Legal Memos
Legal Memoranda are a staple of legal practice. They have been for centuries and remain so today, even as law practice has evolved into the 21st century. Legal memos can be classified into two types: those written to another lawyer and those written to non-lawyers. The former are typically referred to as legal opinions and are primarily written by outside counsel to their client organizations. The latter, legal memos, are written to other lawyers and professionals within an organization and are for internal purposes only . Legal memos most commonly convey analysis of a matter and normally provide supporting references to the law and authorities relied on to support the conclusions and recommendations provided in the memo.
The structure of a legal memo is standardized. It should begin with a statement of the questions and facts being discussed. This should be followed by a section on the applicable law that relates to the matter. Lastly, there should be a conclusion section that includes any recommendations, if necessary, based on the analysis of the matter. The analysis may also include pro and con information on the topic that follows the conclusions. A citation section must always follow the conclusions.
What is a Short Answer?
The brief answer is a small section of a legal issue spotter that does not constitute the whole of the memo. It is, as the name would imply, a fairly short response to the reader’s request. If the ‘discussion’ is the law and policy underlying the client’s particular issues, then the ‘brief answer’ is the answer itself.
Unlike a discussion or an introductory section, the brief answer is the legal answer to the legal question posed. As such, it probably should not be longer than a few paragraphs, preferably one. A sentence will likely suffice in the event of a simple yes or no question. The brief answer should state the legal result of the discussion that follows. As with all things, however, there are exceptions. Some issues exist where the discussion may not be much longer than the brief answer itself, and the reader would benefit from hearing the result first and the discussion second.
Even in those instances, however, you would be wise to heed the advice of the best brief answer: if the reader does not read any other part of the document, he or she should at least read the brief answer.
The Importance of a Short Answer
The brief answer is often the only part of a legal memorandum that the reader – often a high-ranking supervisor, partner, or even a client – actually will look at. Because someone who isn’t an expert in your particular issue will read the brief answer, it should be written to be understood. That’s why grammar is so important and you might not want to use arcane legalese. At the same time, however, the brevity is designed to suggest an answer rather than fully explain it or support it. What you’re doing is telling the reader that he or she can read the whole memo if he wants or is inclined to do so, but that if he just wants the key points, he can get them quickly by looking in the brief answer and the answer section in which the main opinion is summarized.
How To Compose a Short Answer
Your Response Should be Brief and to the Point: Writing a Brief Answer in a Memo
Tips for writing a brief answer:
- Provide an answer to the question. When you frame your sentence or sentences, make sure you answer the question posed without unnecessary verbiage and without inserting information that is not called for. Again, this is not a conversational answer in real time; this is a written response to a question.
- Be direct. Start with your answer. This should be no longer than one sentence.
- Don’t start with an introductory phrase. Remember, when writing in your head, before you actually put pen to paper, you usually frame a response in your head like this:
Well, in this case, I believe that your answer should be ___
However, in a Memo, that phrase is too long. You’ve just spent the last paragraph or three explaining the law and the analysis. Don’t repeat any of that. Just give the answer: answer should be ___.
– Cite to the first case in the paragraph. Because you cite to the paragraph number, you do not repeat the full citation in the brief answer that starts the next paragraph. Here’s how to do that: "Respondent’s child support obligation is determined first by Section 6-221 of the Act. Section 6-221 requires the calculation of respondent’s net income (Section 6-208) and the percentage of that income required for the support of minor child (section 6-211(a)). Section 6-211(b) provides a rebuttable presumption that respondent’s support should equal 32.5% of net income. In such case, the respondent would owe a per- child amount of $650 per month in child support. *** Cite to 6-211(b) here. The cited code section is the same as above, but since it’s the first (and only) time it appears in this paragraph, we use the full citation.***
– Short paragraph. Remember, this is a brief answer. I usually limit this paragraph to one sentence.
Common Pitfalls
An attorney’s mistakes regarding the Escalation of the Defense to a New Cause of Action can be immediately detrimental to his or her case, and may require having to obtain judgment in a higher court. Many attorneys and paralegals alike call IRS procedures and protocols in this field "Legalese," because they are generally so illogical that we have to speak in a foreign tongue to accurately describe the actions taken. We all know what "Legalese" is, but we may not be so familiar with the "no-nos" that come along with it.
- Exceeding the Limitation in Your Answer: Your Answer should be brief, straight forward, and limited in scope. So, keep your opinions and self-doubt out of the conversation – long pamphlet-style trivia is not necessary.
- Being Too Ambiguous: Too much brevity can have negative consequences . Therefore, instead of "The complaint is vague and ambiguous", be sure to use "The complaint fails to state a cause of action upon which relief can be granted."
- Talking Down to The Judge: With a Brief Defense, you neither want to insult the Judge’s intelligence, or use it as an opportunity to one-up yourself against opposing counsel. The Brief Defense is like having a really good friend blindly do your work for you; he won’t screw it up, but he will make sure that it is not only focused, he’s happy for you.
- Not Taking Responsibility: If you need to file an answer, do it. If you need a continuance, ask; but if you can do it yourself, then just do it.
- Formatting the Brief Answer in Any Way That Could Be Considered Improper. Keep it clean and organized, and don’t try to use ingenious legal terms that could make you sound more intelligent — it probably won’t work, and might get you San Diego Lawyer Disciplined.
Examples of Short Answers
A few exemplary answers will help illustrate the right approach and style for your own memo. I’m going to show you two good answers (in fairly complex memos), then a particularly poor answer, just to help you start with some contrasts in mind.
Example #1 of a good brief answer:
In addition to the issues discussed above, probable cause existed for the stop of [client’s] vehicle. When responding to an arrest warrant, an officer is permitted to rely on the police communications that indicate the individual who has been arrested is in a particular vehicle at a particular location. See Kuehl v. Henkle, 133 F.3d 524, 531 (7th Cir. 1998). This is because probable cause "only require[s] the probability of criminal activity, not the actual certainty." Id. The defendant may not advance alternative explanations for his presence without providing a credible basis for those explanations. Id. Under this standard, the police acted properly in stopping the [client’s] vehicle.
Example #2 of a good brief answer:
Probable cause existed to arrest Jones for possession with intent to deliver crack cocaine. Officers are not required to obtain a warrant if there was probable cause to believe that a crime was being committed at the time of the arrest. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). It is within the reasonable exercise of the officers’ discretion to conclude that Jones possessed crack cocaine with the intent to deliver it. In the case of the observed violation of probation, the officers could reasonably conclude that the drug was present and that Jones had possession of it. The instant case is also distinguishable from Smith v. Gardner, 925 F.Supp. 38, 41 (D.Mass. 1996), where officers smelled the liquor of the plaintiff and had no other evidence of possession. The Smith Court concluded that the odor of alcohol was insufficient to create probable cause to arrest for the offense of intoxicated operation of a motor vehicle. It should be noted that both examples above are from federal cases in which the courts applied the rulings of the Supreme Court to a set of facts. You should expect your own court to apply the law similarly. The Tennessee Supreme Court has expressly adopted the federal standard for probable cause: Proof of probable cause is more than mere suspicion—the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information warrant a prudent man in believing that the suspect has committed or is committing an offense. State v. Little, 960 S.W.2d 134, 139 (Tenn.1997) (citing [Texas v.] White [423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975)] (citations omitted)).
Now, the examples below highlight what NOT to do by showing an answer that does not apply Supreme Court or Court of Appeals precedent correctly (i.e., not applying the right law to the right facts in a way that actually reconciles the known precedent). Note that this answer also uses an overly casual approach (i.e., it is written as though it were in an email instead of a legal research memo).
Example #3 of a bad brief answer:
Using Officer Arnold’s testimony, these facts alone cannot support a finding that Mr. Smith committed an offense here. All we have is someone who smells pot (which he even admits happens sometimes even when there is none present), who heard someone inside the car state that there was weed inside the car, who said he observed an object that looked like a marijuana cigarette butt which he then retrieved and handed to an evidence technician before leaving the room with all the printed photographs before they were taken into evidence. None of these links is sufficient to get from the observations of Officer Arnold alone to the conclusion that there is sufficient probable cause to support a warrant. As a result, the proper remedy in this case is dismissal.
Conclusion and Best Practices
A well-crafted brief answer to a question presented should be short, direct and clear. The brief answer need not be lengthy, and it shouldn’t contain too much detail. A reader should not have to sift through a long paragraph of text to find out what the answer is to his legal question . And while opinions regarding good briefing vary from one judge or court to the next, the best practice is to assume that almost no one will have the time or patience to read a three page brief answer. The very best answers will appear in the first sentence.