Last week, we covered how to accept a writing assignment. Now we look at the three categories of memoranda written to partners.
Remember that writing to a partner differs from writing to a client. A partner needs more facts and most of your research; typically, a client needs far fewer facts and none of your research, only the answers. We divide memoranda into three broad categories:
The Survey—You review a document and report what you find.
The Advisory Memorandum—You answer questions like, If Rodriguez accepts the position, will he have to sell his stock?
The Issue Memorandum—You apply law to a story—If Burdell began organizing his team of trainers and taking subscriptions for his gym before the non-compete expired, but did not open the gym until after it expired, has he violated the non-compete?
Another way of categorizing memoranda is Present, Future, and Past:
The Survey—in the present—there is no story; time stands still.
The Advisory Memorandum—looking to the future—trying to determine how to avoid punishment, penalties, or a lawsuit, or to achieve a goal. There is still time, because the story is not over, and your expertise will help guide the client.
The Issue Memorandum—looking back—usually someone has filed a lawsuit or is contemplating filing a lawsuit; the story is complete.
Transactional lawyers write mostly Surveys and Advisory Memoranda, and litigators write mostly Issue Memoranda, but assigning lawyers in either area may ask an associate to write any of the three. Remember that a memorandum might be the starting point for a brief or a longer memorandum, so use correct citation form. Following is a recommended structure for each that should satisfy most assigning lawyers, but before you adopt one of these, ask your assigning lawyer for preferences.
Although we present here the approach to formal memoranda, many—perhaps most—of your assignments will require quicker and shorter email responses. If you understand the layout for a formal memorandum, however, it will help you decide how to present your findings and assessment in less formal emails.
Next week, we continue the WordRake series How to Write the Perfect Memorandum, with a look at the simplest of all memoranda: “The Survey.”