Write a Legal Memo

A legal memorandum is a document written by a lawyer for the benefit of a client. It explains a specific area of law, analyzes a given fact pattern in light of the law, and makes a recommendation for a course of action based on the analysis. Writing a legal memorandum requires that you think like a lawyer. Accordingly, you must pay attention to detail and separate your personal emotions from your sound legal judgments. Essential to every legal memo is to thoroughly research the applicable law.

Steps

Organizing the Facts

1. Review the client’s question. Clients come to attorneys with questions. Typically, they want to know if they can legally do something, or they are worried about their potential legal liability for something that they have already done. Get a handle on your client’s question so that you can adequately answer it.
   • If you do not understand the question, call or email the client to discuss. If you do not know precisely what your client is asking, then you might write a memo on a tangential issue and waste precious time.
2. Review the file or court record. The file should contain basic information which will help you get an idea of the issues that you will be analyzing. Be sure to read the entire file very carefully – missing even the slightest detail could mean you reach an incorrect conclusion.
   • Do not dismiss anything in the file out of hand. If you can’t decipher a piece of handwriting (a doctor’s report, for example), then seek help until you can be sure you’ve read and understood everything.
   • The court record consists of the pleadings filed with the court including the original complaint, any answer to that complaint, cross-complaints, counterclaims, and any number of other types of pleadings or motions submitted to the court.
3. Request additional documents. If you need more information to help answer a legal question, ask the client. If you are writing a memo for a senior lawyer, then ask her if she can request the documents or information from the client.

Researching the Law

1. Talk with other attorneys. If you are researching an unfamiliar area of law, then talking with other attorneys can give you a general sense of what to look for.
   • Ask if they have any memos dealing with this area of law. If they do, ask if you can see a copy.
   • At a larger firm, the memos will be stored in an online form bank.
2. Perform background research. Once you have identified the area of law that applies, do preliminary background research. A hornbook or nutshell is a good introductory source to the law.
   • Examples of hornbooks include Erwin Chemerinsky’s Constitutional Law, Robert A. Hillman’s Principles of Contract Law, and Homer Clark, Jr.’s The Law of Domestic Relations in the United States. Nutshells for most academic subjects are published by West Academic Publishing.
   • Legal practice manuals published by your state bar association are a great resource. Law libraries should have them. They are also available through legal subscription services, such as Westlaw or LexisNexis.
   • Read them carefully. Note keywords or phrases commonly used.
3. Ask a law librarian for help. You can ask the librarian for help finding the cases/information on the area of law that the memo implicates and the jurisdiction that you are concerned with.
   • A law librarian can also help you find statutes. Although online services such as Westlaw and LexisNexis contain statutes, it is often easier to read the statutes in a hardback copy, so that you can easily flip through the sections.
   • At a law library, you can find “annotated” statutes, meaning that there is an explanation of the law and a listing of helpful cases listed after the statutory provision.
4. Read law review articles. Law review articles are scholarly articles published by law schools, written by legal professionals and students. These articles can provide good background information and explanations. You can find articles through Westlaw or LexisNexis.
   • Make sure that you understand that the opinions expressed in law review articles are not always the opinions of the court, so they should not be relied on as fact in your memo.
5. Identify controlling statutes or cases. The nutshell or practice manual should mention controlling cases in your area of law. A controlling case is a case which sets out a legal rule and is consistently cited for that rule.
6. Outline the controlling area of law. Begin an outline in a blank word processing document. Outline the law according to its elements.
   • For example, if you are outlining the law on whether non-compete provisions in employment contracts are legal, then you should state the general rule at the top of the page: “Generally, New York courts will enforce a non-competition agreement if it is reasonably limited in duration and geographic scope.”
   • Then break the rule into elements. The above rule has two elements: (1) reasonable duration and (2) reasonable geographic scope.
7. Research cases using LexisNexis or Westlaw. You now need to flesh out the rule. Although it is common for one case to list the rule—for example, “Non-competition agreements must be reasonably limited in duration and geographic scope”—one case alone rarely defines “reasonable.”
   • Legal rules are full of vague terms like “reasonable,” “fair,” “not excessive” and “limited.” These terms are fleshed out with subsequent case law.
   • You must read widely to get a complete picture of how the courts have defined these terms and applied the elements of the rules.
   • To find cases, use keywords. For example, you can search for cases in which “non-competition” appears within 10 words of “reasonable” by typing as a search: “non-competition” w/10 “reasonable.” You can then read the cases.
8. Add to your outline. If one element of a non-compete agreement is that its time duration be “reasonable,” then you should insert the names of all the cases that discuss this element. Include the facts of the case that supported this ruling, e.g., the duration of the limitation.
   • Be sure to include the case name as well as the citation. This will make it easier to find the case.
9. Shepardize the cases. You need to make sure that the rules you have identified are current. Sometimes cases are overruled by other cases. A case that has been overruled is not binding on the current court and is not usually a strong case to use in a memo.
   • Companies keep a record of which cases have been overruled. Searching through this record is called “Shepardizing.” Both LexisNexis and Westlaw have shepardizing services.
   • To get help with shepardizing, talk to a librarian at the law library.

Assembling the Argument

1. Match facts to legal elements. Now that you know the elements of a legal claim, you can begin matching facts from the file to those legal elements. In your word processing document, cut and paste facts into the outline that you have typed that lists the legal rules.
   • As you paste your facts into the outline, you should be able to see how they relate to the other cases. For example, you may have 12 cases that discuss the geographic limitations on non-compete agreements. Some of them will find a 150 mile radius too excessive, another will find a 75 mile radius excessive, and one might find 50 miles reasonable. You can now see how your fact (say, a 45 mile radius) fits into the case law.
2. Perform additional research. Some facts won’t fit neatly into your outline. For example, your cases might state that a non-compete limitation is unacceptable if in force for an “unlimited” amount of time, but another case could say that a 4-month non-compete provision is acceptable. If your client’s provision is 9 months, then neither case seems to answer whether a 9 month provision is reasonable.
   • Dig deeper into your current research. You might have overlooked something.
   • Look at the law in other states. Although law from a different state is not controlling, a court may nevertheless find it persuasive.
3. Continue to build your outline. As you do additional research, you may find more cases to add to the outline. Always look for cases whose facts are similar to yours.
   • You should find yourself moving back and forth from your research to the case file and back again. This is ideal. Only by reading deeply in the law will you know what facts are relevant.

Drafting the Memo

1. Address the memo to your audience. At the top left of the page, include who the memo is addressed to as well as who it is from. You can write this in block format, using three lines:
   • “To: [Name of Client or Partner]
   • “From: [Your Name]
   • “RE: Enforceability of Client’s Non-Compete Agreement.”
2. State the question presented. At the top of the memo, type “Question Presented:” and then state the issue you were asked to research.
   • Because the memo is objective, your “statement” of the issue should not answer the question one way or the other. Instead, you should phrase the issue in neutral terms.
   • For example: “Whether client’s non-competition restrictive covenant is enforceable when it limits employment for 9 months after termination and prevents employees from working for a competitor within a 100 mile radius.”
3. Offer a short answer. You may quickly summarize in a few sentences what the answer is. You can write this last, after you have drafted the remainder of the memo.
   • For example, “The non-competition clause is likely enforceable because it is reasonable in terms of duration and geographical scope.”
   • Because few things in the law are cut-and-dried, feel free to qualify statements with “likely” or “unlikely.”
4. Write out your facts. Your memo should open with a section of facts. Because you will not know immediately what facts are relevant, you should not draft these paragraphs until you have drafted the legal outline.
   • Avoid commentary or opinion. Your opinion should be limited to the conclusion, where you can recommend a course of action.
   • Avoid adding legal conclusions to your facts section. In other words, say what was done, but do not use words such as “negligently” to describe it.
   • Include all relevant facts. When you include the facts in your memo, you should highlight the facts that are especially good for your case, as well as those that are especially bad.
   • Also note the source of the fact. For example, if you get a particular fact from the “record” on page 5, you should place (R. 5) after you state that particular fact.
5. Write out the applicable law. Under the heading “Discussion,” write out the controlling legal rule. If there is a statute at issue, quote the statute.
   • You can pull the rule from the head of your outline. For example, “Generally, New York courts will enforce a non-competition agreement if it is reasonably limited in duration and geographic scope.”
   • Some sample memos may include a brief introductory paragraph, summarizing again the question presented and the salient facts. Since you have just listed the question presented as well as the facts, you can dispense with this paragraph.
6. Analyze the facts in light of the law. Now you apply the law to the facts and explain whether the facts violate the rule or are in accordance with it.
   • As an example, you could write, “The 9 month limitation on working for a competitor is reasonable. New York courts routinely uphold limitations of at least a year in length, especially where, as here, the employee possesses specialized knowledge.”
   • Stay objective. If you think the law does not support the position favored by your client, say so.
   • If you’re unsure about how the law applies to the fact, then state that you are unsure. Not all legal questions have clear answers.
   • Remember to include citations. The reader will want to know what legal authority you are relying on.
7. Discuss contrary cases. Each state has many courts, some of which may issue opinions that contradict the opinions of other courts. If courts have routinely found something reasonable but then a court suddenly doesn’t, you need to identify whether the contrary case is part of a larger trend or is an outlier.
   • It may be the start of a new trend. The law is a living organism that changes. The law in other states may have been changing and now the law in the state where you practice could be changing. Return to your background materials or poke around in other states’ case law to see if this change is part of a larger trend.
   • Some cases may just be outliers. Nevertheless, you should mention contrary cases so that your reader is aware of them.
8. Write a conclusion. The conclusion should provide a summary of the facts and law. It should not be any longer than 5 to 10 sentences.
   • For example, simply state, “In terms of duration and scope, the non-competition clause is reasonable. A string of cases from the 1950s to the present supports the use of a clause with professionals such as Mrs. Styles. Furthermore, multiple courts have held that a restrictive covenant less than a year in duration is reasonable. Likewise, the geographic scope—100 miles—falls comfortably within the range of acceptable limitations as found by many New York courts. Because the duration and scope of the non-competition clause are likely reasonable, our client should be able to validly enforce it as part of an employment contract.”
   • As part of your conclusion, you can make a recommendation to the client: “We recommend that the client use the non-competition clause, as drafted, in the employment contract.”
   • If the memo is written about a potential lawsuit, you could predict the outcome. “On the record before us, the plaintiff is unlikely to establish that our client owed her a duty of reasonable care, and the case will probably be dismissed on summary judgment.”

Polishing the Memo

1. Revise. See if there are places where you can tighten the memo. No one wants to read more on any given subject than what is absolutely necessary.
   • An appendix can be helpful. If you do a 50-state survey, for example, it may be easier to collect the information in a series of charts than to describe the law of all 50 states in the body of the memo.
2. Insert headings. To increase comprehension and organization, you can insert headings and subheadings in the memo. Most helpful are headings for each element discussed.
   • Headings allow busy clients or senior partners to find the section they want by quickly skimming.
3. Proofread. You can easily proofread by reading your memo backwards, starting with the last sentence and then moving forward. Another great tool is Microsoft’s text-to-speech function, which is built in. To activate:
   • Open up a Word document. On the Quick Access Toolbar at the top, click on the down arrow. The words “Customize Quick Access Toolbar” will appear when you hover over the arrow for two seconds.
   • Click on the arrow. Then click on “More Commands.”
   • In the “Choose commands from” drop-down box, choose “All commands.”
   • Scroll down to find “Speak.” Highlight this and then click “add.” Then click “okay.” Now the Speak function should appear on your Quick Access Toolbar.
   • Highlight the text you want read back to you, and then click on the Speak icon. The text will be read back to you.
4. Make any requested changes. After the client or senior partner reads the memo, they may send it back with questions to answer or changes to incorporate into the memo. Answer precisely any questions that they have.

Tips

• Try to write in a comfortable style. Don’t be too breezy and use slang, but don’t be afraid to use contractions (unless your boss has prohibited you from doing so.)
• When in doubt, do some more research.

Sources and Citations

See also

• Save a Fortune on Agreements and Contracts
• Get Out of a Non Compete Agreement
• Change a Contract of Employment
• Amend a Living Trust
• Write a Police Report
• Write a Consignment Contract
• Write a Breach of Contract Letter
• Write a Contract for Selling a Car
• Fill Out a Car Title Transfer
• Get Joint Custody

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