Three critical points that have an impact on a lawyer’s chosen level of formality in written communication.
“How polite do I have to be?” is a question I am often asked by German lawyers involved in international transactions in English. The answer – as is so often the case in a legal context – is: “It depends”.
There are a number of factors that will determine the need for politeness in any given situation. I would like to take a more detailed look at these factors in the context of written legal communication in order to develop a roadmap of sorts.
I would argue that that there are three critical points that will have an impact on a lawyer’s chosen level of formality in written communication:
I consider these points in more detail below.
The notion of low- and high-context cultures was developed by Edward Hall, one of the most significant researchers in the field of intercultural studies. People from low-context cultures (such as Germany and Switzerland) tend to be more comfortable with direct communication and ‘getting straight down to business’. People from higher-context cultures (such as Great Britain and Japan) are more comfortable with indirect communication. They are more likely to emphasise relationship-building, harmony and implicit communication accompanied by a relatively high degree of politeness.
Problems can arise when people from low-context cultures communicate with people from high-context cultures. For example, the direct style of a German lawyer might come across to an English lawyer as rude, while the indirect style of an English lawyer might come across to a German lawyer as time-wasting or dishonest.
The problem is further exacerbated by the fact that most cross-border legal transactions today are conducted in English, despite the fact that the parties involved may not be native speakers of English at all. Arguably, therefore, all the rules relating to polite communication in a British context, which we were taught at school, may not apply when English is used between two non-native speakers of English.
In this area, knowledge is power. In my view, the most successful international lawyers are those who go into any interaction or transaction armed with information about their counterpart’s cultural expectations and a willingness to adapt to those expectations. As a German lawyer, why should you try to move away from your preference for direct communication when dealing with someone from a high-context culture? Because this can only benefit you in the interaction or transaction and will likely keep you one step ahead of the competition.
For training purposes, I tend to divide legal communication into two sub-categories: legal communication in a collaborative context and legal communication in an enforcement context.
Collaboration implies a relationship between a lawyer and another party (for example, a colleague, client or another lawyer) which is essentially positive in nature and which is intended to be long-term i.e. the parties are working together to achieve a particular goal and it is in their best interests to keep the relationship going. A good example of this is the relationship between a German lawyer and another lawyer at an English law firm, whom the German lawyer approaches for advice on English law. In a collaborative context, I would say that legal communication tends towards a higher level of politeness.
Enforcement implies a relationship between a lawyer and another party which is essentially adversarial in nature i.e. the parties may be working to achieve different outcomes from a particular situation and the relationship may or may not already have broken down. A good example of this is a letter written by a German lawyer to another party informing that party of an alleged breach of contract or requiring the fulfilment of a particular obligation pursuant to a legislative provision. In an enforcement context, I would say that legal communication tends towards a lower level of politeness, even where a high-context culture is involved.
What does this mean on a practical level? Here are a range of potential requests in descending order from ‘most polite’ to ‘least polite':
Contrary to popular belief, “kindly” is not particularly polite and should be avoided entirely in a collaborative context.
When writing to someone in a collaborative context, my personal preference is for one of the first threeexpressions. For example, “We would appreciate it if you would give us your opinion on the applicability of English insolvency law to the facts set out above.”
A first request for payment in an enforcement context would probably start at the level of “Please would you pay,” while subsequent, more urgent requests might be at the level of “Please pay” or “Kindly pay”. So, a second request for payment might look like this: “We refer to our letter of *date*. We are writing to inform you that the amount of EUR** is still outstanding. Please settle this amount (plus additional costs incurred to date) by *date*. If you fail to do so, we will have no option but to take legal action against you.”
Note that the communication is still relatively polite, but the recipient is left in absolutely no doubt as to the potential consequences of failing to pay the outstanding amount by the due date.
Of course, generalisations about intercultural differences and context-specific communication can only take us so far. Much will also depend on the individual communication styles of the lawyers involved. My advice in this regard is for lawyers to try to pick up on communication cues from their counterparts and to mimic these as far as this is sensible or practical. So, for example, if a German lawyer sees that his British counterpart tends to adopt a more direct style of communication, then the German lawyer will be relatively safe in adopting a more direct style in return.
Legal communication is one area of life where the old adage “imitation is the sincerest form of flattery” may well hold true.