News in Practice

Finding out why a decision was taken eight months ago

The pleadings, the emails, a partner's memory: three sources, and the only one that carries the reason is also the only one never preserved.

For lawyers and in-house counsel. Where you look when you have to recover the reason for an old choice, and why the search always fails in the same place.

You dropped an argument eight months ago. The court has raised it of its own motion today, and you have to explain your position at next week's hearing. So you have to find out why you dropped it. Three sources are available to you, and it is worth looking at what each yields, because their hierarchy is always the same and it explains why this kind of search fails.

First source: the pleadings

They give you the conclusion, and they give it perfectly. The argument does not appear in the submissions of March 12, whereas it appeared in those of January. The date of the withdrawal is therefore established to within two months.

They give you nothing else. An abandoned argument leaves no trace in the document from which it disappeared, and there is no reason it should: submissions advance a case, they do not explain what they do not advance.

You therefore know when, and you do not know why. That is the most uncomfortable position, because it tells you a decision was taken without telling you which.

Second source: the emails

They give you the context, buried in noise. You filter on February and March, get a hundred and forty messages, and scan forty before finding an exchange in which the argument is mentioned.

The exchange is about something else. The argument appears in passing, in a sentence along the lines of “we are dropping the limitation point, I will confirm tomorrow”. The confirmation the following day, if it happened, was oral.

That is the ordinary fate of decisions in a legal organisation: they are taken orally or in two lines, and what survives in writing never says why.

You now have a clue and a frustration. You know the decision was taken between two people, on a date you can place, and you still do not know what motivated it. Allow an hour for that result.

Third source: the partner's memory

It gives you the reason, and it gives it in three minutes. The argument was dropped because it obliged you to produce a document that would have exposed an unfavourable element on another aspect of the matter.

That is the information you needed, the only one that lets you answer the court, and the only one of the three that is not preserved.

Note the asymmetry: the first two sources are archived, backed up, restorable. The third depends on a person's availability, their memory, and their continued presence in the organisation. It is the most valuable and the least protected.

What is most useful is what is least preserved. That is no accident: it is what costs most to write down at the time.

A fourth source, which almost never exists

Some organisations keep a running note per matter recording the significant decisions. Where it exists, it settles the problem in thirty seconds.

It rarely exists, and it is worth understanding why rather than deploring it. A running note presupposes that someone maintains it at each decision, interrupting their work to document a choice whose future usefulness is uncertain: a real effort against a hypothetical benefit.

The running notes one encounters are therefore almost always abandoned after three months, with a final entry dated to the start of the matter. That observation matters: it shows that the answer is not discipline. Preservation that depends on additional effort does not hold, whatever the quality of the people.

Why this hierarchy is constant

It does not stem from carelessness, it stems from a property of legal work. The documents produced have an external function: to persuade, to bind, to give notice. That function excludes any account of internal reasoning, which would weaken the document or hand the other side something to use.

That exclusion is not a defect to be corrected: a practitioner who explained in submissions why an argument had been dropped would be committing a professional error. The problem is not that the documents omit the reason, it is that no other medium collects it.

Internal reasoning has, by construction, no natural support. It exists only in informal exchanges and in people's heads, and it disappears at the rate of departures and forgetting.

That is why archiving, however excellent, settles nothing. Archiving documents that do not contain the reason more efficiently will never make the reason appear.

Where the absence of a reason turns against you

Everything above describes an inconvenience. There is a situation in which the absence of a reason becomes a risk, and it is more common than one thinks.

A client dissatisfied with the outcome asks why a particular argument was not run. The question is legitimate and calls for a precise answer. Answering that it was dropped after reflection, without being able to say what reflection, is not an answer: to the person receiving it, it is an admission of improvisation.

The decision was nonetheless sound, taken for a solid reason, by an experienced practitioner. What is missing is not the quality of the work, it is the ability to account for it, and a client who has no means of telling the two apart judges them together.

What should be preserved, and when

The principle is simple to state: a decision to set something aside deserves preserving at least as much as a decision to advance it, and that is exactly the opposite of current practice.

That principle runs against a stubborn intuition, namely that one documents what one does rather than what one does not do. The intuition is wrong in legal work: what was done appears in the instruments, where it is perfectly preserved. Only what was not done needs a medium.

There is a simple test for deciding what deserves a record, and it avoids recording everything: a decision deserves a trace when it involved hesitation. What was decided without hesitation will be decided the same way again; what caused hesitation may be decided differently, and that is precisely where one will need to know why.

That test has the advantage of being available at the moment of decision, without any analytical effort: whoever decides always knows whether they hesitated.

The moment of preservation is the only one that works: the moment the decision is taken. Thirty seconds to write “dropped because producing exhibit 14 would expose the limitation point”. Reconstructing that same sentence eight months later takes two people an hour, when it is still possible at all.

And decisions of that kind are far more frequent than one supposes. On a year-long contentious matter, dozens of options are set aside: arguments, exhibits, quantifications, recipients. Each is a point on which one may have to explain oneself, and none leaves a trace.