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.”
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.