Last week, in Part 5 of the WordRake series How to Write the Perfect Memorandum, we looked at the Issue Memorandum, which considers the facts and the law in assessing a client's case. This week, we discuss how to introduce a substantive email to a client.
When introducing a substantive email to a client, we must provide the client with a clear framework for understanding what follows. We start with:
- a sentence of reference
- OUR CONCLUSION
- what we recommend the client do
A sentence of reference comprises: 1) a name; 2) a date; and 3) a method. The first two are obvious; the third is, "What mode of communication did the client use when asking you to do the work?" Was it over the phone, in an email, during a face-to-face meeting? A first sentence might read: "As you requested in your email of October 10, 2018, . . . ."
The most important sentence in a substantive email is the second: OUR CONCLUSION. Give it to the client up front, but rarely do we see a lawyer do this.
After reminding the client why you are writing and giving the client your conclusion, suggest what action the client should take. This should be a list, either numbered or bulleted.
Starting with sentence #4, use the rest of the email to offer your reasoning.
Avoid filling the opening paragraphs with statements like, “As we will discuss more fully later, . . . .” Too much setting up annoys the client. Give the quick conclusion and a directive, then begin your discussion. Note the difference in these two emails: the first tells the client nothing until the third sentence of the second paragraph. We have crossed out the information the client does not want to know and only wastes the client's time:
Client Email #1
Subject: Uzumi overtime case
Good morning, Tom.
I am writing to present our preliminary analysis of the claims for breach of contract and breach of the overtime provisions of the Illinois Labor Code that the plaintiffs have asserted in the Uzumi case. The Complaint includes additional causes of action but they are derivative from the contract and overtime allegations, and we have elected not to complicate our analysis with ancillary matters. Furthermore, we do not address the legal strategies that we would employ to defeat plaintiffs’ claims at trial or to defeat their earlier motion for class certification. Instead, we focus exclusively upon the legal strength of the two most significant issues that plaintiffs have raised, because our success at class certification and at trial hinges upon the viability of the contract and overtime assertions.
To facilitate your review of our conclusions, we begin this letter with an executive summary that is designed as a guide to all that follows and as a free-standing document for you to edit and transport into internal memoranda. We then turn to expansive discussions of the contract and overtime issues. In brief, we conclude that the vast majority of your Illinois part-time supervisors are non-exempt, either because (a) they did not satisfy the “duties” tests applicable to the liability period pre-dating September 1, 2017 or (b) they have not satisfied the “minimum salary” tests applicable to the liability period post-dating September 1, 2017. In addition, and on a more optimistic note . . . .
Client Email #2
Subject: Uzumi overtime case
Good morning, Tom.
As you requested in my office on Wednesday, I have analyzed Uzumi’s claims for breach of contract and breach of the overtime provisions in the Illinois Labor Code. I have concluded that the vast majority of your Illinois part-time supervisors are not exempt, because they do not satisfy either (a) the “duties” tests that apply prior to September 1, 2017, or (b) the “minimum salary” tests that apply after September 1, 2017.
Some good news: For the future and perhaps for much of the liability period, AMP should be able to maintain its current salary structure, without having to pay for each non-overtime hour worked.
Because of my findings, I recommend you implement the following steps immediately:
- redraft all recruiting, offer, and orientation documents to include clear language that part-time supervisors receive fixed salaries for varying amounts of non-overtime work;
- make sure that the salaries you pay to part-time supervisors fairly compensate them for the anticipated average weekly hours of work on their shifts;
- consider a base rate linked to the anticipated average daily work hours of each part-time supervisor;
- have all part-time supervisors complete time cards, either hard copy or electronic; and
- devise a strategy to communicate these changes to current part-time supervisors and their managers.
Let me explain further.
Next week, in Part VII of the WordRake series How to Write the Perfect Memorandum, we will show you how to streamline your memorandum to a client by removing the clutter most of us put between the client and the client's understanding.
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.