Beyond the legal analysis: how junior litigators can make advice useful

Most junior litigators will, at some point, produce a piece of work into which they have poured heart, soul, caffeine and a heroic number of footnotes. It will be technically careful. It will consider the authorities. It will address the counterarguments. It may contain the phrase “on balance”.

Then, sometimes, it meets the real world.

The client needs three bullet points before an impending board meeting. They ask: “So, what do we actually do?”

This can feel unfair to juniors. After all, they have been trained to be thorough. In litigation especially, the details matter. A caveat can be important. An assumption can be critical. A footnote can occasionally save the day. However, the client’s question is not always a rejection of detailed legal analysis but rather a request for the next layer of thinking. Having established the legal position, what does this mean for us, practically?

Understanding who the client is

We have to recognise that, to junior lawyers, the “client” is not always one person. The immediate client may be the senior associate or partner reviewing their work, who needs to see that the junior has understood the task, tested the answer, considered every awkward point and not simply reverse-engineered a preferred conclusion. A detailed first draft helps that senior lawyer assess the reasoning, see the working and gain confidence in the output.

But the external client, and particularly the in-house lawyer, often needs something different. In-house lawyers are usually juggling the legal issue with budget constraints, internal stakeholders, commercial priorities, operational reality and, more often than not, the delicate politics of being the trusted adviser everyone wants in the room, without becoming the legal blocker nobody wants in their way.

So, quite often the in-house lawyer is not asking for less analysis, but is asking for the analysis to be focussed around a decision. They need to understand the legal analysis, as well as the practical realities - what happens if nothing is done, what happens if we fight an issue, what happens if we settle, who needs to be involved, how quickly do we need to act and, increasingly, what it would take for the business to be able to implement the elegant solution proposed.

Turning analysis into a decision

For that audience, the perfect twenty-page memo may be less useful than a clear explanation of the decision to be made, the options available, the risks attached to each, and what the lawyers recommend. The assumption, usually, is that the external lawyers have done the legal work. The question is not whether they can display every inch of it. It is whether the advice can be used – does it offer a real recommendation, for example, rather than a beautifully balanced view of all options.