Bench memorandum

A Bench Memorandum (pl. bench memoranda)(also known as a bench memo) is a short and neutral memo which summarizes the facts, issues, and arguments of a court case. Bench memos are used by the judge as a reference when preparing for the trial, when hearing the lawyers' arguments, when drafting a decision, and just generally to give the judge an idea of what the arguments given by each side in the court case will be. Bench memos are generally written by the judge's law clerk, although lawyers can also submit their own memos that argue their case, making sure that the memo remains neutral.

Writing a bench memorandum

There is no one way to write a bench memo. However there are several guidelines to follow while writing a bench memo, whether you be a lawyer representing a party in the case or the judge's law clerk. Outlined below are a few of the more agreed upon and general guidelines to follow while writing a bench memo.

1. Credibility
   1. Represent the facts fairly and in good faith
      1. Never misstate or conceal facts
      2. Begin with the facts
      3. Do not assume or refer to facts not in evidence
   2. Do not argue irrelevant points, even if raise by the opposing counsel
   3. Be careful and fair in reliance on case law
      1. Identify controlling case law for the court
      2. Be fair in distinguishing case law relied upon by an opponent
   4. Be cautious in submitting boilerplate, computer-generated memoranda
      1. Memoranda need individual attention to confirm accuracy
   5. Be familiar with and properly cite applicable rules
   6. ALWAYS BE FAIR
      1. "The lawyer assists the judge by demonstrating sensitivity to the need for justice in the case, an obligation that will weigh heavily on the judge"
2. Mechanics and form
   1. Become familiar with Blue-book standards
   2. Avoid sloppiness and negligence
      1. All pleadings and affidavits should be signed
      2. Use spell-check and proofreading before signing it
      3. Properly identify the party you represent
   3. Be EXTREMELY clear and concise
      1. Never relegate substantive arguments to a footnote
      2. Avoid legal jargon
      3. Avoid string cites
      4. Use grammar to make it readable
   4. Have a disinterested person read and edit it
   5. Know your audience - the judge doesn't have time to read and do additional research
      1. Do your research well so the judge doesn't have to
      2. Keep things short
   6. Attach copies of the controlling cases
   7. Do not turn a conclusion into a free-standing mini-brief
3. CONCLUSION CONCLUSION CONCLUSION - this is crucial to all memoranda

References

Examples and definitions

• Definition 1
• Definition 2

• Sample bench memo

• Example 1
• Example 2
• Example 3