WRITING AN OFFICE MEMORANDUM

If you work as a paralegal or law clerk after your first or second year
of law school, you will most likely spend some of your time researching
and writing objective memoranda, or interoffice memos. Typically, an
attorney asks you to provide a realistic analysis of the law as it applies to
the facts of a clients case. The purpose is to inform not persuade.
Although you should remember which conclusion favors your client, also
keep in mind that you will represent the client most effectively by being
objective and realistic.
The memo might be read many times possibly, over a period of
months or years by several different attorneys, including the writer, who
may use it as a resource long after it is drafted. The attorney will use the
information contained in the memo to advise the client and may use it to
prepare a document that will ultimately be filed in court. or e!ample, a
partner may be asking you whether a particular client has a valid legal
claim. If you conclude that the answer is "yes,# then this will probably
turn into a lawsuit. At that point, some parts of the memo may be
incorporated when the complaint is drafted. The memo might me
consulted a third time when the attorney responds to a motion to dismiss$
a fourth time while drafting interrogatories$ a fifth time before making a
motion for summary judgment$ a si!th time before trial$ and a seventh
during an appeal$ and so on.
PARTS OF MEMO
1
%. A memorandum heading
&. The Issue 'sometimes called (uestion )resented* states the
+uestion's* that the memorandum resolves. The Issue also
itemi,es the few facts that you predict to be crucial to the answer.
'-uch as travel e!penses to out.of.state, keeping child out of
danger, and commission of crime*. The reader should understand
the +uestion without having to refer to the facts.
/. Brie Ans!er "sometimes called 0onclusion# states the writers
prediction and summari,es concisely why it is likely to happen.
-ome writers begin with a direct response such as "yes# or
"probably not.# 1ur book says that they do not prefer this.
-ometimes this is client or partner driven. Also, some +uestions
lend themselves to answers such as "yes# or "no.# Allusion to
determinative facts and rules. 2o not omit key facts. 3egin by
just re.stating your issue as a declarative sentence. 2o not omit the
reasoning. 2o not include citation to authority or application of
relevant law. 4any attorneys only read this part.
5. Fa$%s set out the facts on which the prediction is based.
6. Dis$ussion is the largest and most comple! part of memo. It
proves the conclusion set out in brief answer. If the discussion is
highly detailed or analy,es several issues, it should be broken
down into subheadings.
7ere is what the memo will look like and more information on each section.
48419A:2;4
%
3e sure to keep in mind that an office memo is an internal document for law firms$ therefore, each
particular firm is likely to have a preferred format. or e!ample, the firm may use different words for
different sections title, may order sections differently than described here, or it may include other sections
not described in this manual. If your reader 'whether it be your professor or your employer* has a preferred
format, obviously use it. If you are not sure if your reader has a particular preference, then ask<
T1= -enior )artner >)lease block.indent so that the information lines
up, as demonstrated?
914= @our :ame
2AT8= 'date assignment is submitted*
98= 'A concise label for the issue considered= mention the parties$
your firm will file your 4emo by names and cause of action..
and, perhaps, by jurisdiction*
The proper format is always double.spaced. 2o not double.double
space between sections. )lain old, regular double.space is sufficient.
A0T-
7ere, recite all material facts, usually in chronological order. A
AmaterialA fact is a AdispositiveA fact, or one upon which the outcome will
depend. It is a fact that will affect the outcome in one way or another.
)lease include all material procedural facts as well as all material substantive
facts. This means that it is essential to include all relevant times, dates, and
places. @ou should begin with an AoverviewA sentence that sets the full
conte!t and begins to describe the problem presented. )lease review your
reading and as many samples as possible to understand both the range and
scope of what is acceptable as professional practice.
Remem&er 'our ro(e
Batch for the tendency to try to "prove# something by the way you tell the
story. :1 C8DAC A:AC@-I-<
%* ;-8 :8;T9AC CA:D;AD8 A:2 13E80TIF8
07A9A0T89IGATI1:-. 9ather than writing "the 2 was speeding
through the school ,one,# write "the 2 was traveling 6H 4)7 through
the school ,one.# 9ather than writing "The 2 brutally beat the
victim,# write "The 2 struck the ) on the head, resulting in a cut over
his left eye.#
&* Include unfavorable and favorable facts.
(;8-TI1: )98-8:T82
)hrased as a +uestion and ending with a +uestion mark, state the
specific issue or issues you will address. 1ne method is to use the
techni+ue= underI 'describe the law*$ doesI 'state the issue*$ !ha%) 'give
the legally relevant or AdispositiveA facts*.
-ome memoranda use the commonly seen style of= "Bhether . . . .#
As always, discuss with your professor to see which he or she prefers.
3ut whatever the method, the following advice applies=
-hould be concise single sentences that include relevant facts and
general propositions of law.
2ont say, "Bhether a niece can recover for negligent infliction of
emotional distress,# when you can say, "Bhether, under Iowa law, a
niece who witnesses the aftermath of an automobile accident
involving her uncle from a block away can recover for negligent
infliction of emotional distress when she observes his severe injuries
upon arrival at the scene.#
39I8 A:-B89
@ou phrased 'or asked* a +uestion in the section above. Answer it
here= A@es.A A:o.A A)robably not.A ;se a period. @our 3rief Answer
follows the same formula and se+uence as your (uestion )resented. It
answers the +uestions Aunder) does) !ha%)* e!cept, the 3rief Answer
should include a brief statement of your reasons beginning with the word
Abecause.A
2I-0;--I1:
The heart of a 4emorandum, this section asks you to e!plain the law
and e!plain the facts. Detting it ArightA will take time. 3e patient. @our
goal is to Asynthesi,eA the cases and e!tract a common rule of law. To do
this, you will need to identify the common elements that allow you to
analy,e and discuss several cases at once. A common mistake, legal writers
fre+uently engage in Alisting behavior.A They treat each case independently
and se+uentially, beginning each paragraph with AInA..for e!ample, AIn
0allow v. ThomasA or AIn 3rown v. 3rown.A Cooking down a written page,
the lawyer will see a ladder.like effect, the Ain.ladder,A where each
succeeding paragraph begins with the word AinA followed by a case title.
1ften Alisting behaviorA culminates in Adump.truckingA when the lawyer
saves up and AdumpsA all the legal analysis into the last paragraph. In
addition, lawyers will fre+uently Afront.load,A s+uee,ing all the legal rules of
law into the very first paragraph.
To avoid these pitfalls, begin your discussion with a general overview
in a %hesis or +roadma,- ,aragra,h. @our %hesis ,aragra,h is the first
paragraph in the 4emorandum and the first paragraph in a 2iscussion
section. Always begin your thesis paragraph with a sentence to anticipate..
and announce..your ultimate conclusion. Tell the reader where you are
headed and be a tour.guide to your argument or analysis.
Then, taking one point at a time, write a thesis sentence that answers
the +uestions of Awhat.is.your.pointIA of this particular paragraph. :e!t, set
forth the legal Rule that applies. Include the proper citation. :e!t, Analy,e
'e!plain* what the law or legal rule means. :e!t, Analy,e 'e!plain* how the
relevant facts fit 'or do not fit* the legal or factual standard. inally,
Conclude each paragraph with a summari,ing statement and each sub.issue
with a specific sub.issue summary.
-ometimes, this method is referred to as a variation of the acronym=
I9A0. 1ther legal writing professors have some other acronym such as
98AA0 or I9A0. -till, others simply refer to it as the 6.step process.
Jeep in mind that these are all "formulas# that legal writing professionals
are using to introduce you to presenting a legal argument. ;ltimately, you
will use a style or formula that works best for your particular argument. 3ut
virtually every aspect of every legal argument must contain a %* -tatement
of 9ule or Applicable Caw$ &* Analysis of the law and how it Applies to
your relevant facts$ and /* a 0onclusion on each of these sub.issues.
-imilarly, when a discussion re+uires several paragraphs, the writer may not
reproduce the e!act IRAC structure within each and every paragraph, but
may re+uire several paragraphs to develop fully the full set.
As always, know your audience and talk about the method of legal
analysis that your professor, or in the future, your employer, prefers. And
remember that learning how to synthesi,e statutes, cases, and secondary
sources and then presenting them in a clear, concise, and logical manner
takes time and practice.
%A FEW IDEAS ABOUT WRITING . MEMORANDA
/
4any students, approaching memo writing for the first time, are often
unsure of how to proceed. Be have put together a few tips for first 'and
second and third* time memo writers that we hope will be helpful.
Note= :o single set of guidelines could possibly address all the matters
related to memo writing. If you have +uestions about a particular
assignment, be sure to check with your professor.
%. Find %he %es%"s#0 In assigning a memorandum, professors are
generally evaluating you on parsing a particular statute or test. In
other words, they want you to use other cases to e!plain how your
case either does or does not satisfy a test laid out in a case or a
statute.
or e!ample, lets say your case involves a niece '4ary* who
witnessed her uncle 'Eack* being injured in an automobile accident. 4ary
wants to bring suit for negligent infliction of emotional distress as a result of
witnessing that accident. In 3urger v. 4c2onald, the -upreme 0ourt of
Iowa laid out a three part test to determine whether a bystanders injury was
reasonably foreseeable and, thus, legally actionable=
%. Bhether the bystander was located near the accident.
&
4any of these tips were originally created by Briting 9esource 0enter, ;niversity of Iowa
0ollege of Caw.
&. Bhether the injury resulted from sensory and contemporaneous
observance of the accident, as opposed to hearing about it from others after
its occurrence.
/. Bhether the bystander and the victim were closely related.
:1T8= If the memo involves more than one issue, your memorandum may
involve more than one test.
&. Use %he %es% as 'our ou%(ine0 Tests come in two parts, or three 'as
above*, often with subsections. Ideal for an outline. ;se the major parts of
the test as your major points, the subparts as sub.sections.
Paragra,h S%ru$%ure
/. Begin ,aragra,hs !i%h airma%i1e ,ro,osi%ions %ha% ,ara((e( %he
%es%0 In the above e!ample, your first sentence should say something like=
"4ary was located near the scene of her uncles accident, satisfying the first
part of the 3urger test.#
5. Su,,or% 'our airma%i1e ,ro,osi%ions0 All propositions of a legal
nature must have legal support. Bhere is your authority for your
propositionI 0ite it. or e!ample= "-ee 3urger, KHK :.B.&d at /&%
'bystander must be located near accident to recover for negligent infliction
of emotional distress*.#
6. Dis$uss %he a$%s o 'our su,,or%0 Bhat happened in the case you
just citedI 8!plain in a concise and relevant way. or e!ample= "In
3urger, the court held that a mother who witnessed an accident on the street
from the front door of her house was located near the scene of an accident.#
K. Dis$uss %he re(e1an% a$%s o 'our $ase0 )oint to the facts that are
similar to the facts of the authority youve just discussed. or e!ample, you
could continue from above as follows= "4ary was standing a block from the
accident, heard the crash, and saw her uncle being pulled, bleeding, from the
car.#
L. Ana(ogi2e3Con$(ude0 Bhat conclusions do you think the court will
draw from the similarity between your facts and the facts of your authorityI
or e!ample= "Although 4ary did not see the accident, she was close
enough to hear it and witness her uncle being pulled from the car. Thus, a
court will likely conclude that she was located near the accident.#
A(%erna%i1e Paragra,h S%ru$%ure
M. Dis$uss o%her re(e1an% au%hori%'0 1nce youve opened the previous
paragraph with your affirmative proposition, your subse+uent paragraphs
can discuss the facts of other relevant cases without repeating the
proposition as your opening sentence. or e!ample, you could begin the
ne!t paragraph= "In 0ameron v. Eones, the 0ourt of Appeals held that a
mother who was twenty.five feet away from her child when she heard a
metal sculpture fall on him was located near the scene of the accident.
N. Dis$uss $on%rar' au%hori%'0 Are there cases that go against your
position 'or the position the partnerOjudgeOetc. would like you to hold*I
Another subse+uent paragraph could open with= "3ut, in Alfred v. -tern, the
court held that a father did not have a valid cause of action for negligent
infliction of emotional distress.# Then follow steps 6, K, and L, above,
e!cept this time, when concluding, tell the reader why the court wont
follow or give much weight to this contrary authority 'e.g., the facts are
different*.
%H. Mo1e on %o %he ne4% ,ar% o %he %es%0 ollow steps /.N above for the
ne!t section of your test.
9emember, a memorandum also includes issues presented, a brief
answer 'which usually follows the issues presented*, and a statement of
facts. These are often best written after youve written the body of the
memorandum, since youll have a better idea of the issues once youve
tackled the problem 'though a tentative draft might help to get you started*.
7ere is a checklist for those introductory sections of an office memorandum=
5eading
%. 7ave you included the name of the re+uesting attorney 'or professor*,
your name, the date, the clients name, and a phrase identifying the
particular legal matter or issueI
Fa$%s
&. 7ave you included all legally significant factsI
/. 7ave you included sufficient factual conte!tI
5. 7ave you included any major emotional factsI
6. 7ave you avoided including discussion of legal authorityI
K. 7ave you avoided "arguing# the facts or drawing legal conclusionsI
L. 7ave you identified the client and the clients situation at the
beginning of the act -tatementI
M. 7ave you selected an appropriate organi,ation 'chronological, topical*
for the factsI
N. 7ave you maintained neutral language and objective
characteri,ationsI
%H.7ave you included both favorable and unfavorable factsI
6ues%ion Presen%ed
%%.7ave you stated the legal +uestion and the significant factsI
%&.7ave you edited to achieve one readable sentenceI
%/.7ave you maintained an objective perspectiveI
Brie Ans!er
%5.7ave you stated the answer in the first several wordsI
%6.7ave you included a statement of the ruleI
%K.7ave you stated a summary of the reasoning leading to the answerI
%L.7ave you kept the 3A to a ma!imum of one.third to one.half a
double.spaced pageI
%M.7ave you taken a position, even if you are not sureI