Legal Memo Writing

1
Legal MemoWriting

• Legal Research Writing II
• Mike Brigner, J.D.

2
Different Purposes of Memos

• Trial Brief
• Post-trial Memo
• Persuasive Memo
• Advocacy Memo
• Argument
• 50 points (Writing only)
• Rough Draft Due
• 2nd Week of Quarter
• Final Draft Due 4th Week

• Information Memo
• Interoffice Memo
• Long Memo
• Objectivity
• 100 pts (Research and Writing required)
• Rough Drafts Memos Due end of Quarter (see
  Master Calendar)

3
Trial Brief

• Use your advocacy (argument) skills
• Trials over - now persuade the judge that your
  client should prevail, based upon the proof (case
  summary) the law (6-7 cases)
• Re-read Text, Chap 17 and ALWD Citation Manual,
  Chap 29 Parts 5 6
• Use all the tips your learned in R W I
• Use the caption you received in assignment
• Use citation style you received in assignment
• Use ONLY the 6 cases you received

4
Interoffice Memorandum

• Back to objectivity skills
• Re-Read Text, Chap 16
• Read fact scenario (coming mid-term)
• Identify issue(s) and key words to research
• Start research with A.L.R. article.
• This will lead you to cases to find and read
• Format Interoffice Memo
• Correct citations required from ALWD

5
Getting Started

• Read each case
• Outline relevant part of each case
• Put outline in order you want to discuss
• Prep heading in proper Memo Format
• Write
• Re-write, edit
• Re-write

6
Advocacy Memo Format

• Use exactly the format given you in the
  assignment
• This is how court pleadings start
• The advocacy memo is a court pleading, a
  memorandum to the court on an issue of law

7
Info Memo Format

• To Mike Brigner, Supervising Attorney
• From Perceptive L. Paralegal
• Date December 6, 2003
• Re Potential liability of our client Clyde
  Crankcase for driving a golf cart into his
  neighbors swimming pool
• ISSUE Do DUI laws apply when. . . .

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Q - S - F - A - CAdvocacy Memo

• Question -- What is legal issue/question?
• Short Answer One or two sentences summarizing
  law answering Question
• Facts -- Summary (mostly favoring our client)
• Argument -- Discuss EACH case, how it applies
  to your facts, favors our client
• Conclusion -- Briefly stated, why should the
  court decide in our clients favor?

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Q - S - F - A - CInformation Memo

• Question -- What is legal issue/question?
• Short Answer -- One or two sentences summarizing
  law answering Question
• Facts -- Summary, favorable unfavorable
• Analysis -- Analyze EACH case facts, ruling
  how it helps/hurts our clients position
• Conclusion -- Briefly stated, what advice can
  firm give client, per your research?

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Try This Order of Writing

• Question 1st What is Q? (Do this before any
  reading, research, or writing!!!)
• Facts 2nd Easiest
• Analysis/Argument is 3rd Do 1-2-page outline of
  each case
• Conclusion 4th Sums up all of A in 1 or 2
  paragraphs
• Short Answer 5th Boils C down to 1 or 2
  sentences

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Q S F A C

• Q Question (Issue) Presented
• Write Q so it can be understood even by a reader
  who doesnt know facts of the case
• (Parties are described generally facts are
  described specifically)
• Do DUI laws apply when an individual is
  operating a golf cart on private property?
• NOT Is Mr. C legally liable for his action?

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Q S F A C

• Q Question (Issue) Presented
• Make question a readable length
• Use short concrete subject and active verb
• Avoid passive subjects that are nouns made out of
  verbs or gerunds (made by adding ing)
• NO Whether the failure to appear is contempt
• YES Does an attorney commit contempt when he
  fails to appear at a court hearing?
• NO Does refusing to stop constitute eluding?
• YES Does a driver elude police if he
  refuses

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Q S F A C

• S Short Answer to Question
• Give a brief summary of how the law you have
  found answers the question raised
• Not just Yes or No. Give a summary of the
  law, in a few sentences
• Be conclusory. Give answer and reason w/o the
  pros cons or strengths weaknesses

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Q S F A C

• S Short Answer to Question
• No discussions of authority in this section
• (QUESTION was Do DUI laws apply when an
  individual is operating a golf cart on private
  property?) EXAMPLE OF SHORT ANSWER
• An individual can be charged with DUI for
  driving a golf cart while intoxicated, because a
  golf cart fits the legal definition of motor
  vehicle in the statute. A person charged with
  DUI cannot claim a defense that he was on private
  property at the time because the statute applies
  anywhere in the state, not just on public roads.

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Q S F A C

• F Facts
• Purpose of Facts section is to briefly state the
  facts of our case and tell what happened
• Omit irrelevant facts, conclusions, citations of
  law, procedural matters
• If you are asked for a memo on a legal issue only
  (Does Ohio have a law that forbids cruelty to
  wild animals?) you can omit the Facts section

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Q S F A C

• F Facts
• Use only relevant facts those that are used to
  prove or disprove the legal conclusion
• Every fact that is mentioned in other sections,
  or gives necessary background information should
  be included
• Do not omit unfavorable facts. Those are as
  important to a legal evaluation as favorable
  facts are.

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Q S F A C

• F Facts
• Start with who the client is, what the client
  wants, and what the problem is about
• Then explain who the other parties are
• Give necessary descriptions
• Often chronologically is best approach
• Sometimes topically is best
• Group like facts. Dont be random.

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Q S F A C

• A Argument or Analysis
• Briefly give facts of FOUND case
• Then tell what that court did and WHY
• The WHY is the critical Legal Reasoning. This
  IS The Law
• Apply the law to the facts
• Analyze by applying the relevant legal reasoning
  from the FOUND case to the facts of OUR case

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Q S F A C

• A Argument or Analysis
• Also examine the facts of the FOUND case
• to compare those facts with your facts,
• to examine the logic for that courts ruling
• The purpose is to determine whether the facts of
  the FOUND case are
• sufficiently similar to make that case and its
  legal principle applicable to our case
• OR sufficiently different to make the FOUND case
  distinguishable from our case

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Q S F A C

• A Argument or Analysis
• For EVERY case discussed, before moving on to
  next case, APPLY THE LAW
• Reach a conclusion about the legal principle of
  the FOUND case and predict how it will affect the
  outcome of OUR case
• EXAMPLE The courts ruling that a golf cart is
  a motor vehicle under the DUI statute is
  significant to the Crankcase situation, because.
  . .

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Q S F A C

• A Argument or Analysis
• Within the A Section, try the FRA approach
• F Facts Briefly state facts of found case
• R Rule of Law What the court did concerning
  the issue we seek,
• and WHY, WHY, WHY
• A Apply How is our case decided if our judge
  relies exclusively on this Rule of Law?

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Q S F A C

• C Conclusion
• Summarize here the Analysis apply the law
  sections from all of your cases
• Apply the controlling law to your problem
• Reach an overall conclusion about the controlling
  legal principles from all your research, and
  predict how they will affect the outcome of our
  case
• Clearly and accurately answer the Question
  Presented

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Q S F A C

• C Conclusion
• Again, reach a conclusion. DONT SAY
• Its all up to the court.
• The court will have to decide. . .
• It depends on whether the jury believes. . .
• If the court can be persuaded that. . .
• These are just ways of not answering the Q
• Give your conclusion. What do you think the court
  should do? (Adv) Will do? (Info)

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Rough Drafts

• TRIAL BRIEF Turn in Draft Sept 18
• I grade return Sept 20
• Final Draft due Sept 27
• Purpose is partly evaluation (to give you a grade
  20), and partly assessment (to give you
  direction guidance)
• Ill suggest strengths, areas for improvement
• With my advice, you will need to reorganize
  rewrite the draft into final memo
• INFO MEMO Bring two (2) copies of your completed
  memorandum to Rough Draft Meeting Nov 13

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Take a Break
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Rough Draft Meeting Rules

• Completed means completed typed
• Do not turn in or bring a stack of notes, index
  cards, copies of cases, partial memo
• An outline does NOT a rough draft
• Number all pages
• No complete rough draft, or no rough draft
  meeting you lose 10 points start out with a
  B
• Be on time for your Info Memo appointment

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Strategies for Effective Writing

• Techniques to achieve the five hallmarks of
  effective legal writing
• Precision
• Clarity
• Readability
• Brevity
• Order

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Plain Language Initiative

• Writing should be reader-oriented, clearly
  showing the author is writing to the customers of
  the agencies, not to other government employees
• Writing should use natural expressions, using
  commonly known and used words and
• Documents should be visually appealing.

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Guidelines for Plain English

• Use short sentences.
• Use definite, concrete, everyday language.
• Use the active voice rather than the passive
  voice.
• Use tables and lists to present complex
  information.
• Avoid legal and financial jargon and highly
  technical business terms.

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Guidelines for Plain English

• Avoid multiple negatives.
• Avoid weak verbs, abstract terms, and superfluous
  words.
• Enhance readability through attractive design and
  layout.

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Ten Pointers for Effective Brief Writing

• Know the rules of the court to which the brief
  will be submitted.
• Do more than summarize the cases.
• Write from the clients perspective.
• Avoid a rote or routine method of writing.
• Avoid string-citing unless there is a definite
  need to do so.
• Avoid sarcasm, humor, or irony.

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Ten Pointers for Effective Brief Writing

• Avoid the overuse of quotations.
• Keep the focus on your argument.
• Do not distort or overstate your position.
• Use prominent placement to emphasize the
  strongest arguments.

33
Reviewing and RevisingStage One

• Your initial review should be to ensure that the
  writing accurately conveys all the information
  needed.
• Focus on content and organization.

34
Reviewing and RevisingStage Two

• Focus on these four specific areas
• Sentence length
• Needless words and phrases
• Legalese
• Passive voice

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Techniques for Proofreading

• Place a ruler under each line as you read a
  document.
• Read the project backwards, from the last page to
  the first page and from right to left.
• Read the document aloud with a partner who has a
  copy of the document.
• Read sections of the project out of order.
• Devote extra attention to the parts of the
  project that were prepared last.

36
Check Your Voice

• One of the secrets of clear writing
• The reader must ALWAYS be able to tell who is
  speaking EVERY sentence.
• Your brief states The law says the defendant
  goofed.
• Who SAID that?
• The trial court?
• The appeals court?
• YOU?

37
Cases Fit Where?

• You cases fit into your overall Q-S-F-A-C outline
  at where? Analysis/Argument
• MEMO
• Question
• Short Answer
• Facts
• Analysis Cases go here
• Conclusion

38
Outlining Each Case for A

• Narrative paragraphs. Dont label these sections.
• 1. Start with Transition (more on this later)
• 2. FACTS Facts in FOUND case, briefly
• 3. RULE Question/Issue in FOUND case
• The What Why. What did court do? Why did it say
  it did that? This is The Law the courts
  reasoning the most important part of each case
  outline
• 4. ANALYSIS Finally, apply RULE from FOUND case
  (courts reasoning) to OUR facts. Then give your
  conclusion about how this case affects our
  clients case.

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What is Correct Order of Cases?
Insert each 1-2 page outline in the A section

• May choose chronological
• Maybe group Ohio Other States
• Maybe group federal state cases
• Maybe group positive cases negative
• Recall Use Mandatory Persuasive

• Mandatory U.S. Sup Court 6th Cir App So Dist
  of Ohio Fed Trial Courts
• Persuasive Other Circuits Other Fed Trial Cts
• Mandatory Oh Sup Ct 2nd Dist Ct of Apps Montg
  Co Trial Cts
• Persuasive Other State Sup Cts Other Ohio App
  Dists Other State App Cts Ohio Trial Cts Other
  State Tr Cts

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Memorandum Requirements

• Final memo must be printed, double-spaced,
  follow Quality Standards
• Correct spelling grammar required
• Number the pages
• Use past tense for all but latest cases
• Citations must be in proper format
• For Advocacy Memo Use format style attached to
  assignment
• For Information Memo Use ALWD Manual

41
Writing Techniques

• A legal memorandum is a professional piece of
  writing, so
• Avoid slang
• Avoid contractions informal speech
• NO theyll or shed or shouldnt
• Use 3rd person pronouns, not 1st or 2nd
• He/she/it/they will act properly
• NOT I think or You can tell

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Avoid Legalese

• Dont use stilted terms like whereas, or
  herein, or the said document
• Dont use convoluted sentences
• One can conjure up multiple scenarios for
  fulfillment of the clients several objectives.
• INSTEAD The client can fulfill her objectives
  in several ways.

43
Avoid Legalese

• Use the active voice, not the passive voice
• The court held. . .
• NOT It was held by the court. . .
• Dont use empty phrases
• It is clear that. . . or the fact that. . .

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But,

• This doesnt mean you should avoid all legal
  words
• Legal words from statutes or court opinions are
  sometimes essential, even though the public
  wouldnt say it that way
• Theft A person shall not knowingly exert
  control over the property of another with the
  purpose to deprive the owner thereof.
• Avoid Cease desist unless law says that!

45
Effective Paragraphs

• A paragraph is a group of sentences developing a
  dominant idea, usually beginning with a topic
  sentence that summarizes that paragraphs basic
  idea
• A should have unity and coherence
• Unity Every sentence relates to topic
• Coherence Smooth and logical flow

46
Paragraphs Transitions

• See Text, page 507
• Transitions are the glue that holds your
  argument/discussion together
• They help reader move from one paragraph to
  another, one idea to another
• Shows reader how you are building your ideas

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Transitions Can be 1 word

• And
• Also
• Moreover
• In other words
• Furthermore
• In addition
• Equally important
• However

• Next
• Finally
• Besides
• Similarly
• Another reason
• Likewise
• Although
• Because

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Transitions Careful!

• But DONT just stick a transition word at
  beginning of each paragraph!
• Think about what you are saying
• One word may be OK, but a transition
  phrase/sentence is probably much better
• The most important transitions are the ones that
  connect your cases.

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Transition Purposes

• Raise a new point
• Although Poe sang, he also wrote poetry.
• Keep track of issues
• The second exception to that rule is when
• Show relationship between paragraphs
• Those excuses do not explain the defendants
  other actions, such as fleeing the scene
• Show connection with prior paragraph
• Because of that law, the court will require
  evidence that our client burps quietly.

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Legal MemoWriting

• Concluded Thank you
• Mike Brigner, J.D.

END OF CLASS (EVERY Class) Clean up classroom
log off computers check for personal property
computer disks make sure you have signed in.