How to write a memorandum of advice: structure and tone

The memorandum of advice is the first assignment that asks you to write as a lawyer rather than as a student. An essay argues a thesis to an examiner. A problem answer shows an examiner your reasoning. A memo does something different: it answers a question for a busy colleague who needs to act on the answer, and everything about how it is written follows from that one fact.

This page sets out the structure Australian law schools generally expect, the tone that separates advice from advocacy, and the mistakes that make a memo read like an essay in disguise. As always, your subject's own rubric wins wherever it differs from anything here.

What a memo is for

A memorandum of advice is a predictive, internal document. Someone, usually a supervising solicitor or partner in the assignment's framing, has asked a question about a client's position and needs your professional opinion: what would a court likely do, and what should the client do about it. You are not persuading a court, so the register of submissions is out of place. You are not writing to display everything you know, so doctrinal history is out of place. You are predicting an outcome and taking responsibility for the prediction.

The reader changes everything

Picture the reader: busy, reading top-down, possibly skimming only your summary before a client meeting. That reader needs the answer first and the reasoning available underneath it, which is the reverse of the build-to-a-conclusion writing most of us learned at school. The single biggest upgrade to most student memos is moving the answer from the last page to the first.

The structure

1. The heading block

To, From, Date, Re. The Re line should state the matter and the question in one line: "Re: Chen v Harbourview Pty Ltd, whether the exclusion clause bars the claim". Five seconds of orientation for the reader, and the discipline of writing it forces you to know what question you are answering.

2. Issues

Number the questions you were asked, phrased as questions. The discipline is the same as issue-framing in a problem answer, covered on the IRAC page: specific to the facts, not topic labels. If your reading of the facts raises an issue the instructions did not ask about, say so and deal with it briefly; spotting it is part of the job.

3. Brief answers

One short paragraph per issue: the answer, the main reason, and an honest marker of confidence. "Probably not. The clause as drafted does not extend to deliberate breach, although the point is not settled." This is the section students most often omit and the section a practising reader values most. If the reader stops after your brief answers, the memo should still have done its job.

4. Facts

State the facts you were given, briefly, so the advice carries its own basis. Two disciplines matter here:

• Flag assumptions. If you had to fill a gap to advise, say that you did: "This advice assumes the notice was received on 2 March; we have not been instructed on the date of receipt."
• Flag missing facts. A fact you need but were not given belongs in the open, not silently invented: "We would need to confirm whether the guarantee was signed before advising finally on issue 2."

Advising only on your instructions, and saying so, is a real professional habit, and memo assignments are usually testing for it.

5. Discussion

The full reasoning, one issue at a time, each running the rule-application-conclusion cycle with authority attached. Two things distinguish a memo's discussion from a problem answer's:

• The counter-analysis is not optional. The reader relies on you for the risk, not for reassurance. The strongest argument against your conclusion belongs in the discussion at full strength, followed by your assessment of it. A memo that only argues the client's side has failed at its one job, which is prediction.
• Depth follows doubt. Points that are settled get a sentence. The genuinely contested point gets the pages. An experienced reader can tell, from where you spent your words, whether you could tell the difference.

6. Conclusion and next steps

Close with what the client should actually do: the practical course, the risks in it, and the further information that would firm up the advice. "It is likely the clause is unenforceable. We recommend seeking further instructions on the negotiation correspondence, which would strengthen the position on issue 1." A memo that ends with law and no action has stopped one paragraph short.

Tone: advice, not advocacy

• First person is proper here. "In my view" and "my advice is" belong in a memo, because a memo is your professional opinion with your name on it. The courtroom phrase "it is submitted that" is for documents addressed to a court; in a memo it distances you from the very opinion you were asked to give.
• Evaluate, do not barrack. State the other side's case at its full strength before you weigh it. The reader can get cheerleading anywhere; they came to you for judgment.
• Calibrate every conclusion. The brief answers and the discussion should carry hedges matched to the real strength of each point, which is a skill of its own: see Hedging in legal writing. A memo in which every answer is "likely" tells the reader nothing about where the risk lives.
• Formal and plain, no antiques. The register rules for written legal English apply in full, including the ban on contractions and the retirement of "hereinbefore": see Legal English register.

Common mistakes, named

1. The essay in disguise. Organised by legal topic ("Part 1: The law of penalties") instead of by the questions asked. The issues you were given are the structure.
2. The buried answer. The conclusion appears for the first time on the final page. Move it to the brief answers and let the discussion justify it.
3. Silent assumptions. Fact gaps filled without flagging. The reader cannot tell which parts of the advice rest on instructions and which on invention.
4. Advocacy creep. The discussion argues for the client instead of predicting for them, and the risk paragraph never arrives.
5. Academic throat-clearing. A page on the history of the doctrine before the first word of application. The reader wanted the answer in the first minute.

A self-check before you submit

1. Read only your heading block and brief answers. Could the reader act on that much alone? They should be able to.
2. Check every issue against the instructions: each question asked is answered, and anything extra you raised is flagged as arising from the facts.
3. Check the facts section for unflagged assumptions and for missing facts you silently supplied.
4. Find the strongest argument against your conclusion on each issue. If it is not in the discussion, the memo is not finished.
5. Confirm the last section tells the client what to do next, not just what the law is.
6. Read your brief answers in sequence: the hedges should differ where the strength differs.

If you would like feedback on a memo draft before you hand it in, Legal Writing Lab is a free feedback tool for international law students writing Australian legal English. It flags clarity and register issues in your draft, explains each one, and never writes your work for you.