SKILLS OF LEGISLATIVE LAWYER

1. Assess the Problem/Issue

A legislative lawyer must first fully understand his client’s desired policy goal.  The legislative lawyer must then be able to identify and accurately assess both the political landscape and the legal landscape that will govern his client’s desired policy outcome. A legislative lawyer who is interested in and steeped in the legal details of an issue may need to make an extra effort to fully understand both the policy goal and the politics surrounding the issue. An understanding and assessment of both policy and politics is key to the foundation of good legislative lawyering work. It is that understanding, and that intuitive application of politics to law, that sets the legislative lawyer apart from lawyers who operate purely in the legal arena. The legislative lawyer needs to identify the relevant legal areas that may need to be modified to achieve that goal (or that might be inadvertently affected by achievement of the goal).

2. Research of the Problem/Issue

The second stage of work for the legislative lawyer is to research the issue. The foremost skill a legislative lawyer brings to this task is a sophisticated, refined and sharpened ability to read text. By text, is meant the actual words in a statute or regulation, or in a pending bill or regulation. By read is meant the ability to correctly ascertain what those words mean (or could mean).

It is difficult to overestimate the importance of the skill of ‘reading text’. In the policy world, few people engage in a close, meticulous reading of all the relevant text. This is often because they lack time, and sometimes, because they lack interest or capacity. In any event, it is the legislative lawyer’s almost obsessive focus on text that sets him or her apart from other players in the political arena.  ‘Obsessive’ is not an inaccurate word to use in describing the necessary skill of reading text. Most relevant text is buried in surroundings of less relevant text. Laws are often amended over the years, resulting in odd placements of sections and provisions and in convoluted sentences. New bills often amend existing laws so that the language of the bill cannot be understood without careful reference to and study of the existing law.

During the research stage, the legislative lawyer must meticulously find and understand every piece of text relevant to the policy goal being sought. No phrase is too small to be glossed over; no cross-reference too minor to escape unexamined. Of course, such meticulous attention to text has always been the hallmark of a good lawyer, regardless of the field or arena in which the lawyer practices. What the legislative lawyer does, however, is bring this meticulous attention to, enjoyment of, and ability to read text into the political world, where most individuals usually have time to read only executive summaries and bullet points. While the legislative lawyer must be able to translate his sophisticated understanding of text into usable documents and proposals, it is when the legislative lawyer allocates time to read text and research law that the principal contribution of the legislative lawyer can begin to emerge.

To make a contribution, a legislative lawyer must read the relevant text with a keen understanding of the political dynamics surrounding the pending legislation or regulation. All lawyers engage in research with an eye to both law and politics. But the politics are different depending on the surroundings. Legislative lawyers deal with the politics of the legislative branch, the executive branch, and the range of advocacy stakeholders interested in an issue.

It is usually not possible to absorb a sophisticated understanding of the politics of a situation simply by hearing a description of the relevant political dynamics. It is only by sitting through meetings with coalition partners, legislative staff people, and agency officials that a legislative lawyer can begin to absorb completely the political concerns and needs of the various stakeholders. Having done so, the legislative lawyer can then take into account those concerns when engaging in an interpretation of existing text of new proposed legislative or regulatory text.

Finally, as in any research endeavor, a legislative lawyer must know when to stop engaging in research and move on to the next stages of the task.  Achieving a balance between sufficient comprehensiveness (so as not to miss an essential piece of the puzzle) and completing work in a timely fashion is a challenge faced by lawyers in every arena. But operating in the legislative arena requires the legislative lawyer to be able to research and write under pressure, continue to perform well even when an issue has been raised for the sixth time, and maintain at least a façade of calm during all proceedings.

3. Propose Solutions and Approaches to the Problem/Issue

After researching an issue or problem, a legislative lawyer must be able to propose approaches and solutions to the issue. The building blocks for this skill set are the same ones noted above: an ability to read text and an ability to gauge political realities. But this stage of work also requires creativity, assertiveness, and perception. (Flashes of brilliance are, of course, always welcomed by clients at this stage).

A broad range of activities, and documents come under the heading ‘propose solutions and approaches’. At bottom, however, they all revolve around proposing different legislative and administrative options for achieving a client’s policy goals. These may include recommending support, opposition, or modification of a bill; recommending that the client focus on one particular programme rather than another; or recommending that a client argue the law it needs has already been passed and the relevant agency need only issue appropriate implementation regulations. The work involved in proposing solutions and approaches is quite often straightforward and does not require extensive negotiation or manipulation. At other times, the work involved in proposing solutions or approaches will require extensive negotiation and, perhaps, some manipulation of text.

4. Draft Materials

The first two stages of legislative lawyering work- assessing and researching a problem or an issue are essential for the legislative lawyer to devise creative and helpful solutions and approaches. The remaining two stages are essential for the legislative lawyer to ‘deliver’ on that solution or approach. No matter how brilliant a legislative lawyer may be in his/her comprehension and creativity during the first three stages of work, if he/she cannot explain to others what he/she has learned and cannot help persuade the relevant players to come together in a consensus, he/she has not ‘delivered’ as a legislative lawyer.

An essential mechanism through which one explains one’s ideas and approaches is written materials. Learning to write for an advocacy effort is perhaps one of the hardest skills for lawyers to learn. Lawyers have a tendency to set forth a great deal of information, cover all possible alternatives, and use terms hardly ever heard in ordinary conversation. While this is appropriate, and indeed, imperative in some settings, it can be deadly in an advocacy setting. Thus, the challenge for a legislative lawyer is to know a great deal of information, but to convey in clear and simple written forms only that information which the audience targeted for the document or communication needs to know. Of course, this is no different that any lawyer who must be sure his/her written documents are appropriate for the targeted audience. The difference is simply the type of audience the legislative lawyer will be addressing. An advocacy effort requires a number of different documents for audiences that will range in knowledge, sophistication, time and patience. For example, a legislative lawyer may need to write an option memo for a client, a piece of testimony for a hearing, a set of talking points for staff people, a background memo for coalition members, an alert for grassroots activities, an offer of proposed language and committee report language, and comments on proposed regulations.

All these documents should draw on the extensive body of knowledge the legislative lawyer has developed in stages one through three of his/her work. Yet each of these documents must be written differently in order to be effective with the target audience. This difference will be manifested in tone, length, complexity, and approach. A document that is intended to be an objective summary of a bill will not have editorial comments interspersed throughout the document; a document intended to persuade a legislator will not have a lengthy exposition of the merits of the opposition’s arguments. In each case, the writer identifies the purpose of the document and shapes his writing to achieve that purpose.

A legislative lawyer must be competent to write all the necessary documents for an advocacy effort, from the most simple to the most complex. Once a legislative lawyer is part of an advocacy effort, the solution to various political/legal problems may depend on subtle and creative uses of text. In such cases, it is important that all documents used in the advocacy effort correctly reflect both the legal and political goals in play. This includes everything from detailed background papers to simple one-pagers of bullet points.

A legislative lawyer skilled in law and politics and who may be trying to do some subtle work with text in his/her creative solutions can help avoid problems. Depending on the resources available, a legislative lawyer might review some of the advocacy documents, rather than draft all of them initially. But no document should be viewed as too simple or too basic for a legislative lawyer. A legislative lawyer must have the capacity and the temperament to write both sophisticated legal documents and simple grassroots alerts and to consider both as part of his/her job. Finally, a reader should never have to fill missing pieces of logic, information, or structure on his own. He/she should be carried easily and seamlessly from one sentence to the next, from one paragraph to the next, landing in a smooth, nice finish. The organisation of the piece should lead the reader where the writer of the document wants the reader to go but in a seemingly organic and effortless manner. And finally, the reader should experience the tone of the document as ‘just right’.

5. Oral Presentation and Negotiation

Written communications are essential to conveying one’s ideas, but nothing substitutes for in-person oral exchanges. Consensus is usually reached through a series of oral exchanges and negotiations. Thus, the ability to communicate and negotiate effectively is the final skill of the legislative lawyer.

The oral communications of a legislative lawyer can be divided into two categories: explanatory and persuasive. Example of explanatory communications are explanations to a client or a coalition of how a proposed bill changes existing law or why existing law must be rectified by legislation. Examples of persuasive communications are persuading a coalition that a proposed deal is a good one (despite the fact that it appears to give up a provision the coalition previously thought was essential), or persuading a staff person that a proposed legal provision does meet all the political concerns of his/her boss, or convincing an agency official that an existing legal provision would already achieve a particular policy goal if the agency simply issued appropriate implementing regulations.

When a legislative lawyer is engaged in explanatory communication, he/she must be able to convey the relevant information clearly and concisely. Time is the most precious commodity in the legislative arena; attention spans of listeners are often short. As in writing, a legislative lawyer must know a great deal of information, but must be able to convey only what the listener absolutely needs to know about the issue at that point. In addition, if the legislative lawyer is to be an effective ‘conduit’ between the legal/academic world and the political world, he/she must be able to explain complicated legal concepts in simple English to those in the political world and be able to explain tangled political realities in simple English to those in the legal/academic world.

When a legislative lawyer is engaged in a persuasive communication, he/she must be able to convey the relevant information clearly, concisely, and persuasively. Being persuasive requires knowing what matters to the listeners and shaping one’s arguments in a way that is thoughtful and responsive to those concerns. Thus, the key to speaking persuasively is to listen effectively.

A persuasive conversation is a dialectical activity. The speaker set forth his argument, then hears (or sometimes intuits based on body language) the reaction of the listener, and then reshapes his argument to meet the listener’s concerns. A good persuasive conversation is like a good soccer play by a team, where the ball is passed back and forth among the players in a seamless manner, ultimately bringing the ball down the field towards the goal. A bad persuasive conversation is like a racquetball game of one, where the player keeps hitting the ball against the same wall again and again. Of course, the challenge in a persuasive conversation is that people on the other side of the conversation do not yet perceive themselves as being on your team (soccer or otherwise) !. Thus, the challenge is to maintain a tone and demeanor that treats others in the conversation as potentially on your team and then moving the conversation ball down to a goal that ultimately becomes your joint goal.

Negotiation represents a more complicated game of oral soccer. It is the legislative lawyer’s job to begin moving the ball among the players, helping to choreograph an effective game play. This requires building consensus within the advocacy team first and then moving forward to engage the opposing team. The legislative lawyer is responsible for the content of the soccer game play, while the strategist is responsible for the vision, lobbying, outreach, and communications components of the game- those elements which will ensure the game’s ultimate success.

Value of Legislative Lawyer

There is significant convenience in having someone who knows both law and politics be involved in both written and oral components of advocacy. Nothing the legislative lawyer writes should ever need to be rewritten to make it accessible to the target audience. Options presented by a legislative lawyer should never need to be reformulated to accommodate political realities. The explanation a legislative lawyer provides to a staff person should never need to be rephrased.

At times, a legislative lawyer will actually be able to come up with a creative solution to a legal problem (and sometimes a political problem) that neither the strategists/lobbyists nor the expert lawyers/academics would have arrived at by themselves. It is difficult to be creative without accumulated data and knowledge. By extension, if one can accumulate legal, policy, and political data with equal sophistication and comprehension, one can be more creative in devising new legal and policy solutions that will accommodate political realities.