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Small Section Guide - Memo Writing
Small Section Guide - Memo Writing
Fall 2011
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.
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 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.
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
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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.
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.
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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.
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.
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.
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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.
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Using Legal Authority
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.).
Editing
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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.