Slight updates/modifications March 2019.
Perhaps the most important skill a new lawyer needs to have a firm grasp of is writing. Why? Writing is thinking:
It’s simple. The amount of information our brains can fit into our short term memory at once isn’t a lot. If you never have thoughts that require notes, then all your thoughts are small or unoriginal enough to fit into your tiny short term memory.
Writing allows you to record your short term memory into a format that you can examine and reflect upon, so you can suss out what makes sense, and how it makes sense, and then expand on the original seed. When you expand your thought all the way into a piece of coherent writing, it becomes complete. It would have been impossible for you to have that size of a thought without writing–your brain just isn’t powerful enough.
Deconstructing complex situations and problems, understanding the component parts, and then devising a solution to address the problem through analysis and reasoning is a lawyer’s core competency.
That’s a fancy way to say that lawyers get paid to think for a living.
If you’re going to be tackling serious problems and unique challenges, then you are going to be doing a lot of writing. It’s the only way to actually digest the volume of information required. But at the outset of your career, it’s unlikely that you are going to be handed significant writing tasks.
You’ve still got your training wheels on. Instead, you’ll be handed tasks that will be used to gauge your writing ability – which is code for “we want to see how you think.” How this usually works for law students and new associates is by the time honored interoffice legal memo.
Legal memos might not seem significant, but they are a direct insight as to how you think. It allows lawyers in a firm to get a measure of the depth of your research capabilities, how you process case law, and the quality of how you present your conclusions. If you can demonstrate that you know how to write a good legal memo, you’re likely on your way to getting a job.
Before You Write
There are a few considerations to keep in mind before you even touch your keyboard or crack a book:
- Time frame
Intent: Know Your Audience
The most important thing to note before addressing the model template for a legal memo is not some technical aspect of writing. The most important thing to have firmly settled in your mind is an understanding of the intent of the assignment. What is the purpose of the memo? Is the memo for general background knowledge of the law? To prepare for a client meeting? To be used in a hearing or brief? Knowing this will affect your writing.
The other prong of intent is to understand the preferences of the lawyer requesting it. Does the lawyer you’re writing the memo for have a particular way they prefer memos to be drafted? Then write the memo exactly the way the want it. Ask their assistant, they’ll likely know. Or does your firm have a default memo template? Then you should disregard everything below and conform to the template. When you are new to a firm, you aren’t there to reinvent the wheel. You are there to learn.
Time frame: Always Get A Deadline For An Assignment (if possible)
Is the memo meant to be a quick answer or in depth analysis? Don’t spend all day researching an issue when the lawyer who asked for the memo needs it for a call with a client in two hours. Or if the lawyer is going to be out of town for a week and won’t look at the memo until they get back, you don’t need to kill yourself getting it done or neglect other assignments you might have. If you can help it, never begin work on a writing project unless you have a timeframe for completion, even if it’s only a general one.
Quality: There Is No Such Thing As A Draft Memo
- “This is just a first draft.”
- “This is what I found the first time through.”
- “That should be good enough.”
All of these statements are worthless. The lawyer who gave you the memo assignment is busy. They have more on their plate than you. By giving you an assignment, they are entrusting a piece of a case to you. The last thing they want or need is your “rough draft.”
What they need and expect is your best effort. Not pretty good. Not “I tried.” They need a work product from you that shows that you pushed yourself. That you obtained as thorough an understanding of the law as possible given the time frame and then conveyed this understanding efficiently and effectively. This is your opportunity to display the quality of your thoughts and work. Doubly so if this is the first memo you have ever drafted for a particular lawyer. First impressions matter.
You only have one shot to show that you give a damn about what you’re doing. But first impressions aren’t all that matters. Second impressions matter. So do fifth. And tenth. The quality of your work should never slip. It should actually improve. The more writing you do, the more thinking you do, the better you should become at it. Keeping these these things in mind, here is a template to follow.
Legal Memo Model Template
TO: Assigning Lawyer
DATE: When Memo is Due
RE: [Case/Matter Number] [Client Name] [Matter Name] – [Subject of Memo]
[Optional] Summary of Assignment If you are in a busy firm with lots of lawyers and a constant churn of cases, then it’s probably not a bad idea to get into the habit of including a brief summary regarding the memo. Lawyers are often busy, juggling dozens of cases at once. They might not immediately recall why they asked you to look into the matter at hand. A quick summary will help jog their memory. If you’re in a smaller/less busy firm, this might be unnecessary. Example:
[As per our discussion on (date)]/[In response to your email request on (date)], this is a discussion on the state of the law regarding…
- Whether [issue X applies to this situation]
- Whether [issue Y applies to this situation]
- Yes, [short explanation].
- No, [short explanation].
These are short answers. Often times new lawyers want to expand, clarify, and qualify themselves here. This is not the place for that. This is where you take a stand and state your opinion in two or three sentences. There will be time to address all aspects of the issues in the main portion of the memo.
Facts Present an overview of the case/matter at hand. Make sure to include details that are of importance to the specific issues presented.
Discussion [Subheading – first issue] Generally speaking, always lead with the most important issue first. (See “Discussing Cases” below for how to specifically discuss a case).
[Subheading – second issue] Address second issue here.
Conclusion Wrap it up with a statement of what you expect happen. “Given the case law and the facts of this particular matter, issue 1 should…”
Just as important as the format of the memo (if not more so), is the manner in which you discuss cases. Almost everyone who has come out of law schools in the past twenty years should be familiar with it, but the general format for discussing legal issues is I.R.A.C.(Issue/Rule/Analysis/Conclusion) or C.I.R.A.C. (Conclusion/Issue/Rule/Analysis/Conclusion). I prefer the latter and it seems to be the growing trend. It helps give the reader an idea of where you are going.
If you want a specific blueprint of how to discuss cases, I would suggest this approach laid out by Mark Herrmann in his book, The Curmudgeon’s Guide To Practicing Law:
When you are writing a legal memorandum for internal use, there is only one proper way to discuss a case. This is the way:
In Smith v. Jones,
- Somebody sued somebody for something.
- The trial court held something. (The trial court did not “discuss” something or “analyze” something or “believe” something; it held something. Ordinarily, a trial court grants or denies a motion, or enters a judgment. Use the proper verb to describe the holding.)
- The appellate court held something. (Ordinarily, an appellate court will affirm, reverse, vacate, or remand. Use the proper verb to describe the holding.)
- Now, you can say anything else about the case that you care to.
If you start chatting about the case before you have covered items 1, 2, and 3, I will notice your error. I will change your memorandum and make it right. I will know that you lack self-discipline.
Why do I insist on a rigid formula for discussing cases? Because my clients prefer to win.
Forging Your Own Way
People will read with this and disagree with it. “Well actually, in our firm we do it this way…” Great, do it that way.
There is likely a good reason for it given a firm’s culture/size/practice areas/etc. This template is not meant to be the one true path. It’s a blueprint from which to begin. A set of “best practices.” A starting point for you to begin to explore how you want to construct your own legal memos. Take it, adapt it, break it apart, and make it your own.
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