Thinking Things Through Anew | Above the Law


Typically, what do you do when somebody asks for a document?

You take out an old form and make the fewest possible changes for the new purpose.

Because that makes life (for the writer) easy.

Typically, what do you do when an editor suggests changes to a document?

You make the smallest number of changes possible that incorporate the editor’s suggestions.

Because that makes life (for the writer) easy.

Sometimes, that’s the right choice; sometimes, it’s not.

Occasionally, when an editor suggests a revision, you really only have to add a dependent clause:  “[old text] insert comma, five words containing new idea, another comma [old text].”  That’s all the editor suggested.  If you make the change, it will get the editor off your back.  Mission accomplished.

But sometimes an editor suggests a revision that really requires you to think things through from scratch.  Maybe the new argument is so important that you must re-write the introduction, add a new section one, modify sections two and three, and change the conclusion.

If you just inserted a dependent clause, you’re going to have an unhappy editor on your hands.

You often must think things through from scratch.

Thus:  The trial court brief is not the appellate brief.  Even if you change the name of the court and insert a sentence on “standard of review,” the trial court brief still is not the appellate brief.  Perhaps the appellate brief must eliminate issues, or emphasize questions of law, or present more (or less) procedural history.  I can’t tell you exactly why your trial court brief is not your appellate brief, but I can tell you that, 99 percent of the time, your trial court brief is not your appellate brief.

So think things through anew.

Also:  The email describing the case for the general counsel is not the same as the email describing the case for the chief executive officer.  Even if you change the name of the addressee.  The CEO has less time than the general counsel does.  The CEO likely cares less about legal issues than the general counsel does.  The CEO’s review is probably aimed at a different purpose than the general counsel’s review. 

So don’t just change the fewest things possible (to make life easy for the writer), and then send out the email.

I understand that makes less work for you — the writer.

But making your life easy isn’t always the name of the game.

Sometimes, you must think things through anew.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.


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