Many students, approaching memo writing for the first time,are often unsure of how to proceed. We have put together a few tips for first time memo writers that we hope will be helpful.
(1) Find the test(s). In assigning a memorandum,professors are generally evaluating you on parsing a particular statute or test. In other words,they want you to use other cases to explain how your case either does or does not satisfy a test laid out in a case or a statute.
For example,let's say your case involves a niece (Mary) who witnessed her uncle (Jack) being injured in an automobile accident. Mary wants to bring suit for negligent infliction of emotional distress as a result of witnessing that accident. In Burger v. McDonald, the Supreme Court of lowa laid out a three part test to determine whether a bystander's injury was reasonably foreseeable and,thus,legally actionable:
①Whether the bystander was located near the accident?
②Whether the injury resulted from sensory and contemporaneous observance of the accident,as opposed to hearing about it from others after its occurrence?
③Whether the bystander and the victim were closely related?
If the memo involves more than one issue, your memorandum may involve more than one test.
(2) Use the test as your outline. Tests come in two parts,or three (as above),often with subsections. Use the major parts of the test as your major points,the subparts as sub--sections.
(3) Begin paragraphs with affirmative propositions that parallel the test. In the above example,your first sentence should say something like: "Mary was located near the scene of her uncle's accident,satisfying the first part of the Burger test."
(4) Support your affirmative propositions. All propositions of a legal nature must have legal support. Where is your authority for your proposition? Cite it.For example:"See Burger, 606 N. W.2d at 321 (bystander must be located near accident to recover for negligent infliction of emotional distress). "
(5)Discuss the facts of your support.What happened in the case you just cited? Explain in a concise and relevant way. For example: "In Burger,the court held that a mother who witnessed an accident on the street from the front door of her house was located near the scene of an accident."
(6) Discuss the relevant facts of your case. Point to the facts that are similar to the facts of the authority you've just discussed. For example,you could continue from above as follows: "Mary was standing a block from the accident,heard the crash,and saw her uncle being pulled, bleeding,from the car."
(7) Analogize/Conclude. What conclusions do you think the court will draw from the similarity between your facts and the facts of your authority? For example:"Although Mary did not see the accident,she was close enough to hear it and witness her uncle being pulled from the car. Thus,a court will likely conclude that she was located near the accident."
(8)Discuss other relevant authority.Once you've opened the previous paragraph with your affirmative proposition,your subsequent paragraphs can discuss the facts of other relevant cases without repeating the proposition as your opening sentence. For example,you could begin the next paragraph:" In Cameron v. Jones, the Court of Appeals held that a mother who was twenty—five feet away from her child when she heard a metal sculpture fall on him was located near the scene of the accident.
(9)Discuss contrary authority. Are there cases that go against your position (or the position the partner/judge/etc. would like you to hold)? Another subsequent paragraph could open with:"But, in Alfred v. Stern, the court held that a father did not have a valid cause of action for negligent infliction of emotional distress. " Then follow steps 5,6, and 7, above, except this time,when concluding, tell the reader why the court won't follow or give much weight to this contrary authority (e. g.,the facts are different).
(10)Move on to the next part of the test. Follow steps 3-—9 above for the next section of your test.
Remember, a memorandum also includes issues presented,a brief answer (which usually follows the issues presented), and a statement of facts. These are often best written after you've written the body of the memorandum,since you'll have a better idea of the issues once you've tackled the problem (though a tentative draft might help to get you started).
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