Does anyone write memos?
Do young attorneys write memos anymore? I assume they do, and I teach my students how, but I wonder what's going on out there.
I hear reports from students that "They didn't want a memo; they just wanted the answer [oral report, list of cases]." Or worse, "They just wanted the answer in an email." I hear that government law offices don't do them much or that public interest organizations don't do them much. I hear that large law firms still do--but only in the summer.
What's the reality?
Legal writing teachers tend to view the traditional memo as a core tool in legal synthesis and analysis: the building block for problem solving, client advising, and brief writing. I think that's right. I also think telling a young lawyer "Don't write a full memo; just give me the answer" is short-sighted.
It is in doing the synthesis and analysis that the you master the issues and the authorities. And that mastery will be much better, in my view, if the young lawyer is required to write out the synthesis and analysis in clear prose. There's nothing like writing a formal document to expose hasty, faulty thinking.
So I'm committed to teaching the traditional legal memo.
But what's going on in the real world?
I hear reports from students that "They didn't want a memo; they just wanted the answer [oral report, list of cases]." Or worse, "They just wanted the answer in an email." I hear that government law offices don't do them much or that public interest organizations don't do them much. I hear that large law firms still do--but only in the summer.
What's the reality?
Legal writing teachers tend to view the traditional memo as a core tool in legal synthesis and analysis: the building block for problem solving, client advising, and brief writing. I think that's right. I also think telling a young lawyer "Don't write a full memo; just give me the answer" is short-sighted.
It is in doing the synthesis and analysis that the you master the issues and the authorities. And that mastery will be much better, in my view, if the young lawyer is required to write out the synthesis and analysis in clear prose. There's nothing like writing a formal document to expose hasty, faulty thinking.
So I'm committed to teaching the traditional legal memo.
But what's going on in the real world?
Real memos do get written. A vast majority of those memos are written by the litigation folks in situations that clients are paying the big bucks.
The use of real memos in non-litigation contexts is vanishingly small. Occasionally, real memos are written knowing that they are likely to be useful for the preparation of a motion or similar argument in other contexts (like an appeal in a patent case).
In any event, you can't give the "short answer" without knowing the "long answer." But, in the real world, I think that fewer words are actually written, rewritten and refined. The same techniques are applied and same research is done, but no one writes a 30 page memo unless there is a client budget to support it.
I'd say, in my own practice, I've written one memo and about 200 e-mail memos. An e-mail memo consisting of: brief answer, why the brief answer is supported (sans complex citations), and a short equivocation about contrary positions (sans complex citations).
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My summer associate experience was that memos get written, but partners want the memos to be as well reasoned and thorough as possible while also being as SUCCINCT and DIRECT as possible. They want the full ("long") answer, but they don't want what feels like a full ("long") memo. Think "meals for astronauts," or something like that.
I think, for teaching purposes, the goal should be to teach law students to write a memo the way a real partner at a real firm would want it. That seems to mean doing away with, or moving beyond, a lot of the hallmarks of the scholastic "legal memo" -- e.g., IRAC, CREACC, and other "proper structures," as well as the kind of language usage and styles that sound like "I just wrote a paper for school" instead of "I just answered some important questions for my boss."
Regarding the acronyms: these structures are useful early on, pedagogically, to help students understand roughly what needs to be accomplished -- like the 5-paragraph essay (intro, body, conclusion) that gets taught to high schoolers and undergrads. But the real goal should be to move students past this formulaic approach, or at least to point them in that direction (explicitly), so that they don't think their memos as first-year associates should still look like papers they wrote as 1Ls.
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Almost never in my practice, but I'm inhouse and do purely transactional work now. When I was at a big NYC firm, I did a few, but it was in areas like takeover defense. Once in a while I'll see them for securities work. That being said, I do read a lot of firms' memos to clients on recent decisions, so they do get written, if not for specific clients or in response to a specific request. I can't imagine a circumstance in which I'd want a memo from a deal lawyer. In fact, I pay more to have more-senior lawyers so I get answers rather than research, memo and suggestions. I avoid first years like the plague, but that's another issue (currently on my mind because of a bill I'm looking at).
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As general counsel, I recently adopted advice to my outside counsel that I will not pay for a research memo unless I first approve the question presented. Generally, I trust my outside firms to research only what they need to handle the matters I give them. Taking the time to turn that into a document they are proud to present to me is not something I want to pay for. I also told them that I expect plain English writing and for them to re-write it for free if I send it back to them because it isn't.
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It depends. But the more important the answer is, the more likely a memo will be required.
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In the public interest world where I work, almost never. The more interesting question is why.
I think it is a chicken-egg issue. I used to ask law student interns for memos, but they were so rambling and confusing, I ended up reading all the cases cited, and usually doing my own research--which seemed to defeat the point. Now I am much more likely to ask for copies of the five most important cases, with no more than one page explaining what the answer is.
I'm not at all sure this is ideal, but seems to be more time efficient.
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An important step in preparing a legal memorandum is getting proper direction about its purpose. An assignment with vague directions will be unsatisfactory for everyone.
Sometimes the fault rests on the assigning attorney, at other times with the writer--for not going back for clearer instructions.
It matters whether the memorandum is requested to:
• decide whether to take a case,
• advise a client,
• draft a pleading,
• persuade someone,
• prepare for trial.
Teach your students to be persistent in getting the purpose clear.
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Well, there are those torture memos prepared by the DOJ. My students in legal writing encounter a bit of everything in their summer jobs. Sometimes the supervising attorney just wants the law. Others want analysis. And we need to teach memos. After 5 weeks of law school, some of my students are struggling to deal with a statute and three cases to answer a question.
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Why don't we refuse to hire anybody other than legal writing adjuncts who ARE in TOUCH with what's happening in the real world. That way students will be able to do useful writing rather than academic mumbo jumbo.
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