Real scientific research has shown that lawyers are one of the least trusted professionals in the universe. While lawyers are perceived as some of the most capable and competent professionals, if the way someone communicates confuses, frustrates or scares people, it is a fact that they will lose the trust of those people in seconds. That’s even more the case when we, as lawyers, are dealing with people who come to us with sensitive topics or difficult subjects. It’s in that moment that people will decide if we’re really transparent and if we really care.

Now, not all lawyers are like this. We know that lawyers often can’t help it.. It’s often easier to say it in ‘legalese’ than it is in ‘plain English’. But, our choice of words matters. Every word is a chance to make a connection with someone.

A couple thousand years ago, the Romans came to Britain and brought Latin with them. Latin became the language of religion and administration. Because the high-power, high-status citizens knew it, they used it as a way to segregate themselves from the common people who couldn’t understand it.

It was a way of saying ‘we’re cleverer than you’.

Lawyers were of course part of the upper echelons of society and Latin was their business. It ipso facto still is. But what we’re (consciously or unconsciously) doing is perpetuating the idea that ‘we’re cleverer than you’ and when we do that to people, they stop trusting us because we’re hurting them, making them feel like we’re withholding information and that we don’t have their best interests at heart.

We know that we can’t get around the fact that sometimes we have to use technical language, and that some terms have nuanced meanings (like ‘indemnity’ instead of ‘you’ll refund us if we have to spend money or if we lose money because of something silly you did’) but we can try to keep it simple and even engaging where we can. See our privacy policy for example, we’ve tried to keep it ‘human’.

There’s no point in writing a contract or drafting legal advice which can’t be understood by your clients. Put yourself in your reader’s shoes when you’re writing or advising. 

Here’s an example of how we structure our advice. Firstly, we start by defining the questions our client really wants to know. The structure might be:

1. Can I do what I want to do?
2. Will I get in trouble because of it?
3. How much is this going to cost?
4. Anything else I need to know?
5. How did you reach this conclusion?

Here’s a test to assess whether the tone you’re using is empathetic. Quite simply, if you were to read it out loud, does it sound like the kind of thing you’d actually say?

Say for example John from HR asks you whether he can fire Susan, who has been employed for four months, because she keeps going against her manager’s instructions and doesn’t do her work properly.

(By the way, this is not legal advice, this is an attempt to illustrate how you might go about advising your internal stakeholders).

___________

Advice:

Can we dismiss Susan?

Yes, we can dismiss Susan both under our agreement and under English law.  

What’s the risk of Susan suing us?

Susan may well decide to bring a claim against us. But I think the chances of her winning any such claim, are low. 

Do we need to pay them a settlement?

We do not need to do this under the agreement or by law. However, there are some benefits if we choose to do this.  

Our analysis:

The contractual position

Under our agreement with Susan, we are able to end her employment under Clause 3 which says that we can do that if the employee acts in a way that is not in line with the interests of our business. We think that Susan’s conduct is a valid reason for dismissal on this basis.

The legal position

From a legal point of view, under section 98(2)(b) of the Employment Rights Act 1996 (“ERA 1996”), an employer may end an employee’s employment for misconduct. This may be a single serious act or a series of less serious acts. I think we can rely on the latter, i.e. a series of less serious acts that amount to misconduct as grounds for dismissal.  

Under English law, an employee cannot bring a claim for unfair dismissal against their employer, unless they have been employed for over two years (section 92(3)(1) ERA 1996) OR if the employer has acted in a way that qualifies the dismissal as an automatically unfair dismissal.  

We don’t think that Susan can claim that we’re dismissing her for any reason that is unfair so if Susan decides to sue us, it’s unlikely that she’ll be successful. That doesn’t mean she won’t sue us (she might) it just means that she probably won’t win. 

Joking. We mean ‘Conclusion’.

In everything we do, we think about what our reader or stakeholder really needs to know and how we can deliver it in the most digestible format. Put your user first and you can’t go wrong.

Like the way we speak?

We offer a bespoke Legal Design service that puts your users first and helps you connect with them. The benefits include better engagement, faster deal speed and increased autonomy for the Legal team.

Get in touch if your legal documents could do with a revamp.