THE LEGAL MEMORANDUM

IN GENERAL

A. PURPOSE- to analyze a legal problem and give an objective legal opinion on

that problem. A legal memorandum is used to strategize approaches and to
formulate arguments.

B. AUDIENCE- usually another lawyer within the same firm or legal

organization. It is kept as an internal document and not seen by judges,
clients or the opposition.

C. APPROACH- when you write a legal memorandum, take the following steps
in the order listed:

1. Read and reread- read the entire record (the pleadings filed with the
court prior to the memos completion) and then read it again. When
researching the law later, you may discover that seemingly unimportant
facts are essential. If your do not have a full comprehension of the
substance of the record, you may miss a key element of the case.

2. Outline the facts- write down the facts. Provide the page number in the
record or file of each fact so you can refer back when necessary.

3. Research the law- research the law using every source at your disposal
(e.g., books, the internet, law reviews, treatises).

a. Familiarize yourself with the generalities of the topic- often, you will
be unfamiliar with the topic at hand. Before researching the specifics,
find a source that gives an overview of the law, such as a textbook or
treatise.
b. Top-down research- once you begin your substantive research, start
with the most important sources (e.g., statutes and Supreme Court
decisions). These sources will provide the foundation for your
argument.
c. Find favorable law and unfavorable law- do not just search for law
that supports the clients position. You must address law that is
helpful and harmful to the clients case.

4. Chart the law against facts- once you have done substantial research
create a chart that list each essential facts or event and identify the main
legal element that pertains to the event.
 5. Identify the Issues- using the chart of law and facts, identify the issues
that will have to be addressed, analyzed, and explained in the
memorandum.

6. Outline- using the elements of the law, create an outline of the memo.
The outline should provide an explanation of how each element will be
applied to each fact.

7. Write the memorandum

8. Edit, edit, and edit- a memo is not complete until it has been edited and
reedited. Have someone assist you in editing. If no one is available to
assist, try spending some time away from the memo before returning to
read it over and edit it.

D. SECTIONS- A legal memorandum is made up of:

1. Heading
2. Question(s) presented
3. Answer(s)
4. Statement of Facts
5. Discussion
6. Conclusion

1. HEADING
The typical memorandum begins with a TO:, FROM:, DATE:, and RE:
heading. Although the heading may seem unimportant, it is essential for
record keeping that the heading be properly and thoroughly complete.

Sample Heading:

Memorandum of Law
TO : John W. Lincoln
FROM : Abraham Booth
DATE : January 3, 2004
RE : Applicability of Wilks v. Ford to a defendant with
prior conviction

2. QUESTION PRESENTED
The Question Presented section forms the entire memorandum. It should
encompass both the legal and factual elements that must be analyzed.

A. Incorporate legal and factual components into the issue- The issue
presented should be started in terms specific to the case, including both
legal and factual elements at issue.
 Incorrect: Was the defendant denied effective assistance of
counsel?
Correct: Did an attorneys failure to file a timely appeal constitute
ineffective assistance of counsel?

B. Numbering- Each question should be numbered in the same order that

they will be addresses in the memo.

3. ANSWER
The Answer section should consist of brief answer to the Questions
Presented. They should be answered in the same order they appear in the
Questions Presented.

4. STATEMENT OF FACTS
The statement of facts should tell the story that gave rise to the legal
question. The facts should have tone and structure that is easy to read and
makes the issues understandable.

A. Avoid unnecessary facts

Include only those facts that are necessary for the legal analysis. The job
of the writer is to -------- through all of the information and pull out what
is needed.

B. Do not state legal conclusion

Do not incorporate legal terms or legal conclusions in the facts.
Incorrect: Mr. Rice negligently failed to stop at the red light
Correct: Mr. Rice failed to stop at the red light.

C. Note disputed facts

If there are facts that are in dispute they should be clearly identified with
modifying term such as alleged, started, testified.

D. Only one key fact per sentence

Avoid sentences that include more than one essential fact. If you follow
this rule, you will make it easier to apply the law to the facts in the
Discussion section.

E. Avoid bias or distortion

Mention facts that are both favorable and unfavorable.

5. DISCUSSION
The Discuss section should detail the applicable law and jurisprudence to
the question presented.

6. CONCLUSION
The Conclusion section summarizes the discussion with an ending
consistent with the Answer section.