WRITING AN OFFICE MEMORANDUM
If you work as a paralegal or law clerk after your first or second year of law school, you will most likely spend some of your time researching and writing objective memoranda, or interoffice memos. Typically, an attorney asks you to provide a realistic analysis of the law as it applies to the facts of a client’s case. The purpose is to inform – not persuade. Although you should remember which conclusion favors your client, also keep in mind that you will represent the client most effectively by being objective and realistic.
The memo might be read many times – possibly, over a period of months or years by several different attorneys, including the writer, who may use it as a resource long after it is drafted. The attorney will use the information contained in the memo to advise the client and may use it to prepare a document that will ultimately be filed in court. For example, a partner may be asking you whether a particular client has a valid legal claim. If you conclude that the answer is “yes,” then this will probably turn into a lawsuit. At that point, some parts of the memo may be incorporated when the complaint is drafted. The memo might me consulted a third time when the attorney responds to a motion to dismiss; a fourth time while drafting interrogatories; a fifth time before making a motion for summary judgment; a sixth time before trial; and a seventh during an appeal; and so on.
PARTS OF MEMO
1. A memorandum heading
2. The Issue (sometimes called Question Presented) states the question(s) that the memorandum resolves. The Issue also itemizes the few facts that you predict to be crucial to the answer. (Such as travel expenses to out-of-state, keeping child out of danger, and commission of crime). The reader should understand the question without having to refer to the facts.
3. Brief Answer (sometimes called Conclusion) states the writer’s prediction and summarizes concisely why it is likely to happen. Some writers begin with a direct response such as “yes” or “probably not.” Our book says that they do not prefer this. Sometimes this is client or partner driven. Also, some questions lend themselves to answers such as “yes” or “no.” Allusion to determinative facts and rules. Do not omit key facts. Begin by just re-stating your issue as a declarative sentence. Do not omit the reasoning. Do not include citation to authority or application of relevant law. Many attorneys only read this part.
4. Facts set out the facts on which the prediction is based.
5. Discussion is the largest and most complex part of memo. It proves the conclusion set out in brief answer. If the discussion is highly detailed or analyzes several issues, it should be broken down into subheadings.
Here is what the memo will look like and more information on each section.
TO: Senior Partner [Please block-indent so that the information lines up, as demonstrated]
FROM: Your Name
DATE: (date assignment is submitted)
RE: (A concise label for the issue considered: mention the parties; your firm will file your Memo by names and cause of action--and, perhaps, by jurisdiction)
The proper format is always double-spaced. Do not double-double space between sections. Plain old, regular double-space is sufficient.
Here, recite all material facts, usually in chronological order. A "material" fact is a "dispositive" fact, or one upon which the outcome will depend. It is a fact that will affect the outcome in one way or another. Please include all material procedural facts as well as all material substantive facts. This means that it is essential to include all relevant times, dates, and places. You should begin with an "overview" sentence that sets the full context and begins to describe the problem presented. Please review your reading and as many samples as possible to understand both the range and scope of what is acceptable as professional practice.
Remember your role
Watch for the tendency to try to “prove” something by the way you tell the story. NO LEGAL ANALYSIS!
1) USE NEUTRAL LANGUAGE AND OBJECTIVE CHARACTERIZATIONS. Rather than writing “the D was speeding through the school zone,” write “the D was traveling 50 MPH through the school zone.” Rather than writing “The D brutally beat the victim,” write “The D struck the P on the head, resulting in a cut over his left eye.”
2) Include unfavorable and favorable facts.
Phrased as a question and ending with a question mark, state the specific issue or issues you will address. One method is to use the technique: under? (describe the law); does? (state the issue); what? (give the legally relevant or "dispositive" facts).
Some memoranda use the commonly seen style of: “Whether . . . .”
As always, discuss with your professor to see which he or she prefers.
But whatever the method, the following advice applies:
· Should be concise single sentences that include relevant facts and general propositions of law.
· Don’t say, “Whether a niece can recover for negligent infliction of emotional distress,” when you can say, “Whether, under Iowa law, a niece who witnesses the aftermath of an automobile accident involving her uncle from a block away can recover for negligent infliction of emotional distress when she observes his severe injuries upon arrival at the scene.”
You phrased (or asked) a question in the section above. Answer it here: "Yes." "No." "Probably not." Use a period. Your Brief Answer follows the same formula and sequence as your Question Presented. It answers the questions "under? does? what?" except, the Brief Answer should include a brief statement of your reasons beginning with the word "because."
The heart of a Memorandum, this section asks you to explain the law and explain the facts. Getting it "right" will take time. Be patient. Your goal is to "synthesize" the cases and extract a common rule of law. To do this, you will need to identify the common elements that allow you to analyze and discuss several cases at once. A common mistake, legal writers frequently engage in "listing behavior." They treat each case independently and sequentially, beginning each paragraph with "In"--for example, "In Callow v. Thomas" or "In Brown v. Brown." Looking down a written page, the lawyer will see a ladder-like effect, the "in-ladder," where each succeeding paragraph begins with the word "in" followed by a case title. Often "listing behavior" culminates in "dump-trucking" when the lawyer saves up and "dumps" all the legal analysis into the last paragraph. In addition, lawyers will frequently "front-load," squeezing all the legal rules of law into the very first paragraph.
To avoid these pitfalls, begin your discussion with a general overview in a thesis or “roadmap” paragraph. Your thesis paragraph is the first paragraph in the Memorandum – and the first paragraph in a Discussion section. Always begin your thesis paragraph with a sentence to anticipate--and announce--your ultimate conclusion. Tell the reader where you are headed and be a tour-guide to your argument or analysis.
Then, taking one point at a time, write a thesis sentence that answers the questions of "what-is-your-point?" of this particular paragraph. Next, set forth the legal Rule that applies. Include the proper citation. Next, Analyze (explain) what the law or legal rule means. Next, Analyze (explain) how the relevant facts fit (or do not fit) the legal or factual standard. Finally, Conclude each paragraph with a summarizing statement and each sub-issue with a specific sub-issue summary.
Sometimes, this method is referred to as a variation of the acronym: IRAC. Other legal writing professors have some other acronym such as REAAC or FIRAC. Still, others simply refer to it as the 5-step process. Keep in mind that these are all “formulas” that legal writing professionals are using to introduce you to presenting a legal argument. Ultimately, you will use a style or formula that works best for your particular argument. But virtually every aspect of every legal argument must contain a 1) Statement of Rule or Applicable Law; 2) Analysis of the law and how it Applies to your relevant facts; and 3) a Conclusion on each of these sub-issues. Similarly, when a discussion requires several paragraphs, the writer may not reproduce the exact IRAC structure within each and every paragraph, but may require several paragraphs to develop fully the full set.
As always, know your audience and talk about the method of legal analysis that your professor, or in the future, your employer, prefers. And remember that learning how to synthesize statutes, cases, and secondary sources and then presenting them in a clear, concise, and logical manner takes time and practice.
A FEW IDEAS ABOUT WRITING — MEMORANDA
Many students, approaching memo writing for the first time, are often unsure of how to proceed. We have put together a few tips for first (and second and third) time memo writers that we hope will be helpful.
Note: No single set of guidelines could possibly address all the matters related to memo writing. If you have questions about a particular assignment, be sure to check with your professor.
1. Find the test(s). In assigning a memorandum, professors are generally evaluating you on parsing a particular statute or test. In other words, they want you to use other cases to explain how your case either does or does not satisfy a test laid out in a case or a statute.
For example, let’s say your case involves a niece (Mary) who witnessed her uncle (Jack) being injured in an automobile accident. Mary wants to bring suit for negligent infliction of emotional distress as a result of witnessing that accident. In Burger v. McDonald, the Supreme Court of Iowa laid out a three part test to determine whether a bystander’s injury was reasonably foreseeable and, thus, legally actionable:
1. Whether the bystander was located near the accident.
2. Whether the injury resulted from sensory and contemporaneous observance of the accident, as opposed to hearing about it from others after its occurrence.
3. Whether the bystander and the victim were closely related.
NOTE: If the memo involves more than one issue, your memorandum may involve more than one test.
2. Use the test as your outline. Tests come in two parts, or three (as above), often with subsections. Ideal for an outline. Use the major parts of the test as your major points, the subparts as sub-sections.
3. Begin paragraphs with affirmative propositions that parallel the test. In the above example, your first sentence should say something like: “Mary was located near the scene of her uncle’s accident, satisfying the first part of the Burger test.”
4. Support your affirmative propositions. All propositions of a legal nature must have legal support. Where is your authority for your proposition? Cite it. For example: “See Burger, 606 N.W.2d at 321 (bystander must be located near accident to recover for negligent infliction of emotional distress).”
5. Discuss the facts of your support. What happened in the case you just cited? Explain in a concise and relevant way. For example: “In Burger, the court held that a mother who witnessed an accident on the street from the front door of her house was located near the scene of an accident.”
6. Discuss the relevant facts of your case. Point to the facts that are similar to the facts of the authority you’ve just discussed. For example, you could continue from above as follows: “Mary was standing a block from the accident, heard the crash, and saw her uncle being pulled, bleeding, from the car.”
7. Analogize/Conclude. What conclusions do you think the court will draw from the similarity between your facts and the facts of your authority? For example: “Although Mary did not see the accident, she was close enough to hear it and witness her uncle being pulled from the car. Thus, a court will likely conclude that she was located near the accident.”
Alternative Paragraph Structure
8. Discuss other relevant authority. Once you’ve opened the previous paragraph with your affirmative proposition, your subsequent paragraphs can discuss the facts of other relevant cases without repeating the proposition as your opening sentence. For example, you could begin the next paragraph: “In Cameron v. Jones, the Court of Appeals held that a mother who was twenty-five feet away from her child when she heard a metal sculpture fall on him was located near the scene of the accident.
9. Discuss contrary authority. Are there cases that go against your position (or the position the partner/judge/etc. would like you to hold)? Another subsequent paragraph could open with: “But, in Alfred v. Stern, the court held that a father did not have a valid cause of action for negligent infliction of emotional distress.” Then follow steps 5, 6, and 7, above, except this time, when concluding, tell the reader why the court won’t follow or give much weight to this contrary authority (e.g., the facts are different).
10. Move on to the next part of the test. Follow steps 3-9 above for the next section of your test.
Remember, a memorandum also includes issues presented, a brief answer (which usually follows the issues presented), and a statement of facts. These are often best written after you’ve written the body of the memorandum, since you’ll have a better idea of the issues once you’ve tackled the problem (though a tentative draft might help to get you started).
Here is a checklist for those introductory sections of an office memorandum:
1. Have you included the name of the requesting attorney (or professor), your name, the date, the client’s name, and a phrase identifying the particular legal matter or issue?
- Have you included all legally significant facts?
- Have you included sufficient factual context?
- Have you included any major emotional facts?
- Have you avoided including discussion of legal authority?
- Have you avoided “arguing” the facts or drawing legal conclusions?
- Have you identified the client and the client’s situation at the beginning of the Fact Statement?
- Have you selected an appropriate organization (chronological, topical) for the facts?
- Have you maintained neutral language and objective characterizations?
- Have you included both favorable and unfavorable facts?
11. Have you stated the legal question and the significant facts?
- Have you edited to achieve one readable sentence?
- Have you maintained an objective perspective?
- Have you stated the answer in the first several words?
- Have you included a statement of the rule?
- Have you stated a summary of the reasoning leading to the answer?
- Have you kept the BA to a maximum of one-third to one-half a double-spaced page?
- Have you taken a position, even if you are not sure?