January 11, 2017 Articles

Six Questions to Ask the Partner Before Starting Your Research Assignment

Asking these six questions should help make your partner happy and bring you that much closer to the trial in your daydream.

By Bethany Rabe

You’re at your desk when you get the call. That partner you’ve been hoping to work with has a research assignment for you. This could be your in. You start to hum the tune to Lin-Manuel Miranda’s “My Shot.” You are young, scrappy, and hungry, you think to yourself; and if you do well, one thing will lead to another—and soon you’ll be handling trials.

You finish your closing argument, and the courtroom erupts in a crescendo of spontaneous applause. Opposing counsel hangs his head. The jury stares in open admiration. A Hollywood exec rushes over with a contract for a movie about your life.

Hey! Snap out of it. First things first. Take some advice now; revel in victory later. 

Six Questions
Asking these six questions should help make your partner happy and bring you that much closer to the trial in your daydream (I can’t promise anything on the movie contract, though).

1. What jurisdiction? Don’t assume! The stakes are high. Here’s a 10-second reminder of what we learned in Civ Pro: Figure out what state you’re in. Then figure out whether you’re in state or federal court. If you’re in federal court, figure out whether the court will be applying state law or federal law.

If I’m in state court applying state privilege law, for example, it doesn’t much matter what the federal court did under federal privilege law in a federal question case or what a federal court sitting in diversity did when applying another state’s privilege law. A decision by a federal court applying Nevada negligence law (even if it’s the U.S. Court of Appeals for the Ninth Circuit) is not as valuable as a Nevada Supreme Court decision applying Nevada negligence law. Your partner will thank you for not providing a memo that is completely useless because it applies the wrong law (well, probably not, but at least she won’t fire you).

This is not to say that you should never go outside your jurisdiction. Just be sure that you can, and do, justify your choice. If you find a case outside the jurisdiction with a great fact pattern that matches the facts of your case, good—but don’t just leave it at that. Take a look at the law in that jurisdiction. If that state has the same elements or the same statutory language, you’ve just made that case a lot stronger. By the same token, if the underlying law is very different, identifying it now will save your partner the cringeworthy experience of having her opponent—or the judge—point that out. If you aren’t able to find much in your primary jurisdiction, don’t hesitate to ask the partner or senior associate what jurisdictions would be most helpful.

2. What is the procedural posture? In other words, what is this research for? It’s helpful to know the context in which the partner plans to use the research: Is it a motion to dismiss, a motion for summary judgment, a posttrial motion, or an appellate brief? As you research, make note of the procedural posture of the cases that you find. A case affirming a jury verdict on a particular issue, for example, may not be helpful when you’re trying to argue that the issue should be determined on a motion to dismiss; alternatively, the case may helpful but may require additional explanation in the brief.

The Curmudgeon’s Guide to Practicing Law by Mark Edward Herrmann (ABA 2006) (an indispensable resource for new lawyers, in my humble opinion) has a great section that highlights the best precedents to cite and why. For example, the author argues that an appellate court’s favorable reversal of a trial court on your issue is better than an appellate court’s favorable affirmance on your issue. Don’t make the partner go scouring through the cases for procedural posture information: explain it in your memo.

3. What would the perfect case say? This question has helped me over the years, especially when a partner or senior associate was less than clear about what she was looking for. This often prompts the partner or senior associate to think about the assignment in a way that she hadn’t before and may give you some additional keywords to try in your search.

4. How much time would you like me to spend on this? This one is simple. You’ll soon learn, if you haven’t already, that law is a business. Clients don’t like getting surprises in their bills. They should never receive a bill that they do not expect. Research, generally speaking, is expensive, and so is attorney time. If the partner plans to use your research in a footnote, she probably doesn’t want you to spend twelve hours. If she’s going to use it as the main argument on summary judgment, she might. Make sure that you are clear from the outset on the partner’s expectation. This helps you as well because your time may be written down if you spend too long on the assignment, and you could have been spending that time on another project. (Note that this is different from the related question of when the partner needs the results. You should, of course, find that out as well).

5. How would you like the results? Sometimes the partner or senior associate is looking for a detailed memorandum that she can pass along to the client after minor revisions. Sometimes she just needs a quote to plug into her brief. If you come back with a hastily drafted email or cases with no analysis when she wanted a polished memo, you look bad. If you come back with a polished memo when she wanted a footnote, you also look bad. Clarify at the outset. One way to do this is to ask the partner or senior associate if she could direct you to a brief or memo that is similar to what she wants here.

Regardless, if you are providing cases, highlight the relevant parts. And then tab the highlighted sections. The partner will appreciate it. Ain’t nobody got time to forage.

6. To recap the assignment . . . Technically this is not a question, but it might be the most important query of all. Finish up your conversation with the partner or senior associate by recapping what it is you are supposed to be doing. When she hears you reflect what she has said back to her, she may realize that she left something out or that she actually steered you in a different direction than what she intended.

Whether you misunderstood (never!) or whether she wasn’t clear (couldn’t be!), the good news is that you averted this now instead of after five hours burrowing in the wrong rabbit hole. Let’s face it: If you had done the research based on the misunderstanding, regardless of how the misunderstanding came about, you don’t look good.

Final Words
I hope that these questions are a helpful reminder when starting your next research project. Stay tuned for the next Young Advocates Committee newsletter, where I will address some questions you’ll want to ask yourself before handing in that research assignment.


Keywords: litigation, young lawyer, partner, research assignment, jurisdiction, procedure, time


Bethany Rabe is an associate with Greenberg Traurig, LLP, in Las Vegas, Nevada.