Legal Memorandum

Overview A legal memorandum is an analytical document that examines a specific legal question and provides reasoned conclusions. Whether writing to a senior attorney, client, or colleague, follow these systematic steps to create a clear, persuasive memo. Most often, depending on the audience, the memorandum is objective. It is either internal to an attorney or to the client. STEP 1: HEADER AND PRELIMINARY INFORMATION What to Include: MEMORANDUM DATE: [Current date]

TO: [Recipient name and title] FROM: [Your name and title]

RE: [Brief, specific subject line describing the legal issue] Instructions: Subject Line: Make it specific and informative (e.g., "Likelihood of Success on Motion to Dismiss - Contract Formation Issues in Smith v. ABC Corp") Keep it concise: One line that captures the essence of the legal question Use client matter number: If applicable, include case or matter reference number STEP 2: QUESTIONS PRESENTED Purpose: Frame the specific legal questions you're analyzing in a way that can be answered "yes" or "no" or with a short, definitive response. Instructions: 2.1 Identify the Core Legal Issues Review all facts and determine what legal questions need resolution Prioritize questions by importance to the client's objectives Typically limit to 1-3 questions to maintain focus 2.2 Draft Each Question Using the "Under-Does-When" Format: Under [relevant law/statute/rule] Does/Is/Can [legal conclusion sought] When [key facts that drive the analysis] Example: "Under New York contract law, is a contract formed when the plaintiff sent a purchase order via email but the defendant responded with materially different terms in their acknowledgment form?" 2.3 Review and Refine: Ensure questions are legally precise Include enough factual context to understand the issue Avoid conclusory language or leading questions STEP 3: BRIEF ANSWER Purpose: Provide immediate, concise answers to busy readers who need quick guidance. Instructions: 3.1 Answer Each Question Directly Start with "Yes," "No," or "Probably" followed by explanation Limit to 2-3 sentences per question Include the most critical reasoning 3.2 Structure: Brief Answer

1. Probably not. Under New York's "battle of forms" doctrine, no contract was formed because the defendant's acknowledgment contained material terms that differed from plaintiff's purchase order, and plaintiff never assented to the modified terms. STEP 4: STATEMENT OF FACTS Purpose: Present relevant facts objectively and persuasively while maintaining credibility. Instructions: 4.1 Organize Chronologically or Topically Chronological: Best for transaction-based or procedural issues Topical: Better for complex cases with multiple legal theories 4.2 Include Only Legally Relevant Facts Facts that impact legal analysis Background context necessary for understanding Procedural history if relevant Omit irrelevant details that distract from legal issues 4.3 Write Objectively But Strategically State facts accurately without editorial commentary Use active voice when favorable, passive when unfavorable Emphasize favorable facts through placement and detail Don't hide unfavorable facts—address them directly Make sure to include that the analysis is only based on the facts that are presented and could change should additional facts be discovered. 4.4 Source Your Facts Reference specific documents, depositions, or evidence Use citations or footnotes for verification Note when facts are disputed or unclear Example Structure: Facts

On March 15, 2024, plaintiff ABC Manufacturing sent defendant XYZ Corp a purchase order via email requesting 1,000 widgets at $50 each, with delivery by May 1, 2024. (Purchase Order, Ex. A.) The purchase order specified that acceptance must be "on the exact terms stated herein."

Defendant responded three days later with an acknowledgment form that... [continue chronologically]

STEP 5: ANALYSIS/DISCUSSION Purpose: This is the heart of your memo—provide thorough legal analysis that leads logically to your conclusions. Instructions: 5.1 Structure Using CREAC Method for Each Issue: C - Conclusion: State your conclusion upfront for each issue R - Rule: Articulate the applicable legal rule E - Explanation: Explain how courts have applied this rule A - Application: Apply the rule to your client's facts C - Conclusion: Restate your conclusion 5.2 Begin Each Section with Your Conclusion ABC Manufacturing likely cannot enforce a contract against XYZ Corp because no valid contract was formed under New York law. 5.3 State the Legal Rule Clearly Use controlling jurisdiction's law Cite primary authority (statutes, regulations, case law) Quote key language when precise wording matters Explain any exceptions or nuances Under New York law, contract formation requires offer, acceptance, and consideration. N.Y. Gen. Oblig. Law § 5-1103. An acceptance must be a "mirror image" of the offer; any material variance constitutes a counteroffer rather than acceptance. See Ardente v. Horan, 366 A.2d 162 (R.I. 1976). 5.4 Explain the Rule Through Case Law Use cases with similar facts when possible Explain the court's reasoning, not just the holding Show how different factual scenarios affect outcomes Distinguish unfavorable cases 5.5 Apply Law to Your Facts Draw direct parallels between case precedents and client facts Address counterarguments proactively Explain why certain factors are more/less important Be honest about weaknesses in your position 5.6 Handle Complex Issues Break down multi-part tests into separate sub-analyses Use headers and subheaders for organization Cross-reference related issues Maintain logical flow between sections STEP 6: CONCLUSION Purpose: Summarize your analysis and provide clear recommendations. Instructions: 6.1 Restate Your Legal Conclusions Answer each question presented directly Summarize key reasoning briefly Avoid introducing new arguments 6.2 Provide Strategic Recommendations What actions should the client take? What risks should they consider? Are there alternative approaches? What additional information might change the analysis? 6.3 Discuss Next Steps Immediate actions required Deadlines to consider Further research needed Litigation/negotiation strategy Example: Conclusion

ABC Manufacturing cannot enforce a contract against XYZ Corp because XYZ's response constituted a counteroffer rather than acceptance under New York's mirror image rule. The material differences in delivery terms and price escalation clauses prevent contract formation.

I recommend that ABC either (1) accept XYZ's counteroffer terms explicitly, (2) negotiate modified terms, or (3) seek alternative suppliers. If ABC proceeds with XYZ, all terms should be clearly documented in a signed agreement to avoid future disputes.

STEP 7: FINAL REVIEW AND EDITING Instructions: 7.1 Substantive Review Does the analysis answer all questions presented? Is the reasoning logical and well-supported? Have you addressed obvious counterarguments? Are recommendations practical and actionable? 7.2 Organization and Clarity Is the structure easy to follow? Are transitions smooth between sections? Do headers accurately reflect content? Is the tone appropriate for the audience? 7.3 Citation and Sources Are all legal authorities properly cited? Have you used the required citation format? Are factual assertions supported by evidence? Do you need permission to cite confidential materials? 7.4 Proofreading Grammar, spelling, and punctuation Consistent formatting Proper legal terminology Professional presentation

ADDITIONAL TIPS FOR SUCCESS Know Your Audience Senior Attorney: Focus on sophisticated analysis and strategic implications Client: Emphasize practical consequences and business impact Common Pitfalls to Avoid Burying conclusions in lengthy explanations Failing to address obvious counterarguments Over-relying on secondary sources Writing in overly complex or pompous language Neglecting to provide practical recommendations Quality Control Checklist Questions presented are specific and answerable Facts include all legally relevant information Analysis follows logical structure (CREAC) Conclusions directly answer questions presented Citations are complete and accurate Writing is clear, concise, and professional