Anna – Introduction
Hi, I'm Anna Okoro, a summer law student at a mid-size firm. Two weeks into my summer job and I get assigned a memo on a civil procedure point. I was kind of disappointed and also kind of overwhelmed. I thought how dull is that, civil procedure, and then I thought – Now what do I do? – I haven't taken the civil procedure course yet, and this is my first memo. Then I read the file and I really got into the problem. Our client is 15-year Andrew Hopper who suffers from a debilitating anxiety disorder. Andrew's parents think he will regress if he has to appear for oral depositions in a personal injury action. I had the responsibility to write the memo on whether a court is likely to exempt Andrew. It' was a good thing Joel Oliver was around to help me out.
Ben – Introduction
Hi, I'm Ben Hall, I'm a first year associate in a civil litigation firm. I sat in on the first meeting between Alex Bradley and Steven Acker, the senior partner of the corporate business group. This memo is my first chance to become part of the legal team for a new client. I think I have a good practical handle on Bradley's business plan. But the restrictive covenant in Bradley's employment contract could land him in a lawsuit that even if he wins could derail his getting the business off the ground. l have some ideas about avoiding litigation and Janice Payne, the firm's professional development partner, offered to help me present my legal analysis and practical recommendations in the best light.
Context, Audience, and Purpose
I'm Joel Oliver, I'm Anna's mentor
I want to tell you a bit about predictive memos – sometimes called legal research or office memos. Students and junior lawyers are frequently asked to research legal issues. And they spend considerable time writing memos for senior lawyers, who use the memos to make decisions on client matters.
But what are memos? They're confidential, internal documents that record research, they analyze a legal problem, and predict the likely outcome should the matter goes to court.
So your work on a memo will often be the basis for other work by the senior lawyer who may be writing an advice letter or drafting litigation documents, deciding negotiating positions, and so on. A good memo will give the assigning lawyer confidence in your work and will establish you as a member of the legal team. So it's important to do a good job on this memo.
To be effective, your memo needs to be objective, specific, thorough, and accurate. But most importantly, your memo needs to give an answer to the question asked.
This means a great deal of thought needs to go into the content and the way you communicate your ideas.
So that's why I tell you to pay attention to context, audience, and purpose. Before you can even start to write, you need to know a few things.
- What is happening in your client matter?
- Why are you writing?
- And who is going to read your work?
The answers to some very basic questions will lead you to make writing choices about everything from level of detail about the facts and the law, the organizational structure of your document, to word choice, tone, and basically to what font you choose and how much white space to leave on the page. But very single thing you do as the writer of that memo should be driven by your answers to these three questions.
Let's talk about context. What is the context? Context is both the client's overall story and where the particular memo fits in the client's legal matter.
Every client story is unique. But some questions will be common to most files. For example, it is going to be important to know if your memo is for a new or ongoing matter, a highly contested or adversarial matter, a matter connected to other files in the firm, or an upcoming court appearance. Each of these will lead you to make different choices.
You're also going to need to ask yourself where this memo fits in the overall progress of the file and how your memo will be used. Say you're being asked to research a question on admission of evidence. To do a good job you need to know whether the senior lawyer is preparing litigation documents for a motion based upon your memo. You need to know whether your firm is bringing the motion or responding to it. You'll need to know whether the motion is pre trial, or is coming up in the course of an action.
So immersing yourself in the details and asking the right questions will ensure that you research the right questions and get the right answers in the right time.
Who is going to read this and what do they need from you? You make many writing choices based on who will be reading your memo. Because these memos are confidential, internal documents, you can expect there will be a limited and controlled number of people who will see it. But you will need to identify and consciously address the needs of those readers.
It should be no surprise that the senior lawyer who assigned you the memo will be your primary audience. And you can assume that your senior lawyer has several characteristics:
They don't have a lot of time to read and re read research memos or do the research you were asked to do. In fact, the senior lawyer hopes to use your memo to save time and manage the case efficiently. So you need to anticipate that your reader needs:
- A solid analysis of the legal issues;
- A good overview of the cases without having to read all the authorities;
- An analysis that anticipates and deals with both strengths and weaknesses;
- An analysis that anticipates counterarguments and deals with them.
And, most importantly, a clear bottom line and an answer to the question you were asked.
You can also assume that the lawyer is a careful and skeptical reader. As they read, senior lawyers mentally test out what you have written against their own knowledge or hypothesis about the file. So you know that your analysis needs to be accurate and communicated clearly.
A third point is that the senior lawyer is knowledgeable. Senior lawyers can handle complicated material and will know the legal terminology. What they are looking for from you is an analysis of the material based on the facts of the case and the law you have discovered in your research. And you have to write it concisely and precisely.
Finally, the senior lawyer needs details and needs you to do a thorough job. This means complete names of cases, proper and full citations, useful quotations, effective case summaries, a focus on material facts, and relevant details. Your attention to detail will make the difference between a useless memo and one where the senior lawyer can confidently take the next steps.
And then there are other readers you'll need to think about. Although you write your memo for the primary audience – usually your assigning lawyer - you should be aware of other and future readers. For example, there might be a litigation team working on this case as it progresses so there's going to be several lawyers that may need to read and use your memo. Most firms have a databank of research memos to keep track of all the research done in the firm. So cases coming up in the future may raise similar issues and other lawyers in the firm may be looking at your memo to see if the research can help them. That means you write in a way that anyone picking up the memo will be able to easily understand the context, the problem, the analysis, and most importantly, the answer.
Lastly, some firms share memos with clients, usually the more sophisticated or legally trained clients. But you'll need to check on this possibility and write so that readers outside the firm will also understand your analysis.
Purpose of the Memo:
Let's talk about the purpose of the memo. Memos are written to help someone make a decision; they're not academic papers. So first, you need to find out what this memo will be used for. Just as every client's story is different, there's going to be a different purpose for your memo. For example, a lawyer needs a general update after a recent change in the law in order to give advice to a client. Or the lawyer may be considering next steps in a client file and needs to assess options. The lawyer may be planning to write a case comment to reach out to clients in the firm's website or newsletter and needs some background analysis from you. An important one is where the lawyer is deciding whether a particular claim is worth a client spending any money pursuing it. At the end of the day, you consciously make writing choices to deliver on your purpose.
1. Your Professional Role:
Before we turn to some practical memo writing pointers, I'd like to put this first memo assignment into a larger context.
You are now a professional, a member of a firm, contributing to a senior lawyer's work to serve a client's needs.
Your academic training is now being used for a professional purpose.
The focus is now on a product that predicts a result or assesses risk rather than an academic inquiry, which is often open-ended.
Our firm has an investment in your professional development. What does that mean?
- We want you to gain as much experience as possible as you build your confidence in your ability as an independent legal thinker.
- We hope to do this by creating a positive learning environment, but we also expect you to take initiative to seek out mentors and work.
- Our lawyers are busy but welcome hearing from you on how we can assist you in your professional development.
- We need you to recognize the ethical challenges inherent in all legal matters and to make choices that reflect the highest standards of professional conduct.
- You represent our firm and the profession to the public – so we want you to have high aspirations and present a strong, positive and professional image.
As a new lawyer, you have the reassurance that someone else will review your work.
But you can never rely on others to find your mistakes.
Your work is valued.
That doesn't mean you can expect to get credit for everything you do.
Don't be surprised to find that the senior partner only use a small part of your memo.
Or that another partner turns your memo into a client advice letter and signs off on it, without reference to you.
The senior partner will decide how best to use your work and will know what the client requires.
Now, let's get practical.
You do the best you can every time within the time constraints imposed.
You are not going to be 100% happy with your work product, because you won't always have time to polish it as much as you might like.
You want to be as efficient as possible - this is good for the client and the firm. We don't like to spend the client's money unnecessarily. We want them to come back.
Every one of the lawyers here will expect your undivided attention. So you need to keep track of and stay on top of multiple responsibilities.
2. What happens when you get a memo assignment?
It never hurts to start by asking the assigning lawyer:
"What are you going to do with this memo – is it for pleadings, an advice letter, a risk assessment?"
"Is this an informal or formal memo?"
This way, every element of your memo can be directed to that purpose.
Part of understanding the assignment is understanding the client's story and where the memo fits into it.
Bradley's situation is a good example to use. Bradley wants us as his business lawyers to launch a new software company, and so the restrictive covenant memo needed to be set in the context of his business objectives. Mostly Bradley wants incorporation and business contract advice.
But the restrictive covenant is one potential barrier to Bradley's plans. Ben's memo will be used as part of a risk analysis and to plan a strategy to get Bradley where he wants to go with minimal cost and delay.
In Bradley's case, there is no current or pending court action and, in fact, we would prefer to keep Bradley out of court, if possible.
If there were an ongoing court matter, you would need to make sure you knew exactly what stage the case is at, what has already happened, and where the memo fits into the next steps in the court proceedings.
I've asked you to write it as a formal memo, because that is my preference and most of the firm's lawyers still want the formal memo format and tone. Some lawyers are okay with informal memos, particularly when there is a short time line. And I have seen informal memos from other firms. But that is not the norm at our firm.
3. What else do you need to know?
In this firm intelligent pestering is valued. What does this mean?
You need to take as much initiative as you can. If you can figure out what you need to know by reviewing the file and other resources, then do it.
But you are not expected to know it all. Lawyers appreciate it when you ask questions that get them the results they need. Take the initiative to ask intelligent questions – the ones you can't answer on your own. And ask them early on.
At the same time, do not look for handholding; no needy stuff.
Here are some other practical questions to ask before you start:
- How much time should I spend? The firm may not want to bill too much on this matter.
- Is there a deadline and is it firm? You may be up against litigation deadlines and will need to plan accordingly.
- How long should the memo be? The answer will give you a sense of the level of detail expected.
- Is there a model I should use or are there any format instructions to follow? The firm or the lawyer may have very specific preferences on font, headings, and organizational structure.
- Do you want print or electronic research material? Do you want me to refer to secondary sources? Some lawyers will want you to print out all the cases; others will just need electronic versions.
- Should I discuss each stage of the work with you and when (research, first draft, next week, and so on)? Planning for your meetings to discuss your progress will keep you on track.
Resources and Context
- Is there a file that I can review to bring me up to date on what is happening with this matter? You need a good sense of the context and details of the file.
- Should I consult anyone else in the firm? There may be similar files or previous work that could be relevant to your memo.
4. Research: Where do I start and when do I stop?
Please do not cut corners and please do not go overboard.
What do I mean by cutting corners?
Every time you pick up a new assignment, you will likely be challenged by something you have not thought about.
Sometimes assigning lawyers are looking for a quick update on a topic they know well.
If you are getting a memo assignment, there is some new wrinkle, and that means both you and the assigning lawyer will be challenged by new material.
You are likely going to have to educate yourself broadly before you can home in on the specific legal issue.
You should start with secondary sources - a textbook, a good law review article.
Many new lawyers think they are being efficient by putting in key words into a research database and finding cases on point. If you do this, you may easily lose out on the big picture – and when you are new to an area; that is trouble. You may filter out issues that are more important to the case resolution than the issue you originally thought about. Even lawyers with subject matter expertise often start by looking for articles that update recent trends.
Once you have read the secondary sources, then it is critical to take the time to review all your facts. That way you can refine your research plan. You will also likely identify issues you want to check out with the assigning lawyer.
This is what I mean by intelligent pestering.
When do I stop?
There is the fear factor:
- You worry you will miss a case.
- You are looking for the Holy Grail of cases – the "Case On Point" that sews it all up.
Then there is reality:
- Rarely will you find the “Case on Point” that is the absolute authority on your client's matter.
- Here is where you need to make some intelligent choices.
- If you have reviewed secondary sources and read the appellate level cases, you most likely have identified the issues, and the legal principles and criteria you need to apply.
- Trial level court decisions flesh out your understanding of how judges apply the legal principles and criteria to facts and help you formulate reasonable arguments.
- Stop when:
- the cases start to repeat themselves
- when you are looking at older and older cases and fact-based decisions from other jurisdictions