What You Need to Know About Legal Memos
The primary purpose of a legal office memo is to provide a comprehensive overview of a legal analysis, presenting facts, law, persuasive points and conclusions in a professional format. The intent is to help the reader understand the analysis that has been conducted and the conclusions that have been reached. Memos are commonly used within a law firm or group, for example, by attorneys providing a legal analysis of proposed or past actions and potential issues to senior attorneys or in-house counsel. Like any writing, the first hurdle that a legal memo must overcome is to be read in its entirety , which can be challenging depending on the reader. The last hurdle is the most subjective – whether the reader agrees with the conclusion. These hurdles can be overcome by the writing and formatting of the memo as will be discussed below. A secondary use of a legal office memo is to provide the basis for a dialogue. A common example of this use is the "moot court" where students argue hypothetical cases involving various issues that arise in litigation. The students have already followed the normal course, including legal research, preparation of trial briefs, argument before a judge, etc., and then use this opportunity to hone their skills in the art of legal advocacy. In the same way, a legal office memo can be used to provide a discussion or explore what happens if the facts are changed, different law is involved or a different jurisdiction has control over the issues. In these instances, the author is looking for feedback from the reader to act as a sounding board for an idea or theory.
The Key Components of Legal Memo
Heading – This will vary from law firm to law firm, but your heading should include the following items: to whom is the memo directed, from whom, what is the subject of the memo, and the date. In a typical law firm, this will be the "to" and "from" section. This section will vary between firms, but if you want to use a rule of thumb, use standard business memo headings. An internal, informal memorandum may not have a heading, but if you are writing a legal opinion for a judge or a partner in your law firm, it is safer to use one.
Statement of the Issue- In this section, you include a brief statement to the reader of what the case involves, and state your view about how it should be decided. This is important because it is very likely that the person you are writing this for will scan down to this section to see your opinion. If they like your answer, they may not read any further, and will send back a request for your research, and ask that you answer a few questions about alternative scenarios. If they don’t like your a result, they may scan the rest of the memo to see if you made an error, or they may just tell you to do more work.
Brief answer. This section should be no more than a couple of paragraphs long. Your goal in this section is to provide the requested information to the reader as concisely as possible. Generally speaking, the best way to do that is to number the answers. By numbering the answers, the reply is easy for a reader to cut and paste right into their email program. The brevity of the answers will also make them easier to skim and search for more quickly. There will be instances when the short answer actually requires an explanation that should take up a paragraph or two, generally, however, less is more.
Statement of Facts. The facts of a case generally need to be stated in order to provide background information to the reader, and to provide context for your answers. This information should be very brief, and should mainly be limited to the facts that are absolutely necessary to understand your answers to the reader’s questions.
Discussion. The discussion section is where you properly explain to the reader why you are giving them the answer that you are giving them. This section needs to be as exhaustive and scholarly as possible. This is where your thorough research will be presented to the reader. Keep in mind, however, that for this to work, you need to remember that you are really writing to a reader who works for a law firm or a court. You really do not need treat the reader as an idiot.
Conclusion. The conclusion is a very brief recitation of your answers to the reader’s questions, and a concise review of your reasoning. It should be only a paragraph long, and should ideally be in a numbered format. You may also include a request for clarification or additional counsel, but this is usually optional and will depend on the particular situation.
How to Write a Legal Memo
On the heels of understanding the memo assignment and structure, let’s discuss how to "align sequentially." We all know what that means; but rarely do we "do." I’ll lay out nine steps below, then expand on some of them.
Here are the nine steps:
(1) Understand the assignment; (2) Research; (3) Draft a fact section; (4) Create a policy section; (5) Identify and organize legal issues; (6) Reach an overall conclusion; (7) Outline the overall recommendation; (8) Write each section; and (9) Proofread.
1. Understand the Assignment
Again, I can’t emphasize this enough. "This is not a test;" meaning, you aren’t being graded on mechanics alone. Did you communicate the right result to the recipient? That is the only question you need to answer. Take your time to read the project assignor’s comments. In addition, remember to read the memo itself. Set it down, pick it back up and re-read it again. You only may need to do this once, but give yourself the opportunity, whether you realize you need to or not.
2. Research the Issues
Kill the assumption that you know the answer. Be confident that you can know the answer, but don’t think you have to before you start typing. Yes, scary. When you trust the process, there is no wrong answer. One client told me when I was a fledgling attorney that she couldn’t figure out why case law wasn’t more effective in determining results. I think she has an excellent point. No one likes to receive an unfavorable result. Yet, when all we focus on are results, we lose the opportunity to learn lesson after lesson, which is a shame.
3. Draft the Facts
Put pen to paper. Or fingers to keys. Whatever you prefer. Don’t worry about typos, formatting, etc. Just get it on the page.
4. Create a Policy Section
Memorizing the client’s favorable policy and being able to repeat it back to them is therapeutic for any attorney. When I can repeat the client’s policy, including the reasoning behind it, I am much better able to communicate with them, and they are much more responsive to my requests.
5. Identify and Organize the Issues
This is where your logic will shine through. Don’t let an editor convince you that the order is wrong, unless you agree. Organize the discussion in a way that makes the most sense to you. Reorganizing later is very easy, but taking the time to draft while you are reading is much more difficult. Remember to use headers. Headers are not meant to be overly formal, but are intended to tell the reader the point of the paragraph. Headers are helpful for both the reader and the writer to track the conversation. When there is too much to understand, typically the reader will stop reading. The more you split the discussion up, the more likely the reader will continue to read. And yes, you can break up policy sections and even the facts section; it helps with the flow of the paper.
6. Reach an Overall Conclusion
The hardest part of the entire exercise. Keep it simple. Use simple English. Include only the facts necessary to reach the conclusion. Do not summarize the entire record or the policy. Again, keep it simple.
7. Outline the Overall Recommendation
This should be straightforward, but should include the next steps in the process. When the next steps are not evident, typically the questions will start on the next day after the memo is delivered; thinking through the process can save you a lot of face time with clients. Also, remember to include any deadlines for these next steps. Deadlines for responses are important and can be missed due to lack of communication with clients.
8. Write Each Section
The most laborious task from my perspective, but also the most rewarding, is keeping up with timing, formatting, etc. Finding someone without a typo is a challenge, but when the work is rewarding, you don’t mind the timing so much. I actually don’t like using dictation for these types of exercises because I find that the voice-to-text software doesn’t understand the legal terminology I insert. But if you would like to try, you can. Just make sure you check the transcription for errors.
9. Proofread the Work
Outsource this step, if you do not have an editor to help. Edited work always comes back better than the drafts.
Best Practices for Writing a Legal Memo
An effective legal memo is the product of careful thought and attention to detail. Structuring your memo in a way that is coherent, logical, and purposeful is extremely important for ensuring that its ideas are easily conveyed to of sufficient impact to the reader.
Most legal memos will follow a similar template, involving an introduction, analysis, summary of that analysis as it applies to specific facts, explanation of the conclusions reached, and a discussion of potential implications or recommendations going forward.
In most instances, the information should be presented from the most general to the most specific. This approach gives the reader an understanding of the broad strokes before focusing upon the finer points. So in the above-mentioned example, the initial introduction would generally be a discussion of an overarching idea, so as to explain the purpose of the email . Then, before focusing on the specificities of any given case, the email moves to the analytical portion. Typically, this will involve talking about the specific law that pertains to the case, and how it might apply to the situation in question. Finally the email moves on to the specifics of the case at hand, and then concludes with a discussion of the overall conclusions reached (and what, if anything, needs to be done as a result).
As with the best practices of writing a legal brief, you will want to make sure to use plain language when writing an office memo. When drafting a memo, always try to keep your audience in mind. Even if you are writing for a supervisor or someone with legal training, the tone of a memorandum of law is always going to lean towards the formal, which means avoiding contractions.
Common Problems with Legal Memos
When talking of law, if you are not clear, you are not legal.
– Oliver Wendell Holmes, Jr.
While Holmes may have been a titan of legal thought, we all can benefit from his wisdom. One of the most common mistakes made by young advocates is to overcomplicate their writing, losing sight of the old adage: KISS—Keep It Simple, Stupid.
While an attorney should always strive to demonstrate intellect, showing off one’s legal vocabulary in a memo can be quite a distraction to your argument. If you find yourself writing with so many adjectives that a sentence turns into a corn maze, try revisiting the point you are making and clarifying your sentence.
For instance, "persuadable arguments." What?
Rather than a "persuadable" argument, it is simply a "persuasive" argument. Bulky adjectives tend to gaud a sentence, rendering the point unclear. The use of succinct, solid words cement meaning and keep the reader on point.
Too often, a good legal memo is lost in jargon or legalese which clouds focus instead of driving the point home. Rather than using the word "therefore," try "thus." "However," rather than "notwithstanding." "After all," rather than "for all intents and purposes." You would never write "this is a exhibit I am seeking to introduce for the reasons noted on pages eight through thirteen." Rather, "This is a exhibit I seek to introduce for the reasons noted on pages eight through thirteen."
There are no literal rules for legal memo issues, and no ambiguous adjectives that no one understands. Only clarity.
Most cases require legal research to support your argument. Leaving out a crucial case can spell disaster, while carrying too much unrelated information can clutter up a good argument.
Keeping in mind the old adage, "keep it simple," will help your process of legal research. Stay on point. If a case does not address the point, unless it discusses similar statutes, you do not need to use it. Similar statutes are used to draw morals that give rise to related issues. A case that doesn’t help illustrate your case is of no concern to your memo. Keep it short and sweet. Scan the footnotes for statutes and move on.
Further, don’t use too many cases to address a simple illustration. You want to keep it simple. There is little value in explaining how ten cases apply to one issue when one is effective. Just like student writing in college, law school memos have word limits. Stay short.
However, if you are questioned about a specific point, you will need to have supporting cases. Use a simple search engine to find similar cases, and how they apply to your argument.
You don’t have to be a lawyer in training to write a clear, simple, concise legal memo. Follow these suggestions when writing your memos, and you’ll never risk losing a case or alienating a colleague.
Sample of an Excellent Legal Memo
To: Managing Partner, Smith and Smith, LLP
From: Average Associate, Smith and Smith, LLP
Date: September 4, 2020
Re: Prospective Liability for Breach of Contract in Connection with Sale of Piano
Issue Presented:
Whether Client has any potential liability with respect to the sale of a piano in light of her contractual agreement with that buyer?
Brief Answer:
No, because the terms of Client’s contractual agreement with the buyer are unambiguous and do not permit recovery for the benefits of the bargain.
Legal Background:
A cause of action for breach of contract under New York law requires: (1) formation of a "valid and enforceable contract"; (2) plaintiff’s performance of its obligations under that contract; (3) defendant’s failure of that performance; and (4) plaintiff’s resulting damages. See, e.g., Sirohi v. Paramount Communications, 281 A.D.2d 388 (1st Dep’t 2001). Under New York law, "whether a contract is ambiguous is a question of law for the court to decide." Seiden Assoc., Inc. v. Cimino, 26 A.D.3d 475, 476 (1st Dep’t 2006). "Ambiguity exists if the terms of the contract are so incomplete that a reasonable discretions is required to determine the meaning of a term." Carolina Casualty Ins. Co. v. Aruze Gaming America, Inc., 2011 U.S. Dist. LEXIS 149398, *13 (S.D.N.Y. 2011). "An unambiguous agreement is enforceable as written and should be interpreted to give effect to the intent of the parties as expressed by the words they have used." Connecticut General Life Ins. Co. v. NRG Energy, 2011 U.S. Dist. LEXIS 136406, *9-10 (S.D.N.Y. 2011). Moreover, a contracting party must "be held to a strict standard of conduct in performing its part of a bilateral contract." Pollack v. Pollack, 1985 WL 1928 at *5 (N.Y. Sup. Ct. 1985). Further, "unanticipated expenses will not entitle a breaching party to renegotiate a settlement agreement." Morgan v. Cunniff, 2014 WL 4777478 at *6 (E.D.N.Y. 2014). Finally, "simple breach of contract actions do not give rise to tort claims." Thorn v. Madison Square Garden Corp., 103 A.D.3d 485, 486 (1st Dep’t 2013).
Factual Background:
Client contracted with buyer for the sale and delivery of a used baby grand piano for the sum of $5,000.00. The buyer contracted with client for a delivery time of October 15, 2019.
After the contract was formed, buyer contacted client again on October 14, 2019 and requested that client deliver the piano the next day . Due to conflicts in client’s schedule, client informed buyer that she would be unable to honor that schedule and rescheduled for the following week, October 22, 2019. On October 21, 2019, client contacted buyer to confirm delivery of the piano on October 22, 2019. Buyer did not respond to the message. On October 22, 2019, client arrived at the delivery location to drop off the piano and the buyer was a no-show. Client made several attempts to reschedule the delivery with the buyer but ultimately her attempts were ignored. Accordingly, client filed the instant complaint against the buyer seeking a return of her delivery deposit fee of $1,500.00.
Analysis:
Client entered into a valid and enforceable contract with the buyer for the sale and delivery of a used baby grand piano for the sum of $5,000.00. By failing to appear for the delivery time designated by the contract, the buyer breached his obligations under that contract. Further, by failing to respond to delivery communications, the buyer ignored other opportunities to fulfill his delivery obligations. To date, buyer has failed to deliver the outstanding fees.
Client’s damages are reasonably calculable under the contract, which obligates the buyer to pay client the delivery fee in the amount of $1,500.00 if he was a no-show. Buyer’s demand for delivery on a different date after the contract had already been signed was not a contractual modification because the original contact had already defined the time and date of delivery. See, e.g., Shaul v. Pierce, 309 A.D.2d 181 (1st Dep’t 2003). Therefore, any claim sues for additional payment fees for rescheduling were not the subject of the contract and are otherwise barred by the statute of frauds. See, e.g., Shaul, 309 A.D.2d 181 (1st Dep’t 2003). However, due to the buyer’s breach, client is entitled to recovery of any associated incidental damages related to the breach. For example, client may be entitled to recover the cost of storage for the piano, delivery fees, or any other expenses incurred as a result of the breach. See, e.g., Carolina Casualty Ins., 2011 U.S. Dist. LEXIS 136406, *17 (S.D.N.Y. 2011). Finally, client is otherwise limited to the recovery of her contractually expected payments and is not entitled to recover consequential or punitive damages for the breach. See, e.g., Morgan, 2014 WL 4777478 at *6 (E.D.N.Y. 2014); Pollack, 1985 WL 1928, at *5 (N.Y. Sup. Ct. 1985).