Lecture 1:

Communication and legal language Introduction & Overview

Contents

Communication:
Definitions throughout history Forms & models Features & components Effectiveness

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Rationale In this age of audience fragmentation glo!al presence data overload niche mar"eting do#nsi$ing reorgani$ing and accounta!ility effective oral and #ritten communication s"ills are in demand% &ithout effective communication even everyday tas"s are difficult if not impossi!le% 'he average person ta"es messages at face value #ithout 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% )imple definition *E' comm% is never simple% +e%g%: the misinterpretation of ,apan-s ans#er to the .) demand for unconditional surrender !efore dropping the atomic !om!/ 0ence: the need for clear accurate communication% Communication 1 an issue of symbolic interaction +the human communicator uses a series of signs that stand for o!2ects and ideas/3 it means the e4change of meanings #hich are encoded in language gesture visual signs% +)tuart
Price +5667/ 1 Media Studies/
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 Communication skills are some of the most important s"ills that you need to succeed in the #or"place% &e tal" to people face to face and #e listen #hen people tal" to us% &e #rite emails and reports and #e read the documents that are sent to us% Communication therefore is a process that involves at least t#o people 1 a sender and a receiver% For it to !e successful the receiver must understand the message in the #ay that the sender intended%

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 'his sounds 9uite simple% :ut have you ever !een in a situation #here this hasn;t happened< =isunderstanding and confusion often occur and they can cause enormous pro!lems% If you #ant to !e an e4pert communicator you need to !e effective at all points in the communication process 1 and you must !e comforta!le #ith the different channels of communication% &hen you communicate #ell you can !e very successful% >n the other hand poor communicators struggle to develop their careers !eyond a certain point

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Features of Communication
ubiquity +impossi!le to avoid3 a central feature of human culture/3 continuous +there is no identifia!le !eginning or end to it/3 dwells on shared meaning +interaction entails and is a 9uintessential condition for communication/3 has predictable elements +ensures the understanding of communication partly due to the e4istence of e4pected@conventional elements that people anticipate and recogni$e/3 organized on levels +!t#% t#o individuals@groups of individuals@mass media and its audiences/3 equality vs. inequality +people inha!it different social and personal positions on gender age ethnicity etc% !asis AB theories of po#er relations/% +=eyers and =eyers: The Dynamics of uman Communication/
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Key Questions 0o# do you use communication to gather interpret and synthesi$e information< 0o# do you communicate this information to receivers< 0o# do you evaluate your message< 0o# does the message find its meaning in and through various environments< 0o# do you employ strategy to ensure communication success< 0o# do you evaluate your message to see if it #as indeed received as you intended<
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History
'he first communication models: e4plain ho# a message is sent and received% 'hey concentrated on one message !eing sent from a sender to a receiver #ho in turn then sent a return message%

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History Einear models too simplistic a series of 9uestions emerged:

1 Is 2ust one message !eing sent at a time< 1 Does the receiver #ait for the completion of a message !efore he@she sends a response< 1 Do messages have a distinct !eginning and ending< 1 &hy do different people interpret the same message differently< 1 Fre nonAver!al messages !eing read and #hat is their influence on the ver!al message< 1 &hat factors interfere #ith communication<

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Transactional Model

Fig% 3% 'ransactional communication model illustrating the communication process

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Components

1. ender +a%"%a% encoder/: composes a message em!edded #ith meaning from his@her #orld #hile considering the interpretative resources the recei!er has in order to decode the messa"e% #. Recei!er: has to decode the message and give it meaning% !asis: actual $ords G subtle cues: tone of voice a smile a handsha"e a 9uic" glance am!iguous #ord usage etc%

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Components %. C&annel: the means !y #hich the information is !eing sent: faceAtoAface email phone fa4 te4t messages advertising group presentation mass media etc% choice of channel: Hthe medium is the message- +=arshall =cEuhan 567(/ content is influenced !y the means #here!y it is conveyed% Each channel has certain re9uirements inherent in the medium !ut also implicit e4pectations on the part of !oth senders and receivers%

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Components '. (ffecti!e messa"e: #ould not !e considered effective unless received in the manner in #hich the sender intended% 'he le!el of effecti!eness depends on the overlapping areas of the #orlds of the sender and receiver +see fig% 3/% Conclusion: 'he greater the e4tent to #hich a sender and receiver share commonalities the !etter the chance they have to understand one another%

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)dditional Components *. +oise 1interferes #ith the transmission of the message% Internal: a sudden loud noise a snee$e a po#er shortage etc% E4ternal: lac" of education pre2udice stu!!ornness refusal to listen etc% ,. Feedbac-: all the ver!al and nonAver!al messages sent !ac" and forth !et#een sender and receiver as communication proceeds%

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)dditional Components .. Conte/t: occasion time and place of the communication% It comprises all the underlying and overarching factors that impact a message% =eaning of the same phrase is dependent on #here it is said !y #hom at #hat time and on #hat occasion% +e%g% HCome and see me%-/ C% imultaneous and continuous descri!e actions in the communication process% =essages crissAcross esp% nonA ver!al ones and they never stop%

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&ift of Focus

Introduction and study of ne# terms:

1 Feed!ac" made senders play a role as receivers of information% 1 Communication A seen as simultaneous and continuous% 1 Encoding !ecame a point of study% 1 Decoding #as deconstructed and analy$ed% 1 'he medium or channel too" on characteristics that added comple4ity to the communication model% 1 Ioise #as defined as e4ternal or internal%
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&ift of Focus Communicating communicating effectively Effective communication 1 #here!y a message is understood !y the receiver in the manner intended !y the spea"er% Competent communicator: Je4ercises choice and 2udgmentK and understands Jho# her choices #ill !e received and interpretedK +Cohen et al. 2DD8/ &hy study communication: J'here is an apparent need for competent communicators in all sectors of the economyK +Cohen et al. 2DD8/

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 (/ercise% 'hin" a!out a time #hen you misunderstood a set of directions a procedure a recipe or a tas"% 'ry to pinpoint #hich element in the transactional communication model #ent #rong% &hat could have made the communication more effective<

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(FF(CT01( C2MM3+0C)T02+ &henever you communicate #ith someone else you and the other person follo# the steps of the communication process sho#n previously% 0ere the person #ho is the source of the communication encodes it into a message and transmits it through a channel% 'he receiver decodes the message and in one #ay or another feeds !ac" understanding or a lac" of understanding to the source% :y understanding the steps in the process you can !ecome more a#are of your role in it recogni$e #hat you need to do to communicate effectively anticipate pro!lems !efore they happen and improve your overall a!ility to communicate effectively%
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4L)++0+5 623R M( 'o plan your communication:

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.nderstand your o!2ective% &hy are you communicating< .nderstand your audience% &ith #hom are you communicating< &hat do they need to "no#< Plan #hat you #ant to say and ho# you;ll send the message% )ee" feed!ac" on ho# #ell your message #as received% &hen you do this you;ll !e a!le to craft a message that #ill !e received positively !y your audience% Lood communicators use the MI)) +NMeep It )imple and )traightfor#ardN/ principle%
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(+C2D0+5 )+D CR()T0+5 ) 7(LL CR)FT(D M( )5(

&e often focus on the message that #e #ant to send and the #ay in #hich #e;ll send it% :ut if our message is delivered #ithout considering the other person;s perspective it;s li"ely that part of that message #ill !e lost% 'o communicate more effectively: .nderstand #hat you truly need and #ant to say% Fnticipate the other person;s reaction to your message% Choose #ords and !ody language that allo# the other person to really hear #hat you;re saying%

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 &hen #riting ta"e time to do the follo#ing: Oevie# your style% Fvoid !argon or slang% Chec" your grammar and punctuation% Chec" also for tone attitude nuance and other su!tleties% If you thin" the message may !e misunderstood it pro!a!ly #ill% 'a"e the time to clarify itP Familiari$e yourself #ith your company;s #riting policies%

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 Fnother important consideration is to use pictures charts and diagrams #herever possi!le% Fs the saying goes Na picture spea"s a thousand #ords%N

Flso #hether you spea" or #rite your message consider the cultural conte"t% Consult #ith people #ho are familiar #ith more cultural environments and do your research so that you;re a#are of pro!lems you may face%

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CH22 ( TH( R05HT CH)++(L .sing email to send simple directions is practical% 0o#ever if you #ant to delegate a comple4 tas" an email #ill pro!a!ly 2ust lead to more 9uestions so it may !e !est to arrange a time to spea" in person so that you can 2udge the impact of your #ords and ad2ust these appropriately% 'he sensitivity and emotional content of the su!2ect% 0o# easy it is to communicate detail% 'he receiver;s preferences% 'ime constraints% 'he need to as" and ans#er 9uestions%
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D(C2D0+5 8R(C(010+5 )+D 0+T(R4R(T0+5 TH( M( )5(

'o !e a great communicator you also need to step !ac" let the other person tal" and 2ust listen% 'his doesn;t mean that you should !e passive% Eistening is hard #or" #hich is #hy effective listening is called active listening. Eoo" at the person% Pay attention to his or her !ody language% Fvoid distractions% Iod and smile to ac"no#ledge points%

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 >ccasionally thin" !ac" a!out #hat the person has said% Fllo# the person to spea" #ithout thin"ing a!out #hat you;ll say ne4t% Don;t interrupt% #mpathic listening A'o understand a message fully you have to understand the emotions and underlying feelings the spea"er is e4pressing%

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F((D9)CK feed!ac" through body language is perhaps the most important source of clues to the effectiveness of your communication% :y #atching the facial e4pressions gestures and posture of the person you;re communicating #ith you can spot: Confidence levels% Defensiveness% Fgreement% Comprehension +or lac" of understanding/%

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 Eevel of interest% Eevel of engagement #ith the message% 'ruthfulness +or lying@dishonesty/% Feed!ac" can also !e formal% If you;re communicating something really important it can often !e #orth as"ing 9uestions of the person you;re tal"ing to to ma"e sure that they;ve understood fully%

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K(6 420+T It can ta"e a lot of effort to communicate effectively% :y learning the s"ills you need to communicate effectively you can learn ho# to communicate your ideas clearly and effectively and understand much more of the information that;s conveyed to you% Fs either a spea"er or a listener or as a #riter or a reader you;re responsi!le for ma"ing sure that the message is communicated accurately% Pay attention to #ords and actions as" 9uestions and #atch !ody language%

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Di" Deeper

Further resources:
###%ccmsAinfo!ase%com Chapter 5 in: >!er )cot% Contemporary $usiness

Communication %in the Oeader&

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TH( D(1(L24M(+T 2F L(5)L L)+53)5(

Perhaps the language of la#yers is so convoluted simply !ecause of the conservatism of the profession and its veneration of history and tradition% 'o some e4tent legal English is indeed a product of its history% It is a story of FngloA)a4on mercenaries EatinAspea"ing missionaries )candinavian raiders and Iorman invaders all of #hom left their mar" not only on England !ut on the language of its la#%

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ummary Flthough the FngloA)a4ons seem to have had no distinct legal profession they did develop a type of legal language remnants of #hich have survived until today% E4amples include #ords li"e bequeath' goods' guilt' manslaughter' murder' oath' right' sheriff' steal' swear' theft' thief' ward' witness and writ. 'he FngloA)a4ons used not only >ld English as a legal language !ut also Eatin% Flthough Eatin #as introduced to England during the Ooman occupation around the time of Christ it !ecame a ma2or force only after the arrival of Christian missionaries in 86?% :efore long Eatin #as the language not only of the church !ut of education and learning% Page 3(

 'he association !et#een literacy and the church !ecame so strong that the t#o #ere almost synonymous% 'he terms cler" +someone #ho can #rite/ and cleric or clergy +priest/ derive from the same Eatin term% For centuries English courts recogni$ed a type of immunity for the clergy3 to avoid the gallo#s you simply had to read a verse from the :i!le +sometimes called the Nnec" verseN/% F later influence on the language of the la# #as )candinavian in origin% During the eighth century Qi"ings !egan raiding the English coast and eventually settled do#n% 'he English !orro#ed from these )candinavians the most important legal #ord in the English language: the #ord la# itself% Ea# derives from the Iorse #ord for NlayN and thus means Nthat #hich is laid do#n%N
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>ddly the use of French in the English legal system gre# at the very time that its survival as a living language #as in serious 9uestion% .nhappiness a!out this state of affairs led to #hat might !e considered the first plain English la#% In 5372 Parliament enacted the Statute of (leading' condemning French as Nun"no#n in the said OealmN and lamenting that parties in a la#suit Nhave no Mno#ledge nor .nderstanding of that #hich is said for them or against them !y their )er2eants and other Pleaders%N 'he statute re9uired that henceforth all pleas !e Npleaded she#ed defended ans#ered de!ated and 2udged in the English 'ongue%N Ironically the statute itself #as in FrenchP

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 )i4 hundred years after the Iorman Con9uest and around three hundred years after French #as virtually a dead letter in England it #as still !eing used as a professional language !y English la#yersP :ecause it #as the main language of the profession for so many centuries French has had a tremendous influence on legal language% F vast amount of legal voca!ulary is French in origin including such !asic #ords as appeal' attorney' bailiff' bar' claim' complaint' counsel' court' defendant' evidence' indictment' !udge' !udgment' !ury' !ustice' party' plaintiff' plea' plead' sentence' sue' suit' summon' verdict and voir dire%
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 'hings #ere similar in the .nited )tates% Despite initial antipathy in the colonies to#ards the legal profession the Fmericans soon reali$ed that they needed to develop a system of 2ustice% 'he only real model at their disposal #as the English one% 'he fledgling Fmerican states adopted not only England;s common la# !ut its language as #ell% Ionetheless criticism of legal language continued% 'homas ,efferson complained a!out the ver!osity of statutes their endless tautologies and Ntheir multiplied efforts at certainty !y saids and aforesaids%N *et Fmerican legal language ended up !eing very similar to its English parent%

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 Clearly the legal profession has tended to !e 9uite conservative especially in the past% :ut old ha!its and tradition cannot fully e4plain #hy modern la#yers persist in using archaic 2argon passed do#n over the centuries% Fctually la#yers can !e 9uite creative and innovative #hen it suits their purposes% 'hey have readily coined neologisms li"e palimony +alimony paid to a NpalN or unmarried partner/ and hedonic damages +money damages for loss of the pleasure of life/%

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 )till la#yers seem to trot out their most ancient redundant and convoluted phrases #hen #riting documents directly for clients particularly #ills% 'he average #ill +for an estate #ithout potential ta4 lia!ility/ is not conceptually all that comple4 and most of the language is pure !oilerplate% *et la#yers are a!le to charge hundreds of dollars for drafting one% Fll too often comple4ity of language mas"s simplicity of content%

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 ,ustifying fees is not the only reason for the persistence of legalese% 'heir distinctive language allo#s la#yers to mar" themselves as mem!ers of the profession% Ea# students soon learn ho# to Ntal" li"e a la#yer%N .se archaic #ords li"e aforesaid' herein and to wit% Em!ed them in convoluted synta4% Fnd never use one #ord #here a longer phrase is availa!le% Perhaps the !est #ay to sound li"e a la#yer is to thro# in as much legal voca!ulary as possi!le% 'here are literally thousands of technical terms from #hich to choose% &ords of Eatin and French origin are particularly impressive%
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L(5)LL6 90+D0+5 C2+TR)CT 'o !e legally !inding a contract needs t#o essential components: 5/ an agreement and 2/ consideration% &ithin the agreement and consideration lies an assortment of provisions that add to the legality of a contract% 'hese include the offer performance terms conditions o!ligations payment terms lia!ility and default or !reach of the contract%

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 'he agreement component involves offers counterAoffers and eventually #hat contract la# calls the Nmeeting of the minds%N Fn agreement can !e either oral or #ritten depending upon the contract% If you hire a ta4i to drive you to the airport then it is an oral agreement that you #ill pay the driver a certain sum #hen you reach your destination% Contracts #hose agreements must !e in #riting include real estate contracts and contracts that last more than a year% Every state has its o#n legal re9uirements and you should consult these re9uirements to find the specific regulations that pertain to your type of contract%

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 'he agreement process involves one party offering terms and conditions that are either accepted or re2ected !y the other party% If the other party changes any term or condition of the offer then the offer !ecomes a counterAoffer% Ft this point each party negotiates the terms and conditions of the offer until they have a meeting of the minds% 'his is #hen an agreement has !een met and a contract can !e dra#n up% :oth parties must !e competent enough to enter into the contractual agreement% 'hey may not !e minors +under 5C years of age/ under the influence of drugs or alcohol or of unsound mind% 'hey also must have the legal po#er to enter into the agreement for instance #hen representing a company%
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 For an agreement to !e legal and !inding it must have some form of consideration% 'his means that all parties involved must receive consideration or something of value% >ther#ise it is considered a gift rather than a contract% 'he promise of a gift is not necessarily !inding depending upon the circumstances% .sually consideration involves one party giving something such as a product or service and in e4change the second party gives some form of monetary compensation%

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 'he consideration component of the contract !rings up several other provisions that should !e addressed such as: 2bli"ations and Conditions of t&e Contract A #hat each party needs to do to fulfill the terms of the contract 4erformance A ho# #ell each party performs the terms of the contract 4ayment Terms A a schedule that specifies #hen all payments are to !e made Liabilities A defines the lia!ility of each party in terms of the contract

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 9reac& of Contract A #hat #ill happen should either party fail to fulfill their end of the agreement Flthough not legally re9uired each contract should contain several provisions "no#n as N!oilerplateN provisions% 'hese include: Fr!itration Clause A ma"es allo#ances so that disputes are handled !y an independent ar!itrator Entire Fgreement Clause A states that #hat is #ritten in the contract is #hat the agreements and conditions of the contact are and no previous agreements or conditions are applica!le Force =a2eure Clause A states that should something happens !eyond the control of either party +such as a tornado Page (? destroying a house

 Force =a2eure Clause A states that should something happens !eyond the control of either party +such as a tornado destroying a house/ then the contract is no longer valid%

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C2M4)+0( )+D 7(LL: DR)FT(D C2+TR)CT F #ell drafted contract can do many great things for your company and your !usiness deals% 1. Clarify t&e Deal Terms First a #ell drafted contract can clarify the deal terms !et#een the parties% )ho is specifically going to do what* ow much money is going to e"change hands* ow are you going to get paid* +pfront* ,n installments* Monthly* )hen work is complete* )hat is the time frame for the work*
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 )ho is going to own what* ow is risk going to be distributed* #. Clarify and Transfer 2$ners&ip of 0ntellectual 4roperty For companies #ho hire contractors to create logos #e!sites or soft#are for the company it is critical to understand the follo#ing counterAintuitive concept% .nder the copyright statute if you don-t have a #ritten assignment of copyrights from the contractor #ho created the #or": *>. D>I-' >&I '0E C>P*OIL0' EQEI IF *>. PFID F>O '0E COEF'I>I >F '0E &>OMP

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 %. Limit Liability F #ell drafted contract can greatly limit a company-s lia!ility in the follo#ing #ays: by limitin" statutory $arranties that apply #hether you "no# they do or not% )uch #arranties can !e e4cluded #ith very specific legal language and can save your company huge headaches and potential damages especially if you are creating soft#are% by e/cludin" cra;y types of dama"es that are availa!le under statues and common la#%

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 by limitin" t&e total amount of dama"es availa!le to the other party% If you preformed the #or" for a specific fee it is possi!le to limit the amount of potential damages in the contract to the amount you have !een paid% &ithout limiting lia!ility in the contract a little deal may end up costing you far more than you had ever imagined%

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 Eia!ility hidden in statutes and the common la# is li"e an ice!erg% If you don-t "no# it is there you may hit it and your startup #ill go under li"e the 'itanic% Ea#yers #ent to la# school to "no# ho# to spot lia!ility ice!ergs%

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) T(RM 2F 3 (< (R10C( C2+TR)CT &hen people use the Internet in a typical manner A reading and sending eAmails chec"ing the ne#s #atching some videos AA they don;t put too much thought into the act% :ut did you ever thin" using the Internet could turn you into a felon< If your !usiness is !ased on a #e!site especially if you allo# users to post or upload content onto your site your #e!site-s 'erms of .se can provide critical legal protection% F #e!site-s 'erms of .se +or 'erms of )ervice/ is actually a legal contract !et#een the #e!site o#ner and the user%

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 First the site o#ner may not even "no# the identity of the other party to the contract R the #e!site user% 'he #e!site o#ner essentially sends out an offer to use its #e!site and people across the #orld may accept% 'his acceptance !y use is good enough to form a legal contract% )econd the terms of the #e!site contract can !e unilaterally changed !y the #e!site o#ner at any time !y its very terms%

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2R)L C2+TR)CT :)R( TH(6 90+D0+5 >ral contracts can !e as !inding as #ritten contracts% :ut #ithout a #ritten record it can difficult to prove #hat you have agreed to% If your deal goes south you may !e endlessly chasing the truth% =a"e it easy on yourself and #rite up an agreement% >ften parties enter into agreements that are partially oral and partially #ritten !ased on a handsha"e and a fe# letters or memos that may indicate some of the aspects of the agreement #ithout actually !eing contracts themselves% In this case the NagreementN is contained partly in the oral agreement and partly in the letters and memos%

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 )ome oral contracts are legally unenforcea!le% 'hese four types of contracts #hich involve a high ris" of fraud typically must !e in #riting !y la#% 'hey are: Contracts for the sale or purchase of land Contracts for the sale or purchase of goods priced at S8DD or more +#ith a fe# significant e4ceptions/ =arital settlement or prenuptial contracts Contracts that cannot !e performed #ithin one year of the time the contract is made

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 If you choose to use an oral contract !ased on one of the follo#ing rationali$ations perhaps you should reconsider your decision: 0=m too busy to $rite it do$n. F legal !attle over your oral contract #ill ta"e much more time than putting together a #ritten contract% T&e ot&er party $on=t a"ree to put it in $ritin". Oeconsider your relationship% 'he #orld is full of honest people and none of them mind putting #hat they promise in #riting% 0 trust t&e ot&er party. Don;t !ase any !usiness decision solely on trust% T
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T&e deal is too complicated to $rite do$n. >dds are that it is not too complicated3 you 2ust don;t understand it% 'a"e the time to #rite out the deal and hash out any unclear points #ith the other party as you go along% If you don;t understand the deal ho# #ill a 2udge or 2ury understand it #hen you try to enforce it< 0t=s a "reat deal for me : 0 don=t $ant t&e ot&er party to t&in- it t&rou"& too muc&. Chances are that the other guy is thin"ing the same thing a!out you% If the deal is such a great deal ma"e sure that it;s enforcea!le%

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TH)+K 623>

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