SAMPLE:  Instructional material for first-year law students

 

Writing a Legal Memorandum:  How Do You Eat An Elephant?

Lynne Rhys-Jones

© 2002 All rights Reserved.

 

Your professor tells you to write a memorandum.  Do you know what to do?

 

If the thought of drafting a legal memo makes you shudder, you’re in good company.  Learning to write memos can be a daunting task no matter how smart you are.  Even if you’re an award-winning author, your first memos are going to come back drenched in red ink.  Why?  Because legal writing is a whole different animal than the kind you’ve probably done before.

 

But legal writing is a lot less intimidating if you remember that there’s a trick to it.  That’s not to say it’s easy, or quick – but it is formulaic.  Remember IRAC (Issue, Rule, Analysis, and Conclusion)?   You already know that’s the basis for legal analysis, but just how do you turn it into a legal memo?  That’s what this handout will show you. 

 

Once you’ve mastered the very specific skill of building an argument, you can apply it to all kinds of legal (and non-legal) writing:  bar exams, letters, briefs, motions, and just about every other kind of analysis you might want to do over the next forty or fifty years. 

 

So let’s get started.  First, I’ll offer some general comments and tips – hopefully not the same ones you’ve already read several times before – and then I’ll give you an example of a memo, complete with running commentary.

 

          I’m going to assume that you’ve finished all your research, and now you’re ready to sit down and write.  Where to start?

 

The format – What goes where?

 

1.     Contrary to what we’ll be telling you all through law school, there is no single right format for a legal memorandum.  Some people like long statements of the issue.  Some don’t.  Most people repeat the conclusion at the end; I ask my students to suggest next steps instead.  Eventually, you will develop your own style and personality of memo that works for you.

 

2.     For now, though, forget all about style and personality!  Instead, think of legal writing as a highly specialized form of technical writing.  You’re here to learn the basic techniques.  The panache comes later.

 

3.     Every professor will want something different, and most will tell you that theirs is the only right way.  Better get used to it and learn to adapt.  

 

Regardless of format, every good legal memorandum has the following qualities:

 

1.     It’s well-organized.

2.     It’s reader-friendly in format, in language, and in flow. 

3.     It leads the reader through the analysis, step by step.  No guessing or surprises.

4.     It’s accurate down to the last detail.

5.     Every citation, every fact, every everything, is included for a specific reason.

6.     It gives a precise source for every single idea that’s not the writer’s own, and makes it easy for the reader to find that source.

7.     It’s grammatically correct and contains no spelling errors.

8.     It accomplishes what it set out to do (whatever that may be). 

9.     It reflects the writer’s thorough understanding of the subject matter.  In other words, if you don’t understand it, you’re not ready to write it.

10. It’s not just written.  It’s crafted. 

 

   I can – and have! – gone on for months about writing effective memos.  But instead, I’ll get right to the nitty gritty:  How do you go about building a memo that makes sense?

 

It’s really ridiculously simple.  The secret is in the blueprint!  Here’s a good format:

 

1.     Memorandum heading – make it look professional!

2.     Questions or statement of the issues (no more than two sentences each)

a.      Issue 1

b.     Issue 2 …

3.     Brief answers or conclusions (no more than two sentences each)

a.      Issue 1

b.     Issue 2 …

4.     Facts – only what you need!

5.     Analysis – Repeat a-d for every single issue (and sub-issue)!

a.      State the issue (one issue only!)

b.     “Build” the rule (by citing to statute, case law, regulations, etc).  Do not use facts from your case or other cases yet. 

c.     Apply your facts to the rule you built, piece by piece and step by step.  (now you can use facts from other cases to illustrate your points)

d.     Sum it up.

6.     Conclusion or recommendations.

 

          You solve legal problems just like you solve math problems.  You break them down into their smallest elements, and you work one piece at a time – and you show your work.   Think prime numbers!  Think geometry proofs!   That’s how you build a memo.

 

 

So – how do you eat an elephant?    One bite at a time.

 

 

Shall we give it a shot?

 

Here goes .  . .!


 

Memorandum

 

TO:      Fred Dixon, Supervising Attorney  

FROM:    Your name here!

DATE:    June 20, 2002

RE:      Client Matter 6634-3, Smith (Sexual Harassment)

 

 

 

Issues (or Questions Presented)

1. Is our client liable for sexual harassment, where he kept Playboy magazines in the waiting room and placed male nude photographs on his female employee’s desk? (some professors want a lot more detail, so ask!)

2.     Is our client liable for intentional infliction of emotional distress based on the same actions?

 

Conclusions (Or Brief Answers)

Note:  you may have to write these last.

1.     If the employee can prove her allegations, our client will probably be held liable for sexual harassment.  His actions were severe and pervasive enough to meet all the requisite elements of a federal sex discrimination case.

2.     Answer to issue 2 … (and so forth)

At this point, the reader should have a pretty good idea of what the memo is about and where it’s going

 

 

Facts

Put the basic facts of your case here.  No legal argument yet!  Include only the facts that are relevant to the issues above.  Give a precise source for each fact, including the specific page or paragraph of the document.  Some people will have you delete these citations, but always save a copy with the citations for your file.  Why?  Because a carefully crafted fact statement can be copied into  later documents (like briefs)  where cites will be required.  And  you never know when someone will ask for documentation.

 

                    Our client, Rocco Smith, owns and operates a large dry-cleaning operation.  The plant employs thirty-two men and one woman, Stella Bones.  Bones, who is Smith’s secretary, has been working at the plant for four years.  (R.1 at 3).  She alleges that two years ago, Smith began receiving Playboy Magazine at the plant.  (Id.).  Bones, who opens the mail, says she is required to place the magazine in the waiting room when it arrives, so she can’t avoid seeing it.  (R.2 at 5).  Eventually, she says, someone removes each centerfold and tapes it to the wall in the back room – a workroom that Bones enters for a brief period each day.  (Id.).  Bones claims that two months ago, she sent an email to Smith asking him to cancel the subscription.  (R.1 at 7).

         About three weeks ago, Bones says, she found a photograph of a nude man taped to her computer screen.  (Id.).  Since that day, a different nude picture has been on her desk each morning when she arrives.  (Id.).   A coworker told Bones that Smith himself is leaving the pictures.  (Id. at 8).  Bones says she complained to Smith, but he told her to “quit being so sensitive.”  According to Bones, Smith also told her that he doesn’t want any woman working there who can’t “deal with a man’s environment.”  (R.2 at 33). 

         Bones does not allege any other specific instances of harassment.  However, she does allege that there is a “general air” of sexual bantering and innuendo at the plant.  There are numerous centerfolds hanging in the back room, and she has heard Smith make vulgar remarks about women.  

    We met with Smith to discuss the matter, and he conceded that with one exception, everything Bones said is true “in the technical sense.” He says that Bones has never complained about anything at the plant, and in fact, she seems to enjoy the atmosphere.  In any event, Smith says, Bones is treated no differently from any of the men there.  As for his statements about women, Smith says he was just kidding around.

Bones’s attorney has written a demand letter to Smith, in which she threatens to file a complaint on the theories of sexual harassment and intentional infliction of emotional distress.  Smith has asked us to assess his risk of liability.

 

Analysis

If you have only one issue, the following introductory sentence isn’t necessary

               Smith faces two potential theories of liability:  sexual harassment and intentional infliction of emotional distress.   This memorandum addresses each in turn. 

Always use the same issues you used at the beginning!

         

1. Is Smith liable for sexual harassment, where he kept Playboy Magazine in the waiting room and placed male nude drawings on his female employee’s desk? 

All I did was cut and paste from the beginning of the memo, and add Smith’s name.  Professors seem to like this.   My first sentence, coming up next, will simply reword the issue.

 

Rule-building is a crucial step in writing a good memo.  Done right, it  leads the reader through the analysis one step at a time, and creates a blueprint that you can follow when you apply the facts.  Here, the logic that gets me to the rule is:   Sex discrimination is prohibited à  Sex discrimination includes sexual harassment à  Jones is alleging the hostile environment kind of sexual harassment à  To prevail on that kind of a sexual harassment claim, she has to show five things.

 

     The first issue is whether Smith can be held liable for sexual harassment.   Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."  42 U.S.C.A. § 2000e-3(a).  Sex discrimination includes sexual harassment.  Johnson v. Booker T. Washington Broadcasting Service, 234 F.3d 501, 507-508 (11th Cir. 2000). 

     There are two types of sexual harassment claims:  quid pro quo, which involves a tangible employment action, and hostile work environment, which generally involves less tangible behavior.  Id. at 508.  Jones alleges hostile-work-environment sexual harassment. 

     To recover for sexual harassment under this theory, Bones must establish four elements:  (1) that she belongs to a protected group; (2) that she has been subject to unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature; (3) that the harassment was based on her sex; and (4) that the harassment was “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.  Id. at 508 n.7.   Furthermore, she must show that Smith knew (or should have known) about the harassment but failed to take adequate action.  Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001). 

I have now defined the rule of law.  Bones has to prove five things to win.  Notice that even though I cited to a case, I didn’t say anything about the facts of that case.  No facts are needed yet!  While I’m building my formula, all I want is information that helps me define the rule of law.

 

It’s time to apply the facts of our case to the rule – the formula -- one element at a time.  Now if I cite to other cases, I’ll probably need to include some of their relevant facts.

 

               Smith will have to concede, of course, that Bones is a member of a protected class.  The other elements, however, require a bit more analysis.  Here I’m telling the reader what I’m going to do next, and reminding them of the big picture, by using a transitional sentence. 

 

     Unwelcome sexual behavior.  The behavior of which Bones complains is certainly sexual in nature.  Thus, this element hinges on whether or not Smith’s behavior was unwelcome. 

A common mistake is to just begin discussing something (here, “welcome-ness”) without explaining why the reader should care.  The reader is left wondering how it fits into the big picture.  To avoid this problem, I’ve told the reader why I’m about to discuss it.

   

 To determine whether or not behavior is unwelcome, we must ask whether Bones indicated, by her conduct, that it was unwelcome.  Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).   This is a factual question that depends largely on the credibility of the parties.  Id. 

     Here, Smith hopes to argue that the behavior couldn’t have been unwelcome if Bones voluntarily looked at the pictures or the magazines.  He also argues that Bones failed to complain about his conduct. 

     Bones can’t recover if she didn’t mind Smith’s actions.  This is true even if most people would have found it objectionable.  See Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 873 (9th Cir. 2001). 

     However, the fact that Bones voluntarily looked at the materials does not, by itself, prove that she welcomed the behavior.  In Meritor, the plaintiff voluntarily engaged in sexual relations with the offending person.  Not surprisingly, the defense argued that voluntary participation precluded a finding of sexual harassment.  The Supreme Court reversed, holding that conduct can be unwelcome even if the employee participates voluntarily.  477 U.S. at 68. 

This last paragraph shows one way to use the facts of another case in your argument. 

.  

     Thus, the fact that Bones looked at the pictures on her desk would not help Smith’s case.  Indeed, one might wonder how she could avoid looking at them. 

     The issue of whether or not Bones complained is another matter.  If Bones never complained to Smith, as he claims, she would be hard-pressed to convince a jury that his actions were unwelcome.  However, if Bones can provide credible evidence that she complained, that complaint is probably enough to show that Smith’s behavior was unwelcome.  See Nichols, 256 F.3d at 873-874 (“in complaining . . . about the verbal abuse, [the plaintiff]  demonstrated a subjective belief that he was being harassed”).  Thus, we cannot assess this element until we have more information about available evidence.

Do you see the parenthetical after Nichols?  Parentheticals are great, because they (a) explain to the reader why you’re citing the case (you do know why, right?), and (b) allow you to summarize the relevant facts of a case without detracting from the overall discussion.  If it requires more than just a phrase to explain, though, or if it’s a particularly relevant fact situation, put it in the text.

  

Notice the structure I just used to talk about “welcome-ness”?  First, I stated the sub-issue and told the reader why it matters.   Then, I stated the rule of law.  Finally, I applied the facts of our case to that rule, using  facts from other cases to illustrate.   Sound familiar?  It should!

 

     Harassment based on sex.  In order to prevail, Bones must show that the harassment took place because of her sex.  Nichols, 256 F.3d at 874.  Smith would like to argue that because male employees were subject to the same atmosphere, Bones was not singled out for being female.    

     To show that harassment is based on sex, Bones must show that she would not have been the subject of the conduct if she weren’t female.   Williams v. General Motors Corp., 187 F.3d 553, (6th Cir. 1999).  Bones can do this by showing an “anti-female” animus.  Id. 

     Here, Smith appears to have demonstrated anti-female animus. . . .

Get the idea?  Analyze each piece separately.  Rinse.  Repeat.

     Severity of the harassment.  . . . . . . . .

Issue.  Rule.  Analysis.  Conclusion.

                    Response of Smith. . . . . . . .

Issue.  Rule.  Analysis.  Conclusion.

     To summarize, then: if Bones can provide evidence to support her allegations of sexual harassment, a jury will probably find in her favor.  Thus, it is critical that we determine the nature and extent of any evidence that might be used in the case. 

 

2. Is our client liable for intentional infliction of emotional distress based on the same actions?

 

     Bones also alleges that Smith’s actions constituted an intentional infliction of emotional distress.  Under Georgia law, Bones must prove five elements in order to establish the tort of intentional infliction of emotional distress:  First, the conduct must be intentional or reckless; second, the conduct must be extreme and outrageous; third, there must be a causal connection between wrongful conduct and emotional distress; and finally, the emotional distress must be severe.  Miraliakbari v. Pennicooke, 254 Ga.App. 156, 157, 561 S.E.2d 483, 485 (2002). 

There’s the issue and the rule.  You can take it from here!

 

Conclusion

Ask what your professor is looking for here.  I like to do recommendations, rather than just repeat what I’ve already said.   It’s a great way to mention issues that you didn’t have time to address (and hopefully weren’t supposed to!  It also lets your boss know that you’ve given some thought to the big picture. 

 

     Smith is at substantial risk of liability if Bones can prove her allegations.  I recommend that we contact Bones’s attorney and ask him to provide us with documentation of her allegations.  If she has credible evidence, we should advise Smith to consider a settlement.

     As the case proceeds, we should also examine additional issues:  Has Bones met all of the EEOC’s procedural requirements?  Might Bones have a claim for retaliation as well, since the nude pictures began to appear after she complained about Playboy?

Questions are pretty much taboo in legal memos, except when referring to the issues.  As you can see, I’m pointing to potential issues, which is the only reason I can get away with it.

     In any event, we should counsel Smith immediately, if possible, on strategies to avoid future liability. 

 

 

Voila!  A memo is born!

 

(and you thought you couldn’t do it!)