Predictive Writing: Legal Memos Professor Virginia McRae Winter 2013 Civil Procedure classes

What is a legal memo? What is it? Why do you write one? Who will read it?

Audience Who are the readers? – Assigning Lawyer? – Other lawyers in firm? – Others?

Audience What are characteristics of assigning lawyer? – Limited time to read – Knowledgeable – May have preferred format – Looking for an answer! What characteristics of others in firm? – Not familiar with facts or the file – Interested in research and whether applies to their cases – Need history of your research so can update without duplicating your work

Before you begin, ask…. About the purpose of the memo – To decide whether to take the case? – To help draft pleadings? – To help in negotiations, discoveries, trial prep? – To prepare for opinion letter to client? About practical matters – How much time do you have? – How extensive discussion/analysis? – Summaries or photocopies of cases? – Formal or informal format? About the facts of the case

Goals Be Objective Be Specific Be Thorough Give an answer

Pre-writing Strategies Mapping – Brainstorming Charting – Managing your research – Gaining insights Outlining – Organizing your ideas and research

Format Identifying Information: for whom is it written, author, position, subject matter of memo, date, case name, and file number Subject matter (Re: line) – descriptive of the content, not just case name First pages: facts, issue and answer

Format, cont. 1.Purpose 2.Facts 3.Issue(s) 4.Brief Answer/Conclusion 5.Discussion/Analysis – Legislation first (if applies) – Case law second 6.Conclusion (if needed)

Predictive Writing: Facts Full statement of material facts : objectively stated : no assumptions made : chronological, narrative style : every fact mentioned in Analysis section must be here : procedural facts – case history

Facts 1. Look at the Rules of Civil Procedure – What do you need to prove? 2. Then look at your case summaries – What material facts led the courts to the rulings they made? 3.Then look at the story – What facts do you include in a memo to your principal?

Issue Statement Law + facts in question form Legal questions with enough legally relevant facts to make issue intelligible to the reader

Issue Statement Identify all necessary issues and sub-issues State them objectively Focus the reader on key topics and law Set up the organization of memo

Issue Statement “Was there an illegal search?” “Was the search of the accused’s bedroom closet a breach of section 8 of the Charter?” “Under s. 8 of the Charter, does the accused have a claim against the police when they searched his bedroom closet without a warrant?” “Whether the accused’s right to be secure against unreasonable search or seizure under s. 8 was infringed by the police search of his bedroom closet.”

Issue Statement What is the Issue Statement? 1.Will the court extend time for service? 2.Will the court extend time for service where a litigant hires a new lawyer who took immediate steps to correct the original lawyer’s error and the defendant’s ability to put evidence before the court was not adversely affected by the delay? What is the key legal question here? How much reference to the facts is needed to situate the reader?

Brief Answer/Conclusion Law + facts + a reason in statement form : orients the reader to scope of memo : tells the reader the legal meaning of case : shows how memo is organized

Analysis Systematic analysis and discussion of issues :organization is crucial :overview statement/thesis/roadmap :headings

Overview Poor: A material omission may constitute fraud Better: Failure to disclose significant defects in sale of real property is fraud

Overview What is the overview statement in this memo?

Technique for Analysis Describe ruling and the reasons Give sufficient facts from cases Compare and contrast with your case Give more detail for supportive cases Distinguish cases that do not support – So old they are no longer relevant? – So dissimilar factually should not apply? – So dissimilar reasoning - only dicta?

10 Common Errors 1.Explaining all the law before applying to case at hand 2.Relying on quotations 3.Ignoring unfavourable cases 4.Ignoring the facts of precedent cases 5.Omitting the holding of precedent cases 6.Using too much of precedent cases (non-material) 7.Omitting facts of the case at hand 8.Forgetting to cite authority 9.Making the reader look elsewhere for information 10.Not giving an answer

Writing Strategies Use third person (except for opening?) Use descriptive headings, plus structural Do not quote extensively from the cases  Use short quotations from cases where: So articulate makes your point for you Paraphrasing would dilute the meaning

Writing Strategies, cont. Point First – describe the point in your own words, then support with authority. Always have a context for a quotation

Point First Writing NOT: “Justice Yu, in Smith v. Jones, said “Courts cannot condone the collection of evidence by illegal means. Such evidence will be rejected. ” BUT: Courts will reject evidence collected by means of illegal searches. Justice Yu explained “Courts cannot condone…..”

Recap/Summary/Conclusion Should be brief recap of main points Should be the same as your brief answer at beginning Do not introduce new material Do not include citations

Recommendations? May need answers to practical questions, more information needed, evidence or facts to be explored. Be specific. Are there options? – Should settlement be explored? – ADR possibilities?

Review of Sample Memo You are the senior lawyer who assigned this memo: 1.Did you find an answer to your question? 2.Is it well-organized? Good headings? 3.What good writing choices(s) did the writer make? 4.What not-so-helpful writing choice(s) did the writer make?