What do I predict and why do I predict it? The brief answer announces your bottom line and the legal rules and key facts that support it.
You can almost bet that the first thing the assigning lawyer will do is flip to the brief answer before reading anything else. And it may be the only thing the lawyer reads. To maximize the value of your brief answer, you need a few concise sentences that deliver the main message of your discussion section.
a. Be Definite – But Don't Guarantee and Don't Waffle
Your brief answer needs to take a position on the outcome without guaranteeing the result.
Is the outcome:
- highly likely?
- somewhat likely?
Is the risk:
Importantly, your brief answer and discussion sections must convey the same level of certainty.
Watch out for waffling "maybe messages".
If your brief answer says:
"The cases are fact driven so it is unclear whether Chris Bay and Pat Kline held Farm Acres as tenants-in-common."
The assigning lawyer will think, "I didn't need your research to tell me that!"
If instead your brief answer says:
"Chris Bay and Pat Kline will be considered tenants-in-common in Farm Acres, if their correspondence shows they mutually agreed to sell the property and divide the proceeds."
Now, although you have still delivered a "maybe message," the assigning lawyer has the information needed to make an independent judgment.
The worst thing you can do is waffle without a reason. If you find yourself hesitating, try overcoming your reluctance to commit by telling the reader the facts that will make the difference, one way or the other. If stating the qualifying facts still leaves you hesitating, then be very specific about what makes you hesitate. Perhaps there are no cases on this issue or the authorities are evenly split? Then, consider if you could lean one way or the other based on a policy argument, or by drawing analogies to other more established legal principles, or by confirming missing facts.
b. Fit the Key Facts With The Law – But Don't Analyze, Analogize or Weigh Alternatives
Because the brief answer may be the only thing the lawyer reads right away, you need to be as clear as possible on how the key facts fit with the legal rules to support your prediction. At the same time, the brief answer is intended to be just that – brief – so you need to wait until the discussion section for your detailed analysis, analogical reasoning, weighing of alternatives, and case citation.
Consider this legal issue:
"Was Chris Bay and Pat Kline's joint tenancy severed, ending the right of survivorship and resulting in their holding Farm Acres as tenants-in-common so that Alice Bay can inherit Chris Bay's share?"
Compare two students' brief answers to this legal issue. Which one would you want to read when you are in a hurry?
Student I – A clear, crisp and detailed brief answer
Yes, it is likely that Alice Bay will inherit Chris Bay's interest in Farm Acres on the basis that the joint tenancy between Chris Bay and Pat Kline was severed prior to Chris Bay's death. Joint tenants sever a joint tenancy ending the right of survivorship and create a tenancy in common by either: a unilateral act affecting one of four unities, a mutual agreement, or a course of dealings sufficient to show the owners mutually treated the property as a tenancy in common. Correspondence between Bay and Kline in which they agreed to immediately list the property for sale and divide the sales proceeds unequally based on their relative expenditures on improvements demonstrated their mutual agreement and a course of dealings sufficient to sever the joint tenancy.
Student II – A full discussion masquerading as a brief answer
Yes, it is likely that Alice Bay can inherit Chris Bay's interest in Farm Acres on the basis that the joint tenancy between Chris Bay and Pat Kline was severed prior to Chris Bay's death. It is relatively easy for joint tenants to destroy (sever) the right of survivorship through a unilateral act, mutual agreement, or a course of dealings sufficient to show the owners mutually treated the property as a tenancy-in-common. The main question is whether the 2006 correspondence between Pat Kline and Chris Bay demonstrates that they were treating each other as tenants-in-common with separate interests. Cases finding a severance has occurred often involve a separating or divorcing husband and wife where the parties have already lived apart for some time and are negotiating a property division. Here, Chris and Pat are cousins so it can be argued that their situation is analogous to divorcing spouses since Chris and Pat were not getting along. Cases construing both a severance by mutual agreement and a course of dealings are very fact driven. For example, failed negotiations over how the property will be divided are sometimes construed as severing the joint tenancy (Robichaud v Watson (1983) 42 O.R. (2d), 1983 CarswellOnt 611 (H.C.)). On the other hand, cases have stated in obiter dicta that simple back and forth offers cannot produce a severance. (Burgess v Rawnsley,  Ch. 429,  3 All E.R. 142 (C.A.) at 447 Ch.) Since the correspondence between Bay and Kline agreed to immediately list the property for sale and divide the sales proceeds unequally based on how much each of them spent on improvements, it likely went beyond a mere exchange of proposals and demonstrated their mutual agreement and a course of dealings sufficient to sever the joint tenancy.
c. Where should the brief answer go in the memo?
There is no right or wrong answer to this question. Some lawyers and firms want the issue statement immediately followed by the brief answer as the first items in the memo, before the facts section.
Others prefer to integrate the brief answer into an introductory paragraph that sets out the prediction and explanation. In this format, the discussion section directly follows the issue statement.
Both these formats ensure that the lawyer reads the prediction early on.
d. Do you need both a brief answer and a conclusion at the end of the memo?
The brief answer and conclusion sections can serve different functions, but you do not always need both. The firm or assigning lawyer may have a preference. If the choice is yours, then consider:
- If this is a one or two-issue memo with a short and uncomplicated discussion, then most likely a brief answer is sufficient.
- Does this memo have many sub-issues or complicated discussions? If so, then each brief answer helps separate the issue analysis, while the conclusion ties the issues together into a comprehensive summary.
- Do you need a conclusion to further qualify your brief answer or to highlight any assumptions the answer is based on?
- Do you need a conclusion to provide context for recommending a follow-up strategy or next steps?
Brief answers often begin with a sentence answering the legal issue raised. When the issue statement uses a question format, the sentence often starts with a one or two word answer:
- Probably (or Likely) Yes
- Probably (or Likely) Not
The next 1 or 2 sentences meld the key facts with the legal rules to support the initial answer.
Here is a brief answer from a student memo using a common format:
Issue: Does Sam Brown have a superior claim to money found by Mary Ames where the money was found in a used book Ames got from Brown's bookstore?
Yes. Sam Brown will likely succeed in his claim to the money found in the used book obtained from his bookstore because the owner of the premises has a superior claim if the owner shows intent to control items found on the premises. Brown routinely keeps valuables found in used books in a safe on the premises, and a sign over the cash register says, "Have no Fear – the Lost are Found Here" which together demonstrate Brown's intent to control items left at the store.
To be clear and easy to read, the brief answer should match the issue statement's format, vocabulary, and numbering system. When there are several issues, you use the same numbering system that you used to set out the issues and sub-issues. Make it easy for your reader and use the same numbering system for your discussion section as well.