Legal Research Memorandum 5m4m4x

LEGAL RESEARCH MEMORANDUM Part 1 - provides an objective, critical analysis of a legal problem - informative document that summarizes the research and analysis of a legal issue/s raised by the facts of a client's case - contains a summary of the law and explains how the law applies to the facts of the case - presents an objective legal analysis and includes the arguments in favor and in opposition to a client’s position. ***Preparation of a memorandum is a multistep process involving the integration of legal research, analysis and writing. Main purposes: • to identify and record the law that applies to a specific issue/s raised by a client’s facts • to analyze and explain how the law applies to an issue • to assess the strengths and weaknesses of a client’s case • to present a conclusion and proposed solution based on the analysis. the 3 stages of writing process --- prewriting, writing and postwriting. PREWRITING STAGE - When you begin the prewriting stage, must assemble ALL available files and information concerning a client’s case. Matters to be addressed: 1. Who is the audience? As primarily for office use, use of legal appropriate. If to be read outside, comments, recommendations intended for office use should be excluded. 2.

Constraints on the Assignment. Identification of constraints which may affect preparation of the memo (time, page) should be considered before you begin to write.

3.

Organization of the Assignment. In organizing an office memo, the format or outline of the memo is identified and an expanded outline is created and used. Use format preferred by the law office. NOTE: There is no standard format, varies from office to office. Certain sections (Statement of Assignment and Brief Answer) may not be included in the format adopted. But some are required, such as Issue and Analysis. Two Types of Office Memo: 1. Basic Office Memo 2.Complex Office Memo - while there is no set definition, usually consists of more than one issue and longer than 10 pages. Merely an expanded version of the basic office memo. The Memo may include a table of authorities or a table of contents. Format of Basic Legal Research Memorandum Heading Legal Research Memorandum

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Statement of Assignment Issue Brief Answer Statement of Facts Analysis Rule of Law Case law (if necessary) - interpretation of rule of law Application of law to facts of case Counteranalysis Conclusion Recommendations Complex Legal Research Memorandum Format Heading Statement of Assignment Issue I Issue II Issue III Brief Answer Issue I Brief Answer Issue II Brief Answer Issue III Statement of Facts Analysis Issue I Rule of Law Case law (if necessary) - interpretation of rule of law Application of law to facts of case Counteranalysis Analysis Issue II Rule of Law Case law (if necessary) - interpretation of rule of law Application of law to facts of case Counteranalysis Analysis Issue III Rule of Law Case law (if necessary) - interpretation of rule of law Application of law to facts of case Counteranalysis Recommendations (separate recommendation sections conclusion of each issue)

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SECTIONS OF THE LEGAL RESEARCH MEMORANDUM 1.

Heading - Contains: a. a heading in all capital letters indicating the type of document b. the name of the person to whom the memo is addressed c. the name of the person who prepared the memo d. the date e. information identifying the subject of the memo (e.g., case name, client’s name, case number, office file number, subject matter of the memo) --- this usually follows “Re:”

2.

Statement of Assignment Legal Research Memorandum

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-The Background or Purpose. Its purpose is to provide the reader with a description of the topic covered and the parameters of the assignment 3.

Issue -Presented at the beginning of the memo following the heading and the statement of assignment so as to establish the focus. Memo must inform reader at the outset of: a. law that applies b. precise legal question c. significant facts of the case. : i. Issue should be correctly identified. ii.Issue should be completely and correctly stated. iii.An expanded outline should be used when preparing the section. iv.Issues are addressed separately when preparing complex office memos. Checklist - Issue Section Is the issue correctly identified? Is the applicable rule of law included? Is the citation of the rule correct? Is the legal question clearly stated? Are the key facts included? If there are multiple issues, are they presented in the proper order, such as logical or chronological?

4.

Brief Answer -Composed of a brief, precise answer to the issue/s. This provides a quick answer to the issue and should not include info that is not discussed in the analysis section of the memo. Usually begins with Yes, No, Maybe, Probably Not, then a brief statement of the grounds in of the answer. Checklist - Brief Answer Section Does the brief answer follow the office format? Is it brief? Does it summarize the reasons in one or two clear sentences? Is there a separate answer for each issue?

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Statement of Facts Considerations to keep in mind when preparing the Facts Section Importance of the Facts - Do not underemphasize the importance of the facts. the law is applied in the context of the facts of the dispute. Contents of the section - Include the key and background facts. key facts - those upon which the outcome of the case is determined. These are so essential that if it were changed, the outcome of the case would probably be different background facts - necessary because they put the key facts in context, i.e., they give the reader the information necessary to gain an overall understanding of the context within which the key facts occurred. Legal Research Memorandum

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c.

Organization of the section - Organize the facts chronologically or topically or a combination of the two.

d.

Manner of the presentation of the facts - Present the facts accurately and objectively and free of legal conclusions. Basically chronological, topical or a combination of both. : These things must be observed: accuracy, objectivity, avoidance of legal conclusion. Checklist - Facts Section Are sufficient background facts presented to inform the reader of the factual context of the assignment? Will the reader be required to refer to the case file to understand the analysis of the issues? Are all of the key facts included? Will the reader have to refer to the case file to obtain the key facts? Are the facts organized chronologically, topically or chronologically ad topically combined? Are the facts presented accurately and objectively? Are legal conclusions excluded from the fact presentation? Is the Fact section complete?

6.

Analysis - (Discussion section) - to provide a legal analysis of the issue/s in a case- informs the reader of the law that governs the issue/s and the way it applies in the client's case. *This is the part of the memo where the law is presented, analyzed and applied to the issue/s. Ergo, the HEART of the memo If using IRAC method: Issue - presented at the beginning of the memo Rule of Law - Analysis section Analysis - Analysis section Application of the Law- Analysis section Conclusion - summarizes the Analysis

WHY? - reader must know the QUESTION in order to know the context in which the rule is analyzed. - rule that applies to the question must be identified before the rule can be analyzed and applied to the facts of the case. - application of the rule to the facts must take place before a conclusion can be reached. Recommended Basic Format of Analysis Section Part A. Rule of law Part B. Case law (if necessary) -interpretation of rule of law 1. Name of case 2. Facts of case - sufficient to demonstrate that case is on point 3. Rule or legal principle from case that applies to client's case Part C. Application of law to facts of case Part D. Counteranalysis Legal Research Memorandum

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Recommended Complex Format of Analysis Section Issue I - Analysis Part A. Rule of Law Part B. Case law (if necessary) -interpretation of rule of law 1. Name of case 2. Facts of case - sufficient to demonstrate that case is on point 3. Rule or legal principle from case that applies to client's case Part C. Application of law to facts of case Part D. Counteranalysis Issue II - Analysis Part A. Rule of Law Part B. Case law (if necessary) -interpretation of rule of law 1. Name of case 2. Facts of case - sufficient to demonstrate that case is on point 3. Rule or legal principle from case that applies to client's case Part C. Application of law to facts of case Part D. Counteranalysis Note: In the prewriting stage of the writing process, each subsection of the analysis section should be assigned at least one page in the expanded outline: a page for the rule of law, a pace for each case, at least one page for the application of the law to the facts, and at least one page for the counteranalysis. Considerations to be taken into for each element of the Analysis Section: Part A. Rule of Law 1. Introduction - Use introductory language to introduce the rule of law: "The law governing the witnessing of wills is..." 2. What to include - Paraphrase or quote only the relevant portions of the law: “The rule of law governing oppressive conduct is ss 50-14-5, which provides: A. The district courts may liquidate the assets and business of a corporation: 1. in an action by a shareholder when it is established that:.. (b)the acts of the directors... are illegal, oppressive, or fraudulent...” 3. Multiple rules of law - Use introductory language and present the relevant portions of the law. “The New Washington Commercial Code section 50-101 establishes which contracts must be in writing. In our case, two subsections of that section apply: section 50-101B, which requires that “An agreement that is not to be performed within one year from the making...” must be in writing and section 50-101C, which provides that “Contracts for the sale of goods in the amount of $500 or more...” must be in writing.” 4. Citation - Provide the citation for the rule of law. If it is enacted law, cite the statute, ordinance, rule and so on; if it is case law, cite the court opinion. Legal Research Memorandum

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Part B. Rule of Law Interpretation Is interpretation required? - Does the rule of law require interpretation? Can the law be applied directly to the facts without interpretation? What is the role of case law? - Is the rule of law so broadly stated that case law must be consulted to determine how it applies? What is the process for presenting case law? If case law is required, when presenting each case, use the following format: 1. Name and Citation of Court Opinion - First, provide the name and citation of the case. 2. Facts of the Case - Next, provide those facts from the case that are sufficient to demonstrate that the case in on point. 3. Rule of Law - Then identify the rule of law or legal principle adopted by the court that applies to the issue addressed in the memo. -

Part C. Application of Rule of Law to Client's Case The purpose of the memo is to demonstrate how the rule of law and the case law apply to guide or govern determination of the issue being addressed in the memo. Either of 2 situations may apply: a. The rule does not require interpretation through the use of case law. Simply apply the rule directly to the issue being addressed in the memo. b. The rule requires interpretation through the use of case law. - Memo must refer to case law to learn how the law applies. Once the case on point is discussed, as addressed in the previous section, the rule of law or the legal principle adopted by the court must be applied to the facts of the client's case. (You must include in the analysis a discussion of how the law applies to the issue/s and facts of the client's case. It is useless to introduce the rule of law and discuss how the rule is interpreted through the presentation of a case on point, then fail to apply the law to the facts of the client's case.) Part D. Counteranalysis Counterarguments to the analysis must be explored. Take note: In the analysis section, the counteranalysis should follow part C, the application of the law to the issue and facts of the client's case. The reader, then, is immediately apprised of any counterargument and can easily compare and contrast the arguments and counterarguments and evaluate the merits of each. - If rebuttal is necessary, it should follow the counteranalysis. Rebuttal may be required if you believe it is necessary to explain why the counterargument does not apply or if you want to evaluate the merits of the counterargument. -

Checklist - Analysis Section Does the analysis section follow the proper format? The format is Rule of Law + Case Interpreting the Rule of Law (if necessary) + Application + Counteranalysis If application of the rule of law is not clear, is case law presented that is on point and that interpret how the rule of law applies?

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Is the proper citation presented for each rule of law and authority included in the analysis?Is there a separate analysis section for each issue addressed in the memo? Is the rule of law presented in the analysis applied to the issue raised by the facts of the client's case? Is there a counteranalysis and a rebuttal to the counteranalysis if necessary? 7.

Conclusions -(Part C of Analysis section is really a mini conclusion hence some law firms do not require a separate conclusion section. Advisable to do so (composed of a general summary of the entire memo) This should not introduce new info or authorities, nor should it merely repeat the brief answer. It should summarize the conclusions reached in the analysis section. THE READER SHOULD BE ABLE TO OBTAIN FROM THE CONCLUSION A GENERAL UNDERSTANDING OF THE LAW AND ITS APPLICATION WITHOUT HAVING TO READ THE ENTIRE MEMO. Advantage: Researchers working on similar cases can determine from the conclusion whether a memo from the office memo files applies to their case. They should be able to obtain all essential info by reading just the conclusion. Researchers save time by not having to read the entire memo if all that is needed is a summary of the law and an analysis. Checklist - Conclusion Section Does the conclusion include a brief summary of the analysis of each issue? Is all of the law discussed in the Analysis section summarized in the conclusion, both enacted and case law? Is new info or authority excluded from the conclusion? When there are multiple issues, the conclusion is usually presented immediately after the analysis of each issue. When there are only two issues and the analysis is not complex, one conclusion that summarizes the analysis of both issues may be presented at the end of the memo. 8. Recommendations - Not all law firms require that a recommendations section be included as part of the basic format of an office memo. Sometimes, recommendations are included in the conclusion section. Recommendations are not part of the analysis or conclusion sections: they frequently address matters to be considered and steps to be taken as a result of conclusions reached in the analysis section. This should include any comments or recommendations you have concerning the client's case or matters discussed in the memo. Areas that may be addressed in this section:

1. What the next step should be 2. Identification of additional info that may be necessary due to questions raised in the analysis of the issue. 3. Identification of additional research that may be necessary o the issue. 4. Identification of related issues or concerns that became apparent as a result of the research and analysis. GENERAL CONSIDERATIONS: Legal Research Memorandum

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1.

Heading - Use headings for each section. These provide the overall structure of the assignment, guide the reader and apprise him of what is covered in each section. He may want to read a specific section. These also serve as a guide for preparation of the table of contents if one is needed.

2.

Introductory Sentences - These should be used to inform the reader of what is to follow. Avoid immediately jumping into the discussion of a topic, such as the presentation of the law.

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Transition Sentences - These connect sections, subsections and related topics.

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Paragraphs - Paragraphs add coherence and make a memo more readable. Each area or topic should be addressed in a separate paragraph.

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Persuasive Precedent - This is case law a court is not bound to consider or follow but may do so when reaching a decision. When presenting persuasive authority, you must indicate the reason you are relying on this type of authority and law a proper foundation for its use.

6.

Conclusions - In many instances, after researching and analyzing a legal problem, you may not be able to provide a definite yes or no answer as to how it may be resolved. In such instances, you should present your conclusions and explain your reservations.

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Revisions/Redrafts - When preparing an office memo, you must produce a professional product. This demands thorough research and analysis of all issues assigned and all aspects of each issue. It also requires assembling the research and analysis into an organized, error-free final product.

8.

Additional Authority - If several cases are on point, it is not necessary to thoroughly discuss each one. Present and discuss thoroughly the most recent case on point and refer to the others.

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