Elbert Hubbard was a writer in the Horatio Alger vein in the late 19th and early 20th centuries. His best-known essay, “A Message to Garcia” (1899), tells a story from the Spanish-American War. President William McKinley needed a letter delivered to Gen. Calixto Garcia, a rebel commander somewhere in the mountains of Cuba. One of his advisors recommended Lt. Andrew Rowan.
McKinley gave Rowan the letter. Rowan took the letter without a word and departed. Four days later, Rowan landed by night on the Cuban coast. Three weeks later, Rowan appeared on the far side of the island, having delivered the letter to Garcia.
Hubbard’s point in the story is that Rowan did not ask the president, “How am I supposed to find Garcia?” Rowan had the confidence and resourcefulness to figure that out on his own, rather than bothering his superior with such questions. Hubbard asserted that such people are the ones who succeed in life, as opposed to those who need everything spelled out for them.
This is a useful lesson for today’s law firm associates, as well as any relatively junior attorney, whether in a corporate legal department, government agency or elsewhere. To the extent practicable, young attorneys should rely on their own devices to determine what needs to be done, and how to do it, rather than expect the more senior attorney to spell it out for them.
There are limits to this, of course. It behooves the more senior attorney to provide guidance to the subordinate when appropriate. If, for example, the more senior attorney already has specific themes or ideas in mind for the motion for summary judgment, he should share those with the subordinate at the outset. And if the more senior attorney is well versed on an issue and the subordinate has virtually no experience, it makes sense to provide some guidance that may significantly reduce the time the subordinate spends on the project, which presumably the client would appreciate. But the first thought of the associate should be, “How can I figure this out for myself?”
Which brings me to the concept of “completed staff work.” I learned this as a young Navy JAG officer assigned for two years as a ship’s legal officer 30 years ago (I also learned that the shell-backing ceremony when the ship crosses the equator is really disgusting, but that’s a different story).
When making either a written or an oral report to the commanding officer, the staff officer is expected to answer, or be ready to answer, all foreseeable questions the commanding officer may have that were raised in the report. If, for example, you recommend filing court-martial charges against a sailor, also describe (or be prepared to describe) the witnesses and evidence anticipated by both the prosecution and defense and analyze the likely outcome of the court-martial, as well as any blow-back, such as the effect on crew morale.
If the commanding officer has any questions (particularly any unanswered questions) at the end of your report, you have failed to produce completed staff work.
And for any question the commanding officer may have for you at any time, there are only two acceptable answers: (1) a correct, complete and substantive answer to the question; or (2) “I don’t know, Captain, but I will find out and report back to you promptly.”
This concept is fully applicable to just about everything we do in the civilian legal profession as well. It applies to memoranda and other work-product for more senior attorneys in the office, as well as to pleadings to the court.
Where many attorneys are more likely to fall short in this regard is in communications to the client (particularly the corporate or claim-department client).
When you report to the client that you have received the opposing party’s responses to your written discovery, do you highlight what is significant about the responses? What is different from the information you previously had? And what are the next steps, leading to what ultimate disposition in the case?
When you review your work-product, if you put yourself in the shoes of the recipient and can think of no more questions that you have left unanswered, you have likely achieved completed staff work, and you are ready to hit “Send.”•
Kevin C. Tyra is a director of the Defense Trial Counsel of Indiana and the principal of The Tyra Law Firm P.C. in Indianapolis. The opinions in this article are those of the author.