|10 Tips for Writing a Persuasive Legal Memorandum
By Brooke Smith
You earned your undergraduate degree, survived the LSAT, and successfully applied to law school. However, instead of giving you a chance to show off your courtroom skills, your legal writing instructor is demanding you draft your first legal memorandum. You know you’re supposed to gather cases on a particular issue, analyze them, and discuss your findings using correct citations. But how best can you put together an effective written argument?
1) Determine the purpose of the memorandum.
Not all legal memoranda are alike. In the real world, the purpose of a memorandum depends on its ultimate audience. Law clerks write memoranda to educate their judges on the current state of the law, law firm associates write them to other lawyers to analyze the strength of a client’s case, and lawyers write them to judges to advocate their clients’ positions. Each of these situations requires a different degree of persuasion.
For example, a law clerk must look at the issue with total objectivity, as the court’s job is to determine the status of the law and apply it without favoring any party. On the other hand, the job of an associate is not simply to determine the current state of the law, but determine whether the firm can obtain any relief for the client. While some element of persuasion may be involved (particularly if the writer feels strongly about the likelihood of success of one route versus another), the ultimate goal is a creative but candid assessment of the client’s options.
However, a memorandum or brief filed in a case has but a single purpose: persuading the judge to rule in your client’s favor. Although ethical restrictions prevent an attorney from intentionally misleading the court, many things can be done in terms of research, organization, and simple choice of language to create the strongest possible argument. Although some of the concepts discussed below may also be helpful for other types of legal memoranda, this article focuses on presenting an effective case argument.
2) Do your research.
For very elementary legal writing assignments, you may not be expected to do original research, as the instructor will provide you with the relevant cases on the issue and ask you to use them to reach a conclusion. In this situation, there’s not much you can do beyond studying the cases and making certain you understand them before beginning your analysis. However, if original research is required, here’s a good way to keep track of your efforts and determine when you’ve completed your task.
First, create a simple database with the fields CASE NAME, CITATION, COURT, YEAR, APPLICABLE, and COMMENT. Each time you come across a case, enter the information about it into the database. This includes cases cited within a case, which can often be very fruitful. Once you have read an opinion in full, indicate in the APPLICABLE field whether the case is helpful to your argument (YES), damaging to your argument (NO), or simply not relevant (NR). In the COMMENT field, for YES cases include the holding, short summary of the facts, and quotations of helpful language (with page numbers); for NO cases, indicate if the case can be distinguished on the facts or given diminished weight because of the court. In addition, keep a list of any law journal comments or other non-case resources you come across. Continue until you have an entry in the APPLICABLE field for everything listed and are starting to see the same names coming up again and again.
Although using a database may initially seem more cumbersome than just jotting down notes, in the end it will save you an immense amount of trouble, particularly on any long memorandum. First, you will never find yourself staring at the same case again because you’d forgotten you’d already looked it up. Second, by extracting most of the useful information from the case, you will save yourself from having to go back to the original source. Third, you eliminate the risk you will be looking at only the obvious cases while skipping others where a party may have raised a good point you would like to borrow, or where an out-of-jurisdiction case had a helpful fact pattern. Fourth, if you ever have to revisit the same issue, you will easily be able to update your research. Finally and most importantly, you will know when you have exhausted the topic and are ready to write.
3) Be careful with names.
Many times brief writers overlook the power of the way parties are identified. Good use of names can subconsciously affect the way your audience perceives your client and the opposing party. Take for example defendant Monica Henderson, a 17-year-old accused of using illegal drugs. She could legitimately be referred to as “Henderson” (which sounds like a hardened criminal), “Ms. Henderson” (more neutral and respectful), or just “Monica” (a poor, frightened girl being mowed down by the system.) In the same way, if the main witness against her is Officer Charles T. Jones, it may be in your side’s best interest to refer to him as “Jones” (takes away from the power of his police officer role), “Officer Jones” (very official and respectful), or “Officer Charlie Jones” (opens the door to his being someone who might have given the defendant a chance—if she’d been entitled to one.) Obviously the best choice depends on the particular circumstances of the case, but this is a decision that should be made carefully and executed consistently throughout your memorandum.
4) Give them the facts—and only the facts.
The fact section of a brief requires much more care than it usually receives. If you are going to cite to a fact later in the brief, it must appear in the fact section, as nothing annoys a court more than for something to pop up for the first time in the middle of the analysis. Make certain there’s a one-to-one correspondence between what you set forth at the beginning and what you need later.
However, this doesn’t mean you should include everything you can as a hedge against accidentally leaving something out. Many brief-writing exercises try to recreate a real world environment where all facts simply are not equal, as one of the skills you’re being asked to develop as a lawyer is to separate the facts of a particular situation into those which are (1) critical to the legal argument; (2) not critical, but possibly helpful to your client (especially in lessening the impact of any critical but bad facts); and (3) irrelevant or inconsequential. In particular, avoid including any facts in categories (2) and (3) that put your client in a bad light.
Once you have selected your facts, make the underlying factual support for your argument bulletproof by placing a reference after each fact to the underlying evidence. In addition to sending the subconscious message “our factual allegations are supported by evidence,” you relieve the reader who wants to know where a statement comes from of the burden of having to search the record—a way to build good karma.
5) Put your strongest argument first.
Never save your best argument for last on the theory of having a strong finish. Readers will pay the closest attention to the first things you say, so put the best first, then the second best. Subsidiary or alternative arguments can be presented as being almost unnecessary as the major point should be treated as so convincing that additional ones never even have to be reached.
6) Don’t argue your opponent’s position.
There’s a great temptation to anticipate your opponent’s case, especially if you have in hand the bad case law for your side that you expect will be cited. However, unless you’re specifically asked by a court or instructor to address these issues, a premature defense will generally weaken your positive arguments. Instead of trying to deal with the awkward structure of arguing with yourself, save your ideas for a rebuttal brief or oral argument.
7) Remember more is not often better.
This is certainly true in terms of keeping your memorandum as short as possible while retaining clarity, but it’s especially true in the use of case citations. String citations not only aren’t very persuasive, but unless you have completely read each and every one, they open the door to inadvertent citations of irrelevant or even adverse rulings. Instead choose only the cases that truly support your client’s position, then take the time to explain to the court why it would be best to follow them, including clearly noting all parallels with your client’s situation.
8) Make your headings work for you.
Use short but full sentences. Each heading should not merely identify the point to be discussed, but be either a positive statement in support of your client’s position or one negating your opponent’s argument.
9) Keep your conclusion short and snappy.
Most readers begin tuning off when the word Conclusion pops up on the page. If the memorandum has done its job, a couple of sentences can close it up nicely; if not, boring the reader by rehashing the arguments won’t turn it around. If you keep some final point up your sleeve until the end, you run the same type of risk as placing your strongest argument last. Unless you have something to add that might be more in the nature of entertainment or philosophical enlightenment, simply request a ruling in your client’s favor based on the facts of the case and the arguments you’ve set forth.
10) Carefully proofread your final memorandum.
Mistakes in spelling, grammar, and punctuation suggest your legal reasoning may be sloppy as well. If time permits, allow a little to pass between finishing the writing and beginning the editing, as this will allow you to catch errors your eyes might otherwise skip over because of your familiarity with the text. Finally, double-check case citations (imagine your readers’ frustration—and loss of faith in your credibility—when they can’t locate a critical case cited because you’ve sent them to the wrong volume or page.)
Even the best memorandum won’t save every case, but if you follow these tips, you’ll get closer to your goal: persuasively putting forth your client’s position.
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