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Most new law firm associates spend considerable time authoring law memoranda for partners and senior associates. The quality of these memos is the yardstick for assessing the associate’s legal talent. Consequently, it pays to be armed with guidelines for producing a quality product. The tools needed to craft a memorandum relate to the following stages: getting the assignment, asking questions, outlining, drafting and editing. While these tips are not exhaustive, they serve as the core skills that all legal writers use when drafting a legal memorandum. The first and most critical step is receiving the assignment from the supervising attorney. Unless an associate has a firm grasp of the assignment, her finished product may not answer the legal issue she has been asked to research. And this, in turn, involves these three elements: Purpose. When an associate meets with the supervising attorney, she has to obtain and clarify the nature of the assignment. She should first determine what the purpose of the memorandum is. Will the attorney use it to counsel a client about its rights? Will it be used to decide whether a complaint or a motion for summary judgment should be filed? Understanding the purpose of the assignment will facilitate the research and writing process because then the associate will be focused on the issues needed to serve the memorandum’s purpose. Scope. An associate also has to be conscious of the scope of the memorandum. Some are surveys of an area of law that may apply to several cases. Others interpret a discrete legal issue that applies to a singular case. And still others summarize an interview with a potential client or a fact witness. Written products will be more cohesive and focused if the associate understands the scope of the assignment. The associate should also understand the page limit. Certain assignments can be answered in two or three pages. If this is the page limit the supervising attorney wants, the associate should not use 10 pages. Likewise, if the page limit is 15 to 20 pages, this is a signal of the complexity of the issue and the depth of analysis needed to answer the question presented. Audience. An associate should ask her supervising attorney who the intended audience of the memorandum is. If this work product will be shown to national counsel or a client, she should ask whether the client has a specific format that is used. If a layperson is the intended reader, she should avoid legal jargon and replace abstract legal concepts with concrete examples that explain the legal issue in plain language. An associate should not be afraid to ask questions. The questions should focus on the following: what the nature of the assignment is, what the associate is being asked to research, what the due date is, whether electronic research databases can be used, whether any limits exist on that form of research, and whether the supervising attorney wants an update during the research stage. An associate shouldn’t stop asking questions after she leaves the assigning attorney’s office, but should avoid asking them every time one arises. When handling a litany of complex issues that require clarification from a supervisor, an associate should stockpile questions for one “question and answer” session. Such a skull session will foster debate on the issue and may reveal issues to be explored that were previously unconsidered. The outlining stage Outlining facilitates an effective memorandum because it streamlines the issues and promotes logically consistent writing. There are certain steps to implement in drafting an outline. The outline should be divided into sections or topics that correspond with the sections or topics to be discussed in the memorandum. After framing the outline, the associate can determine whether the written product will answer the legal issues presented. Further, when an associate edits the memorandum, he can check the draft against the outline to ensure each topic is addressed. This approach will safeguard against the disjointed memorandum that drifts from one issue to another and fails to link the analysis to the conclusion. An associate also should diagram the paragraphs of the memorandum. This entails grouping the cases into paragraphs, with correct citations, and structuring the analysis in the outline as it will appear in the memorandum. In doing so, the associate can determine whether the cases are consistent, whether gaps exist requiring additional research and whether the analysis flows logically. Essentially, one should frame what the analysis will look like in final format. If done properly, this step will obviate the need to shift paragraphs and rework entire sections during the drafting stage. Drafting the memorandum Many issues affect the drafting stage. Each of the following tips will vary depending on the nature of the assignment, but they are broad enough to assist the drafter of any memorandum. It’s important to keep in mind the nature of the assignment. In a case survey, one should take a general approach, and provide the supervising attorney with the facts and rules from the cases. For a discrete legal issue, the memo has to be conclusion-driven: One should analyze the facts and law and offer a conclusion to the legal issue presented. A memorandum poorly drafted in this regard inevitably fails either to provide a conclusion or to supply the facts and reasoning to support the conclusion. Under both scenarios, the supervising attorney will be left guessing as to the conclusion. The question presented is the legal issue that the associate has been asked to research, and it provides the reader with a road map to the memorandum. To keep the question presented readable, the associate should frame the issue carefully and use direct language and active verbs. Moreover, he should identify the legal concepts. If an associate is researching false imprisonment, he should mention false imprisonment or the specific element of that tort in the question presented. An associate should also try to incorporate, whenever possible, the relevant facts that resolve the issue. For example, if the question presented turns on whether a landlord provided proper notice to evict, the memorandum should include a description of the notice given to the tenant. A readable question presented highlights the legal issue and leads the supervising attorney to the short answer section where the answer to the question is provided. With the time constraints placed on attorneys today, the short answer could be the most important section of the memorandum. In the short answer, a “Yes” or “No” answer must be given if possible. The short answer must identify the client, the legal issue and the basis for the conclusion. An effective short answer also contains the supporting reasoning and dispositive facts to permit the supervising attorney to use the short answer to convey the conclusion of the research to the client. In a discrete legal issue memorandum, if the assigning partner asks for a determination as to whether a motion will be successful, the memorandum should succinctly summarize the adversary’s counterarguments. An effective short answer explains the legal issue in such a way that the partner does not have to review the discussion section to communicate the research findings to a client. Because the short answer is a condensed version of the conclusion, an associate should consider drafting the short answer after he has worked out all the issues. This method allows him to verify that his short answer is consistent with the conclusion he has drawn from his analysis. Few hard-set rules exist for writing effective fact sections because the complexity of facts can vary greatly. Nevertheless, three overriding principles exist: Keep the statement of facts to a readable length by incorporating only the dispositive facts to the question presented; Tell a good story and keep the reader’s attention by using direct language and crisp, short sentences. Present objectively both favorable and unfavorable facts. Avoid using adverbs or adjectives that impart the writer’s view of the facts. An associate should remember that the memorandum is a predictive piece of writing. The task is to evaluate the client’s position, including the arguments to be raised by the adversary. To accomplish this goal, the statement of facts section must contain the facts, if any, upon which the adversary will rely. The discussion section The discussion section is the heart of the memorandum. It is where one applies the facts and legal reasoning of the case law to one’s case. An effective discussion section can be broken down into three components: organization, writing and analysis. Organization. As discussed above, an outline will help an associate organize the discussion section. To communicate one’s conclusions persuasively, one should group like issues and cases together. An excellent way to determine how to organize the discussion of a legal issue is to review how the judges have organized their reasoning in the decisional law. Often they will provide a section-by-section analysis of a tort, element by element, that can serve as a road map for the memorandum. Additionally, if a condition precedent has to be decided before the issue can be resolved, one should discuss that condition first because the resolution of that issue will affect the rest of the analysis. When analyzing a series of cases from a particular jurisdiction on one issue, an associate should try to develop the courts’ treatment of the issue over time. The best way is to start with the earlier decisions, and the decisions from the highest court, and lead the reader to the conclusion reached by using more recent case law. An effective discussion section might contain headings and subheadings, depending on its complexity. An associate can use headings to provide an outline to the discussion section in much the same way that point headings are used in briefs. During the editing process, the headings and subheadings will help the writer ensure that the cases and analysis within that heading are in the right place. Writing. To write an effective memorandum, one must convey the analysis and conclusions in a direct manner. Brevity is key. The assigning partner does not want to get bogged down in useless prose or tangential analysis. During editing, it is important to check the analysis to ensure that it answers the question presented. If it does not, the associate should remove it. An associate should also use the active voice. The passive voice can kill an otherwise well-researched memorandum. Writers should avoid the “to be” verbs, the hallmarks of the passive voice. These phrases interrupt the flow of the sentences. During the editing process, writers should circle them and rewrite the sentences. Similarly, an associate should draft sentences with concrete subjects. Sentences that begin with “it is” or “there were” do not contain a true subject. Instead, of saying, “It is the holding of the court,” one should state, “The court held.” Such a phrase directly communicates the point and imparts a crisp cadence to the sentence structure. Proper sentence length also promotes an effective analysis. Sentences should run between five and 25 words. Writers should avoid run-on sentences, but vary the structure and length to avoid choppy sentences. They should use an introductory clause to do this and to emphasize a critical point. But they should be selective, as too many introductory clauses in one paragraph will undercut the goal of brevity. Finally, topic sentences are crucial. The topic sentence should frame the issue for the paragraph. All other sentences in the paragraph must relate to the topic sentence. If they do not, the writer should change the topic sentence or adjust the paragraph. To draft an effective topic sentence, the associate should try paraphrasing the rule of law to be discussed in the paragraph. After properly citing the case to support the rule of law, she can move on to analyze the case law. Similarly, when she applies the case law to the facts of her case, the topic sentence in that paragraph should mirror the topic sentence from the previous paragraph. When possible, she should use paragraph closeout sentences for transition between paragraphs. Analysis. The memorandum is ineffective if the writer does not properly analyze the law and apply it to the facts of the case. One must explain not only what the legal rule is, but how the court arrived at its decision. Too often, young associates fail to connect the legal reasoning to the court’s holding. The legal reasoning is necessary to predict how a future court may resolve the client’s issue. Fact comparison is essential to predict how a court will rule. For example, when evaluating a plaintiff’s claims, the partner representing the defendant will need to know the claims that plaintiffs asserted in the case law to reach a proper and thorough conclusion about the merits of the plaintiff’s claims in the case. An associate can accomplish this only by actually comparing the facts from the case law to the facts of the particular case. Finally, an associate should evaluate counterarguments. To educate the assigning attorney properly, she should provide the facts that the adversary will rely upon and discuss how the adversary will use those facts. Importantly, she should conclude whether a court will decide in her client’s favor based on these counterarguments. The memorandum should provide the supervising attorney with a concise conclusion. The writer should identify it with a heading, restate the issue and provide the factual and legal bases for her conclusion. She should not simply “cut and paste” the short answer, although the conclusion section should provide the same result as does the short answer. A well-written memorandum is undermined when the short answer and conclusion do not match. If more information is needed from the client to provide a conclusion, the memorandum should state that. The editing process One draft of the memorandum will not suffice. Several are needed to hone it into a cohesive finished product. Editing will help an associate organize the memorandum and ensure that the sections flow logically from one to another. Editing and re-editing create quality legal writing. As a result, one should not be afraid to delete sections or move paragraphs. After an associate has written the memorandum, the issues should become clearer. An issue or case one previously thought fit in section A may now be a better fit in section B. Judging one’s own work and discarding analysis one previously believed necessary is a difficult part of the editing process. If time permits, an associate should have a colleague review the memo and offer suggestions on its framework. Proper outlining at the start will often obviate the need for such time-consuming editing. Similarly, one should re-read the essentially finished memorandum to determine whether it makes sense. Having spent many hours writing, an associate may rush through the editing process to get the assignment off his desk. As he reads the memorandum, he may read a sentence as he intended to draft it. In doing so, he may miss the obvious mistake. For example, he may read a sentence as stating that the complaint should be dismissed, yet have written that the complaint should not be dismissed. To avoid this, when time permits, an associate should put the memorandum to the side for a couple of hours or a day and move on to another assignment. This will allow him to bring a fresh approach to the editing process and detect inconsistencies that undermine the memo’s efficacy. Of course, topic sentences should be reviewed to determine that the paragraph is internally consistent and supports its thesis. Grammar must be checked. The memorandum must be spell-checked. These suggestions are by no means exhaustive. However, they will help associates develop good writing skills. The written word is an extremely powerful tool for the attorney, often more so than the spoken word. Thus, developing techniques for writing a good memorandum-the written product most associated with the new attorney-is vital to a successful legal career. Eric L. Probst is counsel to Morristown, N.J.’s Porzio, Bromberg & Newman and a former adjunct professor of law for the legal research and writing program at Seton Hall University School of Law in Newark, N.J.

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