3
AUDIENCE OF A BENCH MEMO
The process of writing a bench memo is fairly uniform among courts; however, it is important
that you clarify the expectations of your judge (or professor, if writing the bench memo as a law
fellow) before starting to write. Knowing your audience is the first step in successful bench
memo writing, and you must always do as the judge requests.
4
Also, while stylistic and
structural preferences of the judge are important, knowing your audience also requires knowing
to what use your judge will put your writing.
5
Some judges use the bench memo early in the
process to help them develop an overall picture of the case; others read the bench memo last,
once the facts and arguments are clear in their mind.
6
It is also important to note that in appellate
courts, the bench memo will likely be read by every member of the panel (typically three judges
in intermediate appellate courts and the full court in state supreme courts), not just the clerk’s
own judge.
7
STRUCTURE OF A BENCH MEMO FOR AN APPELLATE COURT
A standard, full-case bench memo for an appellate court usually consists of the following parts:
(I) Issues on Appeal, (II) Procedural Posture, (III) Statement of Facts, (IV) Standard of Review,
(V) Analysis, and (VI) Recommendations.
I. Issues on Appeal
The issues should be framed such that the judge understands exactly what needs to be decided.
An effective issue statement includes:
(1) A reference to the relevant law
(2) The legal question
(3) Any legally significant facts
In mentioning the legally significant facts, it is important that you maintain objectivity,
addressing facts that are favorable to one side (and thus unfavorable to the other) and vice versa.
The issues on appeal are often framed in terms of whether the district court (i.e., trial court)
correctly/incorrectly (properly/improperly, etc.) did x. In framing it as “correctly,” one could
assume that the result you ultimately will reach is that whatever the district court did was proper.
Similarly, in framing it as “incorrectly,” one could assume that the result you ultimately will
reach is that whatever the district court did was improper. This is a safe assumption, and given
that you ultimately will provide a recommendation in the bench memo, it is appropriate to frame
the issues as such. Issues can also be framed in terms of the standard of review (e.g., “Did the
trial court abuse its discretion when . . . ?”).
4
FEDERAL JUDICIAL CENTER, LAW CLERK HANDBOOK: A HANDBOOK FOR LAW CLERKS TO FEDERAL JUDGES
(Sylvan A. Sobel, ed., 2d ed. 2007).
5
See The Writing Center, Georgetown University Law Center, In Chambers: Effective Writing Tips for Judicial
Interns and Law Clerks (2005).
https://www.law.georgetown.edu/wp-content/uploads/2018/07/In-Chambers-
Effective-Writing-Tips-for-the-Judicial-Interns-and-Law-Clerks.pdf
6
DUNNEWOLD, HONETSCHLAGER & TOFTE, supra note 2, at 127.
7
Id. at 126-27.