Law students are typically exposed to the legal research and writing memorandum (“memo”) in their first year of law school. This is perhaps one of the most important assignments during law school — mainly because an attorney will be writing many legal memos during the course of their professional career with internships/externships, summer associate positions, and post-graduate jobs. Thus, every law student must gain a comprehensive understanding of what the legal memorandum entails.
It is critical to preface this article with the fact that each legal research memo assignment should be specifically tailored based on the preferences of the supervising attorney(s) or law school professor. The legal research memo is usually dispersed within the office, being an inter-office memo. But the contents of the author’s conclusion, in conjunction with the legal research findings, should nonetheless be kept confidential. The main sections within a legal memo include:
(1) issue/question presented;
(2) brief answer;
(3) statement of facts/background;
(4) analysis/discussion — which should be organized by main headings and sub-headings; and
(5) a brief conclusion.
The “question presented” is the primary legal issue arising from the hypothetical or factual situation. Accordingly, the question(s) should be framed as an issue intertwined with the linkage of law and facts. Usually, the question presented should begin with “whether,” “does,” “under,” “is,” or “when” — depending on what legal issue the author will cover. The choice of verbiage in framing the question presented depends on the context of the legal and factual issue. A research memorandum may address several issues, thus requiring several questions being discussed within the memo.
Next, the “statement of facts” should identify the parties and include all relevant background information. One should not omit unfavorable facts to a particular party or client. This factual background should be objectively written. The author should be sure to include all legally significant facts. As such, the factual section should not include conclusions, legal principles, statutes, or cases. If the fact or set of facts are not being included in the analysis section, then the fact is likely not legally significant with respect to the issue being addressed. The author may consider laying out the facts in a chronological organization, so that the reader can easily follow along.
The author should also use an “umbrella” paragraph right at the outset of the discussion section to provide a roadmap to the reader — especially if the author is covering more than one issue, or the memo contains a multi-element analysis. The purpose of the roadmap is to provide the reader with the clear logic and linear flow of the author’s memo. The umbrella/roadmap paragraph(s) should summarize the umbrella conclusion and rule, identify any element(s) that will or will not be addressed within the memo, and provide the reader with the primary conclusion with respect to the element(s) being discussed in the memo.
After providing an umbrella paragraph of the memo’s roadmap, a “main header” that is conclusory should contain the author’s general conclusion based on the application of the law and facts. For example, a main thesis may state as follows: “The Release Waiver Likely Does not Violate Public Policy.” Additional sub-headings explaining why the release waiver does not violate public policy may include: “(A) The Release Waiver Does not Violate Public Policy Because the State’s Role was Limited with Minimal Advertising”; and “(B) The Waiver Does Not Violate Public Policy Because the Agreement was Between Private Parties Concerning Matters of a Competitive Event.”
The “thesis” itself should be specific, containing a “because” statement by including the legally significant facts. Essentially, the thesis is the conclusion which the author also wants the reader to reach. The thesis should almost always include a “because” statement, and use legally significant facts to provide justification in reaching a particular conclusion. For simplifying purposes, the thesis should be generally concise, not complex.
The law or rule is the applicable statute(s) or legal rule(s) based on case law, statute(s), or some regulation/ordinance. Thus, the rule is the primary source of reliance in accordance with the factual circumstances or hypothetical situation. The case law or statute may be identified by applying some test, or further split up into elements or application of certain factors. Also, any particular exception to the rule that is relevant should also be addressed. The author should cite the relevant portions of the statute(s) or case as needed. If the memo is analyzing a statute or some prominent test derived from case law, it may be prudent for the author to include direct quotes and use ellipses (. . .) to omit certain statutory verbiage as needed. Discussion and citation to secondary sources should be limited.
Within the “rule explanation” section, the author must explain where the rule was derived from — whether it is a statute or case — by describing the legally significant facts, the reasoning/rationale, and the holdings of leading cases. The rule explanation section should be supplemented with additional cases as needed. Parentheticals should be used to synthesize secondary cases providing additional support. And the parentheticals must include enough of the facts, and the reasoning or holding of any case so that the reader knows why it was included. Most importantly, there should be a basic explanation of what the rule itself means within the rule explanation section.
The “rule application” section is the heart of the author’s analysis in reaching the conclusion. It is important to begin this analytical section with the topic sentence stating the conclusion. In doing so, proper indicators are critical signals to the reader to show a change from the rule application section — i.e., “here,” “similar,” or “akin.” Further, the rule application section should apply the rule to the client or party’s factual situation. The author must remain keen in making clear logical connections between the cited cases and the factual circumstances in order to a thorough analysis.
If applicable, counter-arguments should be utilized by using the negative to prove the positive. The author should discuss the negative authority within the rule explanation section by distinguishing the negative cases. In doing so, the author may use cases that are contrary to the author’s thesis as the counter-rule explanation after addressing the supportive rule explanation. Proper signals for addressing counter-arguments in the analysis section are “unlike,” “in contrast,” or “conversely” when distinguishing the negative authority. Lastly, the memo should contain a brief “conclusion” section summarizing the author’s findings.
Other miscellaneous tips for the legal memo include using the active voice instead of the passive voice, avoiding contractions, writing around issues and rules of law rather than cases, using the cases as support for the conclusions reached on the issue, and limiting the direct quotations used from cases.
Finally, editing the memo is key to produce a well-polished written work. This may require proofreading the memo several times. During proofreading, the author should pay close attention to fixing any punctuation or grammatical errors. One should also avoid run-on sentences by refining the wordage with tighter language — e.g., splitting a lengthy sentence into two sentences. The author should be further mindful in excessive use of pronouns by specifying the individual party or entity. Be sure to spell check with a keen eye, rather than just relying on a word processing software’s spell check tool. A quality piece is best edited by continually proofreading the memo over a course of days or weeks if there is adequate time.
Yet the most important aspect notwithstanding all of the information is above is to properly follow the directions and guidelines of the professor or supervisor who assigned the legal research memorandum. A superior may specify to tailor the memo a particular way, or that discussion of certain issues or elements should be excluded. If unsure, be sure to promptly verify the contents of the research and memo with the appropriate individual.
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