As legal practitioners we pour our energy into practising law and acquiring knowledge of the law. However, that is not the only skill required to practise our profession.

We also require the skill of language. Without language the law is not possible. To practise law is to practise language.

In South Africa we are in the fortunate position of being exposed to and acquiring skills in a variety of languages. We can hone our skills over the course of more than one language. This alone should improve our ability to communicate and be creative.

How does a legal practitioner communicate their client’s case (other than through pleadings) – by writing letters to their opponents. What do you do when you write a letter to a colleague – you express your legal knowledge, to convey and advance your client’s case.

The importance of letter writing cannot be underestimated. Pleadings occur at a given stage of a case, while correspondence occurs throughout the course of the case. Many a case is lost through an ill-conceived letter. Many a case is won by an appropriate letter at the right time.

This article contains the mainstay of what I have learnt over the course of the last 32 years to effectively communicate with colleagues.

I have compiled the following 15 rules for writing a letter to an opponent.

The 15 rules

1. The first rule is to ensure your letter is accurate – accurate in portraying your client’s instructions and in using grammar and spelling.

It is a mortal sin to incorrectly convey your client’s instructions. If in doubt, phone your client and make sure of their instructions.

In being accurate, honesty is non-negotiable.

2. A legal practitioner’s tool of trade is the language they use. If you are unable to master this tool, you may have difficulty in advancing your client’s case. Become a student not only of law, but also of language.

Language reflects who you are and your level of education. Your opponent forms their impression of you based on your language. You owe it to yourself not to disappoint yourself by using poor language.

As a legal practitioner you have the privilege of exercising, and improving your language skills, daily. You are remunerated for mastering language. Do not squander this opportunity.

3. A legal practitioner cannot practise without access to a good dictionary. If you do, you prejudice yourself. The choice of the right word does make a difference.

4. If you are uncertain about the facts, or the law, make sure. If you are unable to make sure, do not say it. Your chances of being wrong when not saying something are less, than saying the wrong thing.

Your opponent will furthermore be emboldened by your incorrectly reflecting the facts or the law.

5. Structure and planning are important. Your letter should be well constructed and not consist of disparate thoughts. You can only achieve good structure if you plan and ask yourself what you want to say, before you say it.

A well-constructed letter should also look neat, including justifying the margins.

Depending on its length, your letter should have an introduction, body, and conclusion. The introduction should indicate the purpose of the letter, and the conclusion should ideally refer to your demand or request for information, the reason you are writing the letter.

Your letter should make sense holistically when read. Reread, and change the contents of your letter, if necessary, to ensure your letter correctly conveys what you want to say.

Then reread again. If you fail at proofreading, your opponent will do so at your expense, and point out your mistakes.

It takes a split second to push the send button for a letter that remains on record for a lifetime.

6. Communication is two-way traffic. It is not only what you say, but also how it is understood. Before sending your letter, ensure your colleague will likely understand what you intend conveying. Read it from your colleague’s perspective. If you know your colleague, bear in mind their specific characteristics.

7. Do not hide your strong point. Ensure your strongest point features at an early stage, and that it will be understood. Show your strength!

8. If, and depending on circumstances, you have the choice of using a less offensive (softer) word, do so. You are likely to better convey what you want to say and may achieve greater co-operation from your colleague.

You will then also have the luxury of choice, the option of later adopting a harder approach, if required. If you use the more offensive (harder) word from the inception, you will have lost the luxury of choice.

9. You are communicating with a fellow-professional, who, like you, is advancing their client’s case. Over the course of a matter, you have more interaction with a colleague through correspondence, than other modes of communication. If you do not treat your colleague with the amount of respect you wish to be treated, you invite them to reciprocate. In the end both of your clients lose, by two legal practitioners not focusing on their clients’ cases, but instead stoking their own egos.

You also want to make life easier for yourself. The consequences of your disrespect will reverberate in later cases. If your communication with a colleague is more strained because of past interaction, you may only have yourself to blame.

It is in your own interest to enjoy a good relationship with colleagues. You cannot practise law if you are not prepared to be respectful towards colleagues. If you are disrespectful towards colleagues, you are also disrespectful towards the profession.

I am often amazed at how colleagues profess to be professionals, but do not act professionally. They fail to understand they do not show strength by being rude, but weakness and lack of intellectual prowess.

10. Never resort to personal comments – play the ball and not the man! You display a lack of faith in your client’s case if you play the man. You are then not communicating your client’s case and may end-up becoming involved in personal vendettas, or ping-pong matches.

11. Often legal practitioners’ correspondence devolves into a ping-pong match that does not advance their clients’ cases, with each legal practitioner wanting to have the last word. Do not incite the match. You do not lose if you do not have the last word – there never should have been a ping-pong match in the first instance.

The converse is true – the first person withdrawing from the ping-pong match is actually the winner.

12. Do not write a letter when emotions cloud your judgment. If your letter is written when you are emotional:

• You detract from your ability to advance your client’s case and undermine what you need to say. Instead, you vent your emotions. Remember your client is not paying you to vent emotions.
• Inevitably you will find yourself confronted by stronger negative emotions the next day, when you read your letter and are amazed at how poorly what you have written reflects on you.
• If you cannot stop yourself from writing the letter when you are fuelled by emotion, at least do not send the letter. Wait till the next day. If you did not realise it when you wrote the letter, you will realise it the next day why you should not have written the letter in the first instance. You can then congratulate yourself for not having sent the letter and being the wiser for learning from your mistakes – without any accompanying negative consequence.
• It is almost like learning from a failed test, without having undertaken the test.

13. Often your client carries an emotional investment in the matter. The last thing you should do is to not portray emotional maturity. You add to your client’s emotional burden if you do.

Always assume your letter is going to become an annexure in court papers, that a judge will read your letter. (Sportsmen are prone to say you also play for the pavilion, for the onlookers who are not participating in the match). Ask yourself what a judge will think of you and your client’s case, when they read your letter.

It is surprising how you will then tone down what you are saying.

14. Foster a relationship with senior colleagues whose judgment you trust, and whom you can call for advice on the law and ethical conduct. You may save yourself a lot of heartache later.

However, colleagues will only help you if you are prepared to help yourself. Before approaching a senior colleague, do your research and then ask him whether he agrees with your approach. Do not display intellectual laziness by expecting your senior colleague to save you from research. They may just be less inclined to help you the next time.

15. Use plain language:

• Omit unnecessary words (such as ‘on account of the fact that’ or ‘as a consequence of’ (instead of ‘because’) or ‘I confirm that’ (Is that not why are you writing the letter?)) and avoid nominalisations (‘making a decision’ instead of ‘decide’). Every word must contribute to what you want to communicate.
• Use short sentences and paragraphs. Aim to convey one statement per sentence and one theme per paragraph. Because of their crispness short sentences and short paragraphs convey better what you want to say. They also force you to consider what you want to say, and not be lazy in saying it.
• However, at the same time ensure your letter has good flow. This may require reconstructing sentences, which you will only know once you reread your letter.
• Use the active and not the passive tense. The passive tense tends to mask meaning. It uses more words and curtails your ability to use short sentences.
• Use the first person for yourself and the second person for your colleague. This helps with shorter sentences and more direct and understandable content.
• Be consequential with the choice of words. When using a word to convey a specific meaning, do not use a different word to convey the same meaning, or use the same word to convey a different meaning.
• Use headings in the different sections of a longer letter. It will cause you to consider your letter construction and contribute to your better assembling the contents of your letter.

Conclusion

Each practitioner has their own experience of what works for them. The application of these rules depends on context. They reflect my experience and what I have in turn learnt from others.

Hopefully these rules will assist especially junior colleagues to avoid minefields, and better serve their clients’ interests, when writing a letter.

Law and language should be a life-long learning process.

Marius van Staden BIur LLB LLM (UP) is a legal practitioner at Savage, Jooste and Adams Inc in Pretoria.

This article was first published in De Rebus in 2023 (Oct) DR 11.