Not long ago, the partners at a law firm told me of an embarrassingly disastrous trial. Two years before the trial, an associate was asked to research a critical point about liability. Responding by email, the associate said that the answer was clear: The law provided that such-and-such. The two lead trial lawyers, together with their considerable team of associates, framed the discovery and their trial theories accordingly. Only at the end of the trial did they learn that the associate’s research was fundamentally flawed. Two appellate decisions reaffirmed their belated lesson. The associate had overlooked an exception to the “simple and unambiguous answer”—an exception that clearly applied to the facts of their case.
Somehow, everybody on the trial team had unquestioningly accepted the associate’s research on a pivotal issue. As a result, the firm faced a gargantuan malpractice lawsuit. Scary, isn’t it?
They wanted to know whether I knew of ways to prevent this type of problem. The answer is a qualified yes: While there are no panaceas, certain protocols can minimize the risks of suboptimal research. Here are the three crucial points.
Resist the we-don’t-write-legal-memos-anymore mentality.
Since the rise of email in the 1990s, many senior lawyers have tended to say, “We don’t waste the client’s time and money with formal legal memos. We go straight into litigation documents—motions and briefs.” It’s as if they’re saying that reporting your research is a waste of time.
“Why do I need it reported?” they might respond. “Just email an answer. Or forward the relevant authority to me.”
My response to this mindset is that the “report”—a legal memo—isn’t just make-work. It memorializes your understanding about a given legal problem. It becomes the basis of a good legal argument in litigation documents and oral presentations. And if it’s done well, it becomes part of a repository of legal knowledge within a practice group.
But with emails, you’ll too often end up with chains that read like this:
Partner
I need to know whether a “sale” to Jensen actually took place on the evening of July 18.
Associate
Yes. See Conn. Gen. Stat. Ann. § 30-102 (attached).
Concededly, this cryptic exchange might do the job of supplying the senior colleague with the required information. The answer might be correct. But there’s no way of assessing its correctness from the words themselves. That’s the problem.
Imagine, though, that the associate had responded more fully. The exchange might have gone like this:
Partner
I need to know whether a “sale” to Jensen actually took place on the evening of July 18.
Associate
Meaning of “Sale” Under the Connecticut Dram Shop Act
Question presented: The Connecticut Dram Shop Act (§ 30-102) requires a “sale” from bartender to patron. A bartender for our client, Ye Olde English Pub, sold two rounds of beer to a group of eight. Witnesses have declared that one member of the party, Jensen, was visibly intoxicated. Jensen did not pay for the drinks. Did the rounds of beer constitute a “sale” to each of the eight guests, including Jensen?
Answer: Almost certainly. Connecticut courts have interpreted “sale” under the act to mean “the purveying or furnishing of alcohol” to a person or group, any one of whom is visibly intoxicated. Last year, the Connecticut Supreme Court held that circumstantial evidence alone can be enough to prove a sale—on facts more tenuous than we have here.
Attached are the statute itself and the three most relevant cases, with crucial passages highlighted. I’ll be happy to write a more formal memo if you like.
With this answer, the associate has taken the trouble to be explicit. She hasn’t answered lazily and superficially by simply hitting “reply” and reporting her findings without stating the issue.
Require that all research assignments be put into writing.
Imagine that same research assignment delivered orally. After a meeting with the client, the partner tells the associate to find out whether a “sale” took place. The associate might well mishear or forget a critical detail relevant to finding the right answer. In that situation, the associate’s first hypothetical response is incomprehensible to all but the assigning lawyer (who will comprehend it for only a matter of days at most). By contrast, the second response, with the question presented and the brief answer, is fully understandable to every conceivable reader. And it’s more likely that any error will be caught.
The point is that you’ll predictably elicit better research if all assignments are reduced to writing. Whenever a senior lawyer puts an assignment in writing, it’s likely to be more focused and more lucid. Ideally, the culture in a law office will insist on written assignments.