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University of Wisconsin Law School (Fall 2011) This guide summarizes general advice for first-semester students on how to write a memorandum of law. In the fall semester, the small-section memo writing project is designed to give you some initial experience with writing in the larger context of a doctrinal course. Writing can be a helpful tool in your learning process during the semester, and you can use your small-section memo as a writing sample for summer job applications. You will receive more detailed instruction and practice in legal writing during your formal Legal Research & Writing courses in the spring of your first year and the fall of your second year of law school. NOTE: If your professor gives you instructions or preferences that conflict with anything in this guide, be sure to follow those instructions instead. The Purposes of a Memo The primary goals of a legal memorandum are to educate the reader about the law relevant to a particular issue and to explain how that law will apply to specific facts. A memo presents an objective analysis of the law, not a persuasive argument intended to advocate on behalf of a client. Although a memo can be a tool in preparing a persuasive case, it is typically an in-house document that tries to predict how an impartial judge would decide the case. Lawyers and law students write memos for a variety of reasons. For example, a student in a law clinic might write a memo to a supervising attorney who has asked a question about the law. A judicial clerk might write a memo to a judge evaluating the strengths and weakness of the opposing sides of a case and explaining what result the law seems to require. A lawyer might write a memo to prepare colleagues for a meeting with a client who wants to know how the law affects her situation and who is seeking legal advice. The Audience for a Memo You should assume that the audience for your memorandum is a law-trained reader who is unfamiliar with the particular rules or facts of your case. Although you will submit your memo to your assigning professor—who is an expert in that area of law—you should not write your memo with your professor in mind. Instead, imagine that you are writing for a legal reader who does not know about the applicable law or your client’s case. This will help you to include necessary background information and better depth of discussion, and it will make your memo more useful for future readers. The law-trained reader – In writing your memo, you can assume that your reader is trained in the law. This has several implications for your writing. First, it means that you should not explain very basic ideas relating to law or the legal system, or you risk writing “down” to your audience. For example, you would not explain that judges look to previously decided cases to reach a decision in a new case. Any lawyer will know this basic rule of “stare decisis.” However, it is acceptable to emphasize certain aspects of basic legal concepts to anticipate questions your reader may have about your analysis. For example, if your issue is not governed by any binding cases (under rules of stare decisis), you could note that point briefly in your memo by saying, “Because there is no binding authority on point, the court will look to persuasive sources for guidance.” Although that sentence is not strictly necessary for a law-trained reader, it will prevent an unfamiliar reader from questioning your work and wondering why your memo discusses only lower-court cases or secondary sources. Second, a law-trained reader will have certain expectations about how you should organize and present information. These expectations come from tradition, court practice, legal education methods, and pragmatic needs. Most legal readers are busy, impatient, and skeptical; meeting their core expectations for a memo will make your document seem familiar, efficient, and easy-to-follow. This guide summarizes some of the key expectations of law-trained readers. Unfamiliar with the law and facts – Legal writers generally assume that their readers know little or nothing about the relevant law or facts and craft their explanations accordingly. Thus, in writing your memo, you should discuss the law and facts as if you were explaining the case to someone new to the area. Also try to make your memo “self-contained,” so the reader does not have to look up your sources separately to understand your explanations. This is especially important if you intend to use your small-section memo as a writing sample in future, because your potential employer will be an unfamiliar legal reader who will judge your work by how clearly you present your information.
2. For common-law questions. if the rule contains vague words or phrases. Once you have identified the rule structure. Follow your professor’s directions. For example. and Discussion. what the underlying reasoning or policy is. Instead. Rules and rule structures can come from statutes. It is a general framework that most readers expect you to use in explaining your legal analysis. Brief Answer. A “Brief Answer” section should answer the question asked and briefly summarize your reasoning. (2) Rule explanation. Application of the rule to the facts: Only after you have explained a rule will the reader know which facts are important and which are not. because that is how courts typically organize their analyses. Facts. (But do not label these very basic sections in your final memo. If a rule requires a balancing of factors. cases. An “Issue” section states the question asked by identifying the aspect of law in dispute along with the key facts triggering that question. It should not repeat every fact in the assignment. readers will expect to see an orderly discussion of those elements (or at least the disputed ones). but some memos are more informal. If a case example might illustrate any of the rule aspects that you have discussed. Be sure to detail your reasoning process for the unfamiliar reader. both aspects of the analysis are important. Internal organization – “IRAC” . try to find a balance between being overly general and overly detailed about the relevant rule and facts.Within your discussion of rules or rule components. you can start your outline with these sections for organizing your notes. the unfamiliar reader will expect you to explain that rule. be sure to check your organization after you have written your first draft so that your paper conforms generally to the IRAC order. Most memos will not discuss a ll aspects of a rule equally.) If you do not ordinarily start a writing project with an outline. The “Facts” section should include only those facts that affect the outcome of your question. Never assume that the meaning and workings of a rule are obvious.Organizing a Memo Legal readers expect information to be organized in certain ways. include it briefly and explain how it relates to your point. The following advice about organization applies to the Discussion section —the main body of your memo. Meeting these expectations will avoid confusion and help an unfamiliar reader follow your explanations and reasoning more easily. A statutory rule may already be organized into elements or conditions that must be met. you should organize your information using the so-called “IRAC” order. (See sample memo. If not. if the applicable rule contains a series of elements. 1. Formal office memoranda often contain separate sections called Issue. on which sections to include. the main body of a memo is organized around rule structures overall. the reader will expect you to identify and explain any relevant rules. In your fact-application section. or other types of legal authority. If you work well from an outline. and to evaluate how a court will weigh the disputed factors in the client’s case. Issue: Beginning your discussion of a rule with a thesis sentence will help your reader focus on whatever aspect of the larger rule or area of law you intend to discuss and lead the reader through your explanation.Ordinarily. You should also explain how the rule works. but for a legal reader. if any. break down the language of the statute into a logical rule structure yourself. show how the rule applies to the specific facts in your case. to explain the relevant factors. and sometimes the first challenge may be to identify the rule structure itself. explain it to the reader. and (4) Conclusion.) In phrasing the question. IRAC stands for (1) Issue. readers will expect a memo to explain that balancing test. you should define those. For example. even 2 . the legal reader will expect you to give an overview at the start of your memo discussion and then to focus your attention on whatever aspect of the rule is uncertain or in dispute. and perhaps how the courts have used the rule in the past. Overall organization . and organize your discussion accordingly. Novice legal writers tend to spend much more time discussing their facts than they do explaining the relevant law. if a new rule has evolved through a series of cases. Rule explanation: After stating an issue. Instead. It is not enough to merely state a rule in a sentence or two. (3)Application to the facts. the legal writer must put those cases together and describe the resulting “synthesized” rule structure for an unfamiliar reader.
Conclusion: Stating a conclusion at the end of your discussion of an issue or a sub-issue may seem a bit repetitive. Writers must balance space limitations (and the attention span of a busy reader) with the need to educate the reader about the law and facts. your memo covers more than one conceptually distinct question. of course.. . For example. Finally. you may be applying the IRAC structure more than once within your discussion. The reader will expect you to spell out the connections between rules and facts. then use IRAC to organize your explanation of the first disputed element. just as it does for non-legal information. you may apply the IRAC order to your entire discussion. the unfamiliar reader may become confused. use explanatory transitions.g. You should first give an overview of the rule (e. unfamiliar reader. but it ties up the discussion nicely and helps the reader understand that you are finished with that issue. and provide enough detail to show that your analysis of the law is correct. . Using words like “additionally. you can use obvious transition phrases like “the first factor requires . the level of detail and explanation in a document should depend on complexity and importance. If your issue is complex or if your rule structure contains several distinct elements or aspects. or contrast with whatever came before the transition word.. A legal reader will also appreciate clear transitions as you move through your discussion. legal writers follow the same principles as other writers do: to meet the needs of the reader. deciding how much detail to include in a memo about a point of law or fact can be difficult even for experienced legal writers. If it would be helpful to your reader. assume that your memo addresses whether a prosecutor will be able to prove two of the four necessary elements o f a crime in your client’s case. For example. however.” “thus. 3 . be sure to tell the reader what the larger rule is first. follow from. As a general rule. before using a new IRAC structure to organize your explanation of the second disputed element. it may be best to IRAC some parts of the discussion separately. Include more explanation and detail for complex or difficult points and less for those that will seem straightforward to your legal reader. so she can understand how your specific discussion relates to that larger rule.” to remind the reader where she is within your larger discussion.” or “however” signals to the reader that whatever follows will add to. but including some in your writing can be helpful to a busy.if it seems obvious to you. It is largely your judgment call as a writer whether you should “IRAC” an issue overall or whether you should IRAC sub-issues as well. Presenting Your Content In deciding what information—and how much detail—to include in your memo. For example.g. Transition words and sentences make your organization more obvious. . If your memo covers only one narrow question or aspect of a rule. Also include more explanation for the most important aspects of the analysis and less detail for secondary or minor points. . Context usually includes background information related to your more specific issue that helps the reader place any new information in a larger framework. You should not overuse transitions. list the elements of the crime). If. give some overall context. If you discuss all the rules or facts together (e. and show the relationship of new information to old.” or “the second factor requires . relating to both the first and second elements). It is not enough to merely recite the relevant facts and state a conclusion. remind yourself again that you are writing for an unfamiliar reader. Context may also influence the meaning and significance of a particular statement of law or fact. guide the reader through the steps in your reasoning. if your legal issue centers on a specific element of a rule.
it must be agreed. You may have entire paragraphs in your rule explanation in which each sentence is followed by a citation to a legal source. You will attend a session during the memo-writing process in which you learn how to use citations and write them in the proper format. etc. Lawyers overuse the passive form of verbs. Being concise does not mean omitting substance. try to keep things simple.). Writing Style Legal readers value clarity and conciseness. but ordinary words often will serve you just as well. They consist of some form of the verb “to be” plus a participle (e. and citation format problems. the legislature has established. Use a style manual if your skills are rusty. and overly complex phrasing. Try to keep your sentence structures relatively simple. it was decided.e. but for now. Avoid long introductory or interrupting clauses. It may help to read your sentences aloud to yourself to judge whether your legal writing style is clear or overly complicated. You will refine your legal writing style over the course of many years. Be sure you have included a citation to legal authority after each statement of law.). Readers will not assume that your explanation of the law is correct.. Some legal terms of art may be necessary when you explain the law.” Also check carefully for grammar and punctuation errors. Identifying the actor will force you to use an active verb (e. check every statement of law or fact against your original source to confirm that your point is either stated in the source or follows from it. check it carefully for substantive accuracy and mechanical errors. old-fashioned legal terms. Indeed. Mechanical errors can include typos. so allow extra time in your project planning. Avoid jargon. Even though legal writers must convey complex information.. it is better to present that information in small segments. To be concise.g. 4 . The passive voice hides the actor of a verb and focuses on the action more abstractly.g. but as you work. etc. a “citation” or “cite”) to legal authority to support every statement of law in a memo.Using Legal Authority Legal readers expect to see a reference (i. Editing After you are satisfied with the substance of your memo. so you must cite to your sources to show exactly where you got your ideas and information. The challenge for legal writers is to convey information in a way that is easy to understand and follow. be sure to keep notes of where exactly in your legal sources you found the information you want to use in your memo. but it will not catch all misspellings. the parties will have to agree. and do not try to pack too much substance into any one sentence. For example. Using the spell-checking function of your word processor is helpful for catching typos. it has been established. the court decided. try to convey your substance using fewer words. For substantive accuracy. grammar and punctuation errors. and this can make legal writing vague and cumbersome. Passives can make your writing vague and wordy. editing out surplus words will give you more room to add substance to your document. it will not catch a misspelling of “there” when you meant to say “their. Remember that a spell-checker will only review your document for the presence of words that are not in its dictionary. Editing your legal writing may take longer than you expect..