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You are three hours into an examination for discovery. Opposing counsel asks for a document you do not have in front of you. You say, "I will undertake to produce that." It sounds like a small courtesy. It is not. You have just made a personal promise to the court and to another lawyer, and if you forget it, the person on the hook is you.
Undertakings trip up new lawyers and seasoned ones alike, not because they are hard to understand but because they are easy to lose track of. This is a plain language walk through what they are, why they land on you and not just your client, and how to make sure none of them ever slip.
What You Are Actually Promising
An undertaking is a promise, given by a lawyer during a proceeding, to do something. Usually it is to produce a document, answer a question, or provide information that was not available in the moment. When you undertake to do a thing, you are telling the other side and the court that it will be done. Full stop.
The most common place undertakings appear is at an examination for discovery. A question gets asked, the answer is not at hand, and rather than refuse it, counsel agrees to follow up. That agreement is the undertaking. It becomes part of the record. It is enforceable. And it does not expire because everyone got busy.
Two features make undertakings different from an ordinary to-do item. First, they are given on your professional word, so they carry the weight of your standing with the law society behind them. Second, they are answered on the record, which means someone is entitled to hold you to them and to complain if you do not follow through. If you want the broader picture on what you owe the other side, our piece on managing disclosure obligations sets the frame.
Note. Undertakings are not the same as agreements to try. If you cannot promise the result, do not undertake it. Say you will make best efforts, or that you will make inquiries and report back, and make sure the transcript reflects that softer wording.
Undertaking, Refusal, or Under Advisement
When a question comes up during discovery that you cannot answer on the spot, you have three real options, and it helps to name them clearly.
- Undertaking. You agree to answer. You will produce the document or provide the information after the examination. This is a commitment.
- Refusal. You decline to answer, usually on the ground that the question is improper, irrelevant, or privileged. A refusal can be tested later on a motion, and you may be ordered to answer.
- Under advisement (or taken under advisement). You are not committing and not refusing yet. You want to think about it, check privilege, or take instructions. You will come back with an undertaking or a refusal.
Getting the category right matters. If you take something under advisement and never circle back, the other side is left guessing, and that guessing tends to end in a motion. If you meant to refuse but the transcript reads as an undertaking, you have promised something you did not intend to give.
| Response | What it means | What happens next |
|---|---|---|
| Undertaking | You will answer | You follow up and provide it |
| Refusal | You will not answer | It may be argued on a motion |
| Under advisement | You will decide later | You convert it to an undertaking or a refusal |
Why This One Is Personal to You
Here is the part that surprises people. A great deal of what you do in litigation is done on behalf of your client, and the consequences fall on the client. Undertakings are different. When you give one, you give it as a lawyer, and the law society treats a broken undertaking as a matter of your professional conduct, not merely a procedural gap in the file.
A broken promise between clients is a dispute. A broken undertaking is a question about the lawyer who gave it.
This is why courts and opposing counsel tend to rely on undertakings without much fuss. The system runs on the assumption that when a lawyer says it will be done, it will be. That trust is efficient, and it is also fragile. The lawyer who lets undertakings lapse is not just disorganized. They are eroding the professional reputation that makes their word worth relying on.
None of this should make you afraid to give undertakings. It should make you deliberate. Give them when you mean them, in wording you can meet, and then treat them as the priority they are. If ethics questions of this kind are the sort of thing you like to think through, you will find more in our family and civil practice writing.
Tracking Them So None Fall Through
Most undertakings are not missed on purpose. They are missed because they were captured in the wrong place, or nowhere at all. The transcript records them, but a transcript is not a task list, and it arrives days after the examination.
Build a system that assumes memory will fail you. The moment the examination ends, or while it is still fresh, extract every undertaking into one running list per file. For each one, record the question, who gave it, the wording, and a target date. Then treat that list as live until every item is closed.
- Capture immediately. Do not wait for the transcript. Note undertakings as they are given, with enough context to answer them later.
- One list per matter. Keep undertakings in a single, visible place tied to the file, not scattered across emails and sticky notes.
- Assign an owner and a date. Someone is responsible for each one, and each one has a deadline you actually watch.
- Review before every step. Before a motion, a settlement discussion, or the next examination, scan the open undertakings so nothing surprises you.
Tip. A well kept file chronology already puts events in one timeline, which is exactly where undertakings belong. Our guide to a family file chronology that works shows how to build one you will actually maintain.
This is one of those places where a proper matters and tasks system earns its keep. In A1 CMS you can hang undertakings off the matter with owners and due dates, so an open promise is never sitting in someone's inbox waiting to become a problem. Whether you use software or a shared spreadsheet, the principle is the same: undertakings live where the whole team can see them, not in one lawyer's head.
Answering Late Without Making It Worse
Sometimes, despite good systems, an undertaking gets away from you. A document turns out to be harder to find, a client goes quiet, or the deadline simply passed. What you do next matters more than the delay itself.
Do not go silent. The instinct to say nothing until you have the answer is the instinct that turns a late undertaking into a motion. Instead, tell opposing counsel where things stand, give a realistic date, and follow through on that. A short, honest note about a delay reads very differently from a demand letter asking why you have ignored them for a month.
If the answer is that you cannot provide what you promised, say so directly, and explain why. Perhaps the document does not exist, or the information is privileged after all. It is better to convert a stale undertaking into a clear position, even a refusal you may have to defend, than to let it hang open indefinitely. When you are heading into an examination where these issues come up, our notes on how to prep a client for a discovery examination will help you keep the promises manageable in the first place.
Undertakings are not a trap. They are a practical way for lawyers to keep a proceeding moving on trust rather than fighting over every gap. Take them seriously, write them down the moment they are given, meet them on time, and speak up early when you cannot. Do that consistently and undertakings become what they should be: a routine part of the job, not the thing that keeps you up at night. If you want a place to keep all of this organized, our knowledge base is a good next stop.
