The Trial Court Bench Memorandum

Trial court clerks sometimes draft bench memos for their judges. These memos typically focus

on research question(s) for pending cases; unlike appellate bench memos, they do not evaluate

the decision of a lower court. Instead, their purpose is to consider arguments on both sides,

determine which side should prevail, and indicate which arguments succeed, which fail, and

why.

For example, the trial judge may ask a clerk to provide an analysis on whether a defendant

before the court is entitled to qualified immunity.

When writing a bench memo, it is important to remember that it is the judge’s job to neutrally

apply the law to the facts. The bench memo must help judges get past the advocacy of the

parties’ filings so that they can reach the decision that the law requires.

LENGTH OF THE BENCH MEMO

The length of a bench memo can greatly vary. Some bench memos are single issue memos, in

which a judge may request that you write a short memo on an individual issue that attorneys

have not explained adequately. This single issue memo may be as short as two or three pages.

More typically, though, as a trial court clerk, you will write longer memos, which could span

many pages if there are multiple issues that the court needs to decide. Ultimately, each case

will dictate the length of the bench memo. The writer should ensure that the bench memo is

concise but thorough.

II.

AUDIENCE OF A BENCH MEMO

When writing a bench memo, it is critically important that you clarify the expectations of your

judge before starting to write.

Knowing your audience also requires knowing how your judge

will use your writing. Some judges use the bench memo early in the process to help them

This handout was created in 2019 by Alexandra Skinnion, based off a 2011 version by Jessica Klarfeld.

FEDERAL JUDICIAL CENTER, LAW CLERK HANDBOOK 91–93 (3d ed. 2017).

See MARY DUNNEWOLD, BETH A. HONETSCHLAGER & BRENDA L. TOFTE, JUDICIAL CLERKSHIPS: A PRACTICAL

GUIDE 126 (2010).

Jennifer Sheppard, The “Write” Way: A Judicial Law Clerk’s Guide to Writing for the Court, 38 BALTIMORE L.

EV. 114 (2008) (“A bench memorandum must not only be impartial and critical, but must be thorough enough to

summarize the issues in the case without being so thorough that the judge would have been better served by reading

the briefs and the record him or herself.”).

LAW CLERK HANDBOOK, supra note 2, at 94.

develop an overall picture of the case or specific issues within the case; others read the bench

memo last, once the facts and arguments are clear in their mind.

III.

LARGE-SCALE ORGANIZATION

Trial court bench memos closely mirror the large-scale organization of a traditional legal memo.

They consist of (1) a heading; (2) the question presented; (3) the brief answer; (4) the facts

before the court; (5) a discussion of the legal analysis; and (6) the clerk’s ultimate conclusion and

recommendation on how the judge should rule.

IV.

DIFFERENCES BETWEEN A TRIAL COURT BENCH MEMO AND A TRADITIONAL

LEGAL PRACTICE MEMO

A key distinction between a trial court bench memo and traditional practitioner’s memo is in the

tone. Whereas traditional memos strive to predict and/or advise what the likely outcome of a

legal question will be, the clerk is recommending a course of action for the judge. Therefore, the

trial court bench memo should be more authoritative in both the discussion and conclusion:

RADITIONAL

EGAL

RACTICE

MEMO

ENCH

EMO

DISCUSSION

Like the departing employee in

Perry who made valuable client

connections, Ms. Skinnion gained

knowledge of Hanson’s Farm’s

clients’ and developed close

relationships with them. Her

perspective will likely induce

clients to follow her to Davis

Farmland.

Ms. Skinnion closely resembles the

employee in Perry who left the antique

shop after years of making close,

personal connections with clients.

During her employment at Hanson’s

Farm, Ms. Skinnion gained

knowledge of clients and developed a

strong rapport with them. These

connections will induce Hanson’s

clients to follow her to Davis

Farmland.

CONCLUSION

A court will likely uphold the non-

competition clause because

Hanson’s Farm can demonstrate

that the clause does not restrict Ms.

Skinnion any more than necessary

to protect its business. The clause is

crucial to preserve the Farm’s client

base and business strategy from

manipulation by an employee in

whom it invested and trained.

Moreover, because the scope of the

covenant’s time and location

restraints does not impede Ms.

Skinnion’s ability to earn a living,

This court should enforce the non-

competition clause against the

Defendant, Ms. Skinnion. The clause

does not restrict Ms. Skinnion any more

than necessary to protect Hanson’s

Farm’s business. The provision is

crucial for the preservation of Hanson’s

Farm’s client base and business strategy

against employees in whom it invested

and trained. Moreover, because the

scope of the covenant’s time and

location restraints does not impede Ms.

Skinnion’s ability to earn a living,

Hanson’s Farm can show the clause

See DUNNEWOLD, HONETSCHLAGER & TOFTE, supra note 3, at 127.

Hanson’s Farm can show the clause

does not unreasonably restrict her

interests. For these reasons, a court

will likely rule the clause is

enforceable and reasonably

necessary for Hanson Farm’s

protection.

does not unreasonably restrict her

interest. For these reasons, this court

should hold that the clause is

enforceable and reasonably necessary

for Hanson’s Farm’s protection, ruling

in favor of the Plaintiff.

The discussion section of a trial court bench memo operates differently than a traditional legal

memo in two more mechanical ways: use of quotation and the structure of addressing each

party’s arguments.

Explanation of Case Law

Depending on the judge’s preferences, it may be more appropriate to liberally quote case law

throughout the discussion section of a bench memo than in a traditional legal memo. Whereas

reader-friendly paraphrasing is often appropriate for case explanations in a traditional memo, the

purpose of a trial court bench memo is to inform the judge of pre-existing case law and how it

informs the question before the court. Therefore, it may be helpful to include more quotations to

include key language from various sources in one memo for the judge:

TRADITIONAL MEMO

BENCH MEMO

QUOTATION

EXAMPLES

In Wood, the court upheld a

covenant that prevented a farrier

from leaving his post and setting up

a competitive practice. The court

emphasized that the farrier should

not be able to take advantage of his

employer’s training and become a

competitor, as the employer tutored

him from an apprentice to a near

expert.

In Wood, the court upheld a covenant to

prevent a farrier from establishing a rival

horseshoeing practice. The court

reasoned that the apprentice “progressed

rapidly from the apprenticeship stage”

during his employment, because the

“appellant did indeed teach respondent

the trade or art of horseshoeing.”

Accordingly, the court wrote that the

farrier “should not be able to capitalize

on his employer’s tutelage to become a

primary competitor.”

Structure of the Discussion

The discussion section of a bench memo will depend on the issue before the court, but in general

should take the following steps. First, it should roadmap the overarching issue(s) to be analyzed,

and indicate a high-level recommendation from the beginning. For each issue, it should then

include a detailed section on the applicable legal standards, explanation of the case law, and an

application of that law to the facts of the case.

The discussion section should also thoroughly address each party’s arguments. This is a deeper

dive than the recognition and anticipation of possible counterarguments made in a traditional

memo. Using the parties’ pleadings to frame this section can be helpful. There are multiple ways

to incorporate this component into the bench memo. First could be in a detailed “issues” or

“arguments” section that comes before or after the clerk’s detailing of the legal standards.

Alternatively, the clerk could weave the party’s arguments into the application of the case law to

the facts before the court. Placement is a judgment call to make based on the preference of the

judge, the complexity of the parties’ arguments, and the clerk’s own writing style.

FOR FURTHER REFERENCE

JILL BARTON, SO ORDERED: THE WRITER’S GUIDE FOR ASPIRING JUDGES, JUDICIAL CLERKS, AND

INTERNS (2017).

CALVERT G. CHIPCASE, FEDERAL DISTRICT COURT LAW CLERK HANDBOOK (2017).

REBECCA A. COCHRAN, JUDICIAL EXTERNSHIPS: THE CLINIC INSIDE THE COURTHOUSE (2d

ed. 1999).

MARY L. DUNNEWOLD, BETH A. HONETSCHLAGER & BRENDA L. TOFTE, JUDICIAL CLERKSHIPS:

A PRACTICAL GUIDE (2010).

FEDERAL JUDICIAL CENTER, LAW CLERK HANDBOOK (3d ed. 2017).