Why Is a Legal Memorandum Like an Onion? a Student's Guide to Reviewing and Editing - Terry Jean Seligmann

• Citation: Vol. 56 No. 2
• Publication year: 2005

Legal Writing

Why is a Legal Memorandum Like an Onion?—A Student's Guide to Reviewing and Editingby Terry Jean Seligmann^*

I. Introduction—The Riddle's Answer

If you are a student working on a legal memorandum, you may think the answer to the question posed by the title of this Article is that they can both make you cry. This Article may help you avoid tears by giving you a way to review your work. The legal memorandum is like an onion because it is a whole made up of many layers. These layers cover each other in levels that can be cross-sectioned and examined in place without losing the sense of the whole. The guidelines offered for that examina- tion follow the priorities of your legal reader.' These guidelines should help you with the complex task of editing your memorandum, while guarding against straying from the core purpose of your memorandum—the presentation of your legal analysis.

Critiquing a legal memorandum forces analysis of the document on multiple levels, from that of large scale organization' to technical detail. Teachers know the dangers of overwhelming student writers with critique on all of these levels.³ If you received comments on your draft, your teacher may well have identified major areas for your attention,⁴ but left to you the job of attending to other aspects of the memorandum also in need of revision.

Published checklists can provide comprehensive guidance for you in creating and assessing your work.' Legal writing teachers frequently use checklists or comment sheets, either standardized or custom tailored to the assignment. A danger of such lists, though, is that they may lead you to neglect the big picture in favor of spending an inordinate amount of time on a relatively unimportant decision, such as how to abbreviate the party's name in a citation.⁶ Any guideline or checklist should not be viewed as setting up rules applicable to all situations, or formulas that must be slavishly followed whether or not the legal analysis for the case fits the formula.⁷

Weighting the components can give some perspective, but this too can send the wrong message in terms of a legal reader's expectations for the memo, because most legal readers will be responding to the memo on the same set of multiple levels that this article suggests for review. For example, although proper citation form may be ranked below quality of legal analysis in terms of grading points and even in terms of the attorney reader's expectations, a wonderful analysis that has egregious citation errors will quickly lose its credibility with the attorney or judge who reads it.⁸

The model for review of a legal memorandum that follows suggests that the reader or self-editor proceed through a series of levels of review of the whole document, rather than try to operate on all levels at once. The order suggested reflects that which is most likely to produce a legal memorandum that is comprehensive in its analysis and well-written, by maintaining as primary the analytical integrity of the memorandum. one could, in theory, read the memorandum several times, each time focusing on a different level of review. In practice, as with the onion, both the writer and the reader will look at the layers at the same time as a whole. By focusing on these levels as a separable series of critiques, you can assure that you have considered the range of editorial issues that your legal memorandum raises. Instead of relying on a teacher's comments or changing only those items marked for your attention, shouldering the responsibilities of legal analyst, explicator, and editor can equip you to produce a tear—free legal memorandum.

11. Level One Review—The larger Issues

Begin with your discussion or argument section. This is the heart of your memorandum, the part that must be the healthiest. The summary and fact sections take their form and shape from the analysis, so they can be most effectively created and reviewed once the analysis is settled.

A. The Thesis Paragraph

Read the thesis paragraph. Look for an opening sentence that provides the essence of the legal topic the memorandum addresses and relates the essence to the client.' Make sure that the paragraph contains the overall legal standards governing the issues covered in the memorandum in the order the memorandum discusses them. Give a prediction to close the paragraph, explaining briefly the basis for the prediction. This is one place where it is acceptable to be conclusory.

The essay technique of beginning with a thought—provoking quotation and then providing an exegesis that leads up to one's thesis has no efficacy here. Nor should the ultimate destination of your analysis be held in reserve; this is no "whodunit." The legal reader will be looking for an early bottom line. The reader understands that what follows provides the explanation and support for the conclusion you forecast here. At this point you need not be concerned with laying out the detailed foundation of law and fact analysis that will shortly unfold.

B. The Flow of The Discussion

Review the overall structure of the discussion. Are the issues treated in a logical order?" Often the applicable case law will be the best guide on how to order your discussion. If the leading cases establish a three element test, then your memo will probably organize itself around those elements." A statutory claim may track the statute's structure, or the cases interpreting the statute may utilize a slightly different structure." If there is one issue that must be resolved before proceeding further with a claim, that threshold issue will ordinarily be analyzed first.¹³ If a case presents a significant procedural issue, this may warrant early treatment.¹⁴

Within each issue, conduct a similar review. Look at the topic sentences of each paragraph to see if the topic sentences, taken sequentially, provide a coherent outline of the discussion.¹⁵ If not, see where new paragraphing or new topic sentences will accomplish this.

Do not, however, be afraid to critically assess the need to analyze a particular issue in depth. Often, on one or more of the elements or issues, the client's case presents little controversy or complexity. Such issues deserve far less of your memorandum's attention—just enough to note them as part of the claim and to show that they are clearly present or absent in your client's case.¹⁶

Nor is there some stipulated amount of space for the analysis of each legal issue or sub-issue. A single legal issue can be complex.¹⁷ A general rule may yield several exceptions that must be reviewed and explained." Knowing the policies underlying the law may be of particular importance in resolving and predicting your client's case." The fact-specific nature of the issue may require you to provide several examples of precedential treatment on varying factual records.²⁰ For this reason there is no preset number of paragraphs, or even pages, per issue. The goal is providing a complete discussion without bogging down.

Making sure that the paragraphs proceed from point to point, rather than from case to case, is an important part of keeping the flow of analysis clear and moving. If you find your paragraphs beginning "In Baker v. Jones, " this is a signal to reexamine the structure of your discussion. The reader should know from your writing why a particular case warrants discussion and how it fits into the legal analysis. For the reader's sake, the writer should extract and write a topic sentence for the paragraph that lets the reader know why it is important to know about Baker u. Jones and what point the reader will be able to learn from the case that will help in resolving the client's problem. Compare this paragraph:

In Baker u. Jones, the Oklahoma Supreme Court decided that a woman who was raped in her apartment could sue the landlord for failing to supply adequate locks. [cite]. The facts that there had been an earlier break—in attempt and that the landlord refused to let the tenant replace the lock herself affected the court's decision. [cite].

with this one:

Prior incidents that provide notice to the landlord of the likelihood of criminal activity, coupled with the landlord's exclusive control over the premises, can give rise to liability. Baker u. Jones, [cite]. In Baker, . . . .

This second paragraph would belong in a section discussing the law of premises liability in terms of the factors giving rise to the duty. Finally, if the only reason you can come up with for writing about a case is that you read the case, or that someone else in the class said they were using it, then you have not synthesized your research sufficiently and may be producing the disfavored "case by case" analysis rather than the desired "issue by issue" organization.

111. LEVEL TWO —LEGAL LOGIC

Put yourself in the position of your reader—a busy, educated attorney trained in skepticism and disputation.²¹ Think about what that attorney hopes to gain from the memorandum: an education in the legal issues (without reading any of the authorities); an analysis of the facts of the client's case that anticipates and deals with the weaknesses as well as the strengths of the case; and a bottom line.²² These are the guiding principles of audience and purpose.²³ These principles underlie the teachings concerning the ordering and components of a complete legal analysis, whether labelled IRAC²⁴ or not. In legal writing the bottom line is only as good as the legal and factual analysis that supports it-you get more credit for the proof than for the right answer.

With respect to each legal issue, the memorandum should fully educate the reader on the applicable law. Beyond stating the rule in black letter terms, this usually means giving definitions for terms in the rule; showing the reasons for the rule through appropriate authority; making the rule's limits and exceptions clear through discussion and example; and elaborating upon any legal concepts, factors, balancing tests, or other...