(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.
Presenting Your Content
In deciding what information—and how much detail—to include in your memo, remind yourself again that you are writing for an unfamiliar reader. If it would be helpful to your reader, give some overall context, use explanatory transitions, and 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.
A legal reader will also appreciate clear transitions as you move through your discussion. Transition words and sentences make your organization more obvious, guide the reader through the steps in your reasoning, and show 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.
Finally, deciding how much detail to include in a memo about a point of law or fact can be difficult even for experienced legal writers. Writers must balance space limitations (and the attention span of a busy reader) with the need to educate the reader about the law and facts. As a general rule, legal writers follow the same principles as other writers do: to meet the needs of the reader, the level of detail and explanation in a document should depend on complexity and importance. Include more explanation and detail for complex or difficult points and less for those that will seem straightforward to your legal reader. Also include more explanation for the most important aspects of the analysis and less detail for secondary or minor points.
Using Legal Authority
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.
Writing Style
Legal readers value clarity and conciseness. The challenge for legal writers is to convey information in a way that is easy to understand and follow. You will refine your legal writing style over the course of many years, but for now, try to keep things simple. 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.
Lawyers overuse the passive form of verbs, and this can make legal writing vague and cumbersome. The passive voice hides the actor of a verb and focuses on the action more abstractly. Passives can make your writing vague and wordy. They 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.
To be concise, try to convey your substance using fewer words. Being concise does not mean omitting substance. Indeed, editing out surplus words will give you more room to add substance to your document.
Editing
After you are satisfied with the substance of your memo, check it carefully for substantive accuracy and mechanical errors. Editing your legal writing may take longer than you expect, so allow extra time in your project planning.
For substantive accuracy, check every statement of law or fact against your original source to confirm that your point is either stated in the source or follows from it. Be sure you have included a citation to legal authority after each statement of law.
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.
No comments:
Post a Comment