How to write an e-mail memo

By tradition, when lawyers write a legal analysis for internal use or as a decision-making tool, they write a memo. Today, many memos are e-mail messages. When you ask for an e-mail memo or when you write one, what guidelines do you follow? I propose some here, but it’s important to know your audience. Reject any of these guidelines if your boss prefers something else.

Keep the length down—if you can.
No one likes to read long e-mail messages. Try following the “no scrolling” or “one screen” rule: Readers get everything they need without scrolling past the opening screen. Sometimes a longer message is necessary, but it can still be efficient and effective if you front-load key information. More about front-loading below. Of course, you could write a short message and attach the longer memo, but before you do, check with the assigning lawyer. Some lawyers dislike reading attachments, and attachments don’t always display well on tablets or phones.

Remember: a more concise piece of writing is often harder to produce than a long one. Give yourself time to condense and tighten.

Use the subject line to give key information.
For a short, single-issue e-mail memo, I recommend writing a condensed, specific subject line that states the answer. You save the reader time and effort, and besides, legal readers appreciate knowing the answer before they get into the analysis. This suggestion just takes the idea a little further.

It’s not always possible or practical to put the answer in the subject line. Maybe it would be too easy for others to see; maybe your boss doesn’t like it; maybe you have three answers to report. If your work environment or your boss dictates that you don’t put the answer in the subject line, then just write something specific—think summary, not merely topic.

Restate the question asked.
The first line of the body text should restate the question. In fact, I like the opening phrase “You asked . . .” Provide enough detail—facts and law—to accurately frame the question, and avoid abstraction. If there are multiple questions, number them.

An e-mail memo that assumes the reader knows what was asked and that skips right to the answer has two drawbacks: it’s frustrating for secondary readers, who’ll have to scroll through the thread to find what was asked, and it’s frustrating for the assigning lawyer who’s reading the e-mail days or weeks later.

Give the answer with reasons in one paragraph.
Write a thorough answer with reasons, thus ensuring that the body text is complete, easily understood if isolated from the other parts of the message, and readily copied and pasted into other documents. The answer with reasons also serves as critical front-loading in a longer message. You can write a single, short paragraph—three or four lines of text, or you can write the answer and give the reasons in bullet points. If there were numbered questions, use parallel numbering for the answers.

State the governing law but skip the case explanations.
A traditional memo states the legal rule that governs the question, and an e-mail memo should too. Be accurate and concise: name important statutes (“Under Insurance Code § 22.001 . . .”), refer to important cases by shorthand (“According to Lone Pine Mfg. . . .”), and mention the jurisdiction (“In Texas . . .”). But don’t clutter the text with formal, full-form citations.

A traditional memo also explains the cases that have construed and applied the law—illustrations that give readers a concrete understanding of the law. But there’s usually no space for that in an e-mail memo, so leave it out.

(Yet writing explanations is excellent practice for new lawyers and ensures a better understanding of the law. If you’re a new lawyer, go ahead and write careful, clear, concise explanations. Just don’t put them in the e-mail memo. Write them and save them somewhere. They’ll often come in handy later.)

Analyze as needed.
Support your answer by explaining why the law leads to a particular result in your case. Expand on the reasons you gave, but be succinct and concise. Get quickly to the core concepts and eliminate background and build-up. Keep the analysis to just a few paragraphs if you can.

Other guidelines
If the body text is long, divide it and insert headings to enable skimming (Issue and Answer, Summary of Law, Impact on Client). Consider including, at the end, full citations for the relevant authorities, and even summaries, if your boss wants them. And treat e-mail message that provide legal analysis as formal writing; avoid a casual or informal style.

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Ultimately, treat e-mail memos as serious pieces of legal analysis that deserve thorough research, clear writing, and careful editing. Remember that your e-mail can and will be forwarded to clients, to other lawyers, and to the hiring committee.

 

Comment? Email me: wayne@legalwriting.net. Excessive spam = comments disabled.

Yes, I’m a Lawyer

Do you ever lie about your profession? Seriously. When someone asks what you do for a living, do you always say “I’m a lawyer”?

I do, of course. And I always sign my name with esquire. Even on checks. And I insist that everyone call me counselor.

Wife: Do you want any more salad, counselor?
Me: Nothing further at this time.

But there was a time when I didn’t want my membership in the bar to be the first thing a stranger learned about me. Often, I’d just as soon downplay my job—though I admit it took me a while to learn how. When I first came out of law school, I’d routinely do this:

Stranger: So, what do you do?
Me: I’m a lawyer. Or attorney. Strictly speaking, the distinction between the terms is disappearing at the present time. Moreover, there are the terms barrister, solicitor, and counselor, inter alia. Nonetheless, any and all of said terms can be utilized by laymen to refer to one who holds, possesses, or retains a juris doctorate.

That usually got a bad reaction.

But it wasn’t just my choice of words. I soon began to realize that as a lawyer, I wasn’t beloved by all. After a few years of law practice, I began to see that people had preconceived notions about lawyers and that telling someone I was a lawyer wasn’t always a good way to start off the relationship. So I fudged.

That was hard to do when I practiced law at a law firm. What could I say? But as a newly trained lawyer, of course, I was able to talk around the truth. That’s what they taught me in law school, right?

Stranger: So, what do you do?
Me: I’m a . . . well . . . what do you do?
Stranger: I’m a nurse. And you?
Me: I’m in finance. . . . I work with banks . . . lending . . . that sort of thing.

That was true, at least partly.

I didn’t say I represented the banks as a lawyer. I didn’t say I sued borrowers. I didn’t say I prepared for filing original petitions directed to defaulting debtors. That could come later, after the stranger had seen I was a decent person.

On the other hand, how decent was it to fudge on the truth in our first conversation? Still, I justified it. It was better than getting the typical reaction—usually something like this:

Stranger: An attorney, huh? My brother-in-law’s an attorney—a real jerk, too.

Or this:

Stranger: No offense, but I’ve had enough of attorneys for a lifetime. My ex’s attorney was a real jerk.

Yes, the “j” word came up a lot.

So when I got into academia as a legal-writing instructor, I took full advantage of the chance to obscure my profession. I started telling people I taught writing. Just “writing.” Not “legal writing.” That way I could pass myself off as an English teacher. Cool. Besides, try explaining legal writing, and you usually get a snide remark.

Me: I teach legal writing.
Stranger: So you’re the one who teaches them to write like that.

I still had awkward moments and lessons to learn. I found out that fudging about your profession didn’t always go smoothly. Once, I told someone I was a “writing instructor,” but she heard “riding instructor.”

She: Oh, it must be challenging working with those animals.
Me: Yeah . . . I guess . . . .
She: You always have to let them know who’s boss, right? Use the whip if you have to, I suppose?

But I’ve matured. I’ve learned to accept my profession—and to shrug off the critics. Now, in my 23rd year of teaching, I’ve abandoned the equivocating. I’m finally able to tell the truth. I’m proud to be a lawyer—a legal-writing instructor. So when asked, I now say what I feel, from my heart:

Me? I’m a legal-writing instructor. As a field, legal writing comprises drafting, advocacy, and expository analysis, though that three-pronged regime is subject to critique on the ground that it is not comprehensive. Furthermore . . . .

Semicolons: Not so Useless

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“How useless is the semicolon?”

A lawyer once asked me this question (emphasis in the original) and proceeded to offer three points in support. First, he said, a period can fulfill some of the semicolon’s functions, and second, a comma can fulfill the rest. Third, people abuse and confuse semicolons enough that we’d be better off without them. Well, I had to concede some of his points. But I was determined not to let “Mr. Useless,” as I’ll call him, get the better of me. No. I believe lawyers, as professional writers, have legitimate uses for the semicolon. Here are four.

1. Semicolons can separate independent clauses.
An independent clause has a subject and a verb and could be a sentence by itself. We can separate independent clauses with a period—as I had to concede to Mr. Useless.

We do not object to the amount of the fees. We ask that the amount not be disclosed to the public.

But a period between independent clauses says, “Full stop. New idea.” A semicolon between independent clauses says, “Pause; related idea.”

We do not object to the amount of the fees; we ask that the amount not be disclosed to the public.

So, Mr. Useless, the semicolon gives the professional writer another option—another tool for connecting ideas.

2. Semicolons separate phrases in a series when one or more of the phrases has internal commas.
This is a useful function more lawyers should apply. When you have three or more phrases in a series, you normally separate them with commas, which tells readers where each phrase ends. But when one of the phrases has commas within it, readers can get lost. In those cases, use the semicolon as a “super comma.” A basic example:

I have a sister in Princeton, New Jersey; a sister in Philadelphia, Pennsylvania; and a brother in Great Falls, Montana.

Contract drafters should get to know this semicolon. The modifiers and qualifications that appear in contract language sometimes result in sentences like this:

All other details as to format, title, time, and manner of production, of price, publication and advertisement, and the number of, and distribution of, editorial review and free copies will be left to the discretion of the Publisher.

Got that? It’s better with semicolons acting like super commas:

All other details as to format, title, time, and manner of production; price, publication, and advertisement; and the number and distribution of editorial-review and free copies will be left to the Publisher’s discretion.

And that, Mr. Useless, is something a period or comma can’t do.

3. Semicolons separate the items in a numbered list.
This isn’t so much a rule as a convention in legal writing. When you write a simple, textual list or series, you separate the items with commas—as I again had to concede to Mr. Useless. For example:

When arguing a case to the jury, remember to maintain regular eye contact, keep your argument short, and close with a challenge.

But in legal writing, once you number the items, semicolons become conventional, even though commas would also be correct:

When arguing a case to the jury, remember three things: (1) maintain regular eye contact; (2) keep your argument short; and (3) close with a challenge.

Semicolons are even more conventional when you tabulate the numbered list.

When arguing a case to the jury, remember three things:
(1) maintain regular eye contact;
(2) keep your argument short; and
(3) close with a challenge.

Why quarrel with convention, Mr. U?

4. Semicolons separate the authorities in a string citation.
Simple enough, and it’s one we already knew: Moran v. Adler, 570 S.W.2d 883, 888 (Tex. 1978); Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963).

And you can’t use periods or commas for that, can you, Mr. Useless?

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What I wish I’d known about legal writing

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1. I wish I’d known that law was a writing profession.

I came to law school thinking law practice was an oral profession. I pictured myself in court, making an argument to the jury or to the judge. I pictured myself seated across the table from another lawyer, negotiating a deal. I pictured myself in my office, meeting with a client to give advice. Sure, lawyers do those things.

But mostly, they write.

Lawyers are professional writers. They get paid to produce quality written work that is subjected to serious scrutiny. I wish I’d known that.

2. I wish I’d known that becoming a good legal writer would take years.
I thought I was a good writer in college. I also thought the basic training I received in law school would enable me to write well in practice. I was wrong.

In Outliers by Malcolm Gladwell, he reports on a theory of developing expertise. The theory suggests that it takes 10,000 hours to develop expertise in a particular area. If the theory is right, it certainly applies to legal writing. So if you work 2000 hours per year, and 1000 of those hours are spent writing, becoming an expert legal writer would take you 10 years. That’s a long time.

But it’s not enough to just do the skill for 10,000 hours. You need to work at it—study, learn, and implement what you’ve learned. If you don’t study your craft—if you just write on auto-pilot—it’ll take you more than 10,000 hours. And if you write for fewer than 1000 hours per year, it’ll take you more than 10 years. It could take you 15 or 20. I wish I’d been aware of that long haul.

As an aside to the law students and young lawyers reading this, may I say that I sometimes hear from senior attorneys that law students and young lawyers are ineffective legal writers. This bothers me because it’s unrealistic to expect high-quality legal writing from novices who have spent far fewer than 10,000 hours practicing legal writing. I believe these often misguided complaints arise from two causes: First, some complainers are not expert legal writers themselves and are not in a position to fully judge expert legal writing. Second, some complainers have forgotten how ineffective and inexpert their own legal writing was when they were novices.

So hang in there, young lawyers.

3. I wish I’d known that time pressure would be a significant obstacle to good legal writing.
Law is a busy, demanding profession. Many lawyers feel compelled or are compelled to take on more work than would be ideal. The heavy workload impinges on effective legal writing.

Let’s take editing as an example. If your writing is less than expert, it might be because you don’t know how to edit. Or it might be because you know how to edit, but you’re too lazy to edit. But most often it’s probably because although you know how to edit and you’re hard-working, you don’t have time to edit. Editing is what makes weak writing good and good writing great. But in a busy law practice, careful editing often has to be sacrificed.

4. I wish I’d known about the best sources on good legal writing.
I didn’t own a book on legal writing until I quit practicing law and began teaching legal writing. How could that be? If I’d studied journalism, I would’ve known about and acquired books on writing style. Likewise if I had studied English composition. But I finished law school and entered a writing profession without a single source on legal writing in my library. Sure, I read The Elements of Style by Strunk and White. I read On Writing Well by William Zinsser. But I read no books on legal writing.

Given what was available when I graduated from law school in 1989, I wish I’d had these sources:

  • The Texas Law Review Manual on Usage and Style
  • A Dictionary of Modern Legal Usage, by Bryan A. Garner
  • How To Write Plain English, by Rudolf Flesch

Somebody should’ve given me one of these as a graduation gift.

Ultimately, I simply wish I had taken the skill of legal writing more seriously. You’re forewarned.

Manage your sentence length

What’s a good average sentence length for legal writing? I once asked a group of lawyers at a CLE seminar that question. “Thirteen words,” one lawyer volunteered. “Seven,” said another. Wow.

Writing about legal matters with an average of seven words per sentence isn’t realistic, is it? That means for every sentence of ten words, you’ve got to write one of four words to bring the average to seven. That would be tough, but the instinct is right. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be.

So what’s a more realistic goal? The experts say between 20 and 25 words:

  • below 25—Richard Wydick in Plain English for Lawyers
  • about 22—Enquist & Oates in Just Writing: Grammar, Punctuation, and Style for the Legal Writer
  • about 20—Bryan Garner in Legal Writing in Plain English

How do you know your average sentence length? You can program Microsoft Word to tell you. In Word 2010 and 2013, go to File > Options > Proofing and look for “When correcting spelling and grammar in Word.” Now check the box for “Show readability statistics.”

You’ll also be required to check the box for “Check grammar with spelling.” If you dislike running a grammar-check every time you run a spell-check, go into the grammar settings and uncheck as many boxes as you like. Tell Word to stop checking for all those grammar items—it gets many of them wrong anyway.

Now when you finish a spell-check, you’ll see a display that includes the average sentence length. Of course, the tool isn’t perfect. If you have citations or headings in your text, Word will think those are sentences—short sentences—and your average sentence length will be artificially low. To work around this problem, select a paragraph or group of paragraphs without headings or citations and then run the spell-check; do it three times in different places. This will give you a sense of your average sentence length.

If your average sentence length is in the 30s, or even the high 20s, you’re taxing your readers. Do a thorough edit for concision and efficiency. If your average sentence length is in the teens, well done. You’re pleasing your readers. And remember, average sentence length doesn’t mean uniform sentence length. You should vary your sentence length. Write some short sentences and some longer ones.

But how long is too long? We lawyers have a reputation for long sentences. It’s probably not all our fault. After all, the subject matter of most legal writing lends itself to qualifications, modifiers, asides, and lists—so we might be forgiven. Yet I’m sure we can do better. Here’s a suggestion: Decide on a maximum sentence length and promise yourself you’ll cut any sentence that goes above your maximum. For example, mine is 45. I’ve decided that when a single sentence I’ve written exceeds 45 words, it’s an automatic edit.

Of course, some gifted writers can create long sentences that are pleasant to read; they usually use long but perfectly parallel phrases in a series. Or they use lots of semicolons. It can work in literature. But for most of us doing legal writing, long sentences are hard to read and hard to follow. So avoid over-long sentences.

In managing sentence length and avoiding over-long sentences, it’s not practical to count words while you type. Instead, manage sentence length on the edit. As you read your writing, keep an eye out for any sentence that fills three or more lines of text or any sentence that just makes you tired. Use your cursor to select that sentence, and Word will tell you the word count at the bottom left of your screen. For me, if it’s more than 45, it’s an automatic edit.

So that’s the advice. For readable writing that doesn’t tax your readers, vary your sentence length, seek an average in the low twenties, and cut any sentence of 45 words or more.

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