Briefs, Legal Memoranda and Legal Writing

Terms:

You have learned in previous chapters that part of the legal profession involves a large
quantity of writing. Complaints, answers, discovery documents, motions and legal
memoranda (sometimes called briefs) make up a large part of a court file.

Legalese
There was a time when simple legal writing was frowned upon. Attorneys took great pains
to make language in documents as complicated as possible. One of the reasons legal writing
was so complicated was because attorneys wanted to cover their bases and make sure that
their documents were as complete as possible. As legal writing has evolved, there has been
a movement to move away from convoluted legal writing, also known as legalese to more
contemporary, or plain writing. For example:
In its memorandum to the court in support of its motion for summary judgment, Hal, the
plaintiffs attorney, argued that the party of the first part coveted to convey its entire
interest in the subject real property to the party of the second part. The court, unhappy
with the language, instructs Hal to rewrite his memorandum, excluding any legalese. In his
revised memorandum, Hal writes, The seller agrees to convey its entire interest in the
property to the buyer. The language is clearer, fewer words are used (thus generating less
paper), but the message is still the same.
Words like heretofore, hereinafter, hereinbefore, aforementioned, etc., should be
avoided whenever possible.

The Brief or Case Summary

Legal memoranda are sometimes called briefs. The word brief, however, has another
meaning it refers to a short synopsis of a case. Instead of reading a 25 page case, for
example, many attorneys will ask their clerks (or their associates) to summarize a case or
to brief the case. The brief will give the attorney the information he or she requires, to
decide whether the case is relevant and worth spending the time to read in depth.
A brief, in this context, is a form of taking notes and includes a variety of sections. When
writing a case brief, begin with the name and citation of the case. The first section of the
case brief usually contains a description of the facts of the case. The second section will
contain a brief description of the procedural history of the case, that is, a short description
of what happened at the trial level and at the appellate level, or what types of motions were
filed and when. The third section usually contains a short statement of the main issue or
issues that the case addresses. The fourth section usually contains the holding of the case,
i.e., the ultimate outcome. The last section contains a discussion of the courts analysis. The
name of the judge or other information may be included in a miscellaneous section.

Additionally, any concurrences or dissents should receive some discussion.

Briefs should not be longer than one to two pages long and should be easy to read so that
the reader does not have to spend much time understanding the reasoning of the case.

The Legal Memorandum

You have already learned, in previous chapters, about the use of legal memoranda. To
recap, legal memoranda are used in connection with motions, both pre-trial and post-trial.
Occasionally, during trial, the court may ask for a memorandum on a particular legal issue.
The courtroom, however, is not the only arena in which legal memoranda can be involved.
Attorneys will often ask clerks (or associates) to prepare a legal memorandum about a
particular legal issue. This memorandum is used within the law firm and serves to inform
the attorney about the legal issue, and includes citations to legal authorities. It will also
point out a split of authorities or ambiguities in the law, if applicable. It is important that the
attorney to whom the memo is addressed is informed of all aspects that are relevant to the
issue, not just information that is favorable to your side of the case.

The Courtroom Legal Memorandum:

This particular memorandum is a persuasive document. The memorandum must include a
legal argument and should contain legal citations that support the legal arguments being
put forward in the memorandum. However, it should be noted that attorneys have
an ethical duty to disclose any and all binding legal authority that is contrary to their
position in their documents. Of course, it will often be the task of the drafter of the
memorandum to try to convince the court that the contrary case should not be applied to
the facts of this case.
The top of the first page of a memorandum being submitted to the court should have the
proper caption as required by the local rules of the court, followed by the proper title of the
memorandum.
It is always a good idea to start the memo with an introductory paragraph so that the court
is instantly attuned to what issue the memorandum addresses. Similarly, it is always a good
idea to include a brief statement of the facts of the case. The reason why a statement of the
facts is essential is because the judge who is familiar with your case may not be the person
reading the memo and writing the resulting decision. Always assume that the reader is
learning about the case for the first time. The statement of the facts should not be
convoluted it should offer a clear, concise description of the circumstances giving rise to
and surrounding the case. Within the statement of the facts should be a few sentences
concerning the procedural history of the case. For example:
Julie represents the plaintiff in a motor vehicle accident. In support of her motion for
summary judgment, Julie includes in her memorandum the following: On the evening of
January 3, 1992, the plaintiff was traveling in her automobile in a westerly direction on Main
Street in the city of Myertown, when her car was suddenly and violently struck by the
defendants automobile, which was being operated by the defendant. As a result, the
plaintiff sustained serious physical injuries for which she has brought this action to recover

damages. It is the plaintiffs contention that the defendant negligently failed to stop at the
stop sign as required by law. The plaintiff has respectfully moved this court for summary
judgment on the ground that there is no genuine issue of material fact and that the plaintiff
is entitled to judgment as a matter of law.
To focus the readers attention, the memo should always include a statement of the issue
addressed. For example:
Following her statement of the facts, Julie includes the following issue: This memorandum
addresses the issue of whether an operator of a motor vehicle who fails to stop for a
pedestrian in a crosswalk is inherently liable for negligence.
The longest, and most important, part of the memo is the discussion section. This is the
section in which the partys argument is maintained, legal authority is cited, and conclusions
of law are drawn.
Finally, the last section in the memo is the conclusion, which summarizes the arguments
contained within the memo.
Another type of legal memorandum is the appellate brief. Appellate briefs will be discussed
in the last chapter, which concerns appellate practice.

The Internal Legal Memorandum

The first part of the internal legal memo is the heading, which usually looks like this:
DEWEY, CHEATUM & HOWE, LLP
MEMORANDUM
TO: [name of recipient]
FROM: [name of author]
DATE: [date]
RE: [subject of memo]
Within the heading, the two most important parts are the date and the subject, or "re:"
(pronounced ray or ree) line. The date is important because it lets the reader, who may
not be the original recipient, know when the memorandum was written. It is assumed that
all of the law cited within the memo is current as of that date. The "re:" line is important
because it instantly focuses the readers attention. Often, internal memoranda are kept in
research files for future reference and thus, the "re:" line offers a quick guide to the
memos contents.
The memo should begin with a statement of the issue, which is the legal question that the
memorandum addresses. For example:
The issue addressed by the memo is whether the operator of a motor vehicle is inherently
liable for negligence for striking a pedestrian in a crosswalk. OR
This memo addresses the issue of whether a corporation that distributes shares in its

organization must register with the United States Securities and Exchange Commission.
The next paragraph, or series of paragraphs, should offer a brief answer to the issue. The
purpose of this brief answer is so that the reader does not have to read the entire
memorandum to understand the resolution of the issue. Citation to authority is not
absolutely necessary in this section, but it may be included if deemed appropriate.
It is not essential to include a brief statement of the facts giving rise to the issue, but it is
rarely a bad idea to do so. If the memo specifically discusses the pertinent law and then
applies it to the facts giving rise to the issue, it must also discuss the facts, or the memo
will not be as effective. If the memo is a strict discussion of law, the facts may not be
important; they will always provide, however, a frame of reference. Because the resolution
of a legal issue can turn on one seemingly minute fact, the inclusion of facts is often useful.
The largest portion of the memo is the discussion section. It is in this section that all legal
analysis occurs, as well as any application of the law to the facts giving rise to the issue. As
explained above, all attorneys have an ethical duty to inform the court of authority contrary
to their position; therefore, it is essential that the internal legal memorandum discuss all
aspects of an issue, including contradictory authority.
Finally, the last section of the memorandum is the conclusion, in which a brief summary of
the memorandum is offered.

Order of citation of authorities

Quite often, attorneys and other legal practitioners will wish to cite more than one judicial
decision, statute, or other legal source to support their argument. A list of two or more
citations is called a string citation. One may not simply cite with abandon every source that
supports an argument authorities must be cited in a particular order in a string citation. If
one authority is more important or authoritative than the rest, it should be cited at the
beginning of the string citation.
Generally, federal statutes should be cited before state statutes. For statutes, those enacted
most recently should be cited first, and then the rest should follow in reverse chronological
order.
Cases should be cited in similar fashion federal cases should precede state cases. The
United States Supreme Court should be cited before any other federal court, followed by
courts of appeals and then district courts. If more than one case is cited from the same
court, the cases should be listed in reverse chronological order (i.e., most recent first).
Decisions from courts of appeals need not be organized by circuit, however they are
treated as if they are the same court, to be ordered in reverse chronological order.
Decisions from the district courts are treated in the same way. For example:
In her memorandum in support of her motion to dismiss, Rebecca has many decisions to
cite in support of her position. After reviewing a citation guide to determine how to cite all
of the decisions, she decides to include the following string citation: State v. Jones, 23 U.S.
235, 31 S.Ct. 3256, 32 L.Ed. 236 (1902); People v. Smith, 932 F.2d 281 (2d Cir.
1986); State v. Miranda, 915 F.2d 248 (3d Cir. 1982); People v. Stuart, 822 F.2d 432 (2d

Cir. 1970); State v. Andrews, 234 F.Supp. 343 (S.D.N.Y. 1953). Her citation is proper.
Note that the two cases from the Second Circuit are not listed together, but are listed, with
the Third Circuits decision, in reverse chronological order.
Citation of more than one state court decision is similar always begin with the highest
state court, then the appellate level, and, finally, the trial court level. The decisions from
each level should be listed in reverse chorological order. If the string citation contains
decisions from more than one state, the citations should be listed alphabetically, by state.
Wthin each state's decisions, the previously discussed rules regarding court rankings and
reverse chronological order apply.