Practical Legal Writing

Unintended Recipients

Since emails are efficient ways of communicating, writers often forget to take the time to proofread not only the content but also the intended recipient. Sending an email to the wrong person in our personal lives may lead to embarrassment or maybe a personal conflict. In law, however, this creates a need to self-report to the Law Society, contacting the client to alert them to the accidental breach of confidentiality, and possibly a self-report to the Lawyers Indemnity Fund.

Avoiding Unintended Recipients

The simplest way to avoid sending an email is to leave the address blank until you are ready to hit send. This will force you to be more intentional when filling in the “to:” line.

Unintended Copied Parties

Some lawyers feel it necessary for a variety of reasons to include their client or assistant on emails with other people. This could be because they do not set a boundary with their client about how the lawyer will communicate, the client is a micro-manager, or even that the client has not previously been kept in the loop and the lawyer now wants to demonstrate how much they are doing on the file. For whatever reason, this is not a good way of informing or keeping your client up to date on email communications because it can lead to accidental breaches of confidentiality and privilege. Further, it can alienate you from opposing counsel.

Avoiding Unintended Copied Parties

Maintain communications between the opposing party and your client as distinct threads. Use the forward option to provide communications from the opposing party to your client. Do NOT include your client on communications to opposing parties. Do not reply-all to emails from opposing counsel unless you know exactly who the other email addresses belong to.

Using Email for Inappropriate Reasons

Email should only be used for simple purposes, such as clarifying details, asking a simple question, delivery of a document with more substantive materials, or confirming the contents of discussions/instructions. Email should not be for lengthy responses, substantive advice, or detailed instruction seeking as we often draft them quickly and do not give much time to proofreading. This can lead to saying things without much forethought. As a lawyer, you should avoid communications without forethought at all costs. You do not want to have a communication end up in an affidavit where you said something you really ought not to have.

Avoiding Inappropriate Emails

You should always correspond by letter when dealing with anything to do with a substantive matter or component of a file. This gives you, as drafter, the ability to review both the content and the actual purpose of the communication.

Here are the top ten tips for a professional email:

1. Use honorifics and polite introductions – these are professional communications with a purpose and not texts between friends.
   1. Use “Good Morning, Ms. Soandso” or “Dear Ms. Soandso,” until you have established a relationship with the person, at which point “Hello Amy” or “Hi Amy” may be more appropriate.
2. Always use proper grammar in communications.
3. Confirm email communication with clients is acceptable rather than jumping straight into this mode of communication.
4. Use appropriate subject lines to prevent your email from being diverted into junk folders and from breaching confidentiality.
5. Be concise and straightforward. This includes:
   1. avoiding passive voice;
   2. avoiding hyperbolic language; and
   3. avoiding unnecessarily antagonistic language, such as “Govern yourself accordingly” or the words “actually” or “obviously” – think about how you would receive such language from another lawyer.
6. Write as though a judge may read your emails because they very well may as an exhibit to an affidavit.
7. Tell your clients to stop emailing the other side as soon as you become involved in the matter.
   1. This is for two very important reasons – first, it keeps you in control of the conversation on the file. Second, it prevents your client from inadvertently derailing the file.
   2. Much like your communications, a client’s communications can very well end up as exhibits.
8. Use lists where appropriate, such as requesting more information or confirming instructions. They help the reader give you the responses you need.
9. Use a conclusory sentence that restates the action needed.
10. Use a proper sign-off – Regards, Best, Yours Truly, Sincerely, etc.

Dear Ms. Soandso,

Thank you for meeting with me today to discuss your family law matter. I want to clarify a couple of key facts you told me:

1. You said you married on December 7, 2010, but lived together before then. Exactly when did you start living together?
2. You said that you quit your job as a full-time teacher after your spouse was promoted in 2015. Did they suggest you quit your job and/or make any promises they would be the main source of family income?

I look forward to receiving your responses.

Sincerely (Yours truly, Regards, etc.),

Kelly Melnyk

Lawyer

Dear Ms. Soandso,

Please find attached our scope of work and retainer letter dated February 13, 2023. If you have any questions, please do not hesitate to contact our office. We look forward to assisting you.

Sincerely (Yours truly, Regards, etc.),

Kelly Melnyk

Lawyer

Dear Ms. Soandso,

The judicial case manager provided two dates to choose from for the application:

1. April 3, 2023, at 9:30am; or
2. April 10, 2023, at 1:00pm.

The judicial case manager will hold both dates for us until 9:30 am tomorrow, at which point she will set the date without our input.

Please advise your preferred hearing date not later than 9:00am tomorrow morning so that I can secure the date that works best for you.

Sincerely (Yours truly, Regards, etc.),

Kelly Melnyk

Lawyer

Dear Ms. Soandso,

Thank you for speaking with me on the phone today at approximately 3:00pm. In that call, we discussed the settlement offer from your former spouse. This email serves to confirm your instructions to accept the offer. If I am incorrect about your instructions, please advise me as soon as possible as I intend on calling Mr. Lawyer at 9 am tomorrow morning.

In particular, we discussed the following terms:

1. lump sum spousal support in the amount $250,000;
2. Family Home division of $325,000 equity for you;
3. division of CPP and private pension equally;
4. equal parenting time;
5. shared parental responsibilities with you having final say; and
6. set-off child support in accordance with the Guidelines.

You told me that you are prepared to agree to the settlement offer and instructed me to let Mr. Lawyer know you accepted the offer. As discussed, this means we will not proceed with the hearing scheduled for April 10, 2023. I will withdraw the application as soon as I confirm your acceptance with Mr. Lawyer.

Again, please let me know before 9am tomorrow if I am incorrect about your instructions.

Sincerely (Yours truly, Regards, etc.),

Kelly Melnyk

Lawyer

Dear Mr. Lawyer,

Thank you for speaking with me by phone this morning regarding Mr. and Mrs. Soandso. As discussed, Ms. Soandso is prepared to accept the settlement offer as outlined in your letter of February 15, 2023, subject to Mr. Soandso refinancing the Family Home and your office preparing the separation agreement.

I look forward to receiving a draft of the separation agreement in due course.

Sincerely (Yours truly, Regards, etc.),

Kelly Melnyk

Lawyer