Oregon State Bar Bulletin — MAY 2008
The Legal Writer
tips 4 btr comm
By Suzanne E. Rowe

Are words transmitted electronically really "writing"? When the words are sent by a lawyer in a professional context, the answer is absolutely yes.

Parchment and quill are no longer necessary to produce writing. But even with e-mail, writing standards apply. The standards vary, just as we’ve always had different standards for different types of writing. Some e-mail is like the sticky note that says, "Pls copy 10x for mtg today," but more often lawyers are using e-mail to communicate important messages to clients and colleagues with real concerns. Those messages need to conform to the same high expectations as documents written with quill, pen, typewriter or word processor. Saving a 41-cent stamp doesn’t give anyone license to ruin the English language.

Know Your Audience
Before writing an e-mail, think about your reader. The level of formality required in e-mail correspondence will vary depending on the writer’s relationship with the recipient. A message to a client likely requires more formality than a quick response to a colleague. But both deserve a bit of thought. And if either the client or the colleague is a curmudgeon, the electronic writing deserves as much thought as would the print version of the same communication.

If the recipient is your supervisor, decide whether the person most values respect, writing style or speed. I’ve been known to return student e-mails that contain blatant errors in writing or tone. Would your supervisor do the same?

Assess the Situation
Some situations are beautifully suited for e-mail: confirming a meeting, sharing a bit of information, answering a short question. Some are completely wrong for this medium: giving the client bad news, turning down a job offer.

In every situation, the sender and recipient need to be on the same page. If a client sends an e-mail asking for advice, consider how long you’ll spend researching and analyzing the project. Be sure that the client does not expect to be billed only for the two minutes it takes you to type an e-mail response.

Focus the Subject
Once you’ve decided e-mail is appropriate, start writing. But don’t start with the "TO" line. That comes later. Start with the "SUBJECT" line. Use it as you would the "RE" line in a written memo, to quickly summarize the contents. When responding to an e-mail thread that has changed course, change the subject line to reflect the current topic.

Begin with a Greeting
Just as the standard business letter begins "Dear Ms. Martinez," the standard e-mail should begin with a greeting. If the recipient is a new client, consider following the old standard from the days of paper letters. Though it may come as a surprise to some readers, it is possible to write "Dear Ms. Martinez" at the beginning of an e-mail. If that greeting seems too cold for the recipient’s comfort, consider "Dear Gabi" or even "Hello Gabi." If the recipient is a colleague, a simple "Hello" may be sufficient. The key is that all but the most casual messages deserve a brief greeting.

Use Standard Spelling
A professional document should use real words, even if it’s sent via e-mail. Feel free to text message your best friend "C U @ 4." But the same message sent to a client, lawyer or judge should be written traditionally, "I’ll see you at 4:00." If you want to be polite, consider adding a few generous words: "I look forward to seeing you at 4:00."

In addition to using real words, spell them correctly. Your attention to such details cannot plummet simply because you don’t have to lick a nasty-tasting envelope. If your document is long and your e-mail system doesn’t have a spell checker, consider typing the document in a word processing system first so that you can check the spelling. Then attach the document or paste it into your message.

Capitalize and Punctuate
Professional documents should use old fashioned capitalization and punctuation. (while i get blackberry msgs from my friend linda in fla that are written without caps or puncs thats not appropriate in a prof setting)

The recipient of your message may not think it’s cute or original or interesting that you never capitalize anything in e-mail. Or that you dispense with all that pesky punctuation. You are a professional in a service industry, so the recipient’s opinion rules. Remember that the recipient may be a curmudgeon.

Don’t Be Too Brief
Some recipients need just the bottom line. But give enough of the context to show what that line is. A simple answer, "Sounds good," may not be simple if you delete the question. Which of the 14 messages your supervisor sent yesterday sounds good?

Put Key Information First
Put your response at the top of the message box, not after the sender’s message. We’ve all deleted messages that we thought were false alarms — unintended replies with no text.

Use a thesis sentence — the joy of every writing curmudgeon — to orient your reader. "In response to your question about …" may be sufficient. If the message is long, provide an overview like "This message addresses three points you’ve raised." If the message will fill more than a screen, break it into readable blocks of text and start each one with a topic sentence. Put a space between each paragraph.

If you need a response to your message, state that up front, not at the end of the message. Of course, a gentle reminder at the end might be effective, too.

No Emoticons
A legal document — even in electronic format — is no place for smiley faces. Sorry!   :(

No Flaming
Firing off a message when you are angry or annoyed can result in offensive language, typically not considered appropriate in a profession of ladies and gentlemen. Venting is fine and possibly healthy, but only in a word processing document that can be deleted without the slightest possibility of being sent. Before pressing "Send" on an e-mail to a real person, sleep on it.

Please, do not use capitals for conveying the depth of your annoyance. In fact, I cannot BELIEVE that anyone would even CONSIDER SUCH A STUPID IDEA.

Avoid even the appearance of sarcasm. Because your recipient will not be able to see the twinkle in your eye or hear the giggle in your voice, and because emoticons are not allowed to convey those subtle messages, play it straight. Even a spark can start a fire.

Attach Immediately
Your very professional document will lose some of its luster if your attachment isn’t attached. One trick is to stop as soon as you write the word attached (as in "I’ve attached to this message …") and actually attach the document.

Of course, attaching the correct document is important, too. Sending an old draft will not make a positive impression.

If an attachment is especially large, consider checking first to see whether the recipient will be able to retrieve it. If the person is on the road, a large attachment could clog the system.

Close with Care
The formality of the closing should mirror the formality of the opening. "Dear Ms. Martinez" should lead to "Very truly yours."

Send "TO"
The last line you should complete in your e-mail should be the "TO" line. Consider what you’ve written and who really needs to see it. Use extreme caution when replying to "ALL."

Don’t Assume It’s Confidential
All of the lovely confidentiality statements and disclaimers that conclude an attorney’s e-mail cannot ensure that no unintended recipient will ever read the contents. Breaking confidentiality is only a mouse click away. Remember "Forward"? It’s safest to assume the world will read your message.

And don’t expect e-mails to disappear into thin air after they’ve been sent, received and read. Some e-mail servers are promoting their endless storage capacity, so an old, forgotten e-mail can come back to haunt you years later.

Respond Quickly
Anyone who has sent you an e-mail knows how quickly you should be able to respond. Most of us expect an answer within minutes or hours. If you don’t have the requested answer or information available for an immediate response, at least send a message saying, "Let me check on that. I’ll get back to you soon." Some weeks, I’ve been reduced to sending a dozen messages that say, "I have fallen behind in my e-mail. I wanted to acknowledge that I received yours and let you know that I’ll send a substantive response as soon as possible." Sigh.

Consider Alternatives
Even when you follow all of the tips above, an e-mail still may not be the best alternative for a particular communication. If you need to read the recipient’s body language, consider a face-to-face meeting. Think of the exercise you’ll get walking down the hall to your colleague’s office. For someone outside of the building, a phone call can at least let you gauge the recipient’s tone of voice.

And to sound completely 20th century, let me add that e-mail is not always the quickest way to share a thought. If I have to write more than a paragraph to convey an idea through e-mail, I pick up the phone. That way I don’t have to edit 14 times or think about comma placement.


Suzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. She’s grateful to Harvey Rogers for his comments on this article. You may contact her at srowe@law.uoregon.edu.

© 2008 Suzanne E. Rowe

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