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24 Litig. 3 (1997-1998)
How to Write: A Memorandum from a Curmudgeon

handle is hein.journals/laba24 and id is 7 raw text is: Trial Balloon How to Write: A Memorandum from a Curmudgeon To: New Associate From: Curmudgeon Welcome to the firm. To work at this firm, you must know how to write. Here are the rules. Follow them. I make three assumptions about all of your written work. First, it will con- tain no typographical errors. Second, it will contain no grammatical errors. Third, all citation forms will be correct. Please review your written work before you hand it to me to be sure that my assumptions hold true. Style Here are the rules of style. Follow them. First, write in short sentences. If a sentence runs on for more than three and one-half typed lines, break the sen- tence in half. Make it two sentences. Second, put two or three paragraphs on a typed page. If a single paragraph fills the whole page, break the para- graph in half. Make it two paragraphs. Third, use only the active voice. At this firm, we write: Jim threw the ball. Not: The ball was thrown by Jim. Fourth, when you have a choice, always use an action verb instead of the verb to be and an adjective. At this firm, we write: The rule applies here. Not: The rule is applicable here. Fifth, start each paragraph with a topic sentence. This is important. Few people do it. You will do it. Sixth, use many headings and sub- headings to break up your memorandum or brief. Little pieces are easier to read. Seventh, when you have a choice between using the word which and using the word that, the word that is correct. (There are exceptions to this rule. Do not worry about them. If you by Mark Herrmann follow my rule, you will be right 95 per- cent of the time. If I think that an excep- tion applies, I will make the change.) Eighth, do not start a sentence with the word however. Rewrite the sen- tence to put the word however in the middle of the sentence. (Again, there are exceptions to this rule. Do not worry about them. If you follow my rule, you will be right 95 percent of the time. If I think that an exception applies, I will make the change.) Ninth, do not use the phrase in order to. Use to instead. Finally, it is your obligation to fol- low these rules. It is not my obligation to find your mistakes and fix them. You must develop the self-discipline to read your final work with an eye toward finding and correcting each of the nine errors listed above. Mark Herrmann is with the Cleveland office of Jones, Day, Reavis & Pogue. I have a great deal of self-discipline. I will read your work and fix your mis- takes. This, however, is not my job. It is better for your career if you fix your own mistakes; I do not enjoy fixing them for you. Discussing a Case When you are writing a legal memo- randum for internal use, there is only one proper way to discuss a case. This is the way: In Smith v. Jones, 1. Somebody sued somebody for something, OR Somebody asked the court to do something. 2. The trial court held something. (The trial court did not dis- cuss something or analyze something or believe some- thing; it HELD something. Ordinarily, a trial court grants or denies a motion, or enters a judgment. Use the proper verb to describe the holding.) 3. The appellate court held some- thing. (Ordinarily, an appellate court will affirm, reverse, vacate, or remand.) 4. Now, you can say anything else about the case that you care to. If you start chatting about the case before you have covered items 1, 2, and 3, I will notice your error. I will change your memorandum and make it right. I will know that you lack self-discipline. Why do I insist on a rigid formula for discussing cases? Because my clients prefer to win. When I discuss a case in a brief, I think carefully about the persuasive force of the precedent. I prefer to cite cases where the trial court did what my opponent is seeking here, and the appellate court reversed. By discussing the holding of that case in my brief, I LITIGATION Fall 1997 3 Volume 24 Number I

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