Legal Research & Writing : Week of September 26

26 September

• Discussion should be 4-5 pages. Final memo (in its entirity) should not exceed 8 pages.
• Review the local rules (in syllabus)
• Purpose of the memo: provide information of recommend a course of action to a client. In our case, assess whether or not there is a case here.
• Consider who the audience is. In our case, that's a partner (vs. a client, or a court).
• Knowing we are writing to a fellow attorney, you don't have to explain legal jargon (i.e., what is mandatory precedent). When writing to a court, you assume that the audience are legal generalists. For this, we know our attorney is a specialist in personal injury. We need to explain the statute, the elements, etc.
• Next week is 1 hour of writing, 1 hour of research.
• Cite page numbers for the draft discussion.
• Anatomy of a memo:
  • Heading (to: from: re: date:) DO THIS IN THE DRAFT!
  • Intro: why am I writing ("the legal question involved is..." etc.)
  • Statement of Facts: the legally relevant facts, in narrative form
  • Question Presented (no citations here)
  • Brief Answer (no citations here either)
  • Applicable Statute: literally write out the statute for reference. This is optional for us. May be redundant if the overview covers it.
  • Discussion section
    • Overview: the first paragraph (doesn't get its own heading). Just says what we're covering in the discussion. Identify the four elements, in other words.
    Then you write the discussion
  • Conclusion
  Everything but the heading gets a heading, if you know what I mean
• Intro is more the general question posed (but not in question form). The overview breaks the issue down into its component parts.
• Example organization:
  1. Overview: Explain that the law has 4 parts
  2. Explain the parts that are met
  3. Explain that those parts are met
  4. Explain the first tricky issue (i.e., what the rules from our cases tell us about this element; 1-2 sentences about how the case is similar or dissimilar)
  5. Explain how that issue is met or not met (talk about both sides); might be more than one paragraph
  6. Explain the second tricky issue (if you're using a case cited above, no need to re-introduce it)
  7. Explain how that issue is met or not met (talk about both sides)
• Remember that each paragraph should have a thesis statement: the organizing principle of the paragraph. I.e., why element 2 is met (or not)
• Do not have page-long paragraphs
• Mention that Sieworth had gray areas (i.e., in spite of over-the- top facts, the case still makes it to the appellate level).
• Likewise, with provocation, the "she didn't throw the ball" area has some ambiguity.
• So recognize that the "probably no" answer is not definitive.
• Looks like there's no need to use headings within this draft discussion, by the way.
• Organize on the basis of elements when doing synthesis, which is what we are doing here...
• Overview shows the four elements. Then a paragraph on what, for example, provocation means (synthesis), then a paragraph on how the facts of our case match up with the rule explicated in the previous paragraph
• In the age discrimination example, it just so happened that grouping by principles was also grouping by results. But you want to group by principles, not results. So that example was a bit deceptive.