Legal Memorandum 721t70

LEGAL MEMORANDUM The legal office memorandum is the most common way attorneys convey information to one another. Typically, junior attorneys write memos for more senior attorneys to memorialize and summarize research and client information. In most law schools, writing a legal office memorandum is one of the first skills law students learn in their legal writing course. The Purpose of a Legal Office Memorandum Most memoranda serve one of two functions: analyzing a client’s specific legal problem or answering questions that the client’s particular situation poses. Before writing, a lawyer will research the applicable mandatory (binding) case law and the persuasive (nonbinding) case law to determine the legal landscape. The lawyer will also review any applicable statutory provisions or regulatory issuances from istrative bodies. After finishing the research process, the lawyer will then interpret the client’s situation in light of the applicable law. An office memorandum sums up the lawyer’s analysis and supplies the facts the lawyer relied upon in reaching the conclusion. The main point of the memorandum should be to advise whether a client can lawfully engage in conduct or predict how a decision maker will rule on a legal problem. The Format of a Legal Office Memorandum Most memoranda share a common format: a heading, an issue, a short answer, a statement of facts, a discussion, and a conclusion. The Heading consists of four lines: to, from, date, and subject (re:). You should include your client’s name as well as a descriptive subject in the re: line, as each client file typically will require multiple memoranda. The Issue section usually contains a statement of the issue the memo addresses. Sometimes the issue is called the “question presented.” The Short Answer answers the question presented succinctly and should supply a summary of the key reasons ing the answer. The Statement of Facts section, often shortened to "Facts," includes an objective statement of the client’s facts that are pertinent to the issue described in the memo. The Discussion section collects and describes the law, both favorable and unfavorable, applicable to the client’s situation. The Conclusion is a short section summarizing the contents of the entire memo. It pulls together the most critical facts and legal analysis into a few sentences. In shorter memoranda, lawyers commonly omit the conclusion.

A legal memorandum is a highly structured type of writing that follows certain conventions. Because each legal problem is distinct, no two memoranda will be organised in precisely the same way. Do not slavishly follow the sample memorandum. Rather, focus on learning about the general structure and components of this form of writing, and apply them to your research assignment in the most effective way for your particular problem. A legal memorandum is comprised of certain standard elements: • • • • •

the heading a summary of the relevant facts succinct identification of the legal issues a discussion of the law relevant to the legal issues, and application of that law to the facts a conclusion that is responsive to the legal issues.

Each of these elements is discussed in greater detail below.

The heading The heading should identify the author and recipient of the memorandum, and include the date, client identification, and subject matter. Facts The Facts portion should list the relevant facts on which you have relied in researching and preparing the memorandum. If you have made assumptions, indicate this. State the facts objectively and clearly. Usually, the order is chronological. Use definitions to standardize terminology for persons and things that will be referred to frequently in the memorandum. This prevents clutter and inconsistent references to the same thing. The Facts portion can either precede or follow the Issues and Conclusions portions of the memorandum. If the Issues and Conclusions will not make sense without reference to the Facts, then put the Facts first. Alternatively, if the Facts portion of the memorandum is quite lengthy, your reader may want to see the Issues and Conclusions first. Issues The Issues portion of the memorandum is crucial. You must succinctly identify the correct legal issues, within the context of the facts of your case. Include legal elements that are essential to resolution of the issues. The more narrow and descriptive your issue statement is, the more effective it will be. If there is more than one issue to be addressed, list the issues in the order in which you will be discussing them in the memorandum. Conclusions When preparing a legal memorandum, that your reader does not want to be kept in suspense. A crisp, clear, responsive answer must be provided as near the beginning of your memorandum as possible.

Which format? There are various ways of dealing with conclusions in a legal memorandum: Format 1

Format 2

Facts

Issues

Issues

Conclusions

Conclusions

Facts

Discussion

Discussion

Format 3

Format 4

Facts

Issues

Issues

Brief Answer

Brief Answer

Facts

Discussion

Discussion

Conclusion

Conclusion

Writing and analysis Analysis You need to analyze the law throughout the process of information gathering and writing. One of the best ways to improve your analysis and your writing is to create a structured outline of the issues by breaking down each legal issue into its constituent elements. Decide which elements are problematic and which are straightforward. Use your outline of the issues to structure your writing and to advance your analysis.

There are specific rules of legal reasoning and techniques that will help you evaluate the cases you find, and work with those cases to formulate a legal argument. Equivocation One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when the law is uncertain generally, or as it applies to your facts. Since the purpose of the memorandum is to answer the legal question posed, you cannot simply say that the law is unclear and leave it at that. In some circumstances there may be a practical solution that enables you to avoid confronting the uncertainty in the law. However, usually you have to make a decision about what a court would likely do if faced with your fact situation. Try to avoid using equivocal language in your memorandum. This is particularly important in the Conclusion section. The Discussion portion of the memorandum should also be reviewed for equivocal language. Sentences that begin with the phrase "It would appear that" or "It seems that" should alert you to equivocation. By all means indicate where the law is unclear. But also state what you think is the better view or probable outcome. Discussion The Discussion section is the heart of the memorandum. It provides the venue for explaining and analysing the law, and applying it to your facts. The Discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC.

I

The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the Discussion section.

R

The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your facts.

A

The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual cases, distinguishing cases, making counter-arguments, and considering policy issues.

C

The last step is to state your conclusion on the legal issue being discussed. Although you will include an overall conclusion elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn.

IRAC need not be applied rigidly. Your decision about how to divide up the legal issues will influence the way that you apply IRAC. • •

For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue. You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the subissues.