How to Write a Legal Memo

This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013.

This article has been viewed 107,493 times.

A legal memorandum is a document written by a lawyer for the benefit of a client. It explains a specific area of law, analyzes a given fact pattern in light of the law, and makes a recommendation for a course of action based on the analysis. Writing a legal memorandum requires that you think like a lawyer. Accordingly, you must pay attention to detail and separate your personal emotions from your sound legal judgments. Essential to every legal memo is to thoroughly research the applicable law.

Organizing the Facts

• If you do not understand the question, call or email the client to discuss. If you do not know precisely what your client is asking, then you might write a memo on a tangential issue and waste precious time.

• Do not dismiss anything in the file out of hand. If you can’t decipher a piece of handwriting (a doctor’s report, for example), then seek help until you can be sure you’ve read and understood everything.
• The court record consists of the pleadings filed with the court including the original complaint, any answer to that complaint, cross-complaints, counterclaims, and any number of other types of pleadings or motions submitted to the court.

Request additional documents. If you need more information to help answer a legal question, ask the client. If you are writing a memo for a senior lawyer, then ask her if she can request the documents or information from the client.

Researching the Law

• Ask if they have any memos dealing with this area of law. If they do, ask if you can see a copy.
• At a larger firm, the memos will be stored in an online form bank.

• Examples of hornbooks include Erwin Chemerinsky’s Constitutional Law, Robert A. Hillman’s Principles of Contract Law, and Homer Clark, Jr.’s The Law of Domestic Relations in the United States. Nutshells for most academic subjects are published by West Academic Publishing.
• Legal practice manuals published by your state bar association are a great resource. Law libraries should have them. They are also available through legal subscription services, such as Westlaw or LexisNexis.
• Read them carefully. Note keywords or phrases commonly used.

• A law librarian can also help you find statutes. Although online services such as Westlaw and LexisNexis contain statutes, it is often easier to read the statutes in a hardback copy, so that you can easily flip through the sections.
• At a law library, you can find “annotated” statutes, meaning that there is an explanation of the law and a listing of helpful cases listed after the statutory provision.

• Make sure that you understand that the opinions expressed in law review articles are not always the opinions of the court, so they should not be relied on as fact in your memo.

Identify controlling statutes or cases. The nutshell or practice manual should mention controlling cases in your area of law. A controlling case is a case which sets out a legal rule and is consistently cited for that rule.

• For example, if you are outlining the law on whether non-compete provisions in employment contracts are legal, then you should state the general rule at the top of the page: “Generally, New York courts will enforce a non-competition agreement if it is reasonably limited in duration and geographic scope.” [1] X Research source
• Then break the rule into elements. The above rule has two elements: (1) reasonable duration and (2) reasonable geographic scope.

• Legal rules are full of vague terms like “reasonable,” “fair,” “not excessive” and “limited.” These terms are fleshed out with subsequent case law.
• You must read widely to get a complete picture of how the courts have defined these terms and applied the elements of the rules.
• To find cases, use keywords. For example, you can search for cases in which “non-competition” appears within 10 words of “reasonable” by typing as a search: “non-competition” w/10 “reasonable.” You can then read the cases.

• Be sure to include the case name as well as the citation. This will make it easier to find the case.

• Companies keep a record of which cases have been overruled. Searching through this record is called “Shepardizing.” Both LexisNexis and Westlaw have shepardizing services.
• To get help with shepardizing, talk to a librarian at the law library.

Assembling the Argument

• As you paste your facts into the outline, you should be able to see how they relate to the other cases. For example, you may have 12 cases that discuss the geographic limitations on non-compete agreements. Some of them will find a 150 mile (240 km) radius too excessive, another will find a 75 mile (121 km) radius excessive, and one might find 50 miles (80.5 km) reasonable. You can now see how your fact (say, a 45 mile radius) fits into the case law.

• Dig deeper into your current research. You might have overlooked something.
• Look at the law in other states. Although law from a different state is not controlling, a court may nevertheless find it persuasive.

• You should find yourself moving back and forth from your research to the case file and back again. This is ideal. Only by reading deeply in the law will you know what facts are relevant.

Drafting the Memo

• “To: [Name of Client or Partner]
• “From: [Your Name]
• “RE: Enforceability of Client’s Non-Compete Agreement.” [2] X Research source

• Because the memo is objective, your “statement” of the issue should not answer the question one way or the other. Instead, you should phrase the issue in neutral terms.
• For example: “Whether client’s non-competition restrictive covenant is enforceable when it limits employment for 9 months after termination and prevents employees from working for a competitor within a 100 mile radius.”

• For example, “The non-competition clause is likely enforceable because it is reasonable in terms of duration and geographical scope.”
• Because few things in the law are cut-and-dried, feel free to qualify statements with “likely” or “unlikely.”

• Avoid commentary or opinion. Your opinion should be limited to the conclusion, where you can recommend a course of action.
• Avoid adding legal conclusions to your facts section. In other words, say what was done, but do not use words such as “negligently” to describe it.
• Include all relevant facts. When you include the facts in your memo, you should highlight the facts that are especially good for your case, as well as those that are especially bad.
• Also note the source of the fact. For example, if you get a particular fact from the “record” on page 5, you should place (R. 5) after you state that particular fact.

• You can pull the rule from the head of your outline. For example, “Generally, New York courts will enforce a non-competition agreement if it is reasonably limited in duration and geographic scope.”
• Some sample memos may include a brief introductory paragraph, summarizing again the question presented and the salient facts. Since you have just listed the question presented as well as the facts, you can dispense with this paragraph.

• As an example, you could write, “The 9 month limitation on working for a competitor is reasonable. New York courts routinely uphold limitations of at least a year in length, especially where, as here, the employee possesses specialized knowledge.”
• Stay objective. If you think the law does not support the position favored by your client, say so.
• If you’re unsure about how the law applies to the fact, then state that you are unsure. Not all legal questions have clear answers.
• Remember to include citations. The reader will want to know what legal authority you are relying on.

• It may be the start of a new trend. The law is a living organism that changes. The law in other states may have been changing and now the law in the state where you practice could be changing. Return to your background materials or poke around in other states’ case law to see if this change is part of a larger trend.
• Some cases may just be outliers. Nevertheless, you should mention contrary cases so that your reader is aware of them.

• For example, simply state, “In terms of duration and scope, the non-competition clause is reasonable. A string of cases from the 1950s to the present supports the use of a clause with professionals such as Mrs. Styles. Furthermore, multiple courts have held that a restrictive covenant less than a year in duration is reasonable. Likewise, the geographic scope—100 miles (160 km)—falls comfortably within the range of acceptable limitations as found by many New York courts. Because the duration and scope of the non-competition clause are likely reasonable, our client should be able to validly enforce it as part of an employment contract.”
• As part of your conclusion, you can make a recommendation to the client: “We recommend that the client use the non-competition clause, as drafted, in the employment contract.”
• If the memo is written about a potential lawsuit, you could predict the outcome. “On the record before us, the plaintiff is unlikely to establish that our client owed her a duty of reasonable care, and the case will probably be dismissed on summary judgment.”

Polishing the Memo

• An appendix can be helpful. If you do a 50-state survey, for example, it may be easier to collect the information in a series of charts than to describe the law of all 50 states in the body of the memo.

• Headings allow busy clients or senior partners to find the section they want by quickly skimming.

• Open up a Word document. On the Quick Access Toolbar at the top, click on the down arrow. The words “Customize Quick Access Toolbar” will appear when you hover over the arrow for two seconds.
• Click on the arrow. Then click on “More Commands.”
• In the “Choose commands from” drop-down box, choose “All commands.”
• Scroll down to find “Speak.” Highlight this and then click “add.” Then click “okay.” Now the Speak function should appear on your Quick Access Toolbar.
• Highlight the text you want read back to you, and then click on the Speak icon. The text will be read back to you.

Make any requested changes. After the client or senior partner reads the memo, they may send it back with questions to answer or changes to incorporate into the memo. Answer precisely any questions that they have.

Expert Q&A

Try to write in a comfortable style. Don’t be too breezy and use slang, but don’t be afraid to use contractions (unless your boss has prohibited you from doing so.)

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1. ↑https://thelejer.wordpress.com/2012/05/26/the-state-of-non-compete-clauses-in-ny-today/
2. ↑http://www.law.cuny.edu/legal-writing/students/memorandum/memorandum-3.html
3. ↑http://www.law.cuny.edu/legal-writing/students/memorandum/memorandum-3.html
4. ↑http://www.law.cuny.edu/legal-writing/students/memorandum/memorandum-3.html
5. ↑http://www.law.cuny.edu/legal-writing/students/memorandum/memorandum-3.html
6. ↑https://support.office.com/en-ca/article/Using-the-Speak-text-to-speech-feature-459e7704-a76d-4fe2-ab48-189d6b83333c

About this article

This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. This article has been viewed 107,493 times.

To write a legal memo, start with 3 lines that state who the memo is addressed to, who it’s from, and what it’s about. Next, write a sentence or two presenting the issue being researched, then briefly summarize what the research shows. After that, write out the facts and legal statutes that support your analysis. For example, you can say something like “The limitations on working for a competitor are reasonable. New York courts routinely support such laws.” Then, finish your memo with a 5 to 10 sentence conclusion that summarizes the facts and law. For tips from our Legal reviewer on how to use sites like LexisNexis or Westlaw to do research for your memo, read on!

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