Tuesday, June 10, 2014

More Non-Writing Tips for Memos

Below are my non-writing tips 6 through 10 for drafting memos in practice:                  
6. Learn the style and page-limit expectations. Some firms and partners use certain forms for memos, which may differ slightly from the form you learned in law school. If you're unfamiliar with the assigning attorney, ask if the attorney expects you to use a particular form for the memo. If not, use the form you’re most comfortable with. Also, be sure to ask if the assigning attorney is looking for a memo of a certain length or if there is a page limitation. Remember, though, the attorney wants a thorough memo, not a tome. So even if there is no page limitation, be concise.  

7. Allocate time for each task. New attorneys often spend WAY too much time researching legal issues (for fear they're missing the seminal on-point case) and don't leave enough time to write the memo itself. In your head or on paper, create a plan of action and allocate time for each task. For example, if you have 6 hours to research and draft a memo, you might allocate 2.5 hours to research, 3 hours to drafting, and 30 minutes to editing and revising. Try to stick to your plan as closely as possible so you don't get behind. But don't be afraid to adjust the plan later, if necessary. You may discover the law is convoluted and you need additional time to research before you start drafting. If you're going to need to bill more time to complete the assignment, refer to tip #5.   
8. Know what to do if there's no authority on point. In law school memo assignments, there's almost always some authority on-point that you'll use to support the conclusions in your memo. But in the real world, you won’t always find what you’re looking for. Sometimes there's no binding authority, only persuasive authority. And sometimes there's no binding or persuasive authority at all, and you'll be grasping at straws to find any authority you can use to analyze your client's legal issues. If there's no binding authority on point, ask the assigning attorney if the attorney wants you to look outside the jurisdiction for persuasive authority. And if you can't find any authority at all, let the assigning attorney know before you spend hours gnashing your teeth. Sometimes attorneys will suspect there's little or no authority on a particular issue and simply ask for research and a memo to confirm that suspicion. You can't generate court opinions out of thin air—if there's no relevant authority, there's no relevant authority. But let the assigning attorney know the difficulties you're encountering before you spend hours researching an issue for which you cannot generate any written work product. 

9. If you discover additional issues through your research, address them in your memo. Sometimes your research will reveal additional issues that the assigning attorney may not have contemplated. Assume you've been asked to research the likelihood your client will prevail on libel and slander claims. You discover through your research that your client's claims might be subject to an anti-SLAPP motion to strike/dismiss. Your memo should include a discussion of the anti-SLAPP statute, even if the partner never mentioned the anti-SLAPP statute when she assigned the memo. The partner might be unfamiliar with defamation law and have never heard of the anti-SLAPP statute. The partner is relying on you to educate her about that area of law, and unless she specifically tells you not to address a particular issue, address all important, potentially dispositive issues you learn about through your research.     
10. Don't be afraid to ask for clarification. If you ever have questions about the assignment, don't be hesitant to ask. The assigning attorney would much rather you ask questions in the midst of an assignment than complete the assignment with a misunderstanding of the facts or issues you are to research. But follow tip #1, and take good notes to minimize later questions.

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