Email Memos, Part 1

OPENING STATEMENT

Email Memos: Current Advice for Best Practices

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

Lawyers use email a lot, and experts offer plenty of good advice for writing legal email messages effectively. 1 Now we also have empirical research: In 2018-19, Brad Desnoyer, a legal-writing professor at Indiana University McKinney School of Law, gathered opinions from 113 lawyers on four sample email memos. He published the results in E-Memos 2.0: An Empirical Study of How Attorneys Write. 2

The article is lengthy, but offers a great deal of excellent advice for writing analytical emails in law practice. This column summarizes the advice Professor Desnoyer found in his exhaustive review of the relevant literature—the current advice for best practices when writing legal analysis in email—regarding what he calls an e-memo. 3

Start by restating the issue.

This advice—nearly universal in the best guides to legal emails— rests on two valid premises: (1) the reader might forward your message to others, so restating the issue aids the secondary audience; and (2) the busy reader, swamped with email, may not remember what you were asked. Common advice here is to use the stock phrase, “You asked me ….”

Don’t repeat the given facts.

This advice troubles me just a bit. My day job is teaching first-year law students, so I know that requiring a beginning legal writer to restate the given facts is a useful way to ensure that the beginner correctly understands the facts. Not to mention that supervising attorneys are sometimes less than thorough in providing the facts. Still, given that e-memos should be short, the advice is fair.

E-memos need to be short, and the best legal writers edit their e-memos for concision, just as they would a brief that needs to comply with a word limit.

Rely more on explanatory parentheticals than on lengthy case illustrations.

A traditional legal analysis not only states the legal standard but also gives examples of how that standard has been applied in prior cases. In the legal-writing field, those examples are called “case explanations” or “case illustrations.” Writing a concise yet thorough case explanation is a key skill all legal writers should master. And if the legal writer is a beginner, requiring case illustrations provides a way to be sure the writer understands the law.

But no one wants to read a lengthy recitation of case law— especially not a busy attorney skimming an email. So it makes sense that the advice is to use explanatory parentheticals: They’re short.

Include an analysis of the law and its application to the facts.

I feel like saying, “Duh.” But it’s possible that a writer could get stuck explaining abstract concepts and legal standards and never get around to the analysis—how those concepts and standards apply to this case. So it’s basic, but good, advice.

Conclude with the writer’s recommendations.

Again, this sensible advice could go without saying. It’s not really a memo—a piece of legal analysis—if it doesn’t offer a conclusion or recommendation.

Keep the length to one to two traditional pages.

E-memos need to be short, and the best legal writers edit their e-memos for concision, just as they would a brief that needs to comply with a word limit. Keep in mind that screen readers don’t want to scroll through a lengthy document—and some readers are reading e-memos on their phones.

Ensure that the prose is concise and professional.

In law practice, professional standards for writing still apply, even to email messages. You can’t write an e-memo that looks like a text message to a friend, or if you do, your credibility will suffer. For e-memos, standard capitalization, grammar, punctuation, and words usage are the norm.

Next month: A summary of the data on e-memos Professor Desnoyer gathered. AL