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Robbins-Tiscione, K --- "From snail mail to E-mail: the traditional legal memorandum in the twenty-first century" [2009] LegEdDig 20; (2009) 17(2) Legal Education Digest 16


From snail mail to email: the traditional legal memorandum in the twenty-first century

K K Robbins-Tiscione

58 (2) J Legal Educ, 2008, pp 36-60

Traditional legal memoranda have been used to teach objective analysis since the inception of legal writing programs in the 1970s. The continued use of these memoranda in the legal writing classroom leads law students to believe that traditional memoranda are still a primary form of communication between attorney and client. A 2006 survey of Georgetown University Law Center graduates, however, suggests that the traditional legal memorandum is all but dead in law practice. Instead, the survey indicates, these graduates are far more likely to communicate with clients about their research results by email, telephone, face-to-face discussion, informal memorandum, or a letter, and in that order of preference.

Despite its infrequent use, the traditional legal memorandum still seems to be the most popular format used to teach objective legal analysis in legal research and writing (LRW) programs. Although the traditional memorandum may be a perfectly good tool for teaching legal analysis, LRW faculty should inform students that traditional memoranda are used rarely and informal memoranda and substantive emails are supplanting them. If LRW faculty do not acknowledge the role these modes of communication play in practice, they risk misleading students into believing they will communicate with colleagues and clients primarily through traditional memoranda.

The survey sought to determine the current methods used to communicate with and advise clients and to explore the ramifications for LRW curricula. If the traditional memorandum taught to students no longer reflects reality, then LRW programs are not fulfilling their primary mission to prepare students for the world of legal practice. By adhering to the traditional format without regard to its declining use, LRW faculty may embarrass their students who will not know that the traditional memorandum is rarely used today. Moreover, they elevate form over substance, much as the nineteenth century modes of discourse elevated types of writing over purpose and eventually fell into disfavour. In the late nineteenth century, composition textbooks adopted the four modes of discourse – narration, exposition, description, and argument – as the method for teaching students to write. These categories were convenient because they focused on end products, but they led students to believe that writing is essentially a mechanical process.

Similarly, blind adherence to an outdated memorandum format ignores the context and manner in which attorneys actually write. More importantly, it ignores the multiple purposes for which attorneys give written advice and the extent to which informal memoranda and email allow the nature of the legal problem to shape their mode of analysis. Although well-established, the traditional memorandum is not in itself a purpose for writing, and it should give way to a more purpose-driven approach to teaching written analysis.

The survey consisted of twenty-four questions, divided into two major sections. The first section asked graduates from the classes of 1983, 1988, 1993, 1998, and 2003 to identify their graduating class and explain the nature of their employment and law practice, including the size of their office. The second section asked whether they use traditional legal memoranda, why or why not, and how often. It also sought their advice on how best to teach objective legal analysis and what documents they think should be included in a first-year LRW course. Finally, the second section asked graduates what methods of communication they typically use to communicate with clients and which methods they use most often. Emails were sent to all graduates from these classes with known email addresses, which provided them with a link to the survey and an invitation to participate. Roughly 424 emails were sent and received, and 33 per cent of the graduates responded, for a total of 140 responses. With the exception of the class of 1998, each of the classes is represented nearly equally, with 24 to 28 responses. The class of 1998 had a total of 34 responses. Sixty-nine per cent of the respondents are practising in a private law firm, with litigation as the highest area of practice (47 per cent) and business law a distant second (26 per cent). Responses from litigators versus non-litigators were surprisingly similar with regard to overall results. The largest number of respondents was practising in private firms in excess of 200 attorneys. As discussed in detail below, three main themes emerge from the survey data.

Seventy-five per cent of the responding graduates write no more than three traditional memoranda per year. Roughly two per cent write four to six, five per cent write seven to 10, five per cent write 10 to 20, and four per cent write more than 20. Surprisingly, the majority of clients do not always or even usually discourage drafting these memoranda, at least directly, although clients sometimes do. When clients discourage the preparation of traditional memoranda, the principal reason is cost. The graduates said that in addition to being quite costly, drafting traditional memoranda is not useful and/or an efficient use of their time because it is easier to draft the document the memorandum often anticipates.

In response to Question 9, which asked how helpful learning to write traditional memoranda was ‘in terms of mastering objective legal analysis,’ the graduates’ responses varied. A large majority of graduates – ranging from 75 to 81 per cent – from the classes of 1983, 1988, 1993, and 1998 indicated that writing traditional memoranda in law school was either extremely or very helpful. Respondents from the class of 2003, however, felt differently; only 59 per cent found these memoranda extremely or very helpful. It also reveals a growing percentage of graduates for whom writing traditional memoranda was only somewhat helpful – from 14.8 per cent in 1983 to 37 per cent in 2003 – and, for the first time, a small percentage of graduates from the class of 2003 for whom the memoranda was not at all useful (3.7 per cent).

Question 10 asked graduates how helpful writing traditional memoranda in law school was in ‘making the transition from law school to law practice’. Overall, the largest number of respondents – 38 per cent – said that knowing how to write traditional memoranda was only somewhat helpful in practice. Thirty-six per cent found it very helpful, 22 per cent found it extremely helpful, and 4.5 per cent found it not helpful at all. While this information is itself interesting, when the responses are separated by graduating class, some interesting patterns can be seen. At some point between 1993 and 1998, the usefulness of the memoranda for making the transition to law practice changed considerably. The percentage of graduates who found the traditional memoranda either extremely or very helpful increased from 59 per cent in 1983 to 77 per cent in 1993. In 1998, however, that percentage dropped to 52 per cent, and in 2003 it dropped to 37 per cent. Similarly, the percentage of graduates who found it only somewhat helpful decreased from 37 per cent for 1983 graduates to 19 per cent for 1993 graduates, and it began to increase as reported by 1998 graduates. Whereas 45 per cent of 1998 graduates said the traditional memorandum was only somewhat helpful, a majority of 2003 graduates said it was only somewhat helpful. Eleven per cent who graduated in 2003 said it was not helpful at all. Although the reasons for the increase in graduates’ satisfaction with the traditional memoranda from 1983 to 1993 and the sudden decline in 1998 are undocumented, I suspect the decline dovetails with the introduction of personal computers and email to law practice that occurred about that time. Commercial email first became available in the late 1980s, and America Online introduced its own email system in 1993, ‘beginning the large scale adoption of Internet email as a global standard’. By 1998, traditional memoranda were probably in serious trouble.

Whereas the majority of survey respondents write no traditional memoranda, the largest percentage of graduates estimate writing more than twenty informal memoranda in a given year.

There is no obvious correlation between the number of informal memoranda written and the respondent’s graduating class. However, the most recent graduates are writing the most. Thirty-seven per cent of 2003 graduates report writing in excess of 20 per year as compared to 9.5 per cent of 1988 graduates. What is clear is that compared to traditional memoranda, informal memoranda are being written by all graduates in dramatically greater numbers.

In response to Question 17, the graduates indicated that the elements of the informal memoranda they use vary, but these memoranda always contain fewer redundant elements than in a traditional memorandum. The largest percentage – 36.6 per cent – of graduates reported including just a Brief Answer and Discussion section. In written comments, those graduates who indicated using elements other than those specified said they might use just a brief introduction and discussion section or a question presented, options, and recommendation section.

Question 12 asked what documents, in addition to traditional memoranda, would have been useful in law school for learning to write objective legal analysis. Seventy-six per cent of respondents indicated that teaching an informal memorandum format would be useful. As these graduates suggest, teaching flexible forms of informal memoranda would reflect the reality of contemporary practice. As discussed below, teaching the short form memorandum would also mirror the substantive email, which is by far the most popular method for advising clients. Students would also be prepared to communicate through substantive email as well as informal memoranda. Interestingly, in response to this question, 56.7 per cent said that client letters should be taught, 47.2 per cent said objective analysis in email form should be taught, and 23.8 per cent suggested other forms of objective legal writing be taught, such as bench memoranda, opinions, case status letters, and letters to opposing counsel.

Even with the more frequent use of informal memoranda as compared to traditional memoranda, Georgetown graduates are far more likely to inform and advise clients by email. Only 2.3 per cent of respondents said they always use written memoranda – either traditional or informal – to inform clients about the results of their research. The majority of respondents – 56.1 per cent – use written memoranda only sometimes.

The frequency of use is not affected by graduating class; by far, the largest percentage of respondents from each class indicated they use memoranda only sometimes, as opposed to always, usually, or never.

Question 21 asked graduates to identify other methods they use to communicate with clients. Ninety-two per cent of the graduates indicated they use ‘substantive email’, defined as a message containing substantive information and not serving simply to forward an attachment. In response to Question 22, graduates ranked up to eight methods they use to communicate research results to their clients in order of most to least use. Forty-four per cent of the respondents indicated that they use email most often, in contrast to the four per cent who use traditional memoranda most often. As for the remaining methods of communication, respondents ranked them in the following order: telephone, in person, informal memorandum, letter, and then voice mail. Other methods of communication (including video conferences, draft pleadings, and oral decisions in court) and traditional memoranda came in eighth – the method least preferred.

The email format respondents use differs, but its goal is the same: simplicity. Email gives respondents the flexibility to compose their messages based on the particular issues presented and not some predetermined format. In other words, the sections are dictated by the substance of the question and not a prescribed formula. Although a few respondents indicated their email looks like a traditional memorandum, the bulk are more concise and informal. Georgetown graduates who use email to advise clients tend to begin with either the issue and/or their recommendation and follow with their legal analysis. Graduates describe these emails as looking either like an informal memorandum, often with headings, or a letter.

Not surprisingly, a significant number of respondents recommended teaching the use of informal memoranda, client letters, and substantive email in law school and in that order of preference. Although 47 per cent thought it would be useful to teach the use of substantive email, a majority thought it also useful to teach informal memoranda (76 per cent) and client letters (57 per cent). With regard to teaching the use of substantive email, several graduates indicated the need to teach the dangers inherent in using this relatively new mode of communication. Although email is by nature informal, students should not ‘perceive it as a more casual form of communication than a memo to another attorney. It isn’t ... Emails with research findings need a beginning, middle and end so that they make sense for posterity’. Another graduate warned: ‘If email is to be formally taught, I do think it’s important to realise that email to clients is very different from email to friends. It will be taken as a formal statement of your conclusion just as a memo would be. To the extent it’s not a complete explanation of the analysis, I think it’s important to specify what is being left out. Most importantly, the email should be well-written and proofed just as any other memo would be. I also think it’s important to remember how easily emails can be forwarded. I’ve definitely had people at client companies other than the person to whom I sent an email call me to talk about it’.

Although relatively few graduates actually write traditional memoranda in practice, the majority who responded – 59 per cent – indicated either that there was no better way to teach objective legal analysis or that the mode of composition chosen to teach it did not matter. Very few graduates explicitly recommended that LRW courses abandon teaching traditional memoranda altogether in the first year curriculum.

By and large, however, those graduates who strongly support teaching traditional memoranda are not recent graduates. Question 11 asked graduates whether there was a better way to teach students how to formulate common law rules and apply them using case analogies than teaching them to write traditional memoranda. A majority of graduates from the classes of 1983, 1988, 1993, and 1998 indicated either that there was no better way or that it did not matter which mode of composition was used. In contrast, only 35 per cent of graduates from the class of 2003 agreed. The majority of these more recent graduates indicated either that there was a better way but they do not know what that is or that there is a better way and they had specific suggestions, such as teaching briefs, informal memoranda, email, and how to give oral advice.

Indeed, graduates from all classes responded to Questions 11 and 24 by recommending that LRW programs focus less on traditional memoranda and teach additional types of writing such as opinions, motions, client letters, and email.

Although legal advice was once sent via snail mail and communicated through traditional memoranda, informal memoranda and substantive emails appear to have supplanted them. Seventy-five per cent of the Georgetown graduates surveyed report writing no more than three traditional memoranda per year. In contrast, the survey suggests that attorneys are now far more likely to communicate with clients using an informal, more concise, and less expensive format. Forty-four per cent of all responding graduates report writing ten or more informal memoranda per year. However, 77 per cent report using these informal memoranda only sometimes or never, as opposed to usually or always. Instead, graduates use more direct methods to advise clients, such as email, telephone, or personal contact. Substantive email ranks first as the graduates’ preferred method for communicating research results and advice to clients. Eighty per cent of the respondents ranked email as one of their top three choices.

Without feeling constrained by a prescribed format, attorneys seem better able to tailor their legal advice to the issue at hand and accommodate their clients’ desires for a concise and straightforward answer. Both informal memoranda and substantive email are more direct and less redundant than traditional memoranda. Generally, they begin with a statement of the issue or a recommendation, followed by the attorney’s analysis, which may or may not be divided into headings. Rarely, it seems, do they include a separate brief answer, facts, or conclusion section. Those graduates who use substantive email to communicate with their clients describe the form of their email as similar either to an informal memorandum or the body of a typical email message or letter.

The shift from traditional to informal memoranda and email should be recognised by legal educators who seek to prepare students for the practice of law. Although traditional memoranda are a ‘dying breed’, few graduates explicitly recommended eliminating the use of the traditional memoranda altogether in LRW courses. In these graduates’ minds, the benefits of learning to draft a ‘soup to nuts’ memorandum seem to outweigh the costs, because students are then able to adapt the traditional memorandum format to their particular practice needs. The survey indicates, however, that there is reason to suspect a growing dissatisfaction among more recent Georgetown graduates with the usefulness of learning traditional memoranda. This trend should not be ignored in the LRW faculty’s process of selecting modes of composition to teach and the context in which they are taught.

Whether or not LRW courses continue to teach objective legal analysis through the traditional memorandum format, the survey suggests that, at a minimum, these courses acknowledge the newer modes of composition being used by practicing attorneys. Short form memoranda and substantive email could be taught concurrently, as more concise and inexpensive forms of communicating advice. Students could be introduced to these in a variety of hypothetical contexts, preparing them for the likelihood that they will be asked to draft advice in one of these formats. With regard to substantive email, students should also be advised not to treat these emails as casual correspondence.

When LRW faculty choose for good reasons to continue teaching the traditional memorandum, they should emphasise that they are more heuristic than realistic. The effect of using traditional memoranda or any other mode of composition on student expectations in the workplace could not have been demonstrated more powerfully.


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