PredictiveObjective Legal Memorandum

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Predictive/ObjectiveLegal Memorandum
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Where to Start

• Someone has a legal question.

• A Client
• Mr. Prime opened a new practice and wants to know
  if hes liable to GWI. He asks you.

• A Partner
• The partners sister, Rebecca has recently had a
  falling out with her fiancee and wants to know if
  she can keep the engagement gift.

• You
• You hear about a new prompt pay law and wonder if
  it can help you collect the debts owed to your
  some of your clients.

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What am I doing?

• Answer the question posed.
• Find the Constitution or statute the governs.
• Find cases that state/apply the rule of law.
• Assess how those cases are (dis)similar
  factually.
• Analogize cases to your facts to explain how your
  case will come out.
• Demonstrate that analysis, complete with
  well-laid out analogies, to the reader.

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Persuasive?

• NO!

• Your job is to objectively analyze the factual
  situation that you are presented.

• The only persuading you do is to persuade the
  reader of the correctness of your analysis.
• To succeed, your result must be obvious and
  undeniable.

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Practical Issues on Memos

• Be clear on what you are being asked to do.

• Ask what jurisdiction you are dealing with.

• Ask what final product they want.

• Ask if you have a time budget.

• Ask if there are any resources you should or
  should not use.

• Ask when they would like/want the Memo.

• Be clear on what you are being asked to do.

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Writing the Memorandum
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What goes where?

• Heading

• Question Presented

• Brief Answer

• Statement of Facts

• Discussion/Analysis

• Conclusion

• This is not set in stone. Ask how its done in
  whatever setting you find yourself.

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Heading

• To

• From

• Re

• Client (Name and/or Number)

• Date (This is critical!)

• This is an area of the Memo that is varies
  greatly from office to office.

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Rules for writing a good Q.P.?

• State the legal issue and relevant facts.

• Include the jurisdiction or law that applies.

• Under South Carolina law,
• Does Federal Rule of Evidence Rule 408 require,

• Include the relevant facts at the level of
  specificity that matters to the legal issue.

• Dont say that Mr. Prime is a man, a college
  graduate, or a single guy, if those arent key
  facts to the legal question of consideration.

• Do not make conclusions.
• This is typically done by misuse of language.

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Good Formats for a Question Presented

• Under, did, when

• Under New York law, did Mr. Combs violate the
  anti-dueling statute when he told Mr. Betha that
  they should step outside the Ozone Club and
  settle their disagreement by shooting it out?

• Does, when

• Does a person violate the New York anti-dueling
  statute when he challenges another to step
  outside a club to engage in a gunfight?

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More ways to do a Q.P.

• Whether, when

• Whether a person violates the New York
  anti-dueling statute when he challenges another
  to leave a club to engage in a gunfight.

• Multiple Questions

• Does a person violate the New York anti-dueling
  statute when he challenges another to step
  outside a club to engage in a gunfight?
• Does a person violate the New York anti-dueling
  statute when he accepts a challenge to step
  outside a club to engage in a gunfight?

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Question Presented Tricks

• Write it at the outset

• Revise it at the end

• Make a person or entity the subject

• Stick to the methods above until you are
  comfortable writing Q.P.s

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What goes where?

• Heading

• Question Presented

• Brief Answer

• Statement of Facts

• Discussion/Analysis

• Conclusion

• This is not set in stone. Ask how its done in
  whatever setting you find yourself.

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Rules for Writing a Good Brief Answer

• Also called Short Answer or Conclusion

• Do two things

• Answer the Q.P. (Yes. No. Most Likely Yes.
  Probably Not.)
• Explain, briefly, how you reached that
  conclusion. Make good use of because.

• If you cannot confidently reach a conclusion
  state why.

• Do you need more facts? Are there no sources that
  bear on the issue?

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Good Formats for a Brief Answer

• Yes, restate.

• Does a person violate the New York anti-dueling
  statute when he challenges another to step
  outside a club to engage in a gunfight?

• Yes. A person violates the New York anti-dueling
  statute when he challenges another to step
  outside a club to engage in a gunfight. The New
  York dueling statute has been held to apply to
  any challenge to fight another using deadly
  weapons at a different location. Mr. Combss
  challenge to Mr. Barrows to fight with guns at a
  different location satisfies the elements of the
  New York anti-dueling statute.

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Good Formats for a Brief Answer II

• No, restate.

• Does a person violate the New York anti-dueling
  statute when he challenges another to step
  outside a club to engage in a gunfight?

• No. A person does not violate the New York
  anti-dueling statute when he challenges another
  to step outside a club to engage in a gunfight.
  The New York dueling statute requires that the
  challenger actually appear at the stated
  location. Because Mr. Combs did not appear
  outside the club to engage in the duel, he cannot
  be convicted under the anti-dueling statute.

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Good Formats for a Brief Answer III

• Possibly, restate, if.

• Does a person violate the New York anti-dueling
  statute when he challenges another to step
  outside a club to engage in a gunfight?

• Possibly. A person may violate the New York
  anti-dueling statute when he challenges another
  to step outside a club to engage in a gunfight,
  if he actually appeared outside. The New York
  dueling statute requires that the challenger
  actually appear at the stated location. If Mr.
  Combs did appear outside the club intending to
  engage in the duel, he could be convicted under
  the anti-dueling statute.

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Brief Answer Tricks

• Make it parallel to your Q.P.

• Cite cases and statutes, sparingly

• Cite a case if it is very close on the facts and
  clearly answers you question.
• Cite a statute when its terms are critical and
  their plain meaning answers your question.

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What goes where?

• Heading

• Question Presented

• Brief Answer

• Statement of Facts

• Discussion/Analysis

• Conclusion

• This is not set in stone. Ask how its done in
  whatever setting you find yourself.

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Just the Facts

• Statement of Facts

• Narrate what happened

• Include all key facts
• Also include sufficient facts to explain the
  context

• Explain who the parties are

• Then, Organize Past Events Chronologically

• Or, Organize Facts by Topic

• If there are two separate causes of action you
  could discuss the facts relating to one and then
  discuss the facts relating to the other.

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Statement of Facts

• Narrate what happened

• Include all key facts
• Also include sufficient facts to explain the
  context

• First paragraph

• Explain who the parties are
• Explain what the parties want or what their
  problem is.

• Then, Organize Past Events Chronologically

• Or, Organize Facts by Topic

• If there are two separate causes of action you
  could discuss the facts relating to one and then
  discuss the facts relating to the other.

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What goes where?

• Heading

• Question Presented

• Brief Answer

• Statement of Facts

• Discussion/Analysis

• Conclusion

• This is not set in stone. Ask how its done in
  whatever setting you find yourself.

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Conclusion

• Conclusion must conclude.
• State your conclusion and the level of certainty
  you have about it.

• Mr. Combs most likely violated the New York
  anti-dueling statute because his challenge to Mr.
  Betha meets all the elements of that statute.

• Then explain why youve reached that conclusion.
• Explain statute and/or Analogous/Distinguishable
  case
• The New York dueling statute has been broadly
  applied to apply to any challenge to fight
  another using deadly weapons at a different
  location. Herebecause

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Well, Ive seen an office memo and

• Applicable Statutes

• Relevant case law

• Facts First

• Longer Short Answer

• Different Names

• When in Rome

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Back to the Analysis/Discussion Section
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Large Scale Organization of Analysis

• Roadmap/Umbrella Paragraph

• Frame the general problem
• Outline the sections that follow
• State your conclusion

• Sections by Element/Cause of Action/Other

• Do in logical order
• Threshold issues first

• Small c Conclusions

• Conclude each section with how the present case
  will come on that element/action

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Analysis Review

• Goal Predict how your case will come out.

• Method Analogy

• Prior Case Rule Facts Outcome

• Your Case Rule Facts Outcome

• Same facts Same Outcome

• Different Facts Different Outcome
• If your case has different facts from a prior
  case, it is distinguishable.

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Small Scale Organization

• CReAC

• Conclusion

• Rule of Law

• Explanation of your Rule, if need be

• Analysis/Analogy

• Conclusion

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Rule and Rule Explanation

• Rule of law

• General rule to Key/Specific Rule

• Rule Explanation

• Needed when Rule is unclear
• Or if rule is derived from multiple cases
• Or when rule itself needs proving/explaning

• The Court in X casefactsapplied the
  ruleyielding Y outcome.
• Repeat as needed.

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Analysis/Analogy

• Prior Facts

• Use only the key facts that the rule turns on!

• Your facts

• Use only the key facts that the rule turns on!

• Like in or In contrast to

• Same Same / Different Different Outcome

• Conclusion

• Say how your case will come out and how certain
  you are about that.

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Advanced Analysis Structure 1

• Prior Facts of multiple cases w/outcomes

• Your facts

• Still use only the key facts that the rule turns
  on!

• Like in or In contrast to

• Same Same / Different Different Outcome

• Conclusion

• Say how your case will come out and how certain
  you are about that.

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Advanced Analysis Structure 2

• Your facts

• Still use only the key facts that the rule turns
  on!

• Prior Facts of multiple cases w/outcomes

• Like in or In contrast to

• Perhaps as you state each prior case

• Conclusion

• Say how your case will come out and how certain
  you are about that.

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FIN