April 30, 2014
The advice in this post in the form of do’s and don’ts is from the author’s experience as an associate who learned how to improve his legal writing, as a partner who taught associates how to improve their legal writing, and as legislation counsel who helps draft committee reports and technical explanations for tax legislation.
1) Repetition is helpful
One format that many find helpful is to summarize what you are going to say, say it, and then summarize what you just said. Note that the second summary is not merely a repeat word for word of the first one. The act of summarizing helps the writer emphasize the most important take away points and helps the reader know where to concentrate his focus.
2) Be concise
Shorter is generally better. Partners and clients are busy so if you can make your point in one page, try to do so. Make sure every word carries freight. If a word or sentence is not necessary, delete. Practice being concise in conjunction with treating your final draft as your first draft.
3) Treat your final draft as your first draft
Make your document as perfect as can be, take some time away from the document, and use it as your starting point for going forward. Following this approach of stepping away and starting again will help catch typos, places where you can be more concise, and ensure your writing can be followed by someone not as immersed in the weeds as you.
4) Write for a layman
Assume the person reading the memo knows nothing about the subject matter. Start with the baby case and ease the person into the application of law to your facts. It helps to assume the person reading knows nothing because even if he or she is an expert in the area, he may not have gotten into the weeds on this particularly issue (which is why you were assigned the project).
5) Confirm desired format
The memo may be useless if the substance is perfect but in an undesirable format for a discerning partner. Does the partner want an executive summary? Does he or she want the conclusion up front? Does he or she care want the conclusion provided at all or just the analysis?
1) Don’t take on other people’s conclusions
The basic point here is to cite all your sources but an extension of that point is to be careful to not take on other people’s conclusions as fact. For example, if someone has performed a study or provided an opinion, be sure to attribute the results or the opinion to that person or entity (even if you have independently confirmed the results or share the same opinion) and describe how they arrived at their results or the basis for their opinion.
2) Don’t speak in legalese
This advice goes with the advice above to write for a layman. Try not to take away from your analysis and clear writing style by using fancy words or concepts. Similarly, if you put forth a legal principle, make sure to describe it precisely and clearly for the person with no legal education.
3) Don’t be too dramatic in tone
Avoid words like “very.” Staying as neutral as possible furthers your credibility. That does not mean you cannot argue a position but make sure you present both sides and provide sufficient support for why you believe side has the stronger position.
4) Don’t skimp on analysis
Make sure to support your conclusions. The analysis of how you arrived at your conclusion is generally more important than where you come out. Perhaps the partner will see the issue differently but at least you have provided him or her the tools for which to come to his or her own conclusion.