Writing legal research memos for other lawyers is a major part of my practice. For a few hours or a few days, I dive deep into the law on a particular topic. By the time I’ve completed my research, I might know more about how a specific legal issue applies to a specific set of facts than anyone in the world.
But I am not the lawyer directly advising the client or arguing the case in court, so my deep understanding of the applicable law is meaningless unless I can communicate it in a way that is helpful to the instructing lawyer.
“Helpful” is the operative word. Helpful is my goal on every single memo. Helpful means:
Providing the lawyer a complete picture of the law without overwhelming her with unnecessary details.
Crafting a memo that the lawyer can read and then immediately take the next step — call the client, draft an argument, walk into a mediation, etc.
Making the instructing lawyer’s day easier, not harder.
Much work and thought go into drafting a helpful research memo. These seven tips will set you on the right course.
1. If necessary, clarify the research question with the instructing lawyer.
You may have experienced this scenario: the senior lawyer sends you off with instructions for a research memo, but after reviewing the law, you realize she’s asked the wrong research question. Maybe her question was incomplete. Or there is a different cause of action that is more applicable. Or the question should be expressed in a different way.
Do not stress — this happens all the time. It doesn’t mean the instructing lawyer is a dummy. It just means she hasn’t had a chance to fully consider the research question in light of the applicable law.
Junior lawyers might find this awkward — they don't like the idea of going back to the senior to suggest she got the question wrong. Don’t think of it that way! Articulating the research question is part of the legal research process. A component of your job as the researcher and memo-writer is to help the lawyer to understand how to analyze the legal issue.
But whatever you do, don’t assume the senior lawyer is wrong and you’re right. It’s crucial that you begin the research process with a shared understanding of research question. Return to the instructing lawyer to confirm instructions. I like to prepare a draft of the research memo with only the “Issues” and “Facts” filled in, and send that to the instructing lawyer for confirmation that I’m on the right track.
2. Carefully lay out the facts.
Often, you will receive the facts in a jumble. They may consist of a few forwarded emails, a couple of documents, and some details conveyed over the phone.
To be an effective researcher, you’ve got to un-jumble and make sense of those facts. This usually means writing them out in chronological order. A well-written chronology will do two things: enhance your familiarity with the facts so that your research can be more targeted, and (in final form) clarify for the reader the facts on which you have relied.
Begin with a thorough but roughly drafted version of the facts. As you get into your research, you may realize certain facts that you overlooked are important and others are irrelevant. You can revise the Facts section as you go along. Once your memo is complete, go back and edit out any clearly irrelevant facts
Finally, if you are making an assumption about certain facts, be sure to say so in the Facts section.
3. Continuously orient the reader.
When writing a research memo, imagine you’re guiding the reader through a foreign city. Thanks to your detailed research, you know that city like the back of your hand. You’re familiar with every house, store and mailbox. But the reader isn’t. She needs a map, signposts and landmarks. Don’t let her get lost as she navigates from point A to point B.
How do you so that? Orient, orient, orient. Your reader should never feel confused about where she is in your analysis. If she comes to a paragraph and thinks, “wait, why is this relevant?” you’ve failed.
Here are a few tips for orienting the reader. I recommend you use all of them.
Table of contents — I’ve said it before: a table of contents is a useful tool for a memo of almost any length. Assuming you’ve used descriptive headings, your reader will, at a glance, be able to see the structure of your legal analysis. Stephen Armstrong and Timothy Terrell, authors of the excellent book, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing, say this:
“If readers are to absorb and remember complex information, they have to be able to divide it into parts and understand how the parts connect. In other words, they have to see a structure. And they have to see it not gradually and retrospectively, but quickly and easily, from the start.”
Headings — I’ve said this before too. Headings, sub-headings, sub-sub-headings. They all help! Remember the foreign city analogy? Headings are the signposts for the reader to follow as she makes her way through your legal analysis. Headings make the structure of your analysis explicit, and provide mini breaks for the eye between big chunks of text.
Introduction or overview — As many legal writing profs have admonished, your research memo isn’t a suspense novel! Explain right up front (briefly) what the law says and which conclusions you will draw.
Interior introductions and topic sentences — Your sections and sub-sections need introductions, and your paragraphs need topic sentences. These provide a focus for the reader’s mind as they move through the analysis. In Thinking Like a Writer, Armstrong and Terrell point out that you want your document to appear fully coherent while it is being read, not just at the end. Each chunk of analysis should be preceded — not followed — by an explanation of how it fits within the overall analysis. No reader should be forced to read your summary of a case without knowing, in advance, why the case is relevant. (Don’t worry about getting topic sentences right on the first draft; they’re easy to insert at the editing stage).
Case Groupings — Generally speaking, your legal analysis should start with the rule-setting authority (typically statutory provisions and/or appellate cases) followed by a discussion of the cases that have applied the rule. When you get into the case discussion, be thoughtful about how you organize them. While it may make sense for you to read the cases in chronological order, that doesn’t necessarily mean you should write about them in that order. Chronological organization works best where there is a principle that was established by a chain of authority over time, each case building on the last. Otherwise, there may be a more appropriate grouping. For example:
Organize the cases according to whether they are for or against a particular position.
Organize the cases by jurisdiction.
Organize the cases according to the way they apply a certain principle to a set of facts.
If there has been a shift in the law (but the pre-shift cases remain relevant), organize the cases according to whether they were decided before or after the change.
Whichever organization you choose, be sure to make it explicit.
Consistently defined terms — You’ve probably heard that repetition in writing is boring. Not in a research memo, it isn’t! Repetition will keep your reader on track. The easiest way to disorient your reader is to use different terms when referring to the same thing. Choose your defined terms carefully and use them throughout. When defining a term for the first time, I like to put it in bold type so if the reader flips back, she can find the term more easily.
4. Provide some detail about the cases you’re describing.
As discussed above, you should not launch into a detailed discussion of any case without previewing to the reader why you are discussing that case.
Then, in your discussion of the case, it is not enough to simply give the ratio. The instructing lawyer will want some sense of the facts of each case so that she can draw analogies or make distinctions. Give enough detail so that the lawyer does not feel she has to go read the case herself.
Quotes from cases are fine in a research memo. You can use them more liberally than you might in a factum. Still, be careful not to make them too long and edit out the irrelevant bits.
5. Spend time on the Application section.
Your legal analysis should have two parts — the discussion of the law and the application of the law to the facts of the case. The two sections should be neatly separated. That way, the instructing lawyer has the opportunity to draw her own conclusion as to how the law may apply to the facts of this particular case.
If there are multiple issues, I like to do a separate “Application to the Facts” section at the end of my analysis of each issue.
The Application section is often the hardest for junior lawyers. But don’t shy away from sticking your neck out and drawing a conclusion. Even if the instructing lawyer disagrees with your opinion, she will still find your perspective worthwhile. Remember, reasonable lawyers can disagree on how the law applies to a particular set of facts (that’s one reason we have trials!).
Explain the reasoning behind your conclusions carefully. This will help the instructing lawyer to: (a) see that you thought the problem through; (b) understand the reasoning behind your conclusions; and (c) draw her own conclusions if she disagrees with a portion of your analysis.
6. Take a client-focused approach.
The appropriate writing style for a research memo is objective and balanced. The purpose is to educate the reader about the state of the law, not to persuade her of one position or the other. In this way, legal memos require a different type of writing than a factum or argument that will be filed with the court.
But while your writing style should be even-handed, it shouldn’t be indifferent to the client’s cause. Whether you practise at a law firm or an in-house legal department, you have been hired to represent a client, and your writing should convey that you have that client’s best interests at heart.
How do you communicate to the instructing lawyer that you have taken a client-centred approach? If you’re delivering bad news, be really specific about why the client’s position will fail (e.g., “here are the four types of evidence client X would have to adduce to succeed on this claim”). That way, when the lawyer has to call the client to deliver the bad news, she will have a ready-made explanation for why the argument is not going to work. Alternatively, make suggestions for additional areas of research that might turn up cases to support the client’s position. In phrasing your conclusion, use language that signals that you have the client’s interests at heart (e.g.: “I searched for cases to support the client’s position that ____.”)
Don’t hesitate to deliver bad news – just show that you gave it your best shot, so the lawyer can be confident in telling the client that she gave it her best shot.
7. Delineate the outer bounds of your knowledge.
As researchers, we’re constantly making decisions about what roads to go down and which ones we can safely avoid. Unless we’ve been given an unlimited-budget, no-stone-unturned type of assignment, we’ve probably had to make choices about what to read and what not to read, on the basis that some avenues are unlikely to turn up law that is helpful or relevant.
Depending on the scope of the assignment, it’s a perfectly valid choice not to read everything. For example:
There is a Court of Appeal decision on point within your provincial jurisdiction, together with a series of trial level decisions that have applied that authority, so you haven’t bothered reviewing decisions of the other provinces.
The case turns on statutory interpretation. Because there is robust jurisprudence regarding interpretation of the section in question, you decide not to research the legislative history of the provision or Hansard.
There are dozens of trial-level decisions applying a certain principle. There isn’t time in the budget to review all of them, so instead you use key-word searches to narrow down the pool of cases you are going to review.
You are on a very strict time budget (“Can you get me an answer by lunchtime?”). You are able to locate several cases on point and excerpt the relevant paragraphs, but you don’t have time to read the cases start-to-finish.
Each of these may be valid research choices, just remember to tell the lawyer — right in the memo — that you have made them. That way, the lawyer knows what you know and knows what you don’t. The worst-case scenario is that they assume you have reviewed something that you did not.
Similarly, if the lawyer asked you not to research a particular area — even though it strikes you as relevant to the case— confirm in the body of the memo that you have received instructions not to look at it.
The flip side is that if you do research a certain area, but ultimately find it irrelevant, don’t go into a detailed explanation of that area of the law in your memo. That will only confuse your reader and lead her off track. Instead, a couple of sentences will suffice: “I also reviewed the case law relating to X, but did not find any case relevant to the client’s argument on Y. I therefore have not included a summary of that law in this memo.”
Additional Resources
For more comprehensive guidance on drafting a research memo, I highly recommend the paper How to Build a Cadillac Research Memorandum by Barb Cotton of Bottom Line Legal Research. I have read it several times over the years and always get something new out of it.
For more guidance on the research side of things, CanLII’s Canadian Legal Research and Writing Guide is a good start.
