The act of writing legal memorandum is pervasive in law. In my experience, it arises in three different situations: (1) you are writing a traditional memorandum on law for a partner or associate, in an attempt to resolve a research question integral to the litigation; (2) you are writing to the client to inform them about the status of their legal issue; and (3) you are writing to an insurance carrier to help them evaluate the potential liability of a lawsuit. There may be others, but these are the three instances where writing a high-quality memorandum is necessary. The components of the memorandum, depending on which situation you find yourself in, may change, but the method I’m about to detail is, more or less, a good structure and process for all three.
The Natural Planning Method
Before even beginning the research that will make up your legal memorandum, I think it’s useful to engage in broad-level thinking. To do so, it’s helpful to employ the “Natural Planning Method” from David Allen’s book “Getting Things Done.” This method consists of five steps: (1) Defining purpose and principles; (2) Envisioning the Outcome; (3) Brainstorming; (4) Organizing; and (5) Identifying next actions. This method is useful when engaging in innumerable amount of legal tasks, including writing a brief, conducting discovery, et cetera. But I found it especially useful in drafting a legal memorandum because the task and your instructions are often times very broad. Thus, applying a coherent, formulaic structure can help narrow what’s important in constructing the desired memorandum.
Purpose and Principles
“Whereas purpose provides the juice and the direction, principles define the parameters of action and the criteria for excellent conduct.”
To satisfy the purpose element, you must simply ask why you are writing the legal memorandum. Is it to provide legal advice to the client so they may decide to settle a case? To help the partner with their litigation strategy? Or to create an institutional memo that will be useful to your law firm in the future? Clarifying the purpose of the memo before you even begin the research process helps answer these questions.
Further, this process helps align resources, motivate, clarify focus, and expand options, explains Allen. For example, if you’re writing for a client instead of a partner, you can tone down complicated discussion of the legal theories and rationale or ramp it up if it is for another lawyer. Or, if you are writing a memorandum extremely close to the filing date for a motion for summary judgment, your research might center around the legal issue in that context. Clarifying your purpose at the outset helps identify these potential considerations, instead of dealing with them on the fly where your handling of them is likely to be less efficacious.
Next, you should think about the guiding principles inherent in this project before beginning to write. Is it paramount that you are efficient in your research so that you don’t bill this particular client heavily? Maybe that you provide the deepest possible research because billing is not a concern? Or even writing in the most objective way possible to avoid skewing the issue through an overly persuasive lens? Thinking about these types of principles before drafting will sculpt your memorandum into its most useful form.
The key to completing this step is to envision what the project will be like when it’s successfully completed. This is really a visualization/imagination technique to help manifest your ideal product. “You supply the goal by thinking in terms of end results. Your automatic mechanism then supplies the means whereby,” said personal development author Maxwell Maltz.
The goal of this element in the Natural Planning Method is to create a clear outcome. Ask yourself: what will the memorandum really look like when it’s completed? What will it accomplish? How many pages should it be?
Moreover, you should constantly define and redefine what your goal is during your writing process, as this will “reallocate resources towards getting these tasks completed as effectively and efficiently as possible.” For example, is a theory you were set on asserting now moot because you research revealed that argument is inapposite in this legal context? A steadfast commitment to clarification and redefining goals helps you realize these concerns, and allows you to reorganize the memorandum, if necessary, so that the correct outcome is reached.
This stage is simply the process of giving “yourself permission to capture and express any idea, and then . . . figure[ing] out how it fits in and what to do with it.” For memo purposes, brainstorming can either occur at the beginning before you have looked into the research or after engaging in research—this will depend on how familiar you are with the legal issue to begin with. If you know nothing about the research problem, it’s probably helpful to look into the issue on your favorite search engine first, so you at least have a starting point.
The overarching idea, regardless of when you conduct the research, is that you must be unrestrained and unbridled in this process. Allen recommends the whirly bird method—although he doesn’t call it that—which begins with placing the main topic in the middle with branches representing ancillary issues sprouting out of the main topic. Bryan Garner says that the biggest challenge for a writing is “figuring out . . . from the mass of possibilities, exactly what your points are—and then stating them coherently, with adequate reasoning and support.” The whirlybird, or nonlinear outline, brainstorming method helps get all these possibilities out of your brain and onto paper. Unsurprisingly, Garner recommends the whirlybird as well. Allen gives three tips for engaging in this method successfully: (1) Don’t judge, challenge, evaluate, or criticize; (2) Go for quantity, not quality; and (3) Put analysis and organization in the background.
There may be scientific support for the proposition that using this method increases creativity. Cognitive psychologist and professor Scott Barry Kaufman, who researches creativity and imagination, says that the sweet spot for creativity occurs during a state of consciousness where you are aware of spontaneous thoughts, but not “too goal-directed so that you miss out on unexpected connections.” The effectiveness of the whirlybird, then, may stem from the fact that it allows you to step away from a completely goal-directed outlining session, and, instead, let your mind wander onto tangential issues that might not have been considered otherwise. And this is especially interesting as mind wandering, one recent study found, can influence creativity.
In other words, when using the whirlybird you are concerned with spontaneous thoughts, and this may result in the discovery of hidden connections between certain facts and legal issues. This is in opposition to the more traditional linear outline, where you structure your outline around a certain legal proposition or theories you want to prove. While this is a logical methodology that will result in some success, it doesn’t permit the free-flowing creativity that the whirlybird allows through spontaneous thought and mind-wandering.
Although this process may seem unbridled and haphazard—it is—its success as an outlining method comes from this very fact. There is an important qualification, however. You must put the brainstorming into the overall context of the planning process when drafting the whirlybird. Completely losing sight of your purpose and outcome may lead you to stray inappropriately off course. This comports with what Professor Kaufman advises: You must still be goal-directed, just not so much that you miss out on unexpected connections. Accordingly, avoid this one trap and watch the whirlybird simultaneously enhance your creativity and analytical content.
The purpose of this step is to “identify components and sub components, sequences of events, and/or priorities.” To do so, ask yourself what types of things need to occur to produce the final result and what the most important element are to guarantee success. You might start thinking about the logical structure of your memo here, perhaps crafting a more formulaic outline consisting of bulletpoints or short paragraphs. This is also the point where you should think about the type of detail you are going to implement in creating the memo. Will it be heavy factually? Or a more theoretical discussion of the legal issue?
The final step of the Natural Planning Method requires you to make “decisions about the allocation and reallocation of physical resources to actually get the project moving.” In other words, you must starting asking yourself what the next step is. Is it time to start reading caselaw? Is it to read a treatise on the subject matter? Or maybe to quickly ask advice from another associate on the topic? You must start putting the wheels in motion, but not in a frenzied way; there should be order to proceeding, and you create this order by identifying each next action.
There are really only two requirements here: (1) Decide on next actions for each of the current moving parts of the project; and (2) Decide on the next action in the planning process, if necessary. Identifying and clarifying each next action will be instrumental in helping you to stay relaxed throughout the process while completing the memorandum in the most efficient manner. To key is organizational clarity.
The Contents of a Effective Memoranda
Now that a preparatory methodology has been laid down, we can discuss the components of an effective legal memorandum. These subparts are drawn from Steven Sark’s “Writing to Win.”
Question for Research
First, begin your legal memorandum with a sentence or two at the beginning, which states the question you were asked to research. You should weave in enough facts chronologically to show how the problem arose, avoid phrasing the question in yes or no terms, and start the question with whether.
The Answer or Conclusion
Immediately following your question for research, provide the answer in a sentence or two at the most. If there are multiple questions, state the first question, then answer it; announce the second, answer that one; and so forth. Note, Sark says that with memorandum to Clients, the answer should be more practical than with the partner—i.e., “we need to do X,” instead of why you need to do X.
The Written Table of Contents
Sark advises that, in a paragraph or two, you should set out how you intend to organize your discussion. This is basically a short roadmap explaining where the memo is heading and what the organization of the memo will be like. He also suggests that you provide links to the upcoming sections within the memo, not dissimilar to a Wikipedia page, so that the reader can skip the parts they’re not interested in.
Here you should briefly describe the facts that are relevant to the issue you’re analyzing or researching. The point is to orient your reader and enhance their understanding of your analysis. Additionally, this section effectively allows future readers with similar issues to determine how relevant your memo is to the research they will be conducting—an especially important concern if you work in a large law firm.
This section is the heart of the legal memorandum, deep in analysis and comprehensive in reasoning. Make sure you break up this section not infrequently and provide conclusory headings, like in a brief. Also, depending on who you are writing for—lawyer or client—you may want to ease up on the legal citations and other blue booking conventions. They add nothing for the non-lawyer. The same could be said for footnotes: a non-lawyer doesn’t really care about ancillary arguments that aren’t worth mentioning in the substantive text; but, if the memorandum is for a lawyer, you might want to throw in a footnote if the argument is worth calling attention to. If you do include citations, make sure you hyperlink to those cases or other authorities cited so your reader can access them easily on Lexis, Westlaw, or any other legal database.
Further Questions for Research
In this concluding section, you should note other areas of law you discovered that may need to be analyzed more fully. This might be useful if you ran into a plausible argument or tangential issue that requires additional guidance before being researched fully—as it might be a waste of time following expert advice from your supervisor. This is much preferable to researching this issue with full-force as its importance may be minimized after your reader completes the rest of the legal memorandum.
Accordingly, when you run into these types of queries, make a quick note of them with a brief explanation of your understanding, thus giving your supervisor a chance to decide if it’s worth spending more time on.
A bibliography at the conclusion of your memo is critical because it allows your reader to follow up on the research provided. Simply list the main sources examined and the principle cases consulted—and hyperlink to them as well. The main evil you want to avoid here is the reader asking: “What did the writer rely on?” This leads to duplicitous research and wasted time. Mitigate the effect of overlapping research—and billing—by providing this bibliography.
The Politics of the Memo
There are two rules that a associate should follow when completing the legal memorandum.
First, try and receive your instructions in writing. This avoids miscommunication between the supervisor and the memorandum drafter, and the potential for misaligned expectations, which can frequently result from casual, verbal instructions. Try and obtain the most specific instructions possible. If the supervisor insists on verbal instructions, write down what your interpretation of the guidelines are and recite them back, verbally or through email, to ensure that both parties’ expectations are aligned.
Second, make sure that you and your supervisor are on the same page concerning length of time, as well as page length for that matter. The last thing you want to do is run up the bill on the client on an obscure legal issue that shouldn’t have taken more than a couple hours to draft and prepare a memorandum on. Avoid this pitfall by ascertaining exactly how long the memorandum should take.
I hope you enjoyed this brief discussion on project planning as considered in the context of a legal memorandum, and the identification of relevant components in a successful memorandum. While this method might appear somewhat mechanical and lengthy, the benefits in efficiency, clarity of thought, and creativity will likely surpass any other detriment the length of the process may cause.