Legal Writing

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by  BarCharts, Inc.

BarCharts, Inc.®
America’s #1 Legal
Reference Guide
Best Practices for Legal Writing in the Workplace
The Objective: Legal Memo or Interoffice Memo Examples in this Guide
Lawyers are professional writers. Writing is the most important skill law students must master • Items in italics usually are signposts to identify what immediately follows
1. It is the lawyer’s basic work product—provides legal analysis them
– These are for instructive purposes—not what you actually write in a memo
2. Combines organization, issue framing, and legal analysis in a professional format
• Items in [brackets] are things that you would have to supply (i.e., proper
3. It is objective; it is not persuasive and does not advocate in favor of one position
citations to legal authority)
THE ESSENTIALS OF A CREATING THE HEADING
LEGAL MEMORANDUM
The Heading is intended to help the author, recipient, and any future reader get oriented
HEADING quickly on the nature of the legal memo. This sample Heading follows a typical format.
It identifies the recipient and author of the memo, date of submission—a key fact on which
1. Standard format
future readers will rely to gauge the effective date of the legal analysis—and the internal file
2. Identifies the recipient, author, date, client, and main legal issue
number, client name, and memo’s general purpose
QUESTION PRESENTED
1. States the legal question(s) addressed by the memo Memorandum of Law
2. Usually is a question that includes jurisdiction, potential claim, and TO: Karen Rose
all of the key facts that create the legal issue FROM: Juan Ramirez
3. Should be written with global identifiers DATE: February 18, 2017
BRIEF ANSWER RE: Serge Juste; file #3121; potential criminal liability for larceny
1. Gives a brief answer to the question(s) stated in the Question
Presented
2. Usually has three parts: EXPLAINING THE FACTS
a. Answer
b. Snapshot of relevant law 1. The Facts section should begin by identifying the client and the potential cause of action
c. Snapshot of relevant facts 2. It should contain the facts essential to the legal analysis, plus background information for
3. Consists of a few short sentences that briefly state the relevant law and context. This includes the jurisdiction, dates, and those facts that are outcome determinative.
key facts that support the answer Facts are informed by the controlling law, so if an essential element of a potential claim involves
4. No citations are needed in the brief answer harm, the facts that show harm, such as money damages or physical injury, must be included
FACTS 3. Most memos explain the facts in chronological order
1. Identifies the client and the legal issue at the start to orient the 4. If facts are long or involve multiple claims, they may be broken down by party or potential causes
reader of action
2. Sets forth the facts which the legal analysis will use, with enough
5. Use all relevant facts, whether favorable or unfavorable to the client
background facts to give context
6. Do not argue or draw conclusions. Just tell the story in this section
3. Is not a detailed restatement of all the facts of the case
4. Must be accurate, specific, and objective Statement of the Facts
DISCUSSION The client, Serge Juste, is concerned about his potential criminal liability for larceny
1. Organizes and explains the analysis of the facts and law that leads stemming from his actions near a store in Arlington, Virginia. According to several
to the Conclusion witnesses, at about 5:30 p.m. on July 1, 2016, Ms. Carlyn Ross’ purse was on the side-
2. May need point headings or subheadings to relay clearly walk outside the Fresh Fruit grocery store on Williams Street. Mr. Juste walked near
the purse, looked around in all directions, and then picked up the purse. He carried
CONCLUSION
the purse to his car, put it in the back seat, and drove away.
1. Summarizes the legal analysis
At about 6:15 p.m. the same day, a police officer stopped Mr. Juste based on a tip from
2. Includes any outstanding issues or facts that the attorneys should
one of the witnesses. When the police officer came up to Mr. Juste’s car window, he did
investigate
not say anything about the purse until he was specifically asked. Mr. Juste then told the
3. Is not a detailed restatement of all the facts of the case
police officer “I was going to take the purse to the police station tomorrow to turn it in.
DRAFTING ORDER
I never even opened it.” The police officer reported that the purse was sitting on the back
Even though you will organize the memo as outlined earlier in this section, seat in plain view and was closed.
it may be best to draft the memo in the following order to clarify your
Once police obtained the purse, the owner, Ms. Ross, inspected the bag but found
understanding of the facts and better develop your reasoning
nothing missing. All of Ms. Ross’ personal possessions and money were present. Ms.
TIP: Before you write the first word, review your due date, Ross has requested, however, that district attorney charge Mr. Juste with larceny.
and working backwards from a calendar, map out time to
research, organize, draft, edit, and revise the memo. Build it
in time to do a proper revision and account for emergencies
DRAFTING THE QUESTION PRESENTED
1. Write the Heading. You should open a document and create the SPOTTING & DEFINING “ISSUES” IS CRUCIAL
heading right after you receive the assignment. But be sure to update 1. An “issue” is a question about how law applies to a set of facts
the date as you continue
2. In the legal memo, the Question Presented section presents the legal question using the key facts
2. Write the first draft of the Facts section
3. To draft the Question Presented for the memo, follow these three steps:
3. Research the legal theories that apply
Step 1: Did your assigning partner or professor limit you to a particular issue to research? Review
4. Write the Question Presented section
the assigning document or instructions provided to you. Perhaps another associate is researching
5. Write the Brief Answer section a particular claim, or you have been directed to look at one specific issue
6. Write the Discussion section (legal analysis). As you will note
Step 2: If your supervisor has not narrowed the scope of your research, conduct some preliminary
below, this may be broken down into multiple sections.
research to help refine the topic. From your initial research, identify the elements of the legal
7. Write the Conclusion section principle
8. Revise and edit the Facts section to include only relevant facts and EX: Larceny is (1) the taking (2) and carrying away of (3) another person’s property, with (4)
necessary background intent to permanently deprive that person of it
The descriptions of the essential parts of a legal memo are listed in the Step 3: Locate the key facts that might either prove or disprove the elements of the crime or
drafting order. Refer to the list in the beginning of this section when legal theory. Before starting to write the memo, make an outline that connects the facts with the
organizing your final memo elements of the legal theory
1
Drafting the Question Presented (continued )
DRAFTING THE DISCUSSION SECTION
Outline of Elements and Facts
Element 1: Mr. Juste picked up the purse LEGAL ANALYSIS OF THE ISSUE
Element 2: Mr. Juste carried away the purse 1. The Discussion reflects the research that produced the Question Presented section. It also provided your analysis
of the facts based on the research
Element 3: Ms. Ross owned the purse
2. Writing the Discussion requires two phases:
Mr. Juste said he was going to turn it in
a. Developing the organization plan
Element 4: Mr. Juste still had it 45 minutes later
b. Executing the legal analysis for each element of the plan
He did not tell police until asked
3. Usually, the Discussion section should provide a complete analysis
He explained his plan to turn it in
4. When developing the organization plan, be sure to account for both sides of a case (particularly where the
Purse was unopened, plainly visible
facts and law suggest counterarguments)
in the car
DEVELOP THE ORGANIZATION PLAN FOR THE LEGAL ANALYSIS
You may want to use a chart to help you clearly map out 1. The larceny example is a relatively straightforward problem, with a single main event and a single legal theory
the facts and the controlling law 2. Legal memos can present much more complicated situations
3. In general, follow these five steps to organize and execute the analysis:
Larceny Issue Example
Step 1: Divide the situation into discrete events or transactions
Taking Juste picked up purse Step 2: For each event or transaction, identify the main legal theory, statute, or cause of action involved
Carrying Away Juste carried purse away Step 3: Make sure you fully understand the rule; write it out in elements, subrules, or factors. This may also be a
Another’s Property Purse belonged to Ross synthesized rule that you developed through your research of any statutes or case law
Step 4: Break the applicable statute, legal theory, or cause of action into its elements
Intent to Permanently Juste had purse for 45 minutes;
Deprive Person didn’t mention it to police until
Sample Organizational Format
of Property asked; explained a plan to turn
it in; purse was visible in car Event 1: Defendant insults and throws a punch at Plaintiff, but misses; Plaintiff screams and faints
1. Legal theory: Civil assault
Step 4: Write the question that the memo will answer in Draft the controlling rule for civil assault here
one concise sentence (if possible). Use the key facts that a. Element: Intentional act
apply to the elements. Refer to the jurisdiction b. Element: Without privilege
POOR EXAMPLES OF A QUESTION c. Element: Causing reasonable fear of imminent physical harm
PRESENTED SECTION 2. Legal theory: Intentional infliction of emotional distress
Draft the controlling rule for intentional infliction of emotional distress here
1. Poor example: Did the client commit larceny under
a. Element: Intent to inflict emotional distress
Virginia law?
b. Element: Outrageous and intolerable conduct
Key facts are missing and the issue is too broad
c. Element: Causing severe emotional distress
2. Poor example: Did Mr. Juste commit a crime by
taking Ms. Ross’ purse? Event 2: Defendant pours drink on Plaintiff’s unconscious body; stains expensive clothing
Jurisdiction, legal issue, and key facts are missing. 1. Legal theory: Civil battery
Proper names instead of global identifiers are used Draft the controlling rule for civil battery here
3. Poor example: Under Virginia law, is taking another a. Element: Harmful
b. Element: Offensive
person’s property and carrying it away with the intent
c. Element: Intentional
to permanently deprive that person of her possessions
d. Element: Touching
sufficient to support a conviction for larceny?
2. Legal theory: Trespass to chattel
Makes legal conclusions and does not provide the
Draft the controlling rule for trespass to chattel here
key facts
a. Element: Lack of Plaintiff’s consent
4. Poor example: Can a defendant be convicted of
b. Element: Interference with possessory interest
larceny under Virginia law?
c. Element: Intentional
This is a different issue—the correct issue involves the
particular facts of this case, not all defendants generally
Step 5: For each element, execute an organized format for your legal analysis. It may be CREAC (Conclusion, Rule,
SAMPLE QUESTION PRESENTED SECTION
Application, and Conclusion). Some instructors use the term TREAT (Thesis, Rule, Explanation, Analysis, and
In this sample, the writer clearly states the jurisdiction, Thesis); others use the term CRuPAC (Conclusion, Rule, Proof, Application, and Conclusion). For a very simple
relays the legally relevant facts, and uses global identifiers application of the rule to the facts, people will employ IRAC (Issue, Rule Analysis, and Conclusion). The IRAC is
more common on exam questions than legal memos
Question Presented a. Essentially, all of these styles share some common traits: They begin with an identification of the legal issue,
Under Virginia law, is a person criminally liable provide the applicable rule, generally explain the rule by examining how it operated in prior cases, analyze the
for larceny when he picks up a purse left on the facts through a step-by-step application of the rules to the facts, and conclude with a prediction. Follow the format
sidewalk, puts it in his car, drives away, leaves suggested by your professor or supervisor
the purse in plain sight, and explains 45 minutes b. Take a deliberate approach to organizing your Discussion section into some type of paradigm to keep the reader
later that he was planning to turn it into police engaged and make your writing accessible. This document will use the CREAC style
the next day? WHY USE A PARADIGM FOR LEGAL WRITING?
1. Legal writing is technical writing and complex in nature. It may present a novel fact pattern or area of law for the
attorney on deadline. The use of a formula helps to routinize the writer’s organization so he or she can focus on
developing solid legal analysis. See Sample CREAC regarding more complex legal issues
DRAFTING THE BRIEF
a. If there are multiple legal issues to address, use a subheading for each item in the organization plan.
ANSWER SECTION
Subheadings help you break down the argument into segments and help the reader follow along
b. If you are writing on a single issue that is broken down into multiple CREACs or multiple issues, you will need
The Brief Answer is exactly what it sounds like. It offers
an Umbrella to pull everything together and frame the issues for the readers. If you only have one Issue, you do
the busy attorney a quick answer to the question or
not need an Umbrella
questions presented. It is usually written in three parts:
EXECUTING THE CREAC FOR EACH LEGAL ANALYSIS
Answer, Snapshot of Law, and Snapshot of Relevant
Facts. It also identifies the jurisdiction. There are no 1. Every analysis explaining how the law applies to facts must contain the following parts: Statement of the issue, a full
statement of the applicable rule, explanation of the rule, analysis of the facts through the application of the rule, and
citations in the Brief Answer. Do not make guarantees
a final conclusion that predicts the outcome
or absolute statements in this section. This memo may
a. A legal analysis formula that directly employs these elements is abbreviated as CREAC
end up in the client’s hands and there are never any
2. Terms defined:
guarantees
a. Conclusion: This initial conclusion frames the legal issue for the reader and presents a single sentence prediction
of how the legal principle applies to specific facts in a jurisdiction. It should not offer a “money back” guarantee.
Brief Answer
Rather, it should simply make a prediction on the legal issue in the jurisdiction
Probably not. Under Virginia law, a defendant is b. Rule: States the legal principle or definition that applies; this presents the elements, subrules, or factors that
criminally liable for larceny when he or she takes define the rule. It should be expansive and written in global terms. Citation is required here for statutes or
holds of another person’s property and carries it cases that help develop a full, synthesized Rule paragraph. The Rule paragraph should preview—in order—
away with the intent to permanently deprive the the elements or subrules that appear in the explanation paragraphs
owner of his or her property. Mr. Juste carried
away Ms. Ross’ purse, but the words and actions TIP: Subrules are embedded rules that may emerge from elements. False imprisonment may have
indicate that he did not intend to permanently restriction from personal movement as an element. The corresponding subrules for restriction may be the
deprive Ms. Ross of her purse. defendant’s use of force or fear to restrict the plaintiff
2
c. Explanation: Explains the rules through a discussion of how the rule operated in
In Gupta v. Adams, a store employee took a ring from the display case at his job
similar prior cases. These Rule Explanation paragraphs contain mini-briefs so that
and hid it in his backpack. [Cite law.] Four days later, the employee gave the ring
the reader can understand how the rule operated in the past. These understandings to his mother for her birthday and never paid for the ring or notified his employer.
inform the prediction for the instant facts [Cite law.] The court considered the permanent transfer to another party who had
d. Application: Explains how the facts do or do not support the rule. It relies on every intention of keeping the ring as a gift. [Cite law.] It found that the intent to
analogical reasoning to compare the prior case law to the facts, reasoning, and permanently deprive the rightful owner of his property was met. [Cite law.]
predicted outcome. This analysis (also called Rule Application paragraphs) should (Rule Analysis Paragraph #1)
track the Rule Explanation paragraphs in both number and order. This is an objec- Here, Mr. Juste’s control over Ms. Ross’ purse satisfies the “taking away” requirement
tive memo; therefore, the results may not be positive for your client and the analysis for larceny. Like the woman in Ramirez who took another person’s property from
should accurately reflect your understanding of the law applied to the facts one place to another, Mr. Juste took Ms. Ross’ purse from the area near the store,
e. Conclusion: This final conclusion summarizes the question presented by the legal put it in his car, and drove away. In Ramirez, the woman had exclusive control over
theory, using a complete sentence that gives the result of the analysis her boyfriend’s watch when she took it from his home to a pawnshop; similarly, Mr.
Juste’s physical act of placing the purse in his car and driving away evinces exclusive
SAMPLE CREAC
control over Ms. Ross’ purse. The Ramirez court found the “taking away” element
The example below shows the elements of CREAC, as applied to the larceny example.
was satisfied by the girlfriend’s actions; likewise, a court is likely to find that Mr.
Although larceny was organized by four elements, the writer breaks the CREAC down to Juste’s conduct satisfies larceny’s “taking away” element.
two points for clarity. This choice is driven by the fact that some elements are not in dispute
(Rule Analysis Paragraph #2)
and some can naturally be grouped together. This example illustrates how to organize and
However, Mr. Juste did not intend to permanently deprive Ms. Ross of her purse.
execute the larceny analysis in a single-issue Discussion section. For explanatory purposes, Unlike the defendant in Gupta, who took a ring and presented it as a gift to another
the various parts of the CREAC are identified by a parenthetical at the start of the section; person four days later, Mr. Juste was still in possession of Ms. Ross’ purse when
this identifier would not appear in the final CREAC and is for illustrative purposes only. he was stopped 45 minutes later. Furthermore, the employee’s actions in Gupta
As you review the sample Discussion, make the following notes about the CREAC: demonstrated that there was no intention to return the ring to the employer;
1. The initial conclusion merely makes a prediction. It does not state the result with the ring was given to another person as a gift and the rightful owner was never
absolute certainty informed. In contrast, Mr. Juste left the purse in plain sight and told police that he
2. The Rule paragraph goes from a broad statement of the rule intended to return it the next morning. He did not hide the purse, did not open
to a narrow examination of subrules. It starts with an overall it, and did not disturb any of the contents. While the court in Gupta found that
statement of the rule, and then funnels down to become more the intent to permanently deprive the owner of his property was satisfied, a court
refined, based on the elements. in the instant facts is likely to find that Mr. Juste’s actions and words do not prove
a. The Rule paragraph tells how the various elements or factors that he intended to permanently deprive Ms. Ross of her purse.
work together. It explains whether each element must be (Conclusion)
satisfied, or if the court can consider various factors. Each Although Mr. Juste took away Ms. Ross’ purse, it is unlikely that the state will be
sentence in the Rule paragraph requires citations. Several able to prove beyond a reasonable doubt that he intended to permanently deprive
citations may actually be string cites because the writer her of the bag; therefore, it is unlikely that Mr. Juste will be found criminally liable
synthesized various sources to help illuminate the rule for larceny under Virginia law.
3. The Rule Explanation paragraphs address the elements, subrules, or factors identified
in the Rule paragraph. Writers will often combine or eliminate them to respond to the WHAT ABOUT COUNTERANALYSIS?
fact pattern. They feature mini-briefs that provide the reader with a quick overview 1. When there is a viable counteranalysis, you are responsible for addressing it in your
of the relevant facts, reasoning, and holding of prior case law that examined a similar memo. The predictive interoffice memo should provide objective advice regarding
issue. You may have more than one Rule Explanation paragraph both the strengths and weaknesses of the case
4. The Rule Application paragraphs create explicit analogies that link the cases discussed 2. The counteranalysis should follow the Rule Application paragraph most closely aligned
in the Rule Explanation paragraphs to the instant facts. They track the facts, reasoning, to the law or facts that support the analysis
and holding of the prior case law as they apply to the instant facts. Some are rooted in 3. It should be at the end of the paragraph, after the analogies. If it is extensive, it may
analogical reasoning while others are rooted in making distinctions. Marshal specific warrant its own paragraph
facts—even if you have already stated them in the Facts section—to make your
(Sample counteranalysis after Rule Application #2)
analysis explicit. At times, you may need to address a counteranalysis. You may have
more than one Rule Application paragraph The state may argue that circumstantial evidence supports a finding that Mr. Juste
5. The final conclusion makes a prediction but identifies the elements, subrules, or actually intended to permanently deprive Ms. Ross of her purse; specifically, he did
factors that support the prediction. It is best to keep it to one sentence in the CREAC not turn the purse in at discovery and did not volunteer that he had the purse. But
because there is a larger, ultimate conclusion for the legal memo that goes into most of Mr. Juste’s conduct—keeping it in plain sight, acknowledging he had the
more detail purse, and not disturbing its contents—is consistent with his stated plan to turn the
purse into the police the following day.
TIP: Even if there are multiple Rule Explanation paragraphs, write all of your
Rule Explanation paragraphs before you start writing the corresponding Rule RULE EXPLANATION & RULE APPLICATION PARAGRAPHS
Analysis paragraphs TIPS FOR A STRONG RULE EXPLANATION PARAGRAPH
1. Make sure each Rule Explanation paragraph starts with a thesis sentence that has a
Discussion subject. A thesis sentence is more effective than a simple topic sentence because the
(Conclusion) thesis makes an assertion to support the CREAC
It is unlikely that Mr. Juste would be criminally liable for larceny under Virginia law. 2. The thesis should not be written around a single case; rather, it should reflect an element,
subelement, or factor to be discussed
(Rule)
3. The Rule Explanation paragraph may need an explanatory sentence immediately
Under Virginia law, a defendant is criminally liable for larceny if the defendant
took and carried away another person’s property with the intent to permanently following the thesis to better explain the subject of the paragraph. It should then
deprive the owner of his or her possession. [Cite law for the elements of larceny.] explain the rule by showing how it operated in prior cases
The state must establish every element beyond a reasonable doubt. [Cite law.] 4. Each case discussed should include a mini-brief with a short explanation of the facts,
A person “takes” property when he or she “lays hold or grasps it.” [Cite law for review of the court’s reasoning, and the holding
this definition of an element.] Moving property out of sight of the owner without 5. Do not use proper names of the parties in the cases, as this will be confusing to the
permission, or off the owner’s premises, constitutes a “carrying away.” [Cite law.] reader. Instead, use global identifiers
Intent is determined by an examination of the defendant’s subjective mental state, 6. Citations are required throughout the Rule Explanation paragraph
and can be inferred from the facts and circumstances. [Cite law.] In analyzing TIPS FOR A STRONG RULE APPLICATION PARAGRAPH
intent, courts will consider both the actions of the accused and any statement made
1. The Rule Application paragraphs should track the order and number of the Rule
by him or her. [Cite law.]
Explanation paragraphs
(Rule Explanation Paragraph #1) 2. Make sure each Rule Application paragraph starts with a thesis sentence that has a
First, larceny requires the taking away of seized goods. [Cite law.] In Ramirez subject. For extra clarity, use a similar “buzz” word used in your corresponding Rule
v. Smith, a woman took her boyfriend’s watch from his bedroom without his Explanation paragraph. The thesis here connects that subject with the subject of the
permission. [Cite law.] She then took the watch to the pawnshop and exchanged element, subelement, or factor explained in the Rule Explanation paragraphs
it for $100. [Cite law.] The woman later admitted that she destroyed the return
3. Each Rule Application paragraph should provide the reader with analogies that explicitly
ticket for the watch so her actions would not be discovered. [Cite law.] The court
connect the case law with the instant facts. Compare the facts, reasoning, and holding
in Ramirez considered the woman’s conduct in taking the watch without the
to reach a predicted outcome
owner’s knowledge or consent, as well the exchange for cash at the pawnshop
4. You are usually not required to cite in the Rule Application paragraph, although you
45 miles away. [Cite law.] It found that the watch was seized. [Cite law.]
will refer to the case law by name
(Rule Explanation Paragraph #2)
Next, courts consider the subjective mental state of the defendant when examining TIP FOR DRAFTING
intent. [Cite law.] Courts will consider both the actions and statements made by the When drafting your Rule Explanation and Rule Application paragraphs, highlight the
accused when evaluating whether the defendant intended to permanently deprive thesis sentence to keep yourself focused. Emphasizing the thesis sentences during the
the rightful owner of his or her goods. [Cite law.] drafting phase may help you limit your discussion to the assertion identified in the thesis
and limit tangential material
3
DRAFTING THE CONCLUSION SECTION
At the end of the memo, you should write the ultimate
Conclusion Conclusion
1. Go back to the Question Presented and respond to the issue It is not likely that a court will find Mr. Juste criminally liable for larceny under Virginia law
you identified because he lacked the “intent to deprive” Ms. Ross of her purse. Mr. Juste’s actions of picking
2. Use the key facts and analysis to draw conclusions up Ms. Ross’ purse from the sidewalk and putting it into his car is enough evidence to support
3. You should include any outstanding legal or factual issues that the first three elements of larceny under Virginia law. However, Mr. Juste did not hide the
need to be resolved purse or deny having it when asked by the police officer, and he will testify that he planned
4. No citations are required in the Conclusion section to turn in the purse to the police. Therefore, it is unlikely that the state can prove beyond a
5. The Conclusion should expand on the responses captured in reasonable doubt that Mr. Juste intended to permanently deprive Ms. Ross of her purse.
the Brief Answer
MORE COMPLEX ORGANIZATION PLANS
Organizing the legal memo is usually the hardest step in writing it. The c. Some writers use a short one- or two-word point heading. A point heading
samples below deal with complex legal issues that present either different under that style may simply read: False Imprisonment
events, different legal theories, or different issues. When confronted with a Step 6: Draft a CREAC-style analysis for each issue
complex legal issue, take the following steps to review how many CREACs 1. Tort law Example: In a rush and looking to buy some shades, Ms. Starr, a
are warranted. If there is more than one issue that must be addressed in a celebrity, walked into the Buzz boutique and tried on several pair of sunglasses.
CREAC-style analysis, you will need to write an Umbrella to show how the The store security guard saw her pick up several pairs and did not realize that
various issues fit together she already had her own sunglasses in her hands when she entered the boutique.
HOW TO ORGANIZE COMPLEX LEGAL ISSUES When the celebrity attempted to leave the store without paying for anything.
The security guard detained her and questioned her for shoplifting. She was
Step 1: Divide the scenario into discrete events or transactions
eventually released with an apology but was angry. Ms. Starr decides to sue Buzz
Step 2: Identify the various legal theories presented by the events
for false imprisonment. Your research reveals a statutory defense to false impris-
(For this section, don’t forget to consider both statutory and common-law issues;
onment for shopkeepers who suspect that someone is shoplifting.
see Tort Law Example under step 6)
a. Break into two issues from the single event:
Step 3: Draft a major point heading that frames the entire discussion
i. The store detained the celebrity
TIPS on the major point heading: Analyze: False imprisonment claim
a. This is where the overarching issue goes. Writers often copy the Question ii. The store security guard had reason to believe that the celebrity was
Presented from the start of the memo and give it double-duty here as a major
shoplifting
heading to frame the entire Discussion
Analyze: The shopkeeper’s privilege defense created by statute
b. To indicate to the reader that it is a point heading, it should be single
2. Criminal law example: Without permission, defendant came onto property,
spaced, in all caps, and flush left. The sample here is provided for the Tort
opened the front door, entered a private home, and took away a television set.
hypothetical that actually has two issues: the common law false imprison-
What is the defendant’s potential criminal liability?
ment claim and the statutory shopkeeper’s privilege defense
a. Break into three events:
Step 4: Draft an Umbrella that explains how the various issues work together. Is one
i. Defendant came onto property
issue a procedural issue? Is one issue a threshold issue?
Analyze: Criminal trespass
TIPS on drafting the Umbrella: ii. Defendant entered dwelling without permission
a. Do you need one? If there is only one simple issue you are addressing, you do Analyze: Burglary
not need an Umbrella iii. Defendant took away television without permission
b. Do you need more than one? If one of your legal issues further breaks down Analyze: Larceny
into multiple CREACs, you may need a mini-umbrella for your memo.
DISCUSSION ORGANIZATION FOR MULTIPLE ISSUES
Multiple Rule Explanation paragraphs in the same CREAC are not the same
as multiple CREACs for the same issue Discussion
c. Once you have determined that you need an Umbrella, make sure you include
UNDER GEORGIA LAW, IS A BOUTIQUE ENTITLED TO RAISE THE SHOP-
the essentials: KEEPER’S PRIVILEGE AS A DEFENSE TO FALSE IMPRISONMENT WHEN A
i. Give an overview of the general rule CUSTOMER ENTERS THE STORE WITH A PAIR OF SUNGLASSES, TRIES ON
ii. Cite to the controlling authority (Note that you will not need to cite every SEVERAL PAIRS OF SHADES, ATTEMPTS TO LEAVE THE STORE IN A RUSH
sentence in the Umbrella) WITHOUT PAYING FOR THEM, AND IS QUESTIONED BY STORE SECURITY
iii. Identify all subparts and explain how they work together FOR 25 MINUTES BEFORE SHE IS EXCUSED?
iv. Depending on your fact pattern, you may need to address procedural issues,
1. Following the major point heading, you should write an Umbrella here if there
the burden of proof, and any public policy leanings
are more than one CREAC-style paradigms in your memo
v. Do not apply the law to your client’s facts in the Umbrella
2. The Umbrella starts by explaining the overarching law; it then clarifies the
vi. Identify and dispose of genuinely undisputed issues; explain why these issues
relationship between the various issues. See Tips on Drafting the Umbrella for
are not in dispute. Are you responding to an assigning memo with limiting
more details about drafting an effective Umbrella
instructions? Did the parties stipulate to some issues? Is another associate
examining an outstanding issue? 3. The Umbrella is usually one to two paragraphs. It concludes with a roadmap that
vii. Provide a basic roadmap that introduces the reader to the issues you will previews the CREACs that follow
address and the order in which you will address them a. Ms. Starr likely has a valid claim for false imprisonment
Step 5: Draft point headings for each part i. This is where the CREAC on the first issue, false imprisonment, goes. This
TIPS on drafting point headings: should be double-spaced and follow regular formatting guidelines. Follow
a. Used to help orient the reader when he or she is reading through complex the CREAC-style paradigm reviewed in this section
material. They are signposts that relay the topic of the CREAC. Effective point b. Buzz boutique will likely be able to use the shopkeeper’s defense to avoid liability
headings look a lot like the initial conclusion for the CREAC i. This is where the CREAC on the second issue, shopkeeper’s privilege, goes.
b. To indicate that it is functioning as a point heading, it should be single spaced This should be double-spaced and follow regular formatting guidelines.
and indented Follow the CREAC-style paradigm reviewed in this section
BEST PRACTICES FOR EDITING & REVISING
Once you have a complete working draft of your memo, put it down and • After you’ve read the memo, make end notes that reflect overall strengths and weaknesses
give yourself at least a day between drafting and editing. Hopefully, you have • Are there research holes you need to address?
budgeted adequate time to take a thoughtful approach to editing. Unless you • Is your large-scale organization easy to understand?
are given explicit instructions to do so, do not allow anyone else to read your • Is anything unclear to you?
work. This is your work product and you must be responsible for the quality • Is your large-scale organization correct?
of the work. Furthermore, lawyers are bound by lawyer-client confidentiality • What do you like most about it?
rules that will limit your ability to share your work product with others. The MICRO-EDITING TECHNIQUES: DETAILS COUNT
drafting is merely a draft until the editing and revision process is complete. First tackle the edits particular to an objective legal memo
You must learn how to be your best editor • Are all of the parts of the objective memo present and in order?
MACRO-EDITING TECHNIQUES: LOOKING AT THE BIG PICTURE – Heading – Statement of Facts
• Print out your memo – Question(s) Presented – Discussion
• If possible, put a day between your completed draft and your first edit – Brief Answers(s) – Conclusion
• Read first for clarity and understanding. Read out loud. If you are comfortable • The Heading
doing it, use a program on your laptop to read the document back to you. Do not – Is the submission date correct on your Heading?
make any markings on the paper during the first read – Did you include the client file and identifier?
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Best Practices For Editing & Revising (continued )
• The Question Presented • Use the active voice throughout your memo. Strong writing relies on the active
– Is the Question Presented concise? voice for impact and simplicity
– Does it identify the legal issue for the memo? – These words will help identify passive voice: Is, am, are, was, were, be, being, been
– Does the Question Presented capture all of the legally relevant facts? ∙ These words do not always indicate that the writer relies on passive voice, but
– Does it use global identifiers or general terms instead of proper names? they frequently appear in passive voice sentence construction. Correcting for
– Does the Question Presented identify the jurisdiction? passive errors requires more than replacing it with a strong verb; usually the
• The Brief Answer writer has to restructure the sentence and move the subject closer to the action
– Is the Brief Answer made up of three parts: answer, snapshot of law, and snapshot EX: Passive voice: The car was washed by Christian
of relevant facts? Active voice: Christian washed the car
– Does it identify the jurisdiction? • Define legal terms. Better yet, make every effort to delete legalese
– Is it free of citations? • Reduce nominalizations. Nouns created from verbs and adjectives weigh down
– Is it brief? your writing and obscure your meaning
• Statement of Facts EX: Weighty and weak: Cai and Linda reached an agreement to deliver the goods
– Does the Facts section begin with an identification of the client? by Saturday
– Does it state the legal theory or potential claim? Strong and simple: Cai and Linda agreed to deliver the goods by Saturday
– Are the facts listed in chronological order? Other examples: Use “object” rather than “make an objection” and
– If the facts are complex, do they include subheadings to organize the information? “investigate” rather than “investigation”
These may be broken up by date, incident, or party • Never leave pronouns such as “this,” “that,” “those,” and “them” standing alone in a
– Are relevant details included? sentence; always state the referent
– Are both positive and negative facts included? EX: Unclear Pronoun: This makes clear that the court values consent
– Are the facts presented in objective terms? Clear Meaning: This holding makes clear that the court values consent
• Discussion • Minimize the number of negative words in each sentence (e.g., absence, fail, deny,
– Does the Discussion feature a sensible structure that reflects the number of lack, omit, not, no, non-, never)
issues present?
• Reduce your reliance on intensifiers. Words that attempt to inflate meaning often
– If needed, does it have a major heading, Umbrella, and point headings?
have the opposite effect and make the reader question your judgment
– Does the Discussion use a CREAC-style paradigm to organize legal issues?
– Eliminate words such as “clearly,” “obviously,” and “absolutely”
– For CREACs, does each one feature:
∙ Exception: When you are quoting a legal authority
∙ An initial conclusion with a simple prediction of the outcome?
• Minimize your use of quotations from other sources. Sometimes it is essential, such
∙ A fully developed and comprehensive Rule paragraph with citations?
∙ Rule Explanation paragraphs that explain how the rule works by examining as the specific language from a statute or fact pattern, but your own analysis should
how it operated in prior cases? Is every sentence in the Rule Explanation be front and center
paragraph cited? Does each Rule Explanation paragraph begin with a thesis • Eliminate all first- and second-person pronouns (I, me, my, you, us, we, our). These
sentence with a single subject? are too informal for a legal memorandum
∙ The placement of all Rule Explanation paragraphs before the start of the Rule • Eliminate contractions; these are also regarded by many people as too informal
Application paragraphs? • Be consistent with your use of the serial comma. Whatever your position of
∙ Rule Application paragraphs that apply the rule to the instant facts through commas in a series, apply that standard throughout the memo
analogies or counteranalogies that compare facts to facts, reasoning to reason- – What is a serial comma? See the last comma here: “The chef purchased apples,
ing, and holding to predicted outcome? Does each begin with a thesis sentence oranges, and strawberries”
that tracks the subject of the corresponding Rule Explanation paragraph? • Eliminate gendered pronouns. Try making all of the pronouns plural or simply use
∙ A final conclusion that highlights the main reason that supports the prediction? “he or she”
• Conclusion – Not acceptable: If an attorney is late to court, he will be sanctioned
– Does the ultimate Conclusion section of the memo summarize the prediction? – Acceptable option: If attorneys are late to court, they will be sanctioned
– Does it address each element, subrule, or factor discussed and explain how the [Plural]
facts apply? – Acceptable option: If an attorney is late to court, he or she will be sanctioned [Both]
– Is the Conclusion free of cites?
EXTRA STEPS
– Does the Conclusion identify outstanding legal or factual issues?
– Is it consistent with the Discussion and Brief Answer? • Did you update your research?
Then turn to the general legal writing conventions • Did you check your citations?
• Verify spelling, grammar, and punctuation. Do not merely rely on your computer • Did you review formatting guidelines?
– “Council” is spelled correctly, as is “counsel,” but they mean very different things. • Is your paper within the page limit requirement?
Spellcheck is not an expert at detecting homophones. Context counts, and a • Are you adhering to honor code requirements or professional standards?
human reader is needed for that • Is this your best work?
TYPES OF LEGAL LOGIC
Rule-based reasoning and reasoning by analogy are the two most common cold-blooded animal and not “companionable”; similarly, a court in the instant
techniques in legal analysis. You will likely use one or both of these techniques case is likely to find that Johnny’s piranha is a cold-blooded animal and also not
in your legal memo “companionable.” The court in Rocky found that cold-blooded animals are not
RULE-BASED REASONING pets; likewise, the court here is likely to find that a piranha is not a “pet” under
1. Occurs in a legal analysis whenever you identify or classify something, and Statute 2.2. Therefore, Statute 2.2 does not prohibit Johnny from bringing his
thereby show whether it falls inside or outside a given category piranha on an airplane
2. Example of logical deduction: Statute 2.2 forbids bringing “pets” aboard an TIP: The Reasoning by Analogy is probably best relayed in a CREAC-style
airplane. [Cite law.] Johnny’s cats and canaries are all pets under the law, because paradigm that uses Rule Explanation and Rule Application paragraphs
companion Statute 2.3 defines pets to include “common household animals,
including dogs, cats, and all birds (except poultry).” [Cite law.] As Johnny’s animals SHOW EVERY STEP OF YOUR LOGIC
fall within Statute 2.3’s list, Statute 2.2 forbids bringing Johnny’s animals aboard
Do these examples seem simple and obvious to you? They are obvious to you now,
TIP: The Rule-Based Reasoning technique is probably best relayed in an because you have seen the logic explained clearly here; you must do the same for your
IRAC-style paradigm with no Rule Explanation paragraphs readers (lawyers, professors, and judges). Make your reasoning obvious by showing
every step; do not skip any logical step just because you think it is too simple
REASONING BY ANALOGY
Complete the following series: A, B, C, and __.
1. Explains how the legal result in a different case should apply to the facts of the
present case 1. Did you say “D”? Correct. Now explain why. The answer cannot simply be that it
2. An analogous case involves things that are similar to the present case, such as similar: came next. Rather, make your reasoning explicit and apply what you may understand
a. Physical facts or events about inductive and deductive analysis
b. Relationships among the parties a. Inductive reasoning extracts a rule from the series presented. In an instant,
c. Legal principles your brain extracted a rule: “The series of letters presented is the English
d. Notions of fairness alphabet starting with the letter A and going in direct sequence.” Inductive
3. Analogous cases can show upper and lower limits: reasoning moves from the specific (A, B, C) to the general (the next letter in
a. How bad conduct has to be to amount to “extreme and outrageous” the alphabet completes the series)
b. How much performance of a contract constitutes “substantial performance” b. Deductive reasoning moves from the general to the specific. It applies the
c. How much and what type of circumstantial evidence is necessary to prove a extracted rule to the unknown ahead of it. Perhaps you quickly reasoned: “The
person’s “intent” letters are appearing in order without interruption. To complete the series,
4. Example of reasoning by analogy to a case: Statute 2.2 forbids bringing “pets” I need to offer the next letter available without interruption. Since D follows C,
aboard an airplane. [Cite law.] In Rocky v. State, the Court held that a frog the answer is D.” This probably happened quickly and outside of your awareness,
was not a “pet” under Statute 2.2. In Rocky, the court reasoned that the term but this simple exercise should remind you to always make your reasoning explicit
“pet” referred to any animal, warm- or cold-blooded, that was commonly in your legal analysis, even if it may sometime seem obvious to you. Don’t just
kept for companionship. [Cite law.] The court in Rocky held that a frog was a say “D.” Rather, explain how you were able to get to your prediction
5
PLAIN ENGLISH TABLE
Lawyers and judges are busy people who read many, many pages of material each In order to To
day. To boost clarity, streamline your writing. Be complete, clear, and concise. Even In relation to About, concerning
word choice matters. Refer to the lists below to help you make appropriate changes In so much as As, since, because
Word/Phrase Replace With In terms of In, by, with [or rephrase entirely]
Accordingly So In the case of When
Acquire Get In the event that If
Adequate number Enough In the nature of Like
Adjudicate Decide In the near future Soon
Advise Tell, recommend In view of the fact that As, since
Afford an opportunity Let Inasmuch as As, since
Along the lines of Like Inception Start, beginning
Anticipate Expect Incumbent upon Must
Approximately About Indicate Show, explain, say, testify
As to About, on, of Insufficient Not enough
Ascertain Find out, learn Is able to Can
Assist Help Is applicable Applies
At that/this point in time Then/Now Is binding upon Binds
At the present time Now Is entitled to May
At the time When Is required to Must
Be benefited by Benefit from Locate Find
Be determinative of Determine Location Place
Be dispositive of Dispose of, finish Made and entered Made (or entered)
Benefit Help Make contact with See, meet, talk to
By and between Between Make reference to Refer to
By means of By Nevertheless But, however, even so
By reason of Because of Notwithstanding the fact that Although
By virtue of By, under Numerous Many, most, several [estimate count]
Close proximity Near Observe See, watch, look at
Commence Begin On the basis of By, from, because of
Communicate Write, tell, talk On the part of By
Compensate Pay Personnel People, persons, staff, employees
Complete Fill out Presently Soon, now
Consequence Result Prior to Before
Contiguous to Next to Provided that If, unless
Covenants (noun & verb) Promises Pursuant to Under
Demonstrate Show, prove Relating to About, on [or a specific connector]
Despite the fact that Although Said (as an adjective) The, this, that, it [or actual name]
Due to the fact that Since, as, because State (verb) Say
During the time that During, while Subsequent(ly) Later, next
Effect (verb) Make, cause Subsequent to After
Elect Choose Sufficient Enough
Endeavor (verb) Try Terminate (non-legal usage) Stop, end
Ensue Follow The reason...is because The reason...is that (or rephrase)
Excessive number Too many This is a topic that This topic
Exhibit Show, display Time period Time
File a motion Move To be sure Of course
For the period of For Transpire Happen
For the purpose of To Transport Bring, send
For the reason that Because Under the provisions of Under
Forward (verb) Send, mail Until such time as Until
From the point of view From, for Utilize/Utilization Use
Furnish Send, give Viable Workable, possible
Give consideration to Consider Whereas As, since
Has the capability Can With a view to To
Hence So, thus With reference to On, about, concerning
However But With regard to On, about, concerning
Identical Same With respect to On, about, concerning
Implement Carry out, do Witnessed Saw
In accordance with By, under Delete Entirely
In addition Also Aforementioned Now therefore
In an effort to To Herein Therein
In cases which When, where, if Hereinafter Whereas
In connection with With, about, concerning Hereinbefore Wherefore
Hereunto Whereof
In favor of For, favoring
Insofar as...is concerned Witnesseth
In lieu of Instead of
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