The situation as i understand it

• Author: Bryan A. Garner
• Pages: 26-27

26 || ABA JOURNAL AUGUST 2018

The Situation as I Understand It

Strive for clarity and context in emails that address legal questions

By Bryan A. Garner

Since the 1990s, the means of rep orting legal

research has cha nged radically. In the old days,

junior lawyers routinely wr ote research memos.

From their very fi rst days in law school, students

were typical ly taught to write a “question

presented” followed by a brief answer in a

formal legal memo. The quality of t hese memos

varied widely, but the emphasis was alw ays on framing

both a question and an answer (preferably c ontaining

a well-considered reason underly ing that answer).

Yet in recent years, this ty pe of formal legal memo

has become much less perva sive in law practice. Instead,

questions are answered more quic kly (and, truth be told,

less refl ectively) in emails. A senior lawyer poses a quer y

by email and asks for a quick-and-d irty answer. “Don’t

prepare a formal legal memo!” the common refr ain goes.

“Just email the answer.”

Part of the justifi cation for this trend is e ciency:

The old-style legal memo often seemed cu mbersome,

and juniors would sometimes take t oo much time

winding themselves up to put fi nger to keyboard.

Another part ha s to do with client relations: Many

clients don’t want to pay for formal memos when a

quick email wil l serve their purposes just as well.

But perhaps the most important contr ibutor to the

trend is the mere availability of em ail as an all-pervasive

means of streamlined communication.

Some of you may think right now: “Even email is to o

clunky. I just have people text me the answer!” True

enough, sometimes. If you have a clear question and

know an expert i n the fi eld, a text message might well

su ce. Let’s say you need to know whether it’s perm is-

sible in Massachusett s for an out-of-state resident (a

Nutmegger, to be exact) to be appointed the gua rdian

of an elderly Bay Stater in hospice care. You text a fr iend

who specializes i n guardianships and insta ntly receive

the message: “Yes.” You have your answer. If you need

the basis for that answer, you can a lways follow up with

your expert fr iend. But for now, you’re satisfi ed that you

have a defi nitive a nswer.

THE MESSINESS OF LEGAL PROBLEMS

Most legal questions aren’t quite so succinc tly

posed or answered. A nd for these, an email (much less

a text) requires more care if t hat’s the means to be used.

And that’s the point of this column: There’s a wide-

spread problem in the way junior lawyers an swer

questions by email. They tend to re spond to moderately

complex legal questions merely with an swers—without

explicitly repeating the ques tion. That’s because email

often imitates c onversation: There’s a back-and-forth

quality to it.

Which means that to u nderstand someone’s

answer to an issue w ith even the slightest whi

of complexity, you must read the entire email

chain to understa nd what’s being said. It also

means that the requester of t he research (the

senior lawyer, we’ll say) and the researcher

(the junior lawyer, we’ll say) might very well not

have an identical understand ing of the import of

the communication chain prec eding the answer.

There are other shortcomings a s well, but now let’s

consider an example.

Barbara, a par tner in a law fi rm, works primarily on

behalf of hospitals. The as sociate assigned to her, Ari,

sits in on a meeting with Ba rbara and their client, the

CEO of a public hospital. They’re discussi ng pending

litigation related to the use of emi nent domain for an

expansion of the hospital.

At the end of the meeting, the CEO tells Ba rbara,

“By the way, there’s a proposal that the hospital should

start holding Alcoholics Anony mous meetings. I’ve he ard

that this might be a problem.”

“How so?” asks Barbara.

“Well,” says the CEO, “we’re a state institution. I’ve

heard that in some jurisd ictions, there’s been a problem

with the emphasis that A A places on religion—in public

hospitals, at least.”

“Yes, I’ve heard about these First A mendment issues,”

says Barbara. “Would you like us to look into it?”

“Please do. Not a formal legal memo. Just tell me

whether we can do it.”

Ari has about seven pa ges of notes at the conclusion

of the meeting, with at lea st 10 action items relating to

the eminent- domain litigation.

At the end of the day, Barbara sends several email s

to Ari. One of them says, “Don’t forget to look into t he

constitut ionality of the A A meetings.”

Ari responds by ema il: “I’ve already looked. The cases

I found say it’s OK, with limitations. The hospita l must

narrowly tailor their a ctions to ensure that there’s no

establishment clause violat ion. See the attachments.”

That’s not a great answer. Perhaps Ari was t reating

the point as he might in conversation. (The medium

of email tends in that di rection.) And he was lazy in

saying, “See the att achments.” That’s putting the burden

on Barbara—an exceedingly bus y partner—to fi gure out

what the cases say. She doesn’t feel comfortable just for-

warding Ar i’s email to the CEO. It’s going to be up to her

to summari ze, and she doesn’t have the time right now.

Soon Ari is gone from the fi rm, and Sylv ia takes his

place as Barbara’s associat e. When Barbara raises the

Bryan

Garner

on Words

Practice