How to Write a Legal Memorandum

1. How to Write a Legal Memorandum October 13, 2009 Paul Dawson Dolden Wallace Folick LLP

2. 1. Purpose Two purposes of legal memos: • Explanation – what is the law, how does it apply. • Persuasion – your client, opposing counsel, or a judge, but - always - your boss.

3. 2. Other Forms of Legal Writing Memos differ from: • Factums and written arguments – more formal, overtly persuasive. • Opinions – more focused on advice. • Academic papers – your client will not pay for your dissertation.

4. 3. Competing Principles There is a tension in every legal memo: • Accuracy – your memo must be complete and correct. • Economy – you must work within time and money constraints. VS.

5. 4. Preparation (1) Understand your instructions: • What is the question? • Who is the audience? • How does the memo relate to the bigger picture? • What work product is required? • When is it required?

6. 4. Preparation (2) Conduct your research with the memo in mind: • keep an organized research trail • use tables or a system of classification to sort your cases • highlight • make hyperlinks • save cases electronically

7. 5. Structure (1) This should be a useful document, now and in future: • Identify the file by name and number • Identify the topic – lots of memos on some files • Identify yourself, and the recipient • Include the date – and the date of any subsequent revisions

8. 5. Structure (2) Question • “You have asked me…” • Introduces what follows • Covers your a…nalysis.

9. 5. Structure (3) Answer • When finished, you may know more than the instructing lawyer. • What’s the “bottom line”? • The rest of the memo may never be read.

10. 5. Structure (4) Facts/Assumptions: • Only if necessary – know what is relevant • Highlight areas where more information is needed – may help with discoveries • Some memos need more facts, e.g., quantum memos • Consider inserting chronology where facts about timing are critical, e.g., contractual negotiation, limitation issues

11. 5. Structure (5) Analysis • Lay out your tools – describe and cite statutes, key cases, and concepts • Then use them – how does your case or issue relate?

12. 5. Structure (6) Don’t bother with Conclusion, if it only repeats your Answer Appendices – lengthy statutory extracts, additional cases, maybe a bibliography

13. 6. Formatting (1) • Headings – essential, but not an excuse for poor connections and transitions • Numbering – use to lay out sequential propositions, or with headings in longer memos • Bullets – use for multiple examples of more or less equal importance • Quotations – inset, different font size, or italicize; block quotes don’t get read.

14. 6. Formatting (2) • Italics, bolding, and underlining – use sparingly, and consistently • Tables – sometimes, they just make sense. • References • Lawyers and judges expect citations in the text. • Use footnotes for marginal commentary. • Avoid endnotes except for academic work.

15. 7. Style (1) • Above all, be clear. • Sift down to what is truly relevant. • Provide all necessary details about cases, but no more. • Never refer to a case without saying why it matters.

16. 7. Style (2) • Never quote from a case without introducing or summarizing it. • Use proper citations • Proofread – typos weaken credibility • Simple language – short sentences – to the point.

17. 7. Style (3) • Avoid the passive voice, false nominalization, and unnecessary words. • Careful with informality, colloquialisms, and rhetorical flourishes; avoid humour.  Your client is paying for this. • Add unexpected value – be alert for side issues the instructing lawyer may have overlooked. • Answer the question!

18. 8. Further Resources • Eugene Meehan, Q.C. “Strategic Legal Writing” (http://www.supremecourtlaw.ca/default_e.asp?id=79) • George Orwell’s Politics and the English Language (http://orwell.ru/library/essays/politics/english/e_polit)

19. Good Luck! Paul Dawson Dolden Wallace Folick LLP