Purpose of a Brief Answer in Legal Memos
The brief answer is the most important component of a legal memorandum, which typically is an analytical document guiding a court to a particular conclusion. So, it should come as no surprise that it is critical for practitioners to be able to quickly and accurately express complex legal analysis and reasoning in a short, simple format — the brief answer.
When written correctly, a brief answer will summarize the most critical components of the legal analysis, including any dispositive basis or specific limitation on the legal analysis to make sure it is clear to the reader, typically the court or a partner . Further, a good brief answer will highlight the theme of the argument being pursued on behalf of the client (e.g., best argument, weakest argument, pursuit of settlement versus liability, etc.). A brief answer gives immediate clarity to the reader even before the attorney-client meeting takes place or the legal analysis is read from start to finish.
A well-structured brief answer can mean the difference between obtaining quick buy-in from a partner or judge for a particular case strategy as well as keeping costs low due to clarity being achieved quickly. Just as importantly, the entire legal team can be on the same page in terms of the strategy being employed.
Main Features of a Brief Answer
The brief answer is just that: brief! However, this does not mean just sharing the ultimate conclusion. There are three major elements that comprise a brief answer of an issue: Basic summary of the issue. No supervision. You don’t have to remind me that I asked the question and give the question a name. But, you can remind yourself of the issues discussed in this portion of your memo by restating the question, or questions, at the start of your answer in one sentence or two. You’ll also find answers such as, "Question: What effect does Jones have on the likelihood of Success on the Merits? Answer: This is discussed in more detail below." Brief conclusion. In one or two sentences, give your reader the result of your analysis, whether it is a yes/no or a short explanation. For example, "Without consideration of jurisdiction factors, the likelihood of SSM receiving and enforcing a defamation judgement against P falls within a range of 30-80% due to the in rem characteristics of the case." Or, "If the jury rules for P in this issue, he stands a good chance of winning the entire case." Rationale supporting your conclusion. This is the section of your answer where you begin your analysis. In the example above, you could cite the Alaska rule that indicates that the court weighing section 288 of the Restatement (Second) at 7% for each jurisdictional factor weighs in favor of weak liability on the part of the defendant and SSM’s likelihood of success on the merits.
How to Make Brief Answer Clear and Precise
Drafting a brief answer clearly and concisely involves the same basic principles that apply to most legal writing – use short, simple sentences composed of familiar words and phrases. You want your reader to understand what you are writing, and there is no benefit in choosing elaborate words rather than the words you would actually use in ordinary speech.
As a brief writer, you should be attuned to how your tribunal prefers to receive answers to the questions posed on the briefs. Writing a brief answer is not an opportunity to make extra arguments. Sometimes a tribunal will ask for a brief answer to a particular issue on the brief, but let’s the brief writers know that they may rely on their briefs on that issue. You should not attempt to address such issues in your brief answer because the brief writers could dismount the scaffolding of your entire answer when they cite only that portion of your brief in theirs.
If a question cannot possibly be answered without developed explanation, you should be direct with the chair. Using the example from the table above, your brief answer might state: "Although Respondent has the burden of proof on this issue, there is no evidence in the record to support his entitlement to EU and VAT refunds for the years in dispute and, therefore, we have not offered a brief answer."
Alternatively, instead of addressing issues separately, you may also choose not to address issues you think are sufficiently addressed elsewhere in the brief. For example, if the question asked a general question about the applicability of the law, and the law is developed elsewhere in the section of the brief, you could use an answer like: "We incorporate by reference our brief at ___."
Sometimes a question requires a concise answer but simultaneously requires clarification. In those situations, consider whether a yes or no answer is adequate; if so, you can write: "Yes" or "No." However, if your answer is more nuanced, consider the options available to you in structuring your answer. You could write: "Yes, subject to (1) [general condition]; and (2) [specific exception]." Instead of using general terms like "general condition" and "specific exception," you would of course substitute your own language.
Some of the questions you will encounter on the briefs during your career will not lend themselves to thoughtful consideration and careful drafting. For example, if the question asks for the position of each party, as well as a copy of any brief, statement, or other document cited in a brief, you will need to treat the question as a checklist to which you will provide the requested answers, rather than a question to which you can offer a few sentences of explanation.
Common Mistakes in a Brief Answer
A judge’s clerk reads a lot of documents each day and draws common-sense conclusions about mistakes and faults that many attorneys make. You do not want to make these mistakes. Here are a few pitfalls to avoid as you craft your brief answer to a legal question: Ambiguity: The supreme example of ambiguity is the double negative. As for other forms of ambiguity, try to avoid it. When in doubt, call for a bright line test to keep things clear.
Too much detail: You are not writing your law school legal memorandum. Save all of your analysis and supporting detail for the full analysis. In a brief answer , summarize this strong point succinctly and then write an analysis with citations to the law and primary authority.
Misalignment with the full analysis: Give this answer some thought. You can even do this yourself or have a trusted friend who is not an attorney read both the answer and the full analysis to see if it matches up. If you find that some of your ideas in the brief answer are not in the full legal analysis section, then either change the brief answer or add the same points to the legal analysis section. You want the match between the two to be seamless and to make for smooth reading.
Lack of citations: While not every state allows citation in a brief answer and many lawyers forego the practice, it is advisable to include at least one direct citation if the answer is not obvious. If citations or note sets are not allowed or required by state law, nevertheless consider referring to your full analysis for citation to statutes and cases.
Samples of Brief Answers
In an internal memo on breach of contract where clear liability existed, the following brief answer was provided: "Under the facts as we discussed, [Defendant] has breached the parties’ contract and is liable to [Client] for $___ in damages." A couple of things stand out about this answer. First, it’s succinct—no extra context or legal analysis—and it gives the reader the answer in a single sentence. Second, the answer incorporates the brief answer rule by explaining the result is grounded in the conversation the lawyer and client had. Third, the answer is complete: A breach occurred, and here is the amount that the client can expect to be awarded in damages.
In a discovery memo, the following brief answer was provided: "Under the facts presented, the requested discovery is permissible and on our timeline." This answer works on a number of levels. Again, it’s very concise, but also very useful. The brevity of the word "permissible" is the key—it doesn’t need to say anything more. There is no question in any reader’s mind that the requested discovery is permissible. Again, this is a "yes" or "no" question, and the law is clear that "discovery is permitted." The lawyer’s answer is as short as it can be and still be thorough because the answer in and of itself is complete. Further, the answer tells the reader that the timing of the discovery is within the lawyer’s control, thus showing the lawyer’s capability and attention to the client’s needs.
Here is another example from a property dispute, in response to a question on the grounds of a motion. The brief answer was: "We have grounds to oppose the motion in that [Defendant] is not entitled to the injunctive relief he seeks because he has adequate remedies at law." This answer is more advanced in terms of recognizing the question as being multi-part, and then delivering on each part. Here—the question is grounded in a review of the motion—there are two things the lawyer needs to do in the brief answer: (1) opine on the grounds, and (2) redirect the reader to the opinion section of the memo where the analysis is found. Both of these items are handled efficiently and correctly in this answer. Further, this answer allows the reader to turn to the opinion section of the memo and know exactly what he or she is looking for in a matter of minutes. It also takes the burden away from the reader of trying to summarize or memorize what the lawyer said in the opinion. This answer is undoubtedly collaborative, focused on how the final product (the brief) will read, and it serves as an excellent example of how the brief answer rule not only protects the lawyer and client, but it also shows how the lawyer values the time of both the reader and his or her clients.
Whether you are providing a brief answer to a yes or no question, a complex multi-part question, or anything in between, the value of a concise, direct answer is demonstrated in the examples above. These brief answers—all of which are effective in their own context—get right to the point, making it clear to the reader that there is a clear-cut answer to the question, and then they back up and draw the reader back in to the opinion section of the memo, where the analysis is provided. This integration of the three sections of a brief reply is crucial to my success as an attorney, and I hope it is for you, too.
Effectiveness of Brief Answers
A carefully constructed brief answer serves as a powerful tool in guiding legal decision-making. When presented succinctly, legal issues and analysis have a far-reaching impact. The value of persuasive communication in law cannot be overstated. The legal community responds to concise legal writing. The amount of time that a court has to analyze your brief can make all of the difference with regard to the judge’s decision. If you can move blissfully through an issue with clarity, you stack the odds in your favor. A legal brief that takes too long to read is often met with scrutiny, while the same brief handed to the judge clear and concise is as important as it is persuasive. In the context of litigation, a brief answer is often a chance to steal the win . When you present direct, simple answers to an argument or explanation, the legal analysis is a prize that no one else has thought to hand the judge. In addition to impressing the judge, you will earn the respect of your colleagues and your clients for cutting through the haze and providing the right information at the right time. Effective brief answers are also essential to the drafting and analysis process. The decision from the court will be based on the factual and legal components of your case and on how they are packaged and presented. Without the right legal memos, the analysis is incomplete. At the trial court level, a trustee can come up short by missing one critical piece of the puzzle. A concise approach is key to getting it done right the first time.