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Sooner or later, in every junior lawyer’s first years in a law office, some senior lawyer will ask the junior lawyer to produce an “office memorandum.” After the panic subsides, the junior lawyer will likely dust off notes from his or her first year Legal Writing class, or pull out one or more of the popular legal writing style books, and begin the painful process of creating perhaps his or her first formal work product. The trepidation involved in the experience can be acute, and yet few law firms (and even fewer senior lawyers in such firms) bother to tell junior lawyers exactly what they expect from an office memorandum. Here are some practical suggestions on how to view the process of preparing an office memorandum. This, of course, is not a comprehensive guide to every situation. Indeed, it is undesirable to view the writing process as a matter of rote. Often, the value of an office memorandum turns as much on its responsiveness to the task at hand as it does on its accuracy, clarity, and thoroughness of research. KNOW THE ASSIGNMENT Before you begin any writing assignment, you’d do best to ask as many questions as the senior lawyer will tolerate concerning the assignment. The most basic of these questions include: (1) When is the memorandum due? (2) How long (and how detailed) do you want it to be? (3) What jurisdiction’s law applies to the question? (4) What exactly is the issue? These kinds of questions will likely lead to a more general discussion of the background of the client, its problem, and the work that has been done to date related to the problem. The more details you can get about how your work fits in with what has gone on before, and what is planned, the easier it will be for you to conceptualize what you are doing, and why. A busy senior lawyer, however, may not have sufficient time to explain all the nuances of the problem. It is up to you to make sure that, in the often brief encounter in which the assignment is communicated, you at least get answers to your most basic questions. Often, this can be accomplished by providing the senior lawyer with periodic updates on your progress, in which you not only state what you have done, but solicit feedback on whether you are going about the assignment correctly. Moreover, when a senior lawyer asks for an office memorandum, he or she may have many different forms in mind. These forms may be arrayed on scales from short, simple, quick and targeted, to lengthy, complicated, laborious and sprawling. SPOT RESEARCH Often, a senior lawyer will give you a direction to “find me a case that stands for the proposition…” The senior lawyer most likely knows what the law is on the subject, and merely wants to confirm (perhaps for a letter to a client, or an adversary, or for a footnote in a brief) that there is good authority for the proposition. When you get an assignment like that, the senior lawyer may not need an office memorandum at all. Instead, it may be sufficient if you merely find an appropriate case, print it out, and highlight or annotate it in some way to make it easy for the senior lawyer to see the relevant portions of the case. Nevertheless, a very brief memorandum (perhaps a page or less) may be helpful as a way of summarizing the case, and pulling out good language from the opinion. Such a memorandum also has the advantage that it may be preserved for future use (in your files and on the firm’s word processing system), in the event that the senior lawyer manages to lose the copy of the case you turn in, and in the event that, months or years from now, you have occasion to revisit the question in another context. However your work product is preserved, any legal research must be targeted toward finding the best authority on the subject at hand. The definition of “best” may vary with the circumstances, but generally it means the highest and most recent authority in the relevant jurisdiction, so long as the authority is on point. Often, moreover, the senior lawyer will want only cases that “come out the right way,” in the sense that they not only say what the senior lawyer wants to say, but also reach the same result as the senior lawyer hopes to obtain in his or her matter. USE MORE THAN ONE CASE Because it is often difficult to tell whether a case (or other authority) is precisely what the senior lawyer wants, it is better to err on the side of producing more than one authority on any given proposition. The senior lawyer may easily review a handful of cases and determine that one of them is the most apt, and most persuasive. In the process, the senior lawyer may benefit from reviewing a few other cases that may be less sanguine on the point, or that may expose complications that might not otherwise occur to the senior lawyer. In that regard, it is quite appropriate to note potentially adverse portions of any authorities provided to the senior lawyer, and not simply highlight the one or two good sentences from an opinion. Whatever authorities are provided, moreover, must be checked to ensure that they remain good law. If there are any questions about subsequent history, those should be noted for the senior lawyer, and copies of any subsequent opinions modifying, questioning, reversing or overruling an opinion must be provided. It is also good practice to keep careful track (on a note-pad, for example) of the paths of legal research pursued, so that the senior lawyer may be easily informed of how to retrace those paths, if necessary, or to extend the research to other areas that were not pursued. The senior lawyer may be interested not only in finding some authority for a given proposition, but in conducting a comprehensive review of all (or all recent) authorities on a given subject. Often, the form of the memorandum is merely a series of blurbs, listing the citation for each case, followed by a very brief description of the case, and one or two relevant quotations from the opinion. Unless the senior lawyer otherwise directs, the cases should be listed in order of persuasive authority (highest court, most recent, most on point first; weak and contrary cases later). These are the memoranda you learned about in law school. Typically, the senior lawyer wants you to consider the facts of a situation, and write an analysis of how the relevant law would deal with such facts. The format of such memoranda is often suggested as including: (1) a brief statement of the issue; (2) a concise answer to the question; (3) a brief statement of the relevant rule; (4) analysis of the facts and relevant rule; and (5) a conclusion. That format is not set in stone. Consult with the senior lawyer to determine whether there is a more appropriate, or more efficient, method of communicating the information that the senior lawyer seeks. Be user friendly. Recognize, however, that many senior lawyers will not have any better ideas on how to summarize information than you do. Put yourself in the senior lawyer’s place: What would you need to know to understand the answer to the legal question posed? Make sure to summarize the facts, as you understand them, as clearly as possible, so that the senior lawyer knows whether your conclusion may be affected by an incomplete or incorrect understanding of the situation. Also, be especially careful to give a fair explanation of any contrary authority or arguments. The senior lawyer is entitled to know whether his or her position is unshakable, or whether it is subject to one or more attacks. Finally, if the memorandum addresses more than one significant issue, take some time to make sure that the sequence and structure of your analysis is easy to follow. For especially lengthy memoranda, consider providing reader’s aids, like a table of contents, and mini-conclusions on each point, before taking up the next point. This form of memorandum may look nearly the same as any other office memorandum, but often its purpose is different. The client may not want, or need, a balanced treatment of the issue. The memorandum may, for example, be used as the basis for “talking points” in negotiation with another party. In that event, the client will simply want to know what best arguments can be made in support of its position. Some clients, moreover, are not interested in lengthy discussion of the fine details of a legal point. The client may simply want to have a very skeletal outline of the issue, and an assessment of the likelihood of success. The client memorandum should not be confused with an “opinion letter” rendered by a law firm in connection with a transaction. The form and purpose of such a letter differs substantially from the form and purpose of a legal memorandum to a client. The senior lawyer may also be uninterested in a balanced view of the law on a given point. The senior lawyer may ask you to draft a large or small point for a brief. In some instances, you will be asked to participate fully in the brief-writing exercise, e.g., where you write one whole argument point heading in the brief, and the senior lawyer writes the other(s). Often, however, the senior lawyer will merely ask you to draft a paragraph or two on a more specific sub-issue. And remember, a little preparation helps a lot. Before you begin writing any office memorandum, take some time to gather together everything that you will need to refer to in the memorandum. If there are a few critical cases or authorities, get copies of them, and have them ready to review as you work. You will find it frustrating to have to go back to the library (or on-line) to find authorities that you looked at during the course of your research, but did not copy or otherwise collect for purposes of writing the memorandum. SECURE KEY DOCUMENTS Similarly, if there are key documents that may affect your analysis of the facts (a complaint, a contract, a series of letters), make sure that you have them, and have fully reviewed them, before you begin writing. There is nothing worse than discovering, midway through the writing exercise, that your view of the facts is fundamentally wrong. It is also frustrating to stop writing while you try to find key documents for reference in the memorandum. When direct quotation or precise reference to such documents is required, moreover, you will need to have them close at hand. In addition, make sure you are familiar with the format for office memoranda dictated by your firm. Often, a review of sample office memoranda, before writing begins, will save a vast amount of editing time (and potential embarrassment) when the senior lawyer rejects your unique form after you turn the memorandum in. Pay particular attention to the need to protect client confidentiality. Often, it is appropriate to label an office memorandum as “privileged and confidential.” That label may be supplemented with “attorney/client communication,” and/or “attorney work product” in appropriate circumstances. EDITING It is worth discovering the attitude of the senior lawyer toward whether you may turn in a “draft” of the memorandum. In some instances, where the project is collaborative (e.g., you and the senior lawyer are together creating a brief, or a memorandum to a client), it may be acceptable to produce an incomplete document, with bracketed sections noting points of fact or law to be filled in by the senior lawyer. Similarly, the senior lawyer may indicate, by restricting the length of the memorandum, that the document is to be only a very brief statement on the issue addressed. In most instances, however, it is best to assume that the senior lawyer expects a complete, final and polished piece, which (in theory at least) is suitable for use without any further work by the senior lawyer. That means, of course, that the citations provided in the memorandum must be scrupulously accurate, and subsequent history correctly noted. Bluebook citation form must be followed, unless otherwise dictated by direction of the senior lawyer. It is also important that the memorandum be carefully spell-checked and proofread by human eyes (yours). No word processing programs, and no midnight-shift proofreaders, can do the complete job of correcting errors in the memorandum that you can. The point of this obsession with detail is to ensure that, to the extent that you can, you convey the impression that you have taken every step to make sure that the memorandum is a reliable piece of legal research and writing. Obvious mistakes (misspellings, poor grammar and punctuation) can subtly sabotage your point. The senior lawyer or client must often wonder: If this kind of glaring mistake was made, what other mistakes may have been made in the research and analysis? In our modern legal world, junior lawyers are rarely assigned to write office memoranda merely to test their mettle. Most often, such memoranda are an important part of the client counseling and advocacy that is the stuff of real lawyering. The experience of drafting office memoranda, moreover, spans the generations from the “old school” to “generation next.” Mastering this form is an important step toward developing the skills and recognition from senior lawyers and clients that can lead to a lifetime of success in the law. Steven C. Bennett is a partner in the New York City office of Jones, Day, Reavis & Pogue, and a co-coordinator of the New Associates Group in that office. The views expressed are solely the author’s, and should not be attributed to the author’s firm or its clients.

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