A legal memorandum is a document written by a lawyer for the benefit of his or her client, which explains a specific area of law, analyzes a given fact pattern in light of the law, and makes a recommendation for a course of action based on his or her analysis. Writing a legal memorandum requires you think like a lawyer; this means you pay attention to detail, divorce your personal emotions from your sound legal judgments, and thoroughly research and gain an understanding of the applicable law. Writing will require a focused, detail-oriented, and thorough mindset. Lawyers spend at least three years in law school learning this thought process, but with effort and attention, you too can write a top-notch memo.
1Analyze and/or formulate the question(s) that are presented.
- Lawyers don’t write legal memos in a vacuum. A memo usually is written in order to answer a particular legal question.
- For example, in the course of defending a lawsuit, an issue might arise regarding interpretation of a non-compete provision in an employment contract. The client (or a senior lawyer) might approach you and ask for a memo analyzing the applicable law. In that case, your question presented could be as simple as: “Did Client violate the non-compete provision in his employment contract when he performed [insert activity here] for [insert competitor here] on [insert date here]?”
2Review the file (and court record, if applicable).
- The file should contain basic information which will help you fill in the blanks in the above example.
- Be sure to read the entire file very carefully – missing even the slightest detail could mean you reach an incorrect conclusion. Do not dismiss anything in the file out of hand. If you can’t decipher a piece of handwriting (a doctor’s report, for example) seek help until you can be sure you’ve read and understood everything.
- The court record consists of the pleadings filed with the court including the original complaint, any answer to that complaint, cross-complaints, counterclaims, and any number of other types of pleadings or motions submitted to the court. Those documents can be important sources of factual information, as well as your opponent’s legal position.
3Outline the facts.
- Make a list of every relevant fact stated in the file/record (either for or against your position).
- It may help to organize that information into columns of “pro” and “con” (either for or against your position).
- When outlining, it can be helpful to note the source location of each fact (a lot of documents will have a Bates number; if they do, use it) for later reference.
4Research relevant law.
- Find a source that gives an overview of the laws at issue in your case. Law review articles can be helpful in this regard.
- Find specific statutes relevant to your case (and court decisions interpreting those statutes). Don’t ignore statutes or decisions that seem to go against your position. You will need to account for all arguments and facts that seem against you.
- For any relevant law, use the Internet, books, and any other means that you have to find the text of the law, any commentary on that law, and any recent cases in your jurisdiction that interpret that law (if a court in a different jurisdiction interprets a law in a way favorable to you, that can be persuasive to a judge in your jurisdiction, but it won’t necessarily be followed).
- Be sure to only use cases that have not been overruled by subsequent decisions. This is called Shepardizing; the name comes from Shepard’s™ – an old printed volume set that contains cross-references for cases which have been overruled or called into doubt. Today, most Shepardizing is performed by using electronic legal research tools such as Westlaw™ or LexisNexis™.
5Outline your work.
- Set forth the law first, then systematically apply it to the facts at hand, and finish with a conclusion.
- The outline should have at least the following sections: Header (To/From/Date/Subject); Question(s) Presented, Short Answer(s), Facts, Law, Analysis, Conclusion.
6Fill in your outline.
- Write with your specific audience in mind – if you are writing for a senior partner at a law firm, then you probably don’t need to cover the basics (e.g., how a contract is formed in a contract dispute). If you are writing for a client, you might need to alter your approach depending on your client’s sophistication.
- Make the memo as reader-friendly as possible. The average reader should be able to understand it.
- Support your statements with citations of the facts (use those Bates label numbers) and to the law (case citations, law review citations, and any other supporting authority).
- Write in an objective manner.
- Focus only on the relevant issues. Do not get side-tracked with related or unrelated issues, even if they seem more interesting to you.
- Be as concise as possible without omitting necessary details. A surefire way to anger a busy senior partner is to make him or her read a 25-page memo when a 10-page memo would have done just as well. Keep it short and to the point. A well-known saying in the legal profession is: "If I had more time, I would have written a shorter memo."
7Proofread and edit the memo.
- Have someone else proofread the memo and recommend any edits that he or she feels are necessary.
- If nobody is available, take a break before you proofread and edit the memo on your own.
We could really use your help!
hair and hairstyling?
- The Conclusion section should provide a summary of the facts and law from the Analysis section. It should not be any longer than 5 to 10 sentences.
- The Analysis section should include an objective, convincing support for the Conclusion section by applying the facts to the law in a step-by-step fashion. This is the bulk of your memo.
- The Facts section should explain the story that brought about the legal question; without any commentary or opinion. Avoid adding legal conclusions to your facts section. In other words, say what was done, but do not use words such as “negligently” to describe it.
- The Short Answer(s) is the simple, brief answer to the Question Presented. It is the quick version of the Conclusion (“Yes, John Doe did breach his non-compete clause by working at Company XYZ a month after leaving our client’s company ABC”). If there are multiple Questions Presented, the Short Answers should be listed in the same order as the Questions Presented.
- The Question(s) Presented is a simple, brief statement of what legal issue the memo is answering.
- The Law section will list the relevant laws in the case and the relevant interpretations of those laws made through decisions in other cases (the “Case Law”).