State the obvious.
All clients read our memoranda for one reason: They want to learn. If they’re not learning, they get annoyed. So every sentence should reveal something they don’t know. To tell a client that, “The court needs to look at the facts of each case,” tells the client nothing.
After we waste a client’s time explaining how we organized our memorandum and listing all the cool sources we found in our research, we often hit the client with something everyone already knows. To the client it sounds like:
Before commenting on the enforceability of the contract, we should read it first. No, seriously.
I’m not being facetious; here’s an example:
To determine whether the parties to the Agreement set forth a “clear and unmistakable” statement of their intention that the arbitrator decide his or her own jurisdiction, the terms of the contract must be reviewed.
I have so many examples of stating the obvious, it was difficult to limit myself to only two. The following sentence is a double “duh.”
Whether a breach of this heightened fiduciary duty has occurred turns on the facts and circumstances involved in the situation in question (which facts and circumstances will always be evaluated in hindsight).
I understand the urge to get formalities out of the way before we launch into the good stuff, but we have to get to the good stuff faster. Clients would much rather know the answer and what they’re supposed to do (see “The Best Way to Open a Client Letter”) than have our thoughts on how we organized the memorandum and what we will and will not discuss and a review of the documents and authority we consulted and hear that before commenting on the contract we thought it wise to read it first.