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Transcripts

Ben's Memo – Footnote 5

Janice Payne (mentor):
I often get asked if it is okay to use "I" or "me" or "we" in a memo. Some assigning lawyers prefer memos written without reference to the writer. Ben could have written in the third person by saying for example, "This memo reviews…" Some lawyers prefer this approach thinking it is more neutral and objective and focuses on the point being made, rather than on the person making it. Either way is fine, just as long as you follow your assigning lawyer or your firm's conventions. If you do use "I", it is important not to clutter up a memo with phrases like, "I submit" or "I contend" or "As I will show in my analysis…"

Ben's Memo – Footnote 6

Janice Payne (mentor):
This is a strong introduction. The first sentence grabs the assigning lawyer's attention with the client's personal and business story, and tells the lawyer why the client needs advice as soon as possible. The second sentence reminds the assigning lawyer what the specific task was. Keep in mind that busy lawyers are juggling many files and can lose track of a file's details or the instructions they gave, even after a short time. Ben has also provided enough information for anyone else in the firm looking for a memo on a similar issue. The last sentences predict the outcome and give the legal criteria and facts to support the prediction.

Ben's Memo – Footnote 9

Ben Hall:
Our interview focused mostly on Bradley's concern about starting a new business. It was only as I re-read the contract clause and thought about the facts, that I saw the possibility that Tech World might have an intellectual property claim in Bradley's educational software or that Bradley might already be in breach of the contract terms. Before researching this, I thought I'd better check with the assigning lawyer. Stephen Acker told me to flag the issue in the memo, but not to research it yet, because there are other lawyers in our firm with intellectual property expertise who can address this issue more efficiently.

Ben's Memo – Footnote 10

Ben Hall:
In my final edit I looked for unnecessary words, throat clearing expressions, passive voice, and nominalizations because these are my usual writing faults. I edited a lot. In this paragraph alone I made two changes to sharpen the writing. I originally started the paragraph with the phrase, "Nonetheless, because…", which I took out since it added absolutely nothing. I don't know why I still start sentences that way. In the next sentence, I switched from a nominalization that read, "the negotiation of the terms of Bradley's departure", to the stronger, clearer verb form, "negotiating Bradley's departure".

Ben's Memo – Footnote 11

Janice Payne (mentor):
Here, Ben wanted to have a voice as a member of the legal team and so he suggests a negotiation-based strategy. Generally, senior lawyers want a neutral and objective review of the law in the body of the memo and the personal views of the writer should be kept to a minimum. I was fine with Ben's proposal, because he based it on the client's concern about keeping expenses down and avoiding litigation. It wasn't just his personal point of view. It is quite possible that Stephen Acker will have a very different strategy to recommend. And that's fine.

Ben's Memo – Footnote 12

Ben Hall:
This introduction is much longer than my usual, one-paragraph approach where I stick to saying what is this memo about and why you need to read it. Needless to say, I rewrote it several times. Bradley wants us as his business lawyers and so the legal issue needed to be set in the context of his business objectives. I included the reference to Bradley's recent disagreement with his employer to remind Stephen Acker, the assigning lawyer, that Bradley was anxious to get going. Finally, I included my non-litigation strategy upfront, rather than just in the Conclusion and Recommendation section. I did this because it speaks to the client's larger objective to launch his new business. Also, after reviewing several memos in the firm's research memo databank, I took out the heading "Introduction". I prefer starting memos without the label "Purpose" or "Introduction" because I don't think these generic labels add anything and it just takes up space. I was comfortable doing this because I didn't see any other strong preferences in the memos I reviewed.

Ben's Memo – Footnote 14

Ben Hall:
I prepared a quick, relatively unfiltered, fact summary right after the client interview. The client's story poured out chaotically and emotionally, and my notes were just as chaotic. So before I started my research I stepped back and wrote a chronology starting with Bradley and the Duttons' first meeting to discuss Tech World's sale. I left both the unfiltered summary and the second chronology in the file because I figured they would be useful later on. As part of my research, I did a chart summarizing factors from the cases. The chart helped me distinguish between the material facts and distracting details. For example, I edited out almost all of the details on the original business sale and most of Bradley's business and family history. Later, I went back to work on the fact section after I finished writing the discussion section. I used my mentor's "double-highlighting strategy" to make sure that every fact mentioned in the discussion was also included in the fact statement. The technique is going to sound a little quirky, but it was quick and effective. I used a different colour highlighter to mark each fact in the discussion section and then immediately highlighted the same fact in the fact statement with the same colour. Using all those colours made the facts that were not in both sections stand out immediately. It also made the non-highlighted facts stand out, so I could really ask myself whether they were useful background and emotional facts or if they could be edited out. I ditched most of the non-highlighted facts. "Facts", in Crafting the Memo's Parts has more instruction, strategies, and exercises on writing complete fact statements.

Ben's Memo – Footnote 15

Ben Hall:
This is one of the facts that I added after I wrote the discussion section. I realized that I needed to make it clear that Bradley's employment and business sales contracts were separate documents in order to support my prediction that the courts would apply the more stringent standard for employment contracts. Also, now the assigning lawyer doesn't have to ask if I have reviewed both documents.

Ben's Memo – Footnote 16

Janice Payne (mentor):
The contract clause language will be dissected in the legal analysis so it should be set out fully and accurately in the facts. Note that the sentence preceding the quotation summarizes the clause's main content. Some readers only skim quotations so it is important to summarize the main point in the text.

Ben's Memo – Footnote 17

Janice Payne (mentor):
I was pleased to see this level of detail. As a critical reader, as soon as I read the clause, I would have been asking myself whether the contract defined the terms and Bradley's duties. Ben has anticipated my questions very well. He demonstrated his close reading of the contract and his understanding of what facts might make a difference to the legal analysis.

Ben's Memo – Footnote 18

Ben Hall:
I did some major editing here. At a firm writing workshop, I learned that it was important to describe observable facts and not to editorialize about people's emotions, so I edited out phrases like, "Dutton angrily reprimanded Bradley" and instead I described Dutton as having shouted at Bradley.

Ben's Memo – Footnote 19

Ben Hall:
Because it is useful context information, I decided to leave in this paragraph on the Dutton's downgrading Bradley's responsibilities and their angry exchanges. I know that the downgrading could relate to a constructive dismissal claim, and I was told not to research that. Also, the argument and threat to withhold payment on the business sale aren't directly relevant to the restrictive covenant issue. But, I think that all of this background helps explain Bradley's urgent need to quit. More importantly, it is why I recommend an early negotiation or even mediation.

Ben's Memo – Footnote 21

Ben Hall:
I confess. Writing the legal issue was so difficult, at times I wondered if I really deserved my law degree. I rewrote it so many times I felt foolish. My first version started with an open-ended question, "What form of restrictive covenant, if any, is valid in the current situation?" With this question as my starting point my discussion turned into a voluminous academic analysis with paragraph after paragraph on how the common law balanced public interest in free and open trade with an individual's freedom to contract, and why non-solicitation clauses were favoured over non-competition clauses. None of these were controversial issues in the Bradley-Tech World matter, so why was I writing about them?

Then I went to the other extreme with an issue statement that was all facts and no law, "Will the restrictive covenant contained in Mr. Bradley's employment contract with Tech World be enforceable if he chooses to work in the same field and the same city post-employment?" This didn't work either.

My next two versions went back to the law and I systematically followed my research synthesis. I had a separate issue statement for each sub-point. This was great for thinking through the problem, but again I wound up discussing things that weren't controversial.

Then I wrote a version that read,

 Are the terms of the restrictive covenant in the employment contract reasonable?

Janice Payne, my mentor, took a quick glance and said I had made a classic mistake. I had made a sub-question out of each factor a court considers, which, she pointed out, was repetitious, unnecessary, and not sharp enough.

At this point I needed a break. I put the issue statement aside and moved on to write the discussion. Then once I had sorted out what was really important, I went back to revise the issue. Here it is,

A restrictive covenant prohibits our client, Alex Bradley, from performing duties similar to his current Vice President's duties for three years after his employment, in any city or municipality in which Tech World operates or does business. Does the Bradley-Tech World restrictive covenant meet the standard for an enforceable non-competition clause that must be (1) justified by special circumstances and (2) unambiguous and reasonable in time, geographic scope, and the activities curtailed?

I really felt totally inadequate until Janice told me that she personally didn't know anyone who didn't revise their issue statements after they wrote the discussion. Writing the discussion often makes her change her mind about what issues need to be addressed and in what order. Ok, I felt better, but I still wonder when I am going to get faster at this.

Ben's Memo – Footnote 23

Janice Payne (mentor):
A brief answer requires a "What" and a "Why": A bottom line and a short explanation of how you got there. You often see brief answers that start with a simple Yes or No because the writer is addressing an issue statement posed as a question. Obviously, you need to go further and explain your reasoning. Starting off with a one word answer is a memo writing convention, but not a requirement. Ben chose to start his answer to the question with a full sentence stating the practical impact on the client. This was a particularly good choice here because the brief answer's explanation has detailed subparts. Stating the practical impact in the first sentence made it easier for the assigning lawyer to get the full picture quickly. Keep in mind that often a senior lawyer will flip directly to the brief answer.

Ben's Memo – Footnote 25

Ben Hall:
My first draft read like a law review article on restrictive covenants, way too academic. My second draft paralleled my research analysis with a separate sub-section on each case law element.  Janice Payne told me it read like a law school exam answer. Ugh! Janice then gave me a tip. She suggested that I step back and imagine what I would tell the assigning lawyer if I had to give a one-minute summary standing in the hallway outside his office door. What would I say? Right on the spot I reeled off the two points that then became the discussion section's focus. First, Tech World needed special circumstances to justify a covenant not to compete in an employment agreement. Second, the restraint had to be reasonable, meaning the terms had to be unambiguous and not too broad. Now I was ready to re-write the discussion. I still started with a subsection synthesizing the legal principles, but the memo was now half its original size and much more to the point. After I rewrote the discussion section I went back and revised the Issue and Brief Answer to make sure they matched my new approach.

Ben's Memo – Footnote 26

Ben Hall:
I was pleased with this heading because it announces the turning point for my analysis of why the Bradley-Tech World restrictive covenant is invalid: a non-competition clause in an employment contract requires special circumstances. I thought about starting the section with an overview sentence on this same key point, but the sentence I wrote just repeated the heading. So I decided that the heading did the job. You read the heading and you know exactly what to look for in the discussion.

Ben's Memo – Footnote 27

Janice Payne (mentor):
Ben struggled with organizing the discussion section, in part because he was trying so hard to be thorough and authoritative that he lost track of the memo's real purpose –  to help the assigning lawyer make a decision on the practical question, "Can Bradley leave Tech World and start a software business?" Also Bradley's case was Ben's first exposure to a restrictive covenant in an employment agreement so he had a steep learning curve on the law. Having learned so much through his research about restrictive covenants, it was hard for him to leave most of it out. Ultimately, Ben did manage to focus on the two key issues at play in Bradley's case: are there special circumstances justifying the restriction and were the restraints reasonable? Ben's final version still has a general overview subsection summarizing the law and a separate section applying the case law; he was not ready to jump into the first issue directly. Frankly, if I were writing the memo, I might have tried one more rewrite to integrate the general principles with the more specific subsection on special circumstances. But in my final review, I decided Ben's approach was alright for three reasons, which I discussed with him. First, the case law is policy-driven and I thought it helped to have references to the policy context set out – a policy-based argument might come in handy. Second, Ben managed to edit the general principles discussion down from four pages to four concise and clear initial paragraphs before he started describing the cases. Third, this memo is going into the firm's memo databank and it does a good job of educating lawyers who are unfamiliar with how the courts view restrictive covenants.

Ben's Memo – Footnote 28

Ben Hall:
Ok, here I made another classic mistake. Readers are confused when you are not consistent with word choice. As I was editing for clarity, I discovered that I had used the words "agreement" and "contract" interchangeably. It was an easy fix. I used the "find and replace" function to locate the word "agreement" and then replaced it with "contract".

Ben's Memo – Footnote 29

Ben Hall:
I decided to use the leading Supreme Court case Elsley v J.G. Collins Ins. Agencies to structure my overview of the basic legal principles courts apply to restrictive covenants. Janice Payne agreed that this would work because Elsley gives a step-by-step systematic analysis. Lawyers are used to reading structured analysis like this. This will give Stephen Acker confidence in what I am presenting.

Ben's Memo – Footnote 30

Ben Hall:
The question I kept struggling with was how much case detail did I need to give. My first version was pretty sparse on the Elsley facts. This was a mistake for a number of reasons. First, Elsley is a leading Supreme Court case where the Court clarified the scope of previously established principles and applied them to the case facts. Without these facts, my discussion of the principles was too abstract. Also, the Supreme Court stressed that each covenant needs to be evaluated on its facts, so the court's thinking about the facts is very instructive. As well, Stephen Acker will want enough information on the case law to make an independent judgment. Finally, and perhaps most importantly, Elsley is an example of a restrictive covenant that was upheld as reasonable. Since I am predicting that the Bradley-Tech World covenant will likely be held to be unreasonable, I will need to carefully compare and contrast Elsley's facts with my client's facts to support my analysis.

Ben's Memo – Footnote 31

Ben Hall:
One of the hardest things I had to give up was quoting extensively. Using the court's language gave me confidence, so my first draft was littered with quotations. This paragraph originally quoted the court's words "special and intimate knowledge of the customers" and "the means of influence over them". Janice Payne pointed out that the words themselves did not carry any magic. Rather than quoting the court, I needed to explain what the court meant, ideally with appropriate page cites to the decision by way of footnote or in the main text. My analysis of the court's language is more useful to the reader than just repeating the words. Janice says this also shows I can think, not just find information.

Ben's Memo – Footnote 32

Janice Payne (mentor):
In my writing feedback sessions, I explained that most experts on memorandum writing suggest that you immediately follow each case discussion with whether and how that case applies to your facts. If you immediately apply the case, you help the reader focus and you avoid repetition. Ben chose not to immediately apply Elsley to Bradley's facts and when I listened to his rationale, I was fine with it. Ben explained that he wanted to start by comparing Elsley with two more recent post-Elsley cases that applied the Elsley principle but which reached a different conclusion. Ben thought that the comparison paved the way for understanding his prediction that the courts would find that Tech World's restrictive covenant was not justified by special circumstances. I thought this was fine, as long as Ben's case law discussion synthesized the cases and homed in on the facts and reasoning dealing with special circumstances. Had he merely described each case in book-report fashion, I would have suggested another rewrite.

Ben's Memo – Footnote 33

Ben Hall:
Again, I struggled with the level of case detail required to provide the assigning lawyer with enough information to make an independent judgment, but not so much information that it cluttered up the discussion. I really try to avoid looking like an insecure first-year associate, so I often just look at other examples of firm memos in the precedent bank to get cues on how things are done. This time, I decided to ask. I needed to know Stephen Acker's preference on how much detail he wanted. He told me that I could not go wrong if I gave him the facts relevant to the specific issue I was discussing. Mostly, he wanted me to synthesize the law and to give him enough detail so that he could follow whatever analogies and distinctions I was making.

Ben's Memo – Footnote 34

Ben Hall:
Again, I had to make a decision about whether to quote or paraphrase the restrictive covenant in the Staebler case. Because the restrictive covenant's language is so important, and I needed to compare the language in each case with Bradley's contract, I decided it was best to quote the term.

Ben's Memo – Footnote 35

Janice Payne (mentor):
Ben used a strong heading to tell the reader exactly what the section will say. Because the heading's message was so clear, I recommended Ben delete an opening topic sentence in the first paragraph, because the sentence did nothing more than repeat the heading's message. Ben made good use of descriptive sub-headings throughout this section.

Ben's Memo – Footnote 36

Janice Payne (mentor):
In three clear sentences, Ben's opening paragraph does a nice job of laying out his conclusion on the two preliminary legal issues raised in his legal overview subsection. The assigning lawyer knows exactly why Ben thinks that the Tech World restrictive covenant is a non-competition clause and why Ben concedes that Tech World has a valid proprietary interest. Ben presents these two issues as non-controversial. However, he still gives the assigning lawyer enough information to make an independent judgment.

Ben's Memo – Footnote 37

Janice Payne (mentor):
I appreciated how this paragraph created the road map for the three points Ben elaborates on in the rest of this section. He then used the three points as effective sub-headings. Each of the sections that follow is short and clear.

Ben's Memo – Footnote 38

Janice Payne (mentor):
This sub-point is well done. Ben made his points with concrete and specific facts. And importantly, every client fact referred to was also in the statement of facts. I always caution new lawyers to do a final review to make sure that all the facts included in the discussion section are in the statement of facts.

Ben's Memo – Footnote 39

Janice Payne (mentor):
In these two paragraphs Ben has anticipated the other side's arguments that the parties had equal bargaining power, and that the business sale and employment contracts were connected. He dealt with them effectively using both the case law and specific client facts.

Ben's Memo – Footnote 40

Janice Payne (mentor):
I appreciated that Ben took a stand in this summary paragraph, without guaranteeing a result. New lawyers sometimes find it hard to state their prediction confidently without overstating the likely outcome.

Ben's Memo – Footnote 41

Ben Hall:
In my first drafts, I had separate subsections on ambiguity and broadness in scope, because the cases applied both of these factors to the same contract terms. Eventually I realized that reasonableness was a common thread for both ambiguity and broadness and that I could combine the discussion and avoid a lot of repetition.

Ben's Memo – Footnote 42

Ben Hall:
The Shafron case presented another hard editing lesson for me.  Janice Payne insisted that my case discussion had to focus on the specific legal issue I was dealing with. Extraneous points, no matter how interesting intellectually, would distract the assigning lawyer and, even worse, would suggest that the extraneous material was actually important to the client's case. Now, intellectually, I understood Janice's point, but…well, it was not so easy to follow as I wrote about Shafron. Shafron deals extensively with whether notional severance can be used to cure defects in a restrictive covenant. The Supreme Court reviewed the jurisprudence, ultimately holding that notional severance cannot cure an ambiguity in a restrictive covenant. Notional severance was an entirely new concept for me and I worked hard to understand the Court's analysis, so naturally I wrote three paragraphs briefing the court's discussion. And of course, Janice crossed them all out.

Ben's Memo – Footnote 43

Ben Hall:
Precision. I am learning to choose every word deliberately. My first version said that Bradley's case is analogous to Shafron. Janice Payne pointed out that analogous means similar to, and the restrictions in Bradley's clause are actually worse than the restriction in Shafron. Using more precise language made the point more powerfully.

Ben's Memo – Footnote 44

Ben Hall:
I am very curious about whether there is a possibility that Bradley might not be legally entitled to market his own software application. The idea that he can't use what he created on his own time seemed preposterous but still possible. I also feel completely out of my depth. I want to work in commercial corporate: does that mean I need to also know employment law? What other areas do I need to know? When I told this to Janice Payne, she laughed and said, "Welcome to the real world, and stay curious."

Ben's Memo – Footnote 45

Janice Payne (mentor):
Recommending a non-litigation strategy is a good call. We just discussed the professional responsibility rules on recommending non-litigation dispute resolution processes at our last associates' brown bag lunch session. Maybe the lunch sessions are working.

Ben's Memo – Footnote 46

Janice Payne (mentor):
Ben's Conclusion Section is spot-on. Ben confidently states his conclusion and nicely backs it up with the key facts and legal reasoning, presented simply and in his own words. New associates sometimes  back away from taking a stand. I read memos that say, "The court may decide" or "This case can go either way depending on…" As well, Ben has not simply reiterated the case law in his analysis. This is a tight weaving of facts and law in plain English. Also, he identified the one fact that needs to be looked into and he noted the legal issue that the assigning lawyer decided to check out separately. And finally, Ben also steps up to give a practical opinion, based on what he understood the client's priorities are from sitting in on the interview.

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