At some point in law school, you’ll be asked to draft a complex legal memo whether for a class, a clinic, a job, or an internship. This involves extensive research, digesting all the information, developing analysis, crafting arguments, and giving your recommendations. At the end, you will package all your work in a succinct but useful format for your professor, supervisor, or client.
Laying a solid foundation sets you up for success in a huge undertaking like this. Preparing an outline will help clarify your thinking and provide direction about the next steps in researching and writing. This consists of much more than brief bullet points; I envision a detailed outline that includes point headings, subheaders, key quotes, or takeaways from cases—or at the very least, placeholders for them.
This may sound like you’re just writing, but the exercise is actually segregating the thinking phase from the portion when you put things in prose. When you just focus on what you want to say versus how to say it, there is more mental capacity to produce the most persuasive of work. This will facilitate clear and concise writing in the next phase.
Here are some steps to take in outlining a memo:
Understand the key facts
A memo is most useful when it not only summarizes the law, but also applies legal rules to the unique facts and circumstances that brought you to this task. This necessarily assumes your deep familiarity with the underlying facts: the timeline of events, points of disagreement between individuals, and unknown or unclear details. After learning about everything, you must identify the key background information that someone needs to be persuaded by your arguments and set aside the unnecessary details. Insert an outline for a “Statement of Facts” section, which is where you lay out the essential facts to provide the necessary context for the remainder of the memo.
Do some preliminary research
Especially if you have little background knowledge of the substantive law, it is challenging to know whether your arguments are plausible and will be supported by the law. It is a good idea to start with a secondary source, like a treatise, which provides the landscape. You’ll learn about the basic concepts, any evolution in the courts’ thinking, the key precedents, and the unsettled questions in the field. From there, you will feel more equipped to put pen to paper and start a meaty outline.
Framing the legal question(s)
Do you remember reading a case where lawyers on two opposing sides phrase the issue drastically differently? Or notice that judges in the majority or dissent seem to be answering two different questions. How an advocate frames the issue, or how the court characterizes a question for its review, affects the outcome of the case. The same applies when writing a complex memo. How you frame the legal question will affect the legal standard and burden of proof. A good question also is specific to the case, incorporating some of the best facts for your side, and is a memorable question that your audience will hold in their minds. You would then structure of the rest of the memo with a feverish intent to show why your thesis, or your answer to the question is correct.
Lay out the key elements of the brief
After developing your main argument, you should brainstorm and develop the subpoints you need to make. Put the strongest points first, so that your audience knows the best reasons for your position early on. It is your job to convince your audience, so don’t expect them to expend energy to wade through your arguments.
When the subject matter involves many parts, structural tolls will help orient your readers and help them follow along. As you outline, consider including a roadmap, topic sentences, and transition paragraphs.
Additionally, make sure that you will address the counterarguments to your position. It is important to anticipate and address the other side’s contentions, even if you think they do not apply or are weak. You may choose to do this in a separate section, intertwined with your argument, or in footnotes.
Finally, you may want to include an “Additional Research” section on to next steps needed if your supervisor or client wants to explore a specific theory or line of argumentation. This may also be a good place to identify areas where your research did not yield clear answers, as this may present areas for further exploration and creative advocacy. Describe your research steps and provide an assessment based on your impressions of the courts’ approach and the trends in the area.
Revisit and revise
Outlining and writing are iterative processes. Get comfortable with going back if you’re not sure and don’t shy away when you find a “bad” case. If you feel stuck, stepping away can be helpful. You can take a break and come back with fresh eyes. Writing can be a lonely process, and it may help to talk to a research librarian or seek feedback from your supervisor or peers, keeping in mind attorney-client privilege of course.
I hope these ideas are helpful as you work toward your legal memo. For other ways to improve your legal writing, check out this article. Happy outlining!
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