December 19, 2014

Ross Guberman: How to Get Memos that Help, Not Hurt

I recently asked some associates during a seminar why they thought partners assigned memos.

For the first time that morning, the associates were silent. Finally, about twenty seconds later, one woman whispered:

“Because the partner wants to learn more about the law?”

Not quite. But her response helps explain why supervisors find many memos rambling, wishy-washy, and pedantic.

Young attorneys and their supervisors have cross-purposes here. A partner asks for the memo to help make a decision. But the associate wants to avoid making any decision at all, particularly a wrong one, and thus hedges at every turn.

An Alternative Approach

To get around this impasse, try the following approach:

  1. When you assign a memo, tell the attorney exactly what you plan to do after you read it. Are you advising a client or plotting internal strategy? How will the memo affect the course you take? Many associates tell me they have no idea what their memo is for.
  2. Remind young attorneys that memos are practical tools that must drive toward a “yes” or “no” decision. Readers crave confident executive summaries and short answers that distill all the details the writer has uncovered. Concluding that “the law is all over the place” is not useful. Nor is a mini law-review article filled with “on the one hand and on the other hand” pontifications.
  3. Encourage attorneys to do more than summarize cases and string cite. Even if you need an exhaustive look at the legal landscape, ask the attorney to organize the case law logically. What are the key holdings? How do they relate to one another? How does each case cited help explain the trend in the law?
  4. Suggest the following self-test for attorneys about to submit a memo: Is this memo written for you the writer—or is it written for me the reader? Are you trying to “show your work” and memorialize your own research and thought processes—or are you trying to tell me what I need to know to make an informed decision? If the attorney can certify that everything in the memo is geared to the reader and decision-maker, you’ll have a happy supervisor and an even happier client.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

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