Communication and legal language – Introduction & Overview

Lecture 1:Lecture 1:

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Contents

•Communication:

• Definitions throughout history• Forms & models• Features & components• Effectiveness

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Rationale

In this age of audience fragmentation, global presence, data overload, niche marketing, downsizing, reorganizing and accountability, effective oral and written communication skills are in demand.

Without effective communication even everyday tasks are difficult, if not impossible. The average person takes messages at face value without evaluating the true meaning and intent of the communication.

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Definitions

Communication is the sending of a message from a source to a receiver.

Simple definition YET comm. is never simple. (e.g.: the misinterpretation of Japan’s answer to the US demand for unconditional surrender before dropping the atomic bomb)

Hence: the need for clear, accurate communication.

Communication – an issue of symbolic interaction (the human communicator uses a series of signs that stand for objects and ideas); it means the exchange of meanings, which are encoded in language, gesture, visual signs. (Stuart Price (1996) – Media Studies)

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Communication skills are some of the most important skills that you need to succeed in the workplace.

We talk to people face to face, and we listen when people talk to us. We write emails and reports, and we read the documents that are sent to us. Communication, therefore, is a process that involves at least two people – a sender and a receiver. For it to be successful, the receiver must understand the message in the way that the sender intended.

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This sounds quite simple. But have you ever been in a situation where this hasn't happened? Misunderstanding and confusion often occur, and they can cause enormous problems.

If you want to be an expert communicator, you need to be effective at all points in the communication process – and you must be comfortable with the different channels of communication. When you communicate well, you can be very successful. On the other hand, poor communicators struggle to develop their careers beyond a certain point

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Features of Communication

ubiquity (impossible to avoid; a central feature of human culture);

continuous (there is no identifiable beginning or end to it);

dwells on shared meaning (interaction entails and is a quintessential condition for communication);

has predictable elements (ensures the understanding of communication partly due to the existence of expected/conventional elements that people anticipate and recognize);

organized on levels (btw. two individuals/groups of individuals/mass media and its audiences);

equality vs. inequality (people inhabit different social and personal positions on gender, age, ethnicity, etc. basis -> theories of power relations). (Meyers and Meyers: The Dynamics of Human Communication)

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Key Questions

How do you use communication to gather, interpret and synthesize information?

How do you communicate this information to receivers?

How do you evaluate your message?

How does the message find its meaning in and through various environments?

How do you employ strategy to ensure communication success?

How do you evaluate your message to see if it was indeed received as you intended?

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History

The first communication models: explain how a message is sent and received. They concentrated on one message being sent from a sender to a receiver who in turn then sent a return message.

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History

Linear models too simplistic a series of questions emerged:

– Is just one message being sent at a time?

– Does the receiver wait for the completion of a message before he/she sends a response?

– Do messages have a distinct beginning and ending?

– Why do different people interpret the same message differently?

– Are non-verbal messages being read and what is their influence on the verbal message?

– What factors interfere with communication?

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Transactional Model

Fig. 3. Transactional communication model, illustrating the communication process

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Components

1. Sender (a.k.a. encoder): composes a message embedded with meaning from his/her world, while considering the interpretative resources the receiver has in order to decode the message.

2. Receiver: has to decode the message and give it meaning. basis: actual words + subtle cues: tone of voice, a smile, a handshake, a quick glance, ambiguous word usage, etc.

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Components

3. Channel: the means by which the information is being sent: face-to-face, email, phone, fax, text messages, advertising, group presentation, mass media, etc. choice of channel: ‘the medium is the message’ (Marshall McLuhan, 1964)

content is influenced by the means whereby it is conveyed. Each channel has certain requirements inherent in the medium but also implicit expectations on the part of both senders and receivers.

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Components

4. Effective message: would not be considered effective unless received in the manner in which the sender intended.

The level of effectiveness depends on the overlapping areas of the worlds of the sender and receiver (see fig. 3).

Conclusion: The greater the extent to which a sender and receiver share commonalities, the better the chance they have to understand one another.

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Additional Components

5. Noise –interferes with the transmission of the message.

Internal: a sudden loud noise, a sneeze, a power shortage, etc.

External: lack of education, prejudice, stubbornness, refusal to listen, etc.

6. Feedback: all the verbal and non-verbal messages sent back and forth between sender and receiver as communication proceeds.

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Additional Components

7. Context: occasion, time and place of the communication. It comprises all the underlying and overarching factors that impact a message.

Meaning of the same phrase is dependent on where it is said, by whom, at what time and on what occasion. (e.g. ‘Come and see me.’)

8. Simultaneous and continuous describe actions in the communication process. Messages criss-cross, esp. non-verbal ones, and they never stop.

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Shift of Focus

Introduction and study of new terms:

– Feedback made senders play a role as receivers of information.

– Communication - seen as simultaneous and continuous.

– Encoding became a point of study.

– Decoding was deconstructed and analyzed.

– The medium or channel took on characteristics that added complexity to the communication model.

– Noise was defined as external or internal.

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Shift of Focus

Communicating communicating effectively

Effective communication – whereby a message is understood by the receiver in the manner intended by the speaker.

Competent communicator: “exercises choice and judgment” and understands “how her choices will be received and interpreted” (Cohen et al., 2005)

Why study communication: “There is an apparent need for competent communicators in all sectors of the economy” (Cohen et al., 2005)

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Exercise. Think about a time when you misunderstood a set of directions, a procedure, a recipe or a task. Try to pinpoint which element in the transactional communication model went wrong. What could have made the communication more effective?

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EFFECTIVE COMMUNICATION

Whenever you communicate with someone else, you and the other person follow the steps of the communication process shown previously.

Here, the person who is the source of the communication encodes it into a message, and transmits it through a channel. The receiver decodes the message, and, in one way or another, feeds back understanding or a lack of understanding to the source.

By understanding the steps in the process, you can become more aware of your role in it, recognize what you need to do to communicate effectively, anticipate problems before they happen, and improve your overall ability to communicate effectively.

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PLANNING YOUR MESSAGE

To plan your communication:

Understand your objective. Why are you communicating?

Understand your audience. With whom are you communicating? What do they need to know?

Plan what you want to say, and how you'll send the message.

Seek feedback on how well your message was received.

When you do this, you'll be able to craft a message that will be received positively by your audience.

Good communicators use the KISS ("Keep It Simple and Straightforward") principle.

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ENCODING AND CREATING A WELL CRAFTED MESSAGE

We often focus on the message that we want to send, and the way in which we'll send it. But if our message is delivered without considering the other person's perspective, it's likely that part of that message will be lost. To communicate more effectively:

Understand what you truly need and want to say.

Anticipate the other person's reaction to your message.

Choose words and body language that allow the other person to really hear what you're saying.

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When writing, take time to do the following:

Review your style.

Avoid jargon or slang.

Check your grammar and punctuation.

Check also for tone, attitude, nuance, and other subtleties. If you think the message may be misunderstood, it probably will. Take the time to clarify it!

Familiarize yourself with your company's writing policies.

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Another important consideration is to use pictures, charts, and diagrams wherever possible. As the saying goes, "a picture speaks a thousand words."

Also, whether you speak or write your message, consider the cultural context. Consult with people who are familiar with more cultural environments, and do your research so that you're aware of problems you may face.

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CHOOSE THE RIGHT CHANNEL

Using email to send simple directions is practical. However, if you want to delegate a complex task, an email will probably just lead to more questions, so it may be best to arrange a time to speak in person so that you can judge the impact of your words and adjust these appropriately.

The sensitivity and emotional content of the subject.

How easy it is to communicate detail.

The receiver's preferences.

Time constraints.

The need to ask and answer questions.

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DECODING –RECEIVING AND INTERPRETING THE MESSAGE

To be a great communicator, you also need to step back, let the other person talk, and just listen.

This doesn't mean that you should be passive. Listening is hard work, which is why effective listening is called active listening.

Look at the person.

Pay attention to his or her body language.

Avoid distractions.

Nod and smile to acknowledge points.

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Occasionally think back about what the person has said.

Allow the person to speak, without thinking about what you'll say next.

Don't interrupt.

Empathic listening -To understand a message fully, you have to understand the emotions and underlying feelings the speaker is expressing.

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FEEDBACK

feedback through body language is perhaps the most important source of clues to the effectiveness of your communication. By watching the facial expressions, gestures, and posture of the person you're communicating with, you can spot:

Confidence levels.

Defensiveness.

Agreement.

Comprehension (or lack of understanding).

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Level of interest.

Level of engagement with the message.

Truthfulness (or lying/dishonesty).

Feedback can also be formal. If you're communicating something really important, it can often be worth asking questions of the person you're talking to to make sure that they've understood fully.

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KEY POINTS

It can take a lot of effort to communicate effectively.

By learning the skills you need to communicate effectively, you can learn how to communicate your ideas clearly and effectively, and understand much more of the information that's conveyed to you.

As either a speaker or a listener, or as a writer or a reader, you're responsible for making sure that the message is communicated accurately. Pay attention to words and actions, ask questions, and watch body language.

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Dig Deeper

Further resources:

www.ccms-infobase.com

Chapter 1 in: Ober, Scot. Contemporary Business Communication (in the Reader)

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THE DEVELOPMENT OF LEGAL LANGUAGE

  Perhaps the language of lawyers is so convoluted simply because of the conservatism of the profession and its veneration of history and tradition.  To some extent, legal English is indeed a product of its history.  It is a story of Anglo-Saxon mercenaries, Latin-speaking missionaries, Scandinavian raiders, and Norman invaders, all of whom left their mark not only on England, but on the language of its law.

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Summary

Although the Anglo-Saxons seem to have had no distinct legal profession, they did develop a type of legal language, remnants of which have survived until today.  Examples include words like bequeath, goods, guilt, manslaughter, murder, oath, right, sheriff, steal, swear, theft, thief, ward, witness and writ.

The Anglo-Saxons used not only Old English as a legal language, but also Latin.  Although Latin was introduced to England during the Roman occupation around the time of Christ, it became a major force only after the arrival of Christian missionaries in 597.  Before long, Latin was the language not only of the church, but of education and learning. 

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The association between literacy and the church became so strong that the two were almost synonymous. The terms clerk (someone who can write) and cleric or clergy (priest) derive from the same Latin term.  For centuries, English courts recognized a type of immunity for the clergy; to avoid the gallows, you simply had to read a verse from the Bible (sometimes called the "neck verse"). A later influence on the language of the law was Scandinavian in origin.  During the eighth century, Vikings began raiding the English coast and eventually settled down.  The English borrowed from these Scandinavians the most important legal word in the English language: the word law itself.  Law derives from the Norse word for "lay" and thus means "that which is laid down."  

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    Oddly, the use of French in the English legal system grew at the very time that its survival as a living language was in serious question. 

    Unhappiness about this state of affairs led to what might be considered the first plain English law.  In 1362 Parliament enacted the Statute of Pleading, condemning French as "unknown in the said Realm" and lamenting that parties in a lawsuit "have no Knowledge nor Understanding of that which is said for them or against them by their Serjeants and other Pleaders."  The statute required that henceforth all pleas be "pleaded, shewed, defended, answered, debated, and judged in the English Tongue."  Ironically, the statute itself was in French!

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Six hundred years after the Norman Conquest, and around three hundred years after French was virtually a dead letter in England, it was still being used as a professional language by English lawyers!Because it was the main language of the profession for so many centuries, French has had a tremendous influence on legal language.  A vast amount of legal vocabulary is French in origin, including such basic words as appeal, attorney, bailiff, bar, claim, complaint, counsel, court, defendant, evidence, indictment, judge, judgment, jury, justice, party, plaintiff, plea, plead, sentence, sue, suit, summon, verdict and voir dire.

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Things were similar in the United States.  Despite initial antipathy in the colonies towards the legal profession, the Americans soon realized that they needed to develop a system of justice.  The only real model at their disposal was the English one.  The fledgling American states adopted not only England's common law, but its language as well.  Nonetheless, criticism of legal language continued.  Thomas Jefferson complained about the verbosity of statutes, their endless tautologies, and "their multiplied efforts at certainty by saids and aforesaids."  Yet American legal language ended up being very similar to its English parent.

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Clearly, the legal profession has tended to be quite conservative, especially in the past.  But old habits and tradition cannot fully explain why modern lawyers persist in using archaic jargon passed down over the centuries.  Actually, lawyers can be quite creative and innovative when it suits their purposes.  They have readily coined neologisms like palimony (alimony paid to a "pal" or unmarried partner) and hedonic damages (money damages for loss of the pleasure of life). 

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Still, lawyers seem to trot out their most ancient, redundant, and convoluted phrases when writing documents directly for clients, particularly wills.  The average will (for an estate without potential tax liability) is not conceptually all that complex, and most of the language is pure boilerplate.  Yet lawyers are able to charge hundreds of dollars for drafting one.  All too often, complexity of language masks simplicity of content.

    

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Justifying fees is not the only reason for the persistence of legalese.  Their distinctive language allows lawyers to mark themselves as members of the profession.  Law students soon learn how to "talk like a lawyer."  Use archaic words like aforesaid, herein and to wit.  Embed them in convoluted syntax.  And never use one word where a longer phrase is available.  

    Perhaps the best way to sound like a lawyer is to throw in as much legal vocabulary as possible.  There are literally thousands of technical terms from which to choose.  Words of Latin and French origin are particularly impressive.

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LEGALLY BINDING CONTRACT

To be legally binding, a contract needs two essential components: 1) an agreement, and 2) consideration. Within the agreement and consideration lies an assortment of provisions that add to the legality of a contract. These include the offer, performance, terms, conditions, obligations, payment terms, liability, and default or breach of the contract.

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The agreement component involves offers, counter-offers, and eventually what contract law calls the "meeting of the minds." An agreement can be either oral or written, depending upon the contract. If you hire a taxi to drive you to the airport, then it is an oral agreement that you will pay the driver a certain sum when you reach your destination. Contracts whose agreements must be in writing include real estate contracts and contracts that last more than a year. Every state has its own legal requirements and you should consult these requirements to find the specific regulations that pertain to your type of contract.

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The agreement process involves one party offering terms and conditions that are either accepted or rejected by the other party. If the other party changes any term or condition of the offer, then the offer becomes a counter-offer. At this point, each party negotiates the terms and conditions of the offer until they have a meeting of the minds. This is when an agreement has been met and a contract can be drawn up.

Both parties must be competent enough to enter into the contractual agreement. They may not be minors (under 18 years of age), under the influence of drugs or alcohol, or of unsound mind. They also must have the legal power to enter into the agreement, for instance when representing a company.

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For an agreement to be legal and binding, it must have some form of consideration. This means that all parties involved must receive consideration or something of value. Otherwise, it is considered a gift rather than a contract. The promise of a gift is not necessarily binding, depending upon the circumstances. Usually consideration involves one party giving something such as a product or service, and in exchange the second party gives some form of monetary compensation.

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The consideration component of the contract brings up several other provisions that should be addressed, such as:

Obligations and Conditions of the Contract - what each party needs to do to fulfill the terms of the contract

Performance - how well each party performs the terms of the contract

Payment Terms - a schedule that specifies when all payments are to be made

Liabilities - defines the liability of each party in terms of the contract

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Breach of Contract - what will happen should either party fail to fulfill their end of the agreement

Although not legally required, each contract should contain several provisions known as "boilerplate" provisions. These include:

Arbitration Clause - makes allowances so that disputes are handled by an independent arbitrator

Entire Agreement Clause - states that what is written in the contract is what the agreements and conditions of the contact are, and no previous agreements or conditions are applicable

Force Majeure Clause - states that should something happens beyond the control of either party (such as a tornado destroying a house

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Force Majeure Clause - states that should something happens beyond the control of either party (such as a tornado destroying a house), then the contract is no longer valid.

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COMPANIES AND WELL-DRAFTED CONTRACTS

A well drafted contract can do many great things for your company and your business deals. 

1.  Clarify the Deal Terms

First, a well drafted contract can clarify the deal terms between the parties.

Who is specifically going to do what?

How much money is going to exchange hands?

How are you going to get paid? Upfront? In installments? Monthly? When work is complete?

What is the time frame for the work?

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Who is going to own what?

How is risk going to be distributed?

2.  Clarify and Transfer Ownership of Intellectual Property

For companies who hire contractors to create logos, websites, or software for the company, it is critical to understand the following counter-intuitive concept. Under the copyright statute, if you don’t have a written assignment of copyrights from the contractor who created the work: YOU DON’T OWN THE COPYRIGHT EVEN IF YOU PAID FOR THE CREATION OF THE WORK!

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3.  Limit Liability

A well drafted contract can greatly limit a company’s liability in the following ways:

by limiting statutory warranties that apply whether you know they do or not.  Such warranties can be excluded with very specific legal language and can save your company huge headaches and potential damages, especially if you are creating software.

by excluding crazy types of damages that are available under statues and common law. 

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by limiting the total amount of damages available to the other party.  If you preformed the work for a specific fee, it is possible to limit the amount of potential damages in the contract to the amount you have been paid. Without limiting liability in the contract, a little deal may end up costing you far more than you had ever imagined.

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Liability hidden in statutes and the common law is like an iceberg.  If you don’t know it is there, you may hit it and your startup will go under like the Titanic. Lawyers went to law school to know how to spot liability icebergs.

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A TERMS OF USE/SERVICE CONTRACT

When people use the Internet in a typical manner - reading and sending e-mails, checking the news, watching some videos -- they don't put too much thought into the act. But did you ever think using the Internet could turn you into a felon?

If your business is based on a website, especially if you allow users to post or upload content onto your site, your website’s Terms of Use can provide critical, legal protection.

A website’s Terms of Use (or Terms of Service) is actually a legal contract between the website owner and the user.

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First, the site owner may not even know the identity of the other party to the contract — the website user.  The website owner essentially sends out an offer to use its website and people across the world may accept. This acceptance by use is good enough to form a legal contract.

Second, the terms of the website contract can be unilaterally changed by the website owner at any time by its very terms.  

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ORAL CONTRACTS-ARE THEY BINDING

Oral contracts can be as binding as written contracts. But without a written record, it can difficult to prove what you have agreed to. If your deal goes south, you may be endlessly chasing the truth. Make it easy on yourself and write up an agreement.

Often parties enter into agreements that are partially oral and partially written, based on a handshake and a few letters or memos that may indicate some of the aspects of the agreement without actually being contracts themselves. In this case, the "agreement" is contained partly in the oral agreement and partly in the letters and memos.

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Some oral contracts are legally unenforceable. These four types of contracts, which involve a high risk of fraud, typically must be in writing by law. They are:

Contracts for the sale or purchase of land

Contracts for the sale or purchase of goods priced at $500 or more (with a few significant exceptions)

Marital settlement or prenuptial contracts

Contracts that cannot be performed within one year of the time the contract is made

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If you choose to use an oral contract based on one of the following rationalizations, perhaps you should reconsider your decision:

I'm too busy to write it down. A legal battle over your oral contract will take much more time than putting together a written contract.

The other party won't agree to put it in writing. Reconsider your relationship. The world is full of honest people, and none of them mind putting what they promise in writing.

I trust the other party. Don't base any business decision solely on trust.

·

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The deal is too complicated to write down. Odds are that it is not too complicated; you just don't understand it. Take the time to write out the deal and hash out any unclear points with the other party as you go along. If you don't understand the deal, how will a judge or jury understand it when you try to enforce it?

It's a great deal for me - I don't want the other party to think it through too much. Chances are that the other guy is thinking the same thing about you. If the deal is such a great deal, make sure that it's enforceable.

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THANK YOU!