Legal View: A stitch in time saves nine

By Lisa Healy

The Daily Record Newswire

You're sitting there, with a pile of research and a blank Word document, cursor blinking at you. You have three -- no, 30 -- things to do before 6 p.m., and the work (maybe it's providing a short legal answer to a partner, maybe it's writing a motion for summary judgment) needs to get done.

I'm guessing you've never heard this advice before, but you're not ready to write until you order a beer. OK, well, maybe not actually, but figuratively. Because you're not ready to write until you can have The Barstool Conversation. You need to be able to summarize your case, legal arguments and why the court should give you what you're asking for in the time it takes your companion to order and get a beer. Not a lychee martini with a shot of acai juice, gently swirled. A beer.

Most of the time, you won't get to have this conversation on a barstool. Instead, you'll be doing it in an e-mail or while talking to the client or another attorney. In law school, this summary was known as the Brief Answer, and, especially if you are a new lawyer, the Brief Answer is a skill you need to master. If you're writing a persuasive court brief, you won't have a Brief Answer. But you should be able to write one before you write the complete brief.

Summarize the question

The first step when you are doing research for another attorney is to be clear on what you're being asked to research. When you provide your answer, be sure to summarize the question:

You asked me to look at Maine case law discussing an employee's prima facie burden in a Maine Whistleblower Protection Act case.

If you're preparing to write an argument, being able to summarize the issue in a similar way will help you write your argument, because you'll be forced to pick out the key legal and factual arguments:

Under the Maine Whistleblower's Protection Act, can an employee who was given an hourly raise after reporting improper chemical disposal at his workplace, but who was demoted to a position managing 15 fewer employees, show a prima facie case of retaliation?

The complete Brief Answer

If you are writing this for someone else as part of an objective research assignment, keep it to one paragraph. That will be challenging if you have a stack of 37 cases next to you. The first sentence in a Brief Answer should answer the question:

To meet his prima facie burden, an MWPA plaintiff must show that 1) he engaged in protected activity; 2) he suffered an adverse employment action; and 3) there was a causal connection between the protected activity and the adverse employment action.

The second sentence should give a summary of the law/legal issue/answer:

The MWPA was created to encourage employees to report health, safety or legal workplace issues, and employers are prohibited under the MWPA from retaliating against whistleblowing employees by firing or demoting them, or negatively changing the terms or conditions of their employment.

The remaining sentences should give whatever details are necessary to: A) show why you concluded the way that you did if you were asked to apply the law to client facts; or B) explain the law more completely:

To engage in protected activity, the employee must have reported, in good faith, what he reasonably believed was a safety or legal issue. If he did this, and shortly thereafter (within days or weeks), he suffered an adverse employment action, he has met his prima facie burden.

Seems easy to write those sentences, right? Wrong. I read a two-page statute and approximately 20 cases to learn that information, and boiling it down to four sentences was not easy. But once you can do it, you can be sure that you have a very clear understanding of the law, and you'll be ready to explain it, or argue it, in more detail. And then you can actually go have that beer.

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Lisa H. Healy is an associate professor of legal writing at Suffolk University Law School in Boston. She can be contacted at lhealy@suffolk.edu.

Published: Tue, May 31, 2011

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