A Guide to Writing a Legal Memorandum

(for Small-Section Students)

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 lawtrained 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 lawyou 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 clients 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.
Organizing a Memo
Legal readers expect information to be organized in certain ways.
Meeting these expectations will avoid confusion and help an unfamiliar
reader follow your explanations and reasoning more easily. Formal office
2

memoranda often contain separate sections called Issue, Brief Answer,

Facts, and Discussion, but some memos are more informal. Follow your
professors directions, if any, on which sections to include.
An Issue section states the question asked by identifying the aspect
of law in dispute along with the key facts triggering that question. (See
sample memo.) In phrasing the question, try to find a balance between
being overly general and overly detailed about the relevant rule and facts.
A Brief Answer section should answer the question asked and briefly
summarize your reasoning. The Facts section should include only those
facts that affect the outcome of your question. It should not repeat every
fact in the assignment.
The following advice about organization applies to the Discussion
sectionthe main body of your memo.
Overall organization - Ordinarily, the main body of a memo is
organized around rule structures overall, because that is how courts
typically organize their analyses. Rules and rule structures can come from
statutes, cases, or other types of legal authority, and sometimes the first
challenge may be to identify the rule structure itself. A statutory rule may
already be organized into elements or conditions that must be met. If not,
break down the language of the statute into a logical rule structure yourself.
For common-law questions, if a new rule has evolved through a series of
cases, the legal writer must put those cases together and describe the
resulting synthesized rule structure for an unfamiliar reader.
Once you have identified the rule structure, explain it to the reader,
and organize your discussion accordingly. For example, if the applicable
rule contains a series of elements, readers will expect to see an orderly
discussion of those elements (or at least the disputed ones). If a rule
requires a balancing of factors, readers will expect a memo to explain that
balancing test, to explain the relevant factors, and to evaluate how a court
will weigh the disputed factors in the clients case. Most memos will not
discuss all aspects of a rule equally. Instead, 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.
Internal organization IRAC - Within your discussion of rules or rule
components, you should organize your information using the so-called
IRAC order. IRAC stands for (1) Issue, (2) Rule explanation,
(3)Application to the facts, and (4) Conclusion. It is a general framework
that most readers expect you to use in explaining your legal analysis. If
you work well from an outline, you can start your outline with these sections
for organizing your notes. (But do not label these very basic sections in
3

your final memo.) If you do not ordinarily start a writing project with an
outline, be sure to check your organization after you have written your first
draft so that your paper conforms generally to the IRAC order.
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.
Rule explanation: After stating an issue, the reader will expect you
to identify and explain any relevant rules. It is not enough to merely state a
rule in a sentence or two. Instead, the unfamiliar reader will expect you to
explain that rule. For example, if the rule contains vague words or phrases,
you should define those. You should also explain how the rule works, what
the underlying reasoning or policy is, and perhaps how the courts have used
the rule in the past. If a case example might illustrate any of the rule
aspects that you have discussed, include it briefly and explain how it relates
to your point. Never assume that the meaning and workings of a rule are
obvious. Novice legal writers tend to spend much more time discussing
their facts than they do explaining the relevant law, but for a legal reader,
both aspects of the analysis are important.
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. In
your fact-application section, show how the rule applies to the specific facts
in your case. Be sure to detail your reasoning process for the unfamiliar
reader, even if it seems obvious to you. It is not enough to merely recite the
relevant facts and state a conclusion. The reader will expect you to spell
out the connections between rules and facts.
Conclusion: Stating a conclusion at the end of your discussion of an
issue or a sub-issue may seem a bit repetitive, but it ties up the discussion
nicely and helps the reader understand that you are finished with that issue.
If your memo covers only one narrow question or aspect of a rule, you
may apply the IRAC order to your entire discussion. If, however, your memo
covers more than one conceptually distinct question, you may be applying
the IRAC structure more than once within your discussion. 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.
If your issue is complex or if your rule structure contains several
distinct elements or aspects, it may be best to IRAC some parts of the
discussion separately. For example, assume that your memo addresses
whether a prosecutor will be able to prove two of the four necessary
elements of a crime in your clients case. You should first give an overview
of the rule (e.g., list the elements of the crime), then use IRAC to organize
4

your explanation of the first disputed element, before using a new IRAC
structure to organize your explanation of the second disputed element. If
you discuss all the rules or facts together (e.g., relating to both the first and
second elements), the unfamiliar reader may become confused.
Presenting Your Content
In deciding what informationand how much detailto include in
your memo, remind yourself again that you are writing for an unfamiliar
reader. If it would be helpful to your reader, give some overall context, use
explanatory transitions, and provide enough detail to show that your
analysis of the law is correct.
Context usually includes background information related to your more
specific issue that helps the reader place any new information in a larger
framework. Context may also influence the meaning and significance of a
particular statement of law or fact, just as it does for non-legal information.
For example, if your legal issue centers on a specific element of a rule, be
sure to tell the reader what the larger rule is first, so she can understand
how your specific discussion relates to that larger rule.
A legal reader will also appreciate clear transitions as you move
through your discussion. Transition words and sentences make your
organization more obvious, guide the reader through the steps in your
reasoning, and show the relationship of new information to old. For
example, you can use obvious transition phrases like the first factor
requires . . . or the second factor requires . . . to remind the reader
where she is within your larger discussion. Using words like additionally,
thus, or however signals to the reader that whatever follows will add to,
follow from, or contrast with whatever came before the transition word.
You should not overuse transitions, of course, but including some in your
writing can be helpful to a busy, unfamiliar reader.
Finally, deciding how much detail to include in a memo about a point
of law or fact can be difficult even for experienced legal writers. 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. As a general
rule, legal writers follow the same principles as other writers do: to meet
the needs of the reader, the level of detail and explanation in a document
should depend on complexity and importance. Include more explanation
and detail for complex or difficult points and less for those that will seem
straightforward to your legal reader. Also include more explanation for the
most important aspects of the analysis and less detail for secondary or
minor points.

Using Legal Authority

Legal readers expect to see a reference (i.e., a citation or cite) to
legal authority to support every statement of law in a memo. Readers will
not assume that your explanation of the law is correct, so you must cite to
your sources to show exactly where you got your ideas and information.
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, but as you work, be sure to
keep notes of where exactly in your legal sources you found the information
you want to use in your memo.
Writing Style
Legal readers value clarity and conciseness. The challenge for legal
writers is to convey information in a way that is easy to understand and
follow. You will refine your legal writing style over the course of many
years, but for now, try to keep things simple. Avoid jargon, old-fashioned
legal terms, and overly complex phrasing. Some legal terms of art may be
necessary when you explain the law, but ordinary words often will serve you
just as well. It may help to read your sentences aloud to yourself to judge
whether your legal writing style is clear or overly complicated.
Lawyers overuse the passive form of verbs, and this can make legal
writing vague and cumbersome. The passive voice hides the actor of a verb
and focuses on the action more abstractly. Passives can make your writing
vague and wordy. They consist of some form of the verb to be plus a
participle (e.g., it was decided, it must be agreed, it has been established,
etc.). Identifying the actor will force you to use an active verb (e.g., the
court decided, the parties will have to agree, the legislature has established,
etc.).
Try to keep your sentence structures relatively simple. Avoid long
introductory or interrupting clauses, and do not try to pack too much
substance into any one sentence. Even though legal writers must convey
complex information, it is better to present that information in small
segments.
To be concise, try to convey your substance using fewer words. Being
concise does not mean omitting substance. Indeed, editing out surplus
words will give you more room to add substance to your document.
Editing

After you are satisfied with the substance of your memo, check it
carefully for substantive accuracy and mechanical errors. Editing your
legal writing may take longer than you expect, so allow extra time in your
project planning.
For substantive accuracy, 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. Be sure you have included a citation to legal authority
after each statement of law.
Mechanical errors can include typos, grammar and punctuation
errors, and citation format problems. Using the spell-checking function of
your word processor is helpful for catching typos, but it will not catch all
misspellings. Remember that a spell-checker will only review your
document for the presence of words that are not in its dictionary. For
example, it will not catch a misspelling of there when you meant to say
their. Also check carefully for grammar and punctuation errors. Use a
style manual if your skills are rusty.