You can’t turn on the news this week without hearing some kind of panic over memos. We’re told there’s a full-fledged memo warafoot in D.C. (insert joke about weapons loaded with bullet-points here).
Well, we’re buying into the memo-hype. Not for political reasons, but because we know there’s nothing better than a clear, concise, and well-researched memo. Follow along as we go through five tips on how to write a memo for law offices.
For new attorneys, memos are tryouts. An internal memo is the perfect platform to display your ability (or inability) to research, reason, and communicate.
For seasoned attorneys, memos demonstrate your expertise to the young pups, and allow you to share your wisdom with your whole crew.
Either way: a lot is on the line in that one document.
Make sure you don’t screw it up by following these five tips on how to write a memo, and feel free to use the template provided.
Give Your Memo Time.
I’m writing all the time. Blogs, essays, speeches, journal entries. I’ve reached the point where I can push my ideas out pretty quickly.
But legal writing is a different beast. Every sentence requires a hard slog through the research. Every paragraph on the page represents two more that I erased.
Of course, we’ve all had the nightmare scenario of an attorney demanding a full memo an hour from now. When that happens we hustle through as best we can. But in general: good legal writing can’t be rushed. You need to find and fully understand policies and case law, and then you need to say it clearly — and with good citations.
My tip with time: schedule separate times for your drafts. Give yourself a good chunk of work for the initial research and writing. Then, if it’s possible, have a night’s sleep before you come back to it. Re-reading from that distance, you’ll catch more mistakes and ambiguities, and wind up with a sharper final draft.
Ditch the Legalese
Don’t make your colleagues hate you. You won’t impress them with your legal formulae of heretofores and aforesaids. You’ll only make them grind their teeth.
And that’s not just because the words are ugly. Though people think legalese is somehow more ‘precise,’ it’s almost always more ambiguous.
Want to know where to start? Check out this delightful blacklist by writing expert Bryan Garner. He makes the case for axing “herein” and “pursuant to” and some other legalese weeds that creep into our memos.
Keep it Clear
Legal writing expert Ross Guberman (who has written some best-selling books on the subject), explains that memo-writers need to first consider their reader. While the junior associate doing the writing “often tries to use the memo to display intelligence, exhaustiveness and creativity,” the senior partner reading it “just wants to give advice to a client.”
Guberman continues:
“The truth is, when you write about the law, crisp, clear uncluttered prose doesn’t exactly come naturally. Without finely developed style and structure skills, it’s all too easy to produce a muddled mess of disjointed thoughts and citations.”
Clarity requires confidence. This is especially true at the beginning of your memo, where you’re offering a short answer to the question at hand. In addition to thorough research, you need bravery to throw your weight behind a legal conclusion.
Remember Road Signs and Guideposts
When I’m reading a sloppy memo, I feel lost. How does this point connect to the last one? What does this paragraph have to say about the one before it?
Clear writing, on the other hand, guides me along, keeping me perpetually oriented to where I am in the larger arc of legal analysis.
Fortunately, this isn’t rocket science or fine art: it can often be done with simple markers that I think of as road signs or guideposts of my memo.
What do I mean? A good example is topic sentences. First write an outline of your analysis, and make each point within it a topic sentence of a paragraph.
But that’s not enough: you also need to guide your readers from one paragraph to the next. This can be as easy as a transition phrase, such as “Unlike the state court decisions above, the federal courts have ruled…” or “Further support for this reading comes from…”
Use the Right Verbs
In The Curmudgeon’s Guide to Practicing Law, Mark Herrmann has some precise insight on how to write a memo. I find his sharp insight especially valuable in terms of verbs. When discussing a case, he follows this template:
- Somebody sued somebody for something
- The trial court held something. (The trial court did not “discuss” something or “analyze” something or “believe” something; it held something. Ordinarily, a trial court grants or denies a motion, or enters a judgment. Use the proper verb to describe the holding.)
- The appellate court held something. (Ordinarily, an appellate court will affirm, reverse, vacate, or remand. Use the proper verb to describe the holding.)
- Now, you can say anything else about the case that you care to.
If you start chatting about the case before you have covered items 1, 2, and 3, I will notice your error. I will change your memorandum and make it right. I will know that you lack self-discipline.
Why do I insist on a rigid formula for discussing cases? Because my clients prefer to win.
Ready to get started on your own little memo-gem of lawyerly insight? Here is a good template to work with — if you haven’t been instructed to follow a different model on how to write a memo:
Template
HEADING:
To: [attorney asking for it]
From: [you]
Re: [subject matter]
Date: [due date]
QUESTIONS PRESENTED:
Briefly explain the scope of your assignment.
SHORT ANSWER:
Here’s where you summon all your courage and give the answer your research has led you to. No hemming and hawing. Your nuance and caveats can go in the discussion that follows.
FACTS:
If you’re discussing how the law relates to a specific case, lay out the facts of the case here.
DISCUSSION:
Here is where you can write the details, ambiguities, and split authorities of your research. But don’t ramble. Your prose should still be tight and focused, each paragraph supporting a central point in your research and reasoning.
Breaking up your discussion into subheadings can make the reading easier. For a template for this section, see point 5 above.
CONCLUSION:
Final wrap-up of your expectations of how the authorities will hold on this question in the case at hand.
Now that you’ve got the knowledge on how to write a memo don’t go starting any additional memo wars — but keep the skills above locked and loaded for your next memo assignment.
This has been an installment of the Filevine Writing Series.
Why a writing series? While we might fantasize about the rousing Atticus Finch (or Matlock) oral argument before the judge and jury, the truth is law is a profession of writers. Our biggest moves come when our mouth is shut and our fingers are typing.
Whether you’re a new lawyer trying to impress your new colleagues and clients, or a seasoned lawyer looking to up your game, we hope the Filevine Writing Series brings you something helpful.