Strive for clarity and context in emails that address legal questions
A SALIENT POINT
A question that every legal writer should ask is: “When will clarity come?” Clarity means not just something that Barbara and Ari could understand on a given day but also something they could understand months from now. And it means something that Barbara and Ari’s successor could understand.
To make communications understandable to secondary readers, a little context is required. Context is vital to clarity. To provide that, here’s what Ari might have written in the initial response to Barbara:
“Here’s the situation as I understand it. Peterborough Hospital, a public institution, proposes to use public funds to provide Alcoholics Anonymous meetings. AA requires its members to believe in a ‘greater power,’ and it specifically invokes God. Would subsidizing these meetings violate the First Amendment’s establishment clause?
“The answer is probably not. But according to governing caselaw, the program must meet three tests: (1) The government-funded activity must reflect a secular purpose, such as helping people reduce their dependency on alcohol and drugs. (2) The activity’s primary effect must neither advance nor inhibit religion—the declared purpose being the promotion of health. (3) The program must be nonsectarian, avoiding ideological viewpoints—referring only to a ‘higher power’ or even ‘God,’ but avoiding deities peculiar to specific religions.”
“Three circuit cases are attached. I’d be happy to review the client’s promotional materials for its AA meetings, or any other printed matter to be distributed at meetings, to evaluate their compliance with these requirements.”
Now that’s a useful email—one that Barbara might simply forward to the CEO.
What’s the most important part of it? Here’s the situation as I understand it. It signals a summing-up. It requires some contextualizing of the question. It’s the email equivalent of the memo heading “Question presented.”
The point is that in an email, if you answer a question as you might in conversation, you’re almost certainly causing some degree of confusion among secondary readers. You’re probably relying on unstated premises, and you may even be causing misunderstandings that will never be brought to light—thereby providing legal advice that is flawed in some respects.
When will clarity come? It should come whenever you start writing about a subject, especially if you’re in the position of Ari or Sylvia. Remember to supply a little context. Avoid launching into an answer without stating the question. The best way to do that in emails that report your research is to begin, not infrequently, with the phrase Here’s the situation as I understand it.
Bryan A. Garner, the president of Dallas-based LawProse Inc., has taught legal writing seminars to more than 200,000 lawyers and judges over the past 25 years. The author of more than 20 books on rhetoric, grammar and jurisprudence and the editor of Black’s Law Dictionary, he is among the most frequently cited authors in American law today.
This article was published in the August 2018 ABA Journal magazine with the title "The Situation as I Understand It: Strive for clarity and context in emails that address legal questions."