Tuesday, June 3, 2014

Memos: Not Just About Writing

There's more to writing a legal memorandum than simply writing the memo. There's learning the facts, there's figuring out the legal issues, and there's researching the law, just to name a few. Students learn to draft memos in a controlled law school environment (and rightly so) with distinct legal issues and on-point authority. But once students get out in the real world, memo drafting isn't always so straightforward. Here are the first 5 of my top 10 non-writing tips for drafting memos in law practice.

1. Take thorough notes and read any written assignment carefully. If you receive a memo assignment orally, take thorough notes that you can refer to later for clarification, and don't be afraid to ask the partner to slow down if you need a few more seconds to jot down the information. Consider writing an email to the partner or assigning attorney summarizing your understanding of the assignment. If you receive the assignment in writing, read it carefully, both when you receive it and when you begin your research. Highlight the information you think is most important. If any essential information is missing from the written assignment, email the assigning attorney and ask for that information.   
2. Make sure you have a clear understanding of the facts. The facts are very important to your analysis, so think critically about the facts of your client's case. Are you missing information that might sway the analysis? Are you unclear about certain important facts? Do some facts seem to contradict each other? If so, go back to the partner and ask if the partner can answer your questions or clarify your understanding of the facts. The partner may also be able to speak with the client or connect you with a client contact who can answer additional questions you may have about the facts at issue.    

3. Know the legal issues you need to address. Often, partners will be very clear about the legal issues you are expected to research and analyze--Is the client likely to prevail on a claim for tortious interference with business relations? Sometimes, though, the partner won't be clear enough on the relevant law to know exactly what to tell you to research, and your assignment will be more amorphous--What causes of action should the client allege in his complaint? Sometimes you'll need to research multiple issues and sometimes only one. Be sure you're clear on what the issues are before you start your research.          

4. Know how long the assigning attorneys expects you to spend on the memo. When you are learning to draft legal memos, you might spend 30 hours or more researching and drafting a single memo. But in the real world, you'll likely need to spend substantially less time, especially if you will be billing your time to a client. It's often difficult to ensure you perform thorough research and analysis while meeting the client's billing expectations, but this is the reality of real-life practice. If you are given only 5 billable hours to spend on a memo, do your best to allocate your time appropriately between research and writing. If it's not possible to complete the assignment in the time allotted, ask the assigning attorney for more time (firms will often eat associate time that can't be billed to clients). If you can't get more time, include a caveat in your memo indicating which issues you weren't able to thoroughly research or analyze.       

5. Relatedly, ask when your memo is due. Sometimes you'll have a week or more to research and draft a legal memo. Other times, your client will need an answer in 24 or 48 hours, and you'll have to generate written work product in a much shorter period of time. Be sure to ask the partner or assigning attorney when the memo is due. And if the memo is taking longer than anticipated or other work will prevent you from completing the memo on time, talk to the assigning attorney to see if the due date can be adjusted.    

Check back next week for tips 6-10!    

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