of courage. However, if others are able to empathise with the emotional and social vulnerability that is shown through critical thinking and un-orthodox reasoning, it could perhaps provoke interest and be persuasive to my argument. At the same time, it is important to bear in mind that people generally do not openly invite or enjoy their beliefs and understandings to be challenged, so it is vital to always exercise critical thinking skills respectfully and with a great deal of care. 

It also takes courage to consider error in my own thoughts and arguments, and to accept the fact that my knowledge and beliefs may be just as limited as any one else’s.[4] To be a lawyer who is a critical thinker, not only will I need to gain my own initial perspective of a certain claim, argument, rule, doctrine, decision or action, but I will need to maintain the openness of mind to readjust my thinking should further evidence become available.[5]

I have really enjoyed learning about the thinking skills essential to becoming a legal professional. I expect that the Bachelor of Laws course will provide me with ample opportunities to develop my critical thinking skills in a practical way. 

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 285. 
[2] Ibid 296. 
[3] Ibid 296. 
[4] Ibid 296. 
[5] Ibid 298.

November 16, 2013

Out of the Darkness.

History has seen many horrific injustices.  Tyrannical rulers, brutality, slavery… the list goes on.  Yet, I was surprised to learn about certain historic methods of dispute resolution.

For example, in the Middle Ages, one method of dispute resolution was trial by ordeal.[1]  This method was practiced several different ways, but usually, the accused was forced to participate in some kind of physically injurious act such as carrying a red-hot iron (‘ordeal of iron’) or dipping their arm into boiling water (‘ordeal by hot water’).[2]  If the person’s wounds healed within a certain period of time then the accused was deemed innocent, but if they did not heal with in the set period of time the person was guilty.[3]

Another method used during this time was trial by combat.  This saw the parties to the dispute go head to head in a gladiatorial style battle until either one of the competitors surrendered or was killed.  The winner was then declared innocent.[4]

This got me to thinking about our system of dispute resolution.  As a common law legal system our courts use the adversarial system.  The adversarial system requires that the parties involved perform their case using a competitive approach, with the judge being involved as an impartial referee.[5]  Although there are strict procedural rules put in place for this system to be run smoothly, there is one thing I feel it lacks – the pursuit of truth.

Comparatively, the inquisitorial system used in courts of civil law legal systems, is an inquiry into the truth.[6]  All parties, including the judge, are involved in the investigation of the facts to arrive at the truth.[7]

Is our current adversarial system the ideal and most just system that could be in place?  I know nothing is perfect, but it seems that it has a lot of room to improve.  It seems to me to be a system that insists parties make self-interested arguments, and while legal professionals are bound to abide by certain rules of conduct, there is the possibility that important facts of a case can often be omitted.[8]

Fortunately, everything is constantly in a state of evolution.  Unlikely as it presently seems, it may be that our current system for dispute resolution will at some point seem as barbaric and primitive as trial by ordeal.  But, for now, these are just my opinions.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 171.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ray Finkelstein, ‘The Adversarial System and the Search for Truth’ Monash Law Review (2011) 37 (1) <>.

November 09, 2013

Week Two.

I have never taken a keen interest in Australian history, but I enjoyed week two's reading more than I thought I would have.

I honestly do not think I have ever seriously contemplated exactly what the British took away from the Indigenous Australians when they “settled” here.

The concept of terra nullius robbed the Aboriginal people of acknowledgement that their customary law was not only present at the time the British arrived, but that it was viewed by them as extremely valuable, and was something passed down from their ancestors and considered to be of the upmost sacredness.  In saying this though, I am also quite glad for the Doctrine of Reception, as I do not particularly want to live under the Customary law of the Aboriginals.

It is amazing to see the evolution of Australian law and the constant efforts to refine the maintenance of justice within the Australian legal system.  It makes me feel comfortable and hopeful that I am living in a society and country that is not only already some what advanced in freedoms, rights and equality, but is constantly working toward a better and more just future for it's citizens.

November 02, 2013

Organic Morality.

The natural law theory: the ‘intimate and necessary relationship between the law and a set of objective standards external to the law itself.’[1]  It can be quite difficult to identify these extrinsic standards, considering that in order for them to be natural traits within any given person, they should be objective, universal and unchanging.[2]  Proposals of these extrinsic standards have been put forward throughout history, and include things such as the laws of God, the laws of nature, the principles of justice, moral values, fundamental human rights, and ‘basic goods’.[3]

While different philosophers have different theories of where these extrinsic standards originate, there is one area in particular that stoked interest for me.  The Italian philosopher and theologian St Thomas Aquinas suggests that: ‘a well-made positive law is ultimately derived from the law of God and commands obedience accordingly.’[4]

I think that you may be able to see where I am heading.  I was surprised that some theories of natural law (or the ‘set of objective standards external to the law’) are unavoidably connected to religion, and the concept that some people often perceive religion as the moral compass of humanity.  This concept then raised the question for me: does morality depend on religion?  I understand that there are bounteous arguments for this question, and I do not think that it will ever have an answer that is universally agreed upon.  But, I would like to share a few points with you.

I watched this video ( recently, and if anyone has a spare 13 minutes or so, I implore you to take a look.  It discusses tests that are being conducted at Yale University in the ‘baby lab’ in regards to the morality of babies, and raises the question: are we born with an innate sense of justice?  When answering this question, it is important to bear in mind that a baby’s personal sense of justice has not yet been influenced by anything external to it's own genetics.  If a baby is found to have a sense of justice, it could well be argued to be the most natural and basic form of human justice.

Follow on questions to this topic for me include:  Where does this justice originate?  Is it part of an intelligent design?  Or is it a product of our evolution as a socially reliant species?  But, I guess these are questions for another time - and a whole other argument.

The New Lawyer stated, ‘[a]ccording to most natural law theorists, the natural law is discoverable by human reason’.[5]  This suggests that humans apply consequential ethics by analysing the consequences of their actions and using sound and logical reasoning, before making decisions.  According to English philosopher Thomas Hobbes, ‘natural law is how a rational human being seeking to survive and prosper would act’.[6]  Like the babies in the Yale baby lab, it can be suggested that we have an instinctive nature to preference the non-threatening over the threatening, and to serve both justice and punishment where it is earned, essentially to survive.  Saying this though, I agree with the idea that ‘[e]verything about human experience suggests that love is more conducive to happiness than hate is.’[7]

We are so fortunate to live in a country where religious freedom is a constitutional right.  Further, we are part of a nation that is also balanced with the uprising of a secular society that makes room for new evidence and theories.  While there are persuasive arguments for the positive aspects that religion has had on the development of humanity's morality, I believe that it does not depend upon religious teachings.

I really hope that I get to look at jurisprudence in a whole lot more depth through out the course of my studies.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 54.
[2] Ibid 58.
[3] Ibid 55.
[4] Ibid 57.
[5] Ibid 55.
[6] Ibid 57.
[7] Sam Harris, Letter to a Christian Nation (Bantam Press, 2007) 24.