The latest edition of Student Lawyer (Volume 38, Number 9) contains an article by Bryan A. Garner in the Legal Writing Department entitled Sense and Sensibility: a Primer on Preparing Research Memos. The article helps writers to remember and identify the top 10 writing faults to become a more effective writer and self-editor. The primer on writing research memos advises writers to:
- Think like a writer and keep the reader in mind. The lead-in is especially important, so waste no time in laying out your critical points. But don’t think that your supervisor is your only reader. A good memo is comprehensible to any intelligent reader on any day. Why? First, the assigning attorney, being busy, will appreciate being reoriented. Second, your readership includes the assigning attorney two years hence – not just during the week when you turn in the assignment. Third, your readership includes other lawyers who may become involved in this matter or another matter involving a similar issue. Fourth, your readership may include senior lawyers who, though not involved with the matter, make decisions that affect your career.
- Answer the real question which is “How can our client do this?” Keep the client’s objectives in mind rather than the academic exercise of issue-spotting and giving on-the-one hand-but-on-the-other-hand responses, as you probably did in law school. Try to approach the problem with relentless pragmatism.
- Work with the supervising attorney. Try to get the assignment in writing which will help your memo to be better. And learn what you can about the entire matter you’re working on; again, you’ll do better work and create a better impression. Discuss the assignment with the assigning attorney – especially if (1) you need to know more about the facts, (2) you’ve found a new line of authorities, or (3) you think the important question or questions are rather different from the ones originally posed.
- Research tenaciously – not superficially. Use the library and Corpus Juris Secundum and American Jurisprudence, the relevant treatises and American Law Reports annotations. Ask a reference law librarian – better yet, make friends with some good ones and get their phone numbers. Use both electronic research and through time-honored paper research. The serendipitous discoveries in print will come as you leaf through hard-copy texts that deal with the subject.
- Avoid the shallow one-sentence issue statement as well as the ungrammatical “whether” phrasing as in “Whether FuImer’s second marriage was outlawed by the bigamy laws”. Instead, master the art of the deep issue, a multi-sentence issue statement culminating in a question mark by the 75th word.
- Master the “deep issue” which will change the way you approach legal writing. Insist on giving them up front – as the very first thing the reader encounters. You’ll look like a smart, organized writer because you’re pacing the information well as it enters the reader’s consciousness. Remember the 75-word limit.
- Keep your facts chronological and tell the story behind the dispute. This will make it easier for the reader to follow what happened when and why. The story becomes memorable and the reader is more likely to retain a familiarity with the facts behind the question.
- Use informative headings. Assertive headings help the reader follow the course of your argument. A heading such as “Under California and federal law, information about a client’s fee arrangement is not generally privileged” will help the returning reader find the relevant section quickly.
- Address the weaknesses in your advice. To be objective, your research memos must address the possible pitfalls.
- Suggest the next steps. What would you do next? What’s your recommendation? Ask yourself what might be wrong with your recommendation – why the assigning lawyer might not accept it – and modify it to make it acceptable upon mature reflection.
This article can improve the research and analytical skills of memos that young lawyers write whether they are junior attorneys in a law office, interns with a court or research assistans to a law professor. The current issue of the print version of Student Lawyer is at the Brooklyn Law School Library circulation desk. An online version of the article is available through the library’s ProQuest suscription.
Another item in the library’s collection to help write better memos is Garner on Language and Writing: Selected Essays and Speeches of Bryan A. Garner with a foreward by Ruth Bader Ginsburg. One quote from this item is worth repeating: “Legalese is jargon. All professions have it. All professions use it as a substitute for thinking, and they all use it in a way that makes them appear to be superior. Actually, they appear to be buffoons for using it. The legal profession may be the worst of all professions in using jargon.”