(for Small-Section Students)
University of Wisconsin Law School
Fall 2011
This guide summarizes general advice for first-semester students on how to write a memorandum of law. In the fall semester, the small-section memo writing project is designed to give you some initial experience with writing in the larger context of a doctrinal course. Writing can be a helpful tool in your learning process during the semester, and you can use your small-section memo as a writing sample for summer job applications. You will receive more detailed instruction and practice in legal writing during your formal Legal Research & Writing courses in the spring of your first year and the fall of your second year of law school.
NOTE: If your professor gives you instructions or preferences that conflict with anything in this guide, be sure to follow those instructions instead.
The Purposes of a Memo
The primary goals of a legal memorandum are to educate the reader about the law relevant to a particular issue and to explain how that law will apply to specific facts. A memo presents an objective analysis of the law, not a persuasive argument intended to advocate on behalf of a client. Although a memo can be a tool in preparing a persuasive case, it is typically an in-house document that tries to predict how an impartial judge would decide the case.
Lawyers and law students write memos for a variety of reasons. For example, a student in a law clinic might write a memo to a supervising attorney who has asked a question about the law. A judicial clerk might write a memo to a judge evaluating the strengths and weakness of the opposing sides of a case and explaining what result the law seems to require. A lawyer might write a memo to prepare colleagues for a meeting with a client who wants to know how the law affects her situation and who is seeking legal advice.
The Audience for a Memo
You should assume that the audience for your memorandum is a law-trained reader who is unfamiliar with the particular rules or facts of your case. Although you will submit your memo to your assigning professor—who is an expert in that area of law—you should not write your memo with your professor in mind. Instead, imagine that you are writing for a legal reader who does not know about the applicable law or your client’s case. This will help you to include necessary background information and better depth of discussion, and it will make your memo more useful for future readers.
The law-trained reader – In writing your memo, you can assume that your reader is trained in the law. This has several implications for your writing. 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 law-trained 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 guide summarizes some of the key expectations of law-trained readers.
Unfamiliar with the law and facts – Legal writers generally assume that their readers know little or nothing about the relevant law or facts and craft their explanations accordingly. Thus, in writing your memo, you should discuss the law and facts as if you were explaining the case to someone new to the area. Also try to make your memo “self-contained,” so the reader does not have to look up your sources separately to understand your explanations. This is especially important if you intend to use your small-section memo as a writing sample in future, because your potential employer will be an unfamiliar legal reader who will judge your work by how clearly you present your information.
Organizing a Memo
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. Formal office memoranda often contain separate sections called Issue, Brief Answer, Facts, and Discussion, but some memos are more informal. Follow your professor’s directions, if any, on which sections to include.
An “Issue” section states the question asked by identifying the aspect of law in dispute along with the key facts triggering that question. (See sample memo.) In phrasing the question, try to find a balance between being overly general and overly detailed about the relevant rule and facts. A “Brief Answer” section should answer the question asked and briefly summarize your reasoning. The “Facts” section should include only those facts that affect the outcome of your question. It should not repeat every fact in the assignment.
The following advice about organization applies to the Discussion section—the main body of your memo.
Overall organization - Ordinarily, the main body of a memo is organized around rule structures overall, because that is how courts typically organize their analyses. Rules and rule structures can come from statutes, cases, or other types of legal authority, and sometimes the first challenge may be to identify the rule structure itself. 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. For common-law questions, if a new rule has evolved through a series of cases, the legal writer must put those cases together and describe the resulting “synthesized” rule structure for an unfamiliar reader.
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 memos will not discuss all aspects of a rule equally. Instead, the legal reader will expect you to give an overview at the start of your memo discussion and then to focus your attention on whatever aspect of the rule is uncertain or in dispute.
Internal organization – “IRAC” - Within your discussion of rules or rule components, you should organize your information using the so-called “IRAC” order. 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. (But do not label these very basic sections in your final memo.) 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.
Issue: Beginning your discussion of a rule with a thesis sentence will help your reader focus on whatever aspect of the larger rule or area of law you intend to discuss and lead the reader through your explanation.
Rule explanation: After stating an issue, the reader will expect you to identify and explain any relevant rules. It is not enough to merely state a rule in a sentence or two. Instead, the unfamiliar reader will expect you to explain that rule. For example, if the rule contains vague words or phrases, you should define those. You should also explain how the rule works, what the underlying reasoning or policy is, and perhaps how the courts have used the rule in the past. If a case example might illustrate any of the rule aspects that you have discussed, include it briefly and explain how it relates to your point. Never assume that the meaning and workings of a rule are obvious. Novice legal writers tend to spend much more time discussing their facts than they do explaining the relevant law, but for a legal reader, both aspects of the analysis are important.
Application of the rule to the facts: Only after you have explained a rule will the reader know which facts are important and which are not. In your fact-application section, show how the rule applies to the specific facts in your case. Be sure to detail your reasoning process for the unfamiliar reader, even if it seems obvious to you. It is not enough to merely recite the relevant facts and state a conclusion. The reader will expect you to spell out the connections between rules and facts.
Conclusion: Stating a conclusion at the end of your discussion of an issue or a sub-issue may seem a bit repetitive, but it ties up the discussion nicely and helps the reader understand that you are finished with that issue.
If your memo covers only one narrow question or aspect of a rule, you may apply the IRAC order to your entire discussion. If, however, your memo covers more than one conceptually distinct question, you may be applying the IRAC structure more than once within your discussion. It is largely your judgment call as a writer whether you should “IRAC” an issue overall or whether you should IRAC sub-issues as well.
If your issue is complex or if your rule structure contains several distinct elements or aspects, it may be best to IRAC some parts of the discussion separately. For example, assume that your memo addresses whether a prosecutor will be able to prove two of the four necessary elements of a crime in your client’s case. You should first give an overview of the rule (e.g., list the elements of the crime), then use IRAC to organize your explanation of the first disputed element, before using a new IRAC structure to organize your explanation of the second disputed element. If you discuss all the rules or facts together (e.g., relating to both the first and second elements), the unfamiliar reader may become confused.
