Preparing a legal memorandum
A legal memorandum presents research and analysis and applies the research and analysis to particular facts. A legal memorandum follows a general structure and follows certain conventions. The structure and conventions are discussed below, and a sample memorandum is included.
Because each legal problem is distinct, no two memoranda will be organised in precisely the same way. Do not slavishly follow the sample memorandum, and do feel free to incorporate your own style where appropriate. The goal of this page is to help you learn about the general structure and components of this form of writing, and apply them to your research assignment in the most effective way for your particular problem.
A legal memorandum is comprised of certain standard elements:
- succinct identification of the legal issue(s)
- short summary of your conclusion
- review of relevant facts
- discussion of the law relevant to the legal issues, and application of that law to the facts
- ultimate conclusion that is responsive to the legal issues.
Each of these elements is discussed in greater detail below.
The heading should identify the author and recipient of the memorandum, and include the date, client identification, and subject matter. See the Sample Memorandum for an example of a typical heading.
The Issues portion of the memorandum is crucial. You must succinctly identify the correct legal issues, within the context of the facts of your case. Include legal elements that are essential to resolution of the issues.
The more narrow and descriptive your issue statement is, the more effective it will be. Compare these three issue statements, derived from the sample memorandum research problem:
|#1||Is the security enforceable?|
|#2||Will security documents signed and registered using the debtor’s common law name be enforceable against the debtor and the debtor’s creditors if the debtor later changes to using his legal name?|
|#3||Will personal property security documents granted in favour of the Bank, signed and registered in British Columbia using the Debtor’s common law name David Black, be enforceable against the Debtor and the Debtor’s creditors now that the Debtor has changed to using his legal name David Brown?|
- #1 asks the basic question that needs to be answered. However, when compared to #2 and #3, it is clearly inadequate. It provides no context for anyone who is not immediately familiar with the case, and does not add value to the memorandum as a precedent for future cases.
- #2 is a good issue statement. It provides a concise summary of the legal issue, and includes the essential elements. It is less wordy than #3, making it easier to read and understand. However, it is less complete than #3, because it does not incorporate the specific facts of the case.
- #3 is an excellent issue statement. It sets out the precise legal issue to be resolved. Just as each legal case is decided within the confines of the facts of that case, a legal memorandum is intended to address the narrow legal issue raised by a particular problem.
If there is more than one issue to be addressed, list the issues in the order in which you will be discussing them in the memorandum.
See the Sample Memorandum for an example of the Issues portion of a legal memorandum.
Here, you can provide a brief, up-front statement of your conclusion(s).
Remember that your reader does not want to be kept in suspense. A crisp, clear, responsive answer must be provided as near the beginning of your memorandum as possible. See the Sample Memorandum for an example of the Short Conclusion portion of a legal memorandum.
The Facts portion should list the relevant facts on which you have relied in researching and preparing the memorandum. If you have made assumptions, indicate this. If you have relied on any documentation (e.g. from the client), indicate that too.
State the facts objectively and clearly. Usually, the order is chronological. Use definitions to standardize terminology for persons and things that will be referred to frequently in the memorandum. This prevents clutter and inconsistent references to the same thing.
If your matter relates to litigation, make sure to review the key parts of the procedural history, and note the current stage of proceedings.
The Facts portion can either precede or follow the Issues section of the memorandum. Various formats are listed below. If the Issues will not make sense without reference to the Facts, then put the Facts first. Alternatively, if the Facts portion of the memorandum is quite lengthy, your reader may want to see the Issues first. (You may have cited some facts already, in your Short Conclusion section.)
See the Sample Memorandum for an example of the Facts portion of a legal memorandum.
There are various ways of dealing with conclusions in a legal memorandum:
|Format 1||Format 2||Format 3||Format 4|
If you follow the model of including your Short Conclusion early in the memorandum, keep that section extremely brief (three-four sentences, maximum). You can then provide a more detailed Conclusion at the end. If your Short Conclusion and your Conclusion are likely to be identical, use Format 1.
One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when the law is uncertain generally, or as it applies to your facts. Since the purpose of the memorandum is to answer the legal question posed, you cannot simply say that the law is unclear and leave it at that. You have to trust that your research and analytical skills enable you to provide a reasonable answer.
In some circumstances there may be a practical solution that enables you to avoid confronting the uncertainty in the law. The sample memorandum provides an example of this. However, usually you have to make a decision about what a court would likely do if faced with your fact situation.
Don’t hesitate to offer your own opinions, as long as they are well-grounded in the law and facts.
Try to avoid using equivocal language in your memorandum where possible. This is particularly important in the Conclusion section. Sentences that begin with the phrase “It would appear that” or “It seems that” should alert you to equivocation.
By all means indicate where the law is unclear, and absolutely state the risks of the client’s position. But also state what you think is the better view or probable outcome, and the client’s chances of success if applicable.
The Discussion section is the heart of the memorandum. It provides the venue for explaining and analysing the law, and applying it to your facts (let the word “synthesis” guide your approach to this section). The Discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum; subheadings are helpful here. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC.
|I||The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the Discussion section.|
|R||The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your facts.|
|A||The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual cases, distinguishing cases, making counter-arguments, and considering policy issues. Don’t be so concerned about advancing a particular position that you forget to consider and weigh the other side(s) of the argument.|
|C||The last step is to state your conclusion on the legal issue being discussed. Although you will include overall conclusions elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn.|
IRAC need not be applied rigidly as long as all the elements are covered. Your decision about how to divide up the legal issues will influence the way that you apply IRAC.
- For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue.
- You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the sub-issues.
See the Sample Memorandum for an example of the Discussion portion of a legal memorandum.
Your memorandum may be used to draft a letter to the client or a brief to the court, so it is extremely important to cite all of your sources (and pinpoint to paragraph or page numbers as much as possible). It is better to err on the side of providing too many citations than not providing enough. Remember that the ultimate goal of legal citations is to ensure your reader can easily find any of the material you reference.
The Sample Memorandum uses in-text citations. You may choose (or be asked) to use footnotes or endnotes instead. It is important to adopt a consistent style throughout your memorandum, rather than switching between in-text citations and footnotes.
You may also wish to include hyperlinks in your citations where appropriate.
Please see also the page dedicated to legal citation.
If your memorandum is especially long or complex, you may wish to provide a bibliography at the end, listing all of the authorities you have cited. This bibliography can be divided into sub-sections for legislation; jurisprudence; and secondary materials (like textbooks and journal articles). The items in each section should be listed in alphabetical order.