LAW

Centre for Law and Justice

HOW TO PREPARE A LEGAL

MEMORANDUM LAW112

What is it used for?

A memorandum is usually for “in-house” communication, intended to form the basis for giving advice to a client. Memoranda will be prepared on one or several aspects of the matter that the individual lawyer is working on. It will be addressed to the head of the department or legal team – the person whom requested the memoranda.

The other time memoranda are used is in the context of legal policy. In this instance, the memorandum will be addressed to a politician or an organisation responsible for policy change, such as a submission to a law reform commission.

The document may form the basis for advice that is written to the client or the actual submission for law reform. It is important that it is well prepared, carefully researched, referenced and accurate.

How do memoranda differ from letters of advice?

The key differential in a memorandum from a letter of advice is that a memorandum is not expected to be placed in the client’s hands, and does not carefully consider the issue of legal privilege. It also may be quite frank in assessing the client’s prospects of success or exposure. Therefore, a memorandum may detail the risks and weaknesses of the client’s position and the strategies available to defend/ act.

You are writing for a legal audience. Plain English is always important, but you will use legal terminology because you may assume the recipient understands this. The tone, therefore, will be impersonal, analytical, accurate and concise. Having said that, you do need to set out the strengths or weaknesses of the client’s position.

Perhaps most importantly, COME TO A VIEW. Do not equivocate or fail to give an opinion.

Components? Like any legal document, memoranda have specific components. These include: 1. Headers/References

Most legal practices operate by file numbers (usually on the interview record or file note) so that all records on this case are kept together. Identify this number at the start of your memorandum.

Your headings will usually be: Recipient: ______________________

Author: Date:

_(you)_____________________ ______________________

Re: you are writing concerning).

______________________ ( short for ‘Regarding’ which would be the matter and client

2. An Executive Summary

An executive summary is important as it orients the reader to the document and the issue. The summary should not be a recount of the facts. It should be a succinct, clear statement of the issue you are asked to write on, the issues you consider this raises and a short statement of what you conclude.

You should summarise the key findings or conclusions you will make regarding the matter.

The executive summary should raise the main issues that require most analytical depth and discussion and you will go on to discuss these in the body of the document. This is especially so iftheresearchindicatesthisisacontentiousareaoflaw. Theexecutivesummaryshouldprovide enough context for the reader. This section may also include the main recommendations.

For an example of a good and poor executive summary see:

https://unilearning.uow.edu.au/report/4bi1.html

3. Summary of the Facts

The summary should be short (no more than one paragraph) and identify those relevant aspects of the facts that have bearing on the issue/s being considered. Do not repeat extraneous or irrelevant facts. Only what is important to understand in order to grasp the issues. Obviously if a court has made findings of fact, this will be important to note.

2

2

4. Body

This is the section we analyse the issues. It is often helpful to identify the issue by phrasing them as questions to be answered. You should feel free to use headings, bullet points and numbers in this section. In preparing the body, the IRAC methodology is helpful. What are the legal issues you are writing about? What law is relevant to help you determine the issues? When applied, what outcome does this produce for the client?

5. Reference Accurately

Referencing matters. Often a memo will be passed from one practitioner to another (eg counsel) who may need to look up the cases or legislation you are citing. When referencing case law it is important to note if a judgment you rely upon is considered, distinguished, overturned etc. Note any split bench judgments. Apply these findings to the issues arising.

Check that you have correctly cited legislation and that it remains in force.

You should use AGLC3 referencing throughout. Use footnotes effectively – these can refer to tangential issues and provide evidence supporting assertions of law.

6. Consider the Opposition

Good practice is to anticipate and respond to what you think the counter-arguments will be against the client, and to also address these and come to a conclusion. Relevant policy matters can be included, or discussed in a separate section.

7. Conclusion

Your conclusion should summarise the key issues and give a definitive view. The worst thing you can do is equivocate. You should weigh the evidence and counter arguments, and give a frank, evidence based opinion.

Finally, remember, writing memoranda is a learned skill. It is helpful to have a methodology, but practice is what makes perfect. For more information on the purpose, structure and writing of legal memoranda, see the following resources on E Reserve:

3

1.Catriona Cook et al, “Reading and Analysing a Case” in Catriona Cook et al Laying Down the Law (Lexis Nexis Butterworths , 9th Edition, 2015) pp120- 129.

2. Nichola Corbett-Jarvis and Brendan Grigg “Academic Legal Writing ” in –Effective Legal Writing (Lexis Nexis Butterworths, 2nd Edition, 2017) paragraphs 5.1 – 5.9 and 6.92-6.113.

3