Superheroes: lawyers and social workers—but where are our Universities?

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By Bevan Warner

Batman and Robin were an irrepressible team, each with unique talents, who fought the good fight. Spiderman fought alone but had powers that made him superhuman. Was the dynamic duo or the singular superhero more powerful or better?

Just like our superheroes, lots of talented staff chose to study law with the express intention of standing up for what is fair and using their skills not to enrich themselves but to benefit and better the community.

They saw the potential for the law to oppress and enable: a force from which people will often need protection, but also a tool that can help individuals obtain protection and to realise their rights and lead fulfilling lives.

Many of today’s law students come to their studies with similar aspirations of fighting the good fight and using the law for social good, but do our Universities equip them properly for this task?

While law and commerce is a popular conjoint degree, few universities have a similar degree option for social justice lawyers. Those who are interested in the operation of the law for everyday people, will often undertake a conjoint law and arts degree. While this combination provides invaluable critical thinking skills it does not provide all the practical skills for effective social justice lawyering.

Why aren’t our Universities offering dual social work and law degrees to better prepare our social justice lawyers of the future?

Why make people study twice and work in two careers when a singular super professional hero would be better?

Victoria has been a leader in incorporating clinical legal education models in basic law degrees.

Former Victoria Legal Aid board member Mary-Ann Noone pioneered this work as she taught a new generation of social justice lawyers at La Trobe University and it is now routine for universities to entice students with some offer of practical experience of the law in their coursework. But still, no cross over single degree between law and social work. You can be Batman or Robin but not Spiderman – I sincerely wish I had a gender neutral superhero to choose from, but alas I do not.

I wonder which Australian University will be first?

Our lawyers at Victoria Legal Aid often reflect on how their role is as much about being a social worker as it is a lawyer. To only help a person with their legal issue, without assisting with the many other non-legal issues that underpin their legal problem, is to not do our job effectively.

Many changes are needed to achieve fairness before the law for everyday people but I venture that bringing social work into our law schools will be an important piece of the puzzle.

A fit-for-purpose degree with a mix of law and social work skills would be a great way to harness the passion I see in many of today’s law students who are clamouring to work at Victoria Legal Aid.

It would build on Victoria’s legacy as a leader in legal education and contribute greatly towards building the workforce we need for our future.

— Bevan Warner is the Managing Director at Victorian Legal Aid

The Passion is Everything – Everything

 

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By Julian Summerhayes

“We have the choice of two identities: the external mask which seems to be real…and the hidden, inner person who seems to us to be nothing, but who can give himself eternally to the truth in whom he subsists. (295)” ― Thomas Merton, New Seeds of Contemplation

I’m acutely aware of the plethora of material espousing passion. You might say there’s a whole industry around follow your passion.

But really, do you need anyone (including me) to tell you to do something that you’re passionate about? (You may want to hold fire with your response until you’ve read the rest of this post.)

Yes and no.

First, the no.

You’re not an idiot, and whatever your stage of life, I’d like to think you’ve figured out what floats your boat. Of course, in a leisure setting this is easy to articulate: “I’m passionate about [insert].” And if you’ve got any sense you work to live and make sure you carve out as much time as possible to follow your passion(s), not at all cost but certainly in a way where you manage to find a space to be you.

What about work?

What do you?

Do you follow your passion?

Do you?

Be honest, please.

In answering the question, please don’t subconsciously give me the blithe aphorism “Because I want to help others.” Who doesn’t? No, I need you to go much deeper. What is it about the practice of law that truthfully brings you to full expression?

Arguing with your opponent? (*Sighs*)

Settling a mega, mega case? (*Double sighs*)

Making law firm partner? (*Feints*)

Nope, I don’t buy any of these. Why? Because having been around law for over 20 years, I’ve rarely met a lawyer who was passionate about any of these. In fact, the truth is I’ve rarely met a lawyer who can articulate a sensible answer to the passion question because they’ve lost touch with their inner, true self. You know the person whose skin you feel most comfortable in, where you don’t have to shapeshift to fit in.

I know, I might be so wide of the mark as to make this post dismissible in a nanosecond, but unless you know the answer to your core, all you’re doing is contriving one boring day after another…and living for retirement. Harsh? Yes possibly, but given you only get one crack at life (isn’t it amazing?), I wouldn’t try to pretend that’s it all hunky dory when it’s not. To be clear, I’m not asking you to trip out on some happiness lark, rather I want you to think very carefully why you practice law.

And now for the yes.

Yes, I do need to tell you.

Well, I’ve already touched on it: life is special; but I want to go a bit further. It may well be by the time you’ve investigated your current role and considered if there’s any chance of realising your passion, you draw a blank or manoeuvre yourself into a deep, dark place.

In fact, this was me back in 2010.

I’d done everything in my power to avoid asking what brought me to full realisation. To keep the backstory super short, I worked so hard that I didn’t leave any space for the self-doubt to creep in. It took a period of hospitalisation for me to be brought to my senses. And of course, during my convalescence, when I had oodles of time to think, you guessed it, I drew a big fat blank. I didn’t have an answer beyond the money, and given my age (43), I took the view that if I didn’t go off and follow my true passion I would live with one massive regret. Worse still, I’d go to my grave with my song still inside me.

Jump forward the present day. I’m still invested in law but now I run a small law firm. I wouldn’t say it’s completely resolved the passion question but it sure as hell doesn’t leave me denuded of soul as I walk through the front door every evening, as years of private practice did.

Does this mean I’m asking you to leap? No, not at all. In fact, it probably doesn’t mean you have to do a great deal to change your job save in one fundamental respect; namely, you have find time for you. To be more specific, you have to apply a new discipline to your life where you deliberately carve out time to see if you can do something, preferably following your commercial as well as your artistic muse.

In my case, I wish now that as well the day job I’d written poetry, practiced calligraphy and read more widely. I know it doesn’t sound revelatory, but it would have detuned me in a contemplative way from all the high-octane stress that proliferates in law. (At the time mindful colouring books weren’t around but they might have sufficed – ha ha.) You might go further and reconnect with your childhood passion and that might lead on to a new way of living, i.e. work is no more than a platform for you to do the things you really want to do.

Again, if this has a familiar ring then that’s not a bad thing but the ‘trick’ is to ACTUALLY DO SOMETHING – duh! You see, if there’s one thing I’ve learned on my own journey is that work is insidious and if you’re not hard as nails with your time, you’ll find all of this nice stuff being squeezed out by the inner voice that always says: “You haven’t got time for this right now.” Oh yes you have. Even 10 mins every day is enough. (Forget what you know about habits and that old chestnut of 21 days. Habits always take a lot longer — easily over 100.)

And, as I always say to those I work with, all of this is a choice. It’s not my job to persuade you to my point of view. You either want to do it or you don’t, but please don’t make the same mistake as me and leave the passion question alone because you know no different. The landscape is there not just to support your passion but to make it real.

Now, go make it a reality!

– Julian Summerhayes’ personal website is found at http://juliansummerhayes.com.

Soaring through the law

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Katharine Kilroy

As lawyers – or in my case, aspiring lawyers – we are all too aware of the pressures and mental health risks we face. Ours is a stressful profession, and the need to be mindful of our wellbeing and proactive in maintaining a work/life balance is paramount. Each individual has their own approach to this challenge, and for the creatively inclined among us, it can be an even greater challenge.

Music was one of the first casualties of my decision to study law. Throughout my childhood and undergraduate studies, I had discovered and nurtured a love of classical music performance – although I will readily admit I was not destined for the Melbourne Symphony Orchestra. I fell in love with orchestral music the first time I experienced the ecstasy of performance. There is a moment, not always attained, when the music works. When the orchestra becomes greater than the sum of its parts and explodes in perfect harmony. The feeling as a musician is indescribable. Your chest swells, the hairs stand up on the back of your neck and you achieve simultaneous clarity and euphoria. It is thrilling, addictive and so much more.

The move across to law school and the loss of my music was a terrible wrench. Although I was shortly consumed by the demanding law curriculum, I was also half-heartedly googling community orchestras, wondering whether I could ever again find a place in my life for music. In between the mountains of assigned reading and the copious hours of study I felt obliged to put in every day, the law had established a monopoly on my time. It wasn’t making for a particularly joyful first semester.

The light returned with the golden glint of a treble clef worn around the neck of a classmate. This kindred spirit told me about Lawchestra and gave me the nudge I needed to drag my viola back out of the cupboard. In Lawchestra, I have discovered many a like-minded lawyer-musician. Together we take time out from the pressures of work and study to meet and make glorious, uplifting music.

Lawchestra are looking forward to our first performance of the year, Terminus which will be our greatest performance yet.

Terminus brings together Lawchestra, Habeas Chorus (the choir of Melbourne’s legal industry) and Monash University Choral Society for two epic works, Mozart’s sublime Requiem and the Melbourne premiere of Australian composer Dan Walker’s Last Verses which is based on the final works of some of history’s greatest poets. The performance celebrates life and rallies against death, showcasing the final step of the journey. It promises to be a spectacular event.

One cannot always pick when the moment of perfection will come. When everything clicks and the music begins to soar. It is transcendent, euphoric and amidst the majesty of St Paul’s, I cannot begin to imagine its power. Come and join us, for it shall be incomparable.

As part of Law Week, BottledSnail Productions presents Terminus at St Paul’s Cathedral on Saturday 21 May 2016 (3pm and 7pm) see http://www.bottledsnail.com/terminus for tickets and more information.

BottledSnail Productions is an organisation that seeks to promote mental wellbeing in Melbourne’s legal industry through supporting and producing creative and performing art projects. It has staged musicals, comedy shows, theatre productions and runs many musical ensembles throughout the year.

Terminus is supported by a Law Week grant from Victoria Law Foundation and sponsored by Your Law Firm.

Katharine Kilroy is a third year Juris Doctor student at the University of Melbourne and plays viola in the Melbourne Lawyer’s Orchestra.

Wake Up Call

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It was four am when I realised I hated my job.

Four am when I first seriously considered that maybe I didn’t want to be a lawyer anymore.

I was sitting alone at my desk, marooned in the darkened silence of the vast open office waiting for my Partner to give me new instructions or (I hoped) let me go. Limbo in the twilight zone of the witching hour.

You develop a strange mindset in Big Law. If someone had told me even eighteen months prior that I’d be sitting around in the early hours of the morning waiting for someone to tell me I could go home at 4am I would have laughed. Would have told them not to be silly, that as soon as the work was done I would’ve been outta there like a shot (if not before, let’s be honest). I had been a firm adherent to the eight-hour day.

And yet there I was, resting my head on that evening’s stack of discarded drafts, unheeding of the red ink transferring to my cheek in bloody caress. Staring at the closed glass door, willing it to open.

My Partner had been closeted away for what seemed like an eternity. Important client. Billion-dollar deal. Something about the tax treatment. It always came down to the tax treatment. I could see him through the clear but impenetrable barrier, furrowed brow furrowing further over an over-long nose, the fluttering of my eyelids rendering the whole face demonically distorted.

And it was here, eyelids drifting, body slumped, that I realised I hated my job. I hated that it kept me bone tired and tied to office furniture at all hours. I hated that I had become familiar with stress sleeping (an involuntary cousin to the cat nap, it is hallmarked by the sudden jolt of consciousness when your body’s exhaustion no longer outweighs the constant heavy fear of being found kipping on the job). I hated that I had stopped making plans for weeknights so that I wouldn’t have to cancel last minute due to the euphemistic ‘work’. I hated that I was so tired and overemotional that I regularly cried in the disabled bathroom (in an open plan office, these quickly become the unintended havens of privacy).

But most of all, I hated that my Partner was still there too.

Having hit his hallmarked time for a mid-life crisis earlier that year, he had given nearly thirty of his waking years to the firm. And there he was, sitting head slumped in hands at four am while overseas clients in time zones more conducive to comprehension and consciousness berated him for the minor errors that sneak between the pages when you don’t have the attention to keep them out.

I hated that he would talk incessantly about the importance of family, of his love for his three young children, and yet, if he made it home for dinner one night out of five it was in positive aberration. I hated the realisation that he, like me, was still working for the weekend.

Because surely, surely, thirty years should have changed that?

Surely, surely, that was why we will bought in?

The premise that you worked hard (too hard, ludicrously hard) on the promise that there would be a time you wouldn’t. That there would be a time where you would have clients who trusted and respected you and you would have others (underlings, minions, serfs) to support you in providing duly timed services to those clients while you saw the family you delayed for a decade.

For this was the Promised Land of Partnership.

I don’t know when it changed or if it ever was. But I know many of the parched lips hungrily drinking from the poisoned well, unaware that salvation is saline. For in a world of stagnant demand but thriving competition there is no point on which laurels can be rested. Not even for a moment. Not even at four am.

And so you keep working for the weekend. And that realisation, that my fifty-year old Partner was still in the same boat as I (albeit with flashier brass fittings and leather seats), was the semi-conscious realisation that broke my already wavering belief in Big Law. Because followed quickly on its heels was the realisation that if the job never changes, never becomes less demanding, less needy, then something’s gotta give right?

And that something is you. It is your weeknights. Your weekends. Your expectations of boundaries. Your ability to say no. Your perception of what working hard is. By the time I left I didn’t think I was working hard. I knew I was working more than I wanted to, but I did think that was because I was selfish and lazy. It seemed normal to have less than six hours between when you finished and when you came back. It seemed luxurious to have eight. It seemed weak to complain.

And these were the thoughts I had in the dark wasteland of empty desks. And it was after five am when I left. And it was just after nine am that I came back.

And I didn’t think about the thoughts I’d had for another month.

Henrietta Farrelly-Barnett

This blog and original artwork is a re-print with permission from the author. It originally appeared July 27, 2015 on Henrietta’s own website http://www.redlipswhitechina.com/

In Praise of Doing Nothing

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By Stephen Tang

With the late arrival of streaming video services to Australia (legally, at least), we never got to use the phrase “Netflix and chill” in its plain and ordinary meaning. The success of its transformation into a slightly creepy euphemism probably depended on its original innocence: the joy of passive entertainment and the joy of switching off by switching on.

For a time, “Netflix and chill” succinctly gave fresh expression to a certain kind of pleasure which I fear is on the verge of extinction: doing nothing. Well, not quite nothing, but a restorative retreat to a comfy state of rest.

We’re of course all different in what this looks like. It may be watching an entire season of a show (it’ll take 1 day and 22 hours if you want to catch up on all of Breaking Bad), re-reading a trashy novel, cooking up some comfort food, or planting tomatoes in the spring. It’s not necessarily about alone time either, although as an introvert that’s where I find myself most often.

Idle restoration could also be found in the familiar rhythm of a regular catch-up with old friends, or unrushed and agenda-less time with your partner. Those with higher baseline levels of activity might find their default rhythm in a familiar run or gym routine.

What’s in common is that returning to this state is something that comes so naturally, so effortlessly and so mindlessly. There’s nothing particularly novel, demanding or even memorable about the activity. Indeed, what can be an effortful act of choosing what to do vanishes altogether through habit and familiarity, or by having choices made for you. Time passes with languid ease, and we feel refreshed afterwards. Continue reading

Mind our Words Redux

Speak plainly.

By Dean R P Edwards

It’s not often that an amateur scribe like your humble author receives free, unsolicited advice on his writing. But Mr Robert Angyal of Queen’s Counsel has come to the aid – in this instance – of my Queen’s English!

His tool: Plainglish (“Plain English” for the uninitiated — OK, that’s my term; check out Robert’s earlier post on lawyers’ lexicon). The patient: a blog post of mine and middling quality (I said I was humble) from 19 June 2015, which is republished here, in the left-hand column below.

Wielding with deft precision the fine cut of the scribal scalpel, Robert has trimmed the verbiage from my textually beleaguered post to expose the lean, plain English beneath. As The Bard would have written, “If it were said when ’tis said, then ’twere well it were said plainly.

The challenge: could I make Robert’s translation of English any plainer? The task may be in the offing…

Without further ado, New Lawyer English presents “Mind Our Words Redux, or, Two Variations on a Theme of Plainglish”. Enjoy.

“Mind Your Words”
By Dean Edwards

It might not occur to one, at first thought, that all lawyers are multilingual: we speak English and a very peculiar dialect that, for convenience sake, I call law.Law is as much about rules and procedure as it is about language, and we might take for granted that, besides all of the Old French and Latin jargon, lawyers speak in an English where argument and precision are deliberately reinforced in how we choose words, formulate sentences and speak to others within the legal system.

Our use of language might be by the by in our working lives, but lawyers need to be conscious of not only how language is used, but how it is understood.

This reflective practice is critically important when dealing with clients, the majority of whom live lives in blissful ignorance of the meaning of propounding the contract, or the balancing of probative value and prejudice. There is skill in talking to, and not at or above, the uninitiated.
Technicalities don’t need to be dressed up in nineteenth century turns of phrase to be concise and constructive. (Although lawyers do look sharp in their nineteenth century costumes.) Translation into plain English then is important. And consciously adjusting our language for the layperson has an additional and particularly valuable benefit: we can make our legal language more accessible, clearer and more democratic.

Recently, I had the opportunity to put the above into practice.

Teaching alongside fellow lawyers and legal academics in a program run by Melbourne Free University, I introduced a class of asylum seekers and refugees to core ideas in the theory and practice of law. Our material covered as much ground as a one hour, once a week class can across seven weeks, starting from the basics of law in Australia (how law is made, for instance) to the finer instruments of commercial, criminal and international law.

Classes generally attracted between 20 and 30 students, and there was a team of English tutors as well. Students, the vast majority of whom had no legal background, enjoyed immersing themselves in not only English but the language of the law, made plain and approachable.

Experiences of this kind are crucial, for a general population that deserves access to legal system and an understanding of that system’s workings, and for lawyers. It was equally rewarding and instructive, as we honed our ability to translate law. No small feat when handling a highly technical craft, with its principles and reasoning!

The more reflective we are on our profession, the more we can build a relationship and uphold our responsibility to public.

Translation into Plain English
By Robert Angyal QC

You might not have realised that lawyers speak more than one language. They speak English and, also, a very peculiar dialect of English that I call Law.The law consists of rules and procedures, which must be expressed in precise language. Because of this, when lawyers speak in Law to other lawyers, or make legal arguments, they consciously try to be precise. They choose words and structure sentences with care. Sometimes, they use old French and Latin terms that have specific meanings in Law.

Lawyers must be aware that, while it’s OK to speak Law to other lawyers, non-lawyers might not understand Law.

This awareness is critically important for lawyers when dealing with clients. Most clients don’t speak Law and thus are blissfully ignorant of the meaning of Law phrases like propounding the contract or balancing probative value against prejudice. Because of this, it requires skill to talk to non-Law speakers in terms they can understand.

There are two skills needed to translate Law into plain English: (1) expressing technical ideas concisely and constructively; and (2) (while barristers look sharp in their 19th-century costumes) avoiding dressing up our language in 19th-century turns of phrase. While consciously translating Law for non-lawyers is challenging, it produces a particularly valuable additional benefit: It can make Law itself more clear and thus more accessible to non-lawyers.

I recently had a chance to test whether this theory worked in practice.

Teaching alongside fellow lawyers and legal academics in a program run by Melbourne Free University, I introduced a class of asylum seekers and refugees to core ideas in the theory and practice of law. The classes were an hour long, given weekly for seven weeks. In the time available, we covered as much ground as possible, from basic legal questions (such as how law is made in Australia) to complex concepts of commercial, criminal and international law.

Usually between 20 and 30 students turned up. Very few of them had a legal background. With a team of English tutors to help them, the students enjoyed immersing themselves not only in English but also – once it was made plain and approachable – in the language of the law.

Everyone deserves to understand how the legal system works and to have access to it. So, for non-lawyers, experiences of this sort are very important. The lawyers involved honed our ability to translate Law into English. Given the highly technical principles and reasoning involved, this was no small feat! As a result, the experience was equally instructive and rewarding for us.

The take-away lesson? The more conscious we lawyers are of the need to communicate clearly, the better we can relate to non-lawyers and satisfy our professional duty to the public.

A Day in the Life of a Criminal Defence Lawyer

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By Jack Leitner

We can all attest to having watched one or a number of crime dramas or movies on prime time television. Central to these dramas are not only the suspects and the police who try to catch them, but also the lawyers who star in televised court room drama. The ruthless badgering of witnesses, questions littered with multiple propositions and, in the case of American dramas, getting in the face of witnesses or the jury are all too often scenes in all manner of crime dramas.

Many are led to believe that lawyers only have a select handful of cases within their practice and that their work is confined almost exclusively to the courtroom.

The stark reality, however, is very different. What does a criminal lawyer really do? Is it really like what you see on television or on movie screens? I’ll take you on a journey about what really goes on behind the scenes in the life of a criminal defence lawyer. Continue reading

Music for the Soul: BottledSnail presents Habeas Corpus in ‘Scene and Heard: Choral Pop for Film’

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By Julia Larner

I was beginning to think being anything more than an appreciator of music wasn’t going to fit in with sensible, mortgage paying grown up life; that involvement in the performing arts was a childhood luxury that I once knew. I have Habeas Chorus to thank for helping me to keep music in my life and contributing to an ever important work-life balance.

Having chosen Law as a career path, I have spent the last four years caught up in textbooks, exams, volunteer experience, paid experience, more exams, networking, attending essential skill-building seminars, clerkships (or lack thereof) and then finally landing my first lawyer job. My ability to work a chromatic scale has well and truly transformed into touch-typing proficiency, and my memory of key signatures has become a repertoire of a growing legal vocabulary.

As a first-year lawyer in a busy and growing immigration law firm, work quickly became the absolute priority in my daily life. I’ve tried to work hard, within a culture of equally hardworking and inspiring young lawyers, to learn and earn my way into the profession. However, with the adjustment to often demanding hours and so much to take in, despite the warnings I found myself starting to cut out ‘luxuries’, including exercising, seeing friends, cooking, healthy eating, as well as playing music. As a result I started feeling tense and a little bit hollow.

In a dark cold month of winter 2015 I tentatively joined an inspired, diverse bunch of dedicated and similarly flat-out law professionals for Monday night rehearsals with BottledSnail Production’s newly formed choir, Habeas Chorus.

Throughout Habeas Chorus’ inaugural and subsequent term, a solid turnout of at least 20 of us have arrived at rehearsals to the welcome of a cheery coordinator, Emilia, and a bewilderingly energised conductor, Dan, whose enthusiasm for music and teaching is contagious. Very soon we are in the swing of belting out tunes in surprisingly beautiful harmony. Although for many of us sight reading is a little rusty, Dan makes it seem easy to re-learn. Currently we’re tackling a nostalgic bunch of classic pieces from films including The Blues Brothers, Moulin Rouge and The Lion King; a stark but enjoyable contrast to last term’s classical repertoire.

It only took the first rehearsal to remember the uplifting feeling of being warmed from the inside out, not only by my own hit and miss vocals, but the various voices of 20 or 30 others, rising and falling around me. Despite the everlasting winter and the ever present challenge of Monday-itis, whatever sort of day I’ve had I always relish rehearsals and end up singing all the way home.

I wonder if there’s anyone else out there who thinks like me and wants to bring music back into their lives? I would recommend it to anyone, come along to Habeas Chorus and remember why music is good for the soul!

Julia Larner is a lawyer at Carina Ford Immigration Lawyers.

BottledSnail Productions presents Habeas Chorus in Scene and Heard: Choral Pop for Film starting at 8:00pm on Friday 9 October at the New Ballroom at Trades Hall. Tickets are on sale now at http://www.bottledsnail.com/habeaschorus.

If you’d like to join Habeas Chorus please go to http://www.bottledsnail.com/habeaschorus to register your interest.

The final skill you need to acquire before starting to practise law: Simultaneous translation

by Robert Angyal SC

tanslation

Dear New Lawyer,

                Re: The final skill you need to acquire before starting to practise law: Simultaneous translation

Congratulations on finally becoming a lawyer.  It was hard work, took a long time, and cost a lot, but at last you are ready to strut your stuff as a lawyer.

But, first, a cautionary word.  The word is “English”.  Most Australian lawyers think they speak English.  They are wrong.  As a result of reading lots of court cases, law textbooks and law journals and of spending most of your waking hours with other lawyers, gradually – without realising it – you have come to speak a dialect of English that is peculiar to lawyers.

There is nothing wrong with this.  Most professions have their own dialect, which is impenetrable to non-members (have you ever spoken to a surgeon, or a software engineer, about what they do?).  Dialects like this come into existence because they serve a useful purpose: They facilitate efficient communication among those who speak the dialect. Thus, when a lawyer says to a judge, “With the utmost respect, the proposition that has just fallen from your Honour …”, this is much quicker than saying, “What Your Honour has just said is such a howler that even someone starting Torts 101 would know that it is grotesquely wrong.”

There is, however, a problem with the dialect spoken by lawyers.  The problem stems from the fact that the dialect is largely made up of words that also form part of the English language.  This is not true of other professional dialects.  For example, the words “endarterectomy”, “fundoplication” and “intussusception” come trippingly off the tongue of a surgeon.   By contrast, while the lawyer’s dialect does contain a few words that are not part of the English language, such as “hereinbefore” and “thereinafter”, it largely is made up of English words.

Here lies the problem: Because lawyers communicate in words that form part of the English language, they assume that non-lawyers – their clients, for example – understand what they are saying.  This assumption is unfounded and usually is incorrect.  Empirical research and commonsense both indicate that lawyers usually are not understood by their clients, nor by the general public as a whole.

What does this mean for new lawyers?  What it means is that, before you can effectively practise law, there is one remaining skill that you must acquire.  This skill is just as important as knowing the Rule in Shelley’s case, or being able to distinguish a dictum from a ratio decidendi.  You must be capable of simultaneous translation, like an interpreter at the United Nations.  While speaking in your dialect to other lawyers, you must simultaneously be able to translate what has been said into English for the benefit of non-lawyers present, such as your clients.

If you lack this skill, one of two things will happen:

1          The non-lawyer will not understood what has been said by the lawyers; or

2          The non-lawyer will understand what has been said to mean something completely different (i.e., the non- lawyer will completely misunderstand what has been said by the lawyers).

You’re thinking, I know, that the potential for misunderstanding is small.  Having given the matter the consideration which appears to be appropriate, having due regard to all the relevant contemporaneous circumstances, it is my respectful submission that I must beg to differ. (I bet you didn’t notice that the previous sentence is not comprehensible to non-lawyers and thus requires translation into English.)

To demonstrate why you need to engage in simultaneous translation, here is a table of common phrases in lawyer dialect, together with the corresponding misunderstanding of each phrase by non-lawyers.

 

Phrase in lawyer dialect Meaning to a speaker of English
I beg to differ.” Please, can we have something different for dinner tonight?
Make an expedition application Apply to join the expedition [to the North Pole]”
Apprehension of bias They caught the crook.”
Reasonable prospects of success Good chance of finding [gold, silver, etc]” 
You cannot approbate and reprobate. Don’t ask me to approve of that no-hoper.” 
[In cross-examination] “Madam, I put this proposition to you …” I want to have sex with you.” 
I am submitting there is binding authority for this proposition … I want to have kinky sex with you.” 

 

Robert Angyal SC

A Day in the world of Appropriate Dispute Resolution

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By Kristy Mantzanidis

It was not until my recent opportunity to shadow a barrister during two Conciliation Conferences that I truly appreciated the gem we know as Appropriate Dispute Resolution (‘ADR’). Certainly, we read and hear about the benefits of ADR including a timely, cost effective resolution, party control and informal setting. It is not until you actually witness such outcomes first hand, however, that you may truly appreciate the effectiveness of ADR. In particular, for me it resembles a resolution process at the heart of justice, achieving positive outcomes ‘for the parties’ as opposed to a battle of tyranny that often results in court proceedings.

There are two key elements that stood out during my observations of ADR including: the differing approaches of a conciliator and the effect this has on the outcome of ADR, and party control.

Firstly, the two conciliators I observed took very different approaches in running the conferences. It was particularly interesting to note these approaches and the effect they had on the smooth running of the meeting and promoting a final outcome. The first conciliator was authoritative yet understanding. Structured yet fair. She ran the conference initially by making the parties feel welcome and important. This was achieved by asking them simple questions such as whether they would need to move their cars due to city parking restrictions and reinforcing that they were able to ask for a break at any point. She followed this opening by listing key issues on the white board and asking for parties’ input, then allowing the conversation to flow between parties, evenly balanced centered on those issues of importance. Strengths were constantly re-visited so that parties can see their positive progress and aim for more movement towards resolution. The mediator would also utilise a calming technique by lowering her tone and slowing down the tempo of her speech when parties appeared reserved. This instantly calmed them down and allowed them to re-consider the other side’s requests. The result was a timely resolution that benefited both parties. The balance that this outcome struck was incredible with both parties finally clarifying their concerns and actually sacrificing for the other party in a balanced and beautiful resolution that suited both parties and preserved their relationship in such a way that any future issues could be dealt with amicably.

In contrast, the second conciliator was more reserved and allowed parties to structure the process. This generated a very different outcome. On the one hand, parties felt they had complete control over the process and outcome, which was a benefit to them. However, allowing parties such control did make the process of resolution slightly longer. The benefits of this approach include allowing parties to put forward their interests and to test their relationship. It is certainly a method of testing whether parties can preserve a relationship into the future. After some discussion and extended negotiations, there was again a positive resolution that suited the interests of both parties and allowed ongoing revision of the agreement so as to tailor it over time. Once again, elements such as party control and fair resolutions highlight the numerous benefits of ADR.

On another note, the nurturing and guidance that ADR offers parties also makes this process fundamental. Such nurturing goes beyond the chance for parties to have a voice in the process. In particular, the first Conciliation Conference I attended included a party who spoke English as a second language. This was not a barrier to the process, nevertheless, the conciliator was more than accommodating, allowing this party a person of support and time to process the options and consider what decisions to make. Such support highlights nurturing and compassion, values that often escape daily court proceedings that can be brought to life in the ADR field.

Balance, party control, fair outcomes and compassion are just some of the advantages provided by ADR. ADR allows parties to devise their own creative solutions and in turn increases collaboration, facilitation and long-term agreements that can be sustained. Importantly, solutions can tailor parties’ individual needs and benefit not only parties to the proceeding, but carry extended benefits to all parties affected by the outcome including family and friends. Witnessing ADR first hand certainly highlights the importance it plays in balancing the scales of justice. Currently, it is implemented in family court matters, civil matters, workers compensation cases and more. Interestingly, over 60% of practitioners agree over 90% of cases are settled via ADR with its popularity increasingly growing into the future.

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