TIPS ON WRITING AND STRUCTURING YOUR MEMORANDUM OF LAW
What is the Purpose of a Memorandum of Law?
The primary purpose of a memorandum of law is to to educate the reader about the law that’s relevant to a particular issue. Next, you would ideally explain how that law will apply to that specific set of facts. It’s important to remember that in many cases, the facts determine the law. A memorandum of law contains a persuasive arguments intended to advocate on behalf of a client. While a legal memorandum can be a tool in preparing a persuasive case, your memorandums of law (or the memorandum of law submitted by the opposing counsel, might decide the case.
The legal memorandum is the most formal, polished, and comprehensive written document for reporting the results of your legal research. It summarizes and analyses the relevant law and applies it to a particular fact situation. In practice, the memorandum can be a crucial document to a case or file. The memorandum might be sent directly to the client or be the basis of other written work, such as a factum, opinion letter, pleading, legal instrument, or judgment.
Determining the Audience for Your Memorandum of Law
Judges, attorneys, and their staff are busy. While, you should assume that the audience for your memorandum is a legally-trained reader, likely a judge, their Judicial Assistants (“J.A.), and opposing counsel, try to ensure that even a person without legal training can understand, to the extent possible, the factual elements of your memorandum of law.
Further, assume the reader is unfamiliar with the particular rules or facts of your case, but is familiar with the law. This has several implications regarding your memorandum of law. First, it means that you should not explain very basic ideas relating to law or the legal system, or you risk writing “down” to your audience. For example, you would not explain that judges look to previously decided cases to reach a decision in a new case. Any lawyer will know this basic rule of “stare decisis.”
However, it is acceptable to emphasize certain aspects of basic legal concepts to anticipate questions your reader may have about your analysis. For example, if your issue is not governed by any binding cases (under rules of stare decisis), you could note that point briefly in your memo by saying, “Because there is no binding authority on point, the court will look to persuasive sources for guidance.” Although that sentence is not strictly necessary for a law-trained reader, it will prevent an unfamiliar reader from questioning your work and wondering why your memo discusses only lower-court cases or secondary sources.
Second, a legally- reader will have certain expectations about how you should organize and present information. These expectations come from tradition, court practice, legal education methods, and pragmatic needs. Most legal readers are busy, impatient, and skeptical; meeting their core expectations for a memo will make your document seem familiar, efficient, and easy-to-follow. This article not only attempts to summarize some of the key expectations of legally-trained readers, but also to offer substantive assistance.
The Memorandum of Law Template is a fully formatted and easily customizable template that allows legal writers more time to finetune the substance of their argument while not wasting hours doing the mindless, yet extremely technical, formatting tasks that are required when writing a memorandum of law. While certainly not the deciding factor on ruling on the merits of your motion, remember that your reader will judge your work by how clearly you present your information.
Organizing Your Memorandum of Law
As an aspirational goal, your memorandum of law should adhere to the hallmarks of excellent legal writing and organization. A well-organized memorandum of law conveys a lucid, methodical way of thinking about the problem. When structuring your memorandum, you should adhere to the canon that, to the extent that the written word is capable, your writing is and should be a transparent window into your thoughts. Legal readers expect information to be organized in certain ways. Meeting these expectations will avoid confusion and help an unfamiliar reader follow your explanations and reasoning more easily. For example, a typically-used formatting scheme usually includes:
- A Table of Contents;
- A Table of Authorities;
- A Preliminary Statement;
- Factual and Procedural Background
- The Argument Section; and finally,
- The Conclusion.
Additionally, the facts of your memorandum of law should include only those facts that affect the outcome of your question. It should not repeat every fact in the assignment. As to the rest of your memorandum of law, the main body of your legal memorandum is usually organized around the rules and any case law interpreting these rules. For example, a statutory rule may already be organized into elements or conditions that must be met. If not, break down the language of the statute into a logical rule structure yourself. Once you have identified the rule structure, explain it to the reader, and organize your discussion accordingly.
For example, if the applicable rule contains a series of elements, readers will expect to see an orderly discussion of those elements (or at least the disputed ones). If a rule requires a balancing of factors, readers will expect a memo to explain that balancing test, to explain the relevant factors, and to evaluate how a court will weigh the disputed factors in the client’s case. Most memorandums of law will not discuss all aspects of a rule equally.
Context is Key: Framing the Issues
In deciding what information, and how much to include in your memorandum of law or legal template, remember that the judge, magistrate, or law clerks will likely never understand the case the way you do. Therefore, it is imperative to provide some overall context, using explanatory transitions that provide enough detail to show that your analysis of the law is correct.
Context usually includes background information related to your more specific issue that helps the reader place any new information in a larger framework. Context may also influence the meaning and significance of a particular statement of law or fact, just as it does for non-legal information. For example, if your legal issue centers on a specific element of a rule, be sure to tell the reader what the larger rule is first, so she can understand how your specific discussion relates to that larger rule.
Don’t Forget About IRAC
Although it’s one of the consistent things in law school, IRAC is often forgotten by many lawyers. As you discuss rules and case law, you should organize your information using the acronym “IRAC”. IRAC stands for (1) Issue, (2) Rule explanation, (3)Application to the facts, and (4) Conclusion. It is a general framework that most readers expect you to use in explaining your legal analysis. If you work well from an outline, you can start your outline with these sections for organizing your notes. If you do not ordinarily start a writing project with an outline, be sure to check your organization after you have written your first draft so that your paper conforms generally to the IRAC order.
Make Sure to Use Transitions in Your Legal Memorandum or Memorandum of Law
Your reader will appreciate clear transitions as you move through your discussion. Transition words and sentences make your organization more obvious and help shepherd your through the logical steps in your reasoning. Transitions also help to demonstrate the relationship of new information to old. For example, you can use obvious transition phrases like “the first factor requires . . .” or “the second factor requires . . .” to remind the reader where she is within your larger discussion.
Using words like “additionally,” “thus,” or “however” signals to the reader that whatever follows will add to, follow from, or contrast with whatever came before the transition word. You should not overuse transitions, of course, but including some in your writing can be helpful to a busy, unfamiliar reader. And when comparing and contrasting your case, words and phrases such as “here” and “in this case” signal to the reader that you’re making what could be a crucial point about your case.
Finally, many experienced attorneys often find that determining how much detail to include in a legal memorandum or memorandum of law about a given point of law or fact can be a difficult. task Preliminary matters to consider are any page limitations, the possible short attention span of a busy reader), and to what extent the reader needs to be educated about the law. However, as with any writer, your primary goal is this: meet the needs of the reader.
As a rule of thumb, the level of detail and explanation in a document should depend on complexity and importance. While you should likely include more explanation and detail for complex issues, and consequently less for more straightforward to your reader, this should be decided on a case by case basis. Also include more explanation for the most important aspects of the analysis and less detail for secondary or minor points.
Referencing and Citing Legal Authority in Your Memorandum of Law
Legal readers expect to see a reference (i.e., a “citation” or “cite”) to legal authority to support every statement of law in a memo. Readers will not assume that your explanation of the law is correct, so you must cite to your sources to show exactly where you got your ideas and information. You may have entire paragraphs in your rule explanation in which each sentence is followed by a citation to a legal source. You will attend a session during the memo-writing process in which you learn how to use citations and write them in the proper format, but as you work, be sure to keep notes of where exactly in your legal sources you found the information you want to use in your memo.
Understanding Your Writing Style
The days of attorneys getting paid by the word are a relic of the past. Today’s legal readers value clarity and conciseness. Additionally, your reader may likely read your memorandum on his phone or computer, so ensuring proper formatting is key. The challenge for legal writers is to format and convey information in a way that is easy to understand and follow.
Brevity and simplicity are almost always appreciated when warranted. Try to avoid jargon, old-fashioned legal terms, and overly complex phrasing. Some legal terms of art may be necessary when you explain the law, but ordinary words often will serve you just as well. It may help to read your sentences aloud to yourself to judge whether your legal writing style is clear or overly complicated.
To be Persuasive, one must avoid using a Passive Voice in their Memorandum of Law
In legal writing, the passive voice proverbially ‘hides the ball’ as to the point you’re trying to make. Instead, it can make your point seem abstract, disjointed, and possibly confusing. Simply put, passives voices can make your writing seem vague and wordy. Passive phrases usually consist of some form of the verb “to be” plus a participle (e.g., it was decided, it must be agreed, it has been established, etc.). Identifying the actor will force you to use an active verb (e.g., the court decided, the parties will have to agree, the legislature has established, etc.).
Try to keep your sentence structures relatively simple. Avoid long introductory or interrupting clauses, and do not try to pack too much substance into any one sentence. Even though legal writers must convey complex information, it is better to present that information in small segments. If possible, try to convey your substantive message using as few words as possible while still being succinct.
The Struggle of Writing a Memorandum of Law: Edit, Editing, and more Editing
Once you’re happy with the legal substance of your work, read and reread your work several times to ensure your work is as accurate and polished as possible. Spell check will only take you so far on this point. The amount of time that editing can take is sometimes baffling, but it is what lawyers must do to properly advocate for their clients. Further, make sure to check and double check your legal citations. If you’ve referenced a legal authority, you probably have to cite
Mechanical errors can include typos, grammar and punctuation errors, and citation format problems. Using the spell-checking function of your word processor is helpful for catching typos, but it will not catch all misspellings. Remember that a spell-checker will only review your document for the presence of words that are not in its dictionary. For example, it will not catch a misspelling of “there” when you meant to say “their.” Also check carefully for grammar and punctuation errors. Use a style manual if your skills are rusty.
Even some experienced legal researchers frequently spend considerable time and effort finding the law relevant to a particular practical problem, only to founder when reporting in writing their research results. The deficiency is often poor organization. Like other legal skills, organizing and writing memoranda is an art that can be honed with practice. After all, they don’t call it the practice of law for nothing. In reality, th immense amount of legal research and analysis that you’v performed deserves to shine in the brightest light possible.
Even if you didn’t work that hard, a nice looking motion can sometimes be immeasurably valuable. Furthermore, that value will be enriched if its content is coherent, focused, and orderly might increase your legal memorandums clarity, potency, and usefulness. Finally, if all of this sounds good to you, but you’re looking for a way to streamline the formatting process while not sacrificing quality, head on over to the Memorandum of Law Template page.
NOTE: This guide summarizes general advice for writing a memorandum of law is intended for lawyers, students of law, and other legal professionals. This article should not be considered legal advice.In fact, the only advice this article would give to a person representing themselves in a legal proceeding is this: strongly consider hiring an attorney and at least speak to one, or several if you don’t like what they’re telling you, about your legal issue. Indeed, as our Sixteenth President, Abraham Lincoln, himself a lawyer for many years, correctly stated:
“He who represents himself has a fool for a client.”
This logic applies to attorneys, just as it well as nonlawyers who are representing themselves in a matter, referred to as the “pro se” party.