Writing the Memo

If you work as a paralegal or law clerk after your first or second year of law school, you will most likely spend some of your time researching and writing objective memoranda, or interoffice memos. Typically, an attorney asks you to provide a realistic analysis of the law as it applies to the facts of a client’s case. The purpose is to inform – not persuade. Although you should remember which conclusion favors your client, also keep in mind that you will represent the client most effectively by being objective and realistic.

The memo might be read many times – possibly, over a period of months or years by several different attorneys, including the writer, who may use it as a resource long after it is drafted. The attorney will use the information contained in the memo to advise the client and may use it to prepare a document that will ultimately be filed in court. For example, a partner may be asking you whether a particular client has a valid legal claim. If you conclude that the answer is “yes,” then this will probably turn into a lawsuit. At that point, some parts of the memo may be incorporated when the complaint is drafted.

The memo might me consulted a third time when the attorney responds to a motion to dismiss; a fourth time while drafting interrogatories; a fifth time before making a motion for summary judgment; a sixth time before trial; and a seventh during an appeal; and so on.

A memorandum heading . The Issue (sometimes called Question Presented) states the question(s) that the memorandum resolves. The Issue also itemizes the few facts that you predict to be crucial to the answer. (Such as travel expenses to out-of-state, keeping child out of danger, and commission of crime).

The reader should understand the question without having to refer to the facts.

Brief Answer (sometimes called Conclusion) states the writer’s prediction and summarizes concisely why it is likely to happen. Some writers begin with a direct response such as “yes” or “probably not. ” Our book says that they do not prefer this. Sometimes this is client or partner driven. Also, some questions lend themselves to answers such as “yes” or “no. ” Allusion to determinative facts and rules. Do not omit key facts. Begin by just re-stating your issue as a declarative sentence. Do not omit the reasoning.

Do not include citation to authority or application of relevant law. Many attorneys only read this part.

Facts set out the facts on which the prediction is based.

Discussion is the largest and most complex part of memo. It proves the conclusion set out in brief answer. If the discussion is highly detailed or analyzes several issues, it should be broken down into subheadings. Here is what the memo will look like and more information on each section.

A Few Ideas About Writing — Memoranda

Many students, approaching memo writing for the first time, are often unsure of how to proceed. We have put together a few tips for first (and second and third) time memo writers that we hope will be helpful.

Note: No single set of guidelines could possibly address all the matters related to memo writing. If you have questions about a particular assignment, be sure to check with your professor.

Find the test(s). In assigning a memorandum, professors are generally evaluating you on parsing a particular statute or test. In other words, they want you to use other cases to explain how your case either does or does not satisfy a test laid out in a case or a statute. For example, let’s say your case involves a niece (Mary) who witnessed her uncle (Jack) being injured in an automobile accident.

Mary wants to bring suit for negligent infliction of emotional distress as a result of witnessing that accident. In Burger v. McDonald, the Supreme Court of Iowa laid out a three part test to determine whether a bystander’s injury was reasonably foreseeable and, thus, legally actionable:

• Whether the bystander was located near the accident.
• Whether the injury resulted from sensory and contemporaneous observance of the accident, as opposed to hearing about it from others after its occurrence.
• Whether the bystander and the victim were closely related.

NOTE: If the memo involves more than one issue, your memorandum may involve more than one test. 2. Use the test as your outline. Tests come in two parts, or three (as above), often with subsections. Ideal for an outline. Use the major parts of the test as your major points, the subparts as sub-sections. Paragraph Structure

Begin paragraphs with affirmative propositions that parallel the test. In the above example, your first sentence should say something like: “Mary was located near the scene of her uncle’s accident, satisfying the first part of the Burger test. ”

Support your affirmative propositions. All propositions of a legal nature must have legal support. Where is your authority for your proposition? Cite it. For example: “See Burger, 606 N. W. 2d at 321 (bystander must be located near accident to recover for negligent infliction of emotional distress). ”

Discuss the facts of your support. What happened in the case you just cited? Explain in a concise and relevant way. For example: “In Burger, the court held that a mother who witnessed an accident on the street from the front door of her house was located near the scene of an accident.

Discuss the relevant facts of your case. Point to the facts that are similar to the facts of the authority you’ve just discussed. For example, you could continue from above as follows: “Mary was standing a block from the accident, heard the crash, and saw her uncle being pulled, bleeding, from the car. ”

Analogize/Conclude. What conclusions do you think the court will draw from the similarity between your facts and the facts of your authority? For example: “Although Mary did not see the accident, she was close enough to hear it and witness her uncle being pulled from the car.

Thus, a court will likely conclude that she was located near the accident. ” Alternative Paragraph Structure

Discuss other relevant authority. Once you’ve opened the previous paragraph with your affirmative proposition, your subsequent paragraphs can discuss the facts of other relevant cases without repeating the proposition as your opening sentence. For example, you could begin the next paragraph: “In Cameron v. Jones, the Court of Appeals held that a mother who was twenty-five feet away from her child when she heard a metal sculpture fall on him was located near the scene of the accident.

Discuss contrary authority. Are there cases that go against your position (or the position the partner/judge/etc. would like you to hold)? Another subsequent paragraph could open with: “But, in Alfred v. Stern, the court held that a father did not have a valid cause of action for negligent infliction of emotional distress. ” Then follow steps 5, 6, and 7, above, except this time, when concluding, tell the reader why the court won’t follow or give much weight to this contrary authority (e. g. , the facts are different).

Move on to the next part of the test. Follow steps 3-9 above for the next section of your test. Remember, a memorandum also includes issues presented, a brief answer (which usually follows the issues presented), and a statement of facts. These are often best written after you’ve written the body of the memorandum, since you’ll have a better idea of the issues once you’ve tackled the problem (though a tentative draft might help to get you started).