Memo Legal Writing
Factors in Excellent Work
Two aspects of memos...
Substantive
content of memo (the law)
Accurate and current Thorough Clear
Structure
and style (presentation)
Well organized use headings! Internally consistent Easy to read
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Content v. Style
You cannot divorce content from style Content must be complete, accurate and clear Overall theme is readability Focus is on the reader Dense, difficult-to-read prose will detract from what otherwise may be a strong legal point
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Substantive Content of Memo: Results of Research...
Results of research case law
Leading cases
Currency,
judicial interpretation, court level
Analogous cases Why am I including this case in my memo?
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Results of research:
Legislation and policy
Current legislation
Acts
and Regulations Judicial interpretation
Policy
As
found in precedent cases consider whether accepted by the court or not Found elsewhere? Cases on a related issue? Academic writing? Law reform?
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Substantive Content Analysis of Law
Accurate analysis of cases
Understands the law; accurate interpretation
Through analysis - Pays attention to detail
Does this decision alter the legal principle or test? Is the principle or test limited to particular factual circumstances? Which court is this decision from? What is the date of the decision? What is the `strength' of the judgment? Is it a majority, concurring, or dissenting judgment?
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Key Elements Substantive Content
Objective
reporting of law
Does the case really say this or is this what you want it to say? Save the latter interpretation for argument.
Synthesize
the law
As a package, what do these cases say? Demonstrates ability to write an accurate, complete and clear summary of the law
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ELEMENTS OF STYLE: Factors to consider in describing the law
Audience Purpose
and Goals Overall Structure of Memo Presentation Choice of Language Apportioning word count
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Audience matters...
Does What
this person have legal training?
does this person know about this particular area of law? (Don't make assumptions.)
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Why am I writing this memo?
To
give advice to a client on likely outcome of case should it proceed to trial assist lawyer in preparing for trial, both in gathering and presenting evidence and making legal argument
To
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What is the goal of this memo?
To
provide a clear, thorough, accurate, and objective statement of the law on the issues identified provide an objective prediction of the likely outcome of the case should it proceed to trial
To
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Structure of memo 8 Components
Introduction Facts Issue(s) Brief Answer(s) Analysis of Law (cases, legislation) Synthesis of Law Apply Law to Your Client's Fact Situation Conclusion
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Components of Memo
Introduction
who is your client and what is this about?
Facts
limited by relevance Inclusive (if you refer to elsewhere in memo, fact should be included in your facts section!)
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State the Issues
Consider:
what do I need to prove or disprove in order to assess my client's chances of success if this case goes to trial? What is this case really all about? sub-issues required?
Are
Does the use of sub-issues HELP or HINDER the analysis?
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Components of a memo...
Brief
answer(s)
Does your brief answer directly and briefly answer each issue?
Analysis
Would a short introduction help orient the reader to this area of law?
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Analysis of the law...
Analyse the law issue by issue
provide an overview of the law, a synthesis and an application to facts for each issue - then move to the next issue and repeat the process Consider whether extensive use of sub-issues helps or hinders this Consider whether use of sub-headings is appropriate
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Analysis of cases...
Order of presentation of cases?
Chronological? Leading cases first, followed by supplementary cases? General principles then analogous facts?
Content?
Facts, issues, holding (outcome), principles Which order should be used? Ask: why am I including this case?
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Use It
is transitions...
up to you, not your reader, to do the work! transitions to explain to your reader how one case relates to the next The leading case is ... The concept of intention was clarified in ...
Use
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Synthesize the law...
Weave
the law Use your synthesis as a checklist when applying law to facts Pay attention to differences between cases Consider and identify geographic jurisdiction and court level where relevant Identify majority vs dissenting opinions
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the cases together into a summary of
Apply Law to Facts...
Thorough
and well-organized application of law to facts
Logical sequence? Does application to facts follow the same sequence as your synthesis?
internal
consistency enhances readability
Does application touch all of the points raised in your synthesis? It should!
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Application to facts...
Anticipate and address the counter-arguments Evaluate the strength and weakness of the counter-arguments
mention
the bad news
Conclusions are for the judge illustrate how you got there!
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Writing Style and Presentation
Logically
Organized Clearly expressed Point first writing Overall presentation
White Space Headings Page numbers Footnotes
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Clarity
Clear Pay
writing is essential
attention to paragraph and sentence structure, wordiness consistent in use of terminology
Be
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Tighten up your writing...
Avoid
needless words and phrases
Instead of "in the event that", use "if" Instead of "this is a case which considers" write "this case considers" Instead of "owing to the fact that" use "since" or "because"
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Eliminate fluff...
What
does the phrase "as such" add to your analysis? does "it is important to note that" add?
What
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Avoid Nominalization (changing verbs into nouns)
Instead of "will make an argument" use "will argue" gave consideration to = "considered" Conducted an investigation = "investigated"
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Apportioning Word Count...
No
magic number! Pare down to relevant facts Succinct statement of issues Brief answer means brief! Analysis - focus on relevant aspects in the context of your fact situation
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All issues are not created equal...
Say
what you need to say and move on!
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Limit the use of long quotations
If an outside authority can advance your argum...