8.3 Legal Writing in a Work-Informed Learning Placement

Most law students are familiar with memos and facta, but less familiar with how to draft letters in a legal environment. Letter writing is an important part of confirming representation with a client, communication with the other side, closing a file, and so on. Below are common examples of letters written in a legal setting. We begin with some general tips for writing letters.

1. Establish your goal. What goal are you trying to achieve? Do you want to reach settlement? Do you want to make sure you and your client are on the same page? Do you want to end the relationship
2. Clarity & Accessibility. You might first want to figure out whether the client can read English (or the language of writing). Does the client need a translator? Does the client have a trusted person to help them read or understand a letter? Does the client read Braille or have accommodation needs? Plain language writing is always a good idea, but especially so in letter writing. Use clear sentences that first state the point and then supplement with context in following sentences. Lists to clarify ideas are helpful. Legalese is not.
3. Organizing the letter. Organize the information in the letter from highest to lowest importance; attempt to organize by topic; be sure to address the who, what, when, where, why, and how of the matter, and lastly, use plain language.
4. End with a call to action. Do so with a direct and specific statement that sets out a timeline of action.

Some clinics or firms write opening letters to their clients after intake. This letter sets out that a client meeting occurred as well as the narrative set out by the client. It will also include what the client says they want as a resolution, and might include a copy of the retainer signed by the client. Some firms do not use this practice, and for brief service matters it might not be necessary. However, some clinics and firms use the letter to help ensure the lawyer and client are on the same page and to help new law students or lawyers clarify the narrative and potential legal arguments. Being up front and clear with clients about your strategy can also help clients feel as involved as possible in their legal matter.

Demand Letter

Lawyers are sometimes required to make a formal demand for payment, remedy or other resolution before filing a lawsuit. It is not always necessary to write a demand letter, but it can promote settlement and help organize and explain the plaintiff’s position on the matter.

A demand letter is written to the other side (through their lawyer, if a lawyer has been retained). It is important to include aspects of the matter such as the duration of the defense, whether the resolution will occur publicly, the strength of the plaintiff’s position, costs and settlement amounts. Ask for what you want. Whatever the settlement amount or intent of the letter is, be clear in your ask.

Demand letters are a valuable tool in the process of starting and potentially resolving legal action. However, demand letters can be misused. There are ethical guidelines to how and when a demand letter should be written. Use the following tips:

1. Only send a demand letter as long as the action it seeks is justified, and there is an intention to commence litigation.
2. Ensure you are practicing ethically pursuant to the Rules.following the ethics of the profession. Sections 7.2-4 –5 of the LSO Rules of Professional Conduct address how lawyers should communicate with each other. For example, language should be free from abuse, or offence. https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct

In Ontario, the parties are required to exchange mediation briefs subject to s 24.1, and 75.1 of the Rules of Civil Procedure. A mediation brief is a statement of the issues to be discussed in mediation. This is also an opportunity to tell your client’s story in a compelling manner in order to strengthen your position and value of your settlement.

Tips for Mediation Briefs

In all legal writing matters, and in mediation briefs, it is important to set out the facts accurately and persuasively.  Use assertive language, but avoid arguing law, facts or content to the other party. The mediation brief may benefit from including an outline of sympathetic facts to appeal to the sympathies of the court and the other side. This can strengthen the persuasiveness of the brief. Keep in mind that your job in negotiation or mediation is to convince the other side. In mediation, a mediator will also read the brief. But keep in mind that the mediator does not make decisions. To the extent possible while protecting the interests of your client, advance arguments that will be convincing to the other side.

1. Provide an overview of the case: a few sentences in the opening paragraph summarizing the dispute are an effective way of communicating the intention of the document and the core issue
2. Less is more: there is no need to worry about failing to state an essential element. Keep it simple and straightforward.
3. Exhibits: often, lawyers add pages to the brief by including 50-page exhibits where only a few sentences are relevant. Efficiently including only the relevant excerpts makes the mediators job easier and your points clearer.
4. State your priorities: a mediation brief is a sound platform to address terms of the settlement that are important to your client. Doing this and acknowledging the other party’s needs is an effective way to set up the conversation during the mediation.
5. Creative settlement approaches: it’s not advised to set out specific settlement offers in the mediation brief, but you could detail past settlement offers and whether they are still potential solutions to resolve the matter at hand.
6. Promote your party: a mediation brief is still a small form of advocacy. There is a benefit to speaking and writing the facts clearly and persuasively.
7. Demonstrate a willingness to compromise: mediators will be more inclined to encourage dealings if you indicate a willingness to discuss.
8. Timely: send your brief with enough time for the other party to review and send a responding brief. This will ensure that the responding party can write their brief more effectively and limit the overlap of information and exhibits.

1. Know your audience. You are writing a memo for your supervisor. Lawyers have high demands on their time. Ensure that your memorandum is succinct and readable. This means engaging word tools like bullet points.
2. Practice point-first writing ( hyperlink http://www.pointfirstwriting.com/): state your point or proposition before you develop or discuss it throughout your memorandum.
3. Organize your argument. State your position and add three elements for the issue; the controlling law, the essential facts and a conclusion. End with whether the court is likely to view the argument in favour of your position.
4. Strongest to weakest. Your best argument should be listed first as it is your highest impact position.
5. Keep it simple. Avoid embellishing or exaggerating, superlative words or unnecessary description. To assist with conciseness, group similar cases in your discussion and draw out distinctions between them. Focus on the significant components and show your reasoning with short sentences.
6. Ask! Your supervisor will probably have specific ideas about how they want memos written. Ask them what they prefer and for any precedent or exemplar that might help guide you.