1. The Rest of the Memo
Drafting the Question Presented, Brief Answer & Statement of Facts
© Prof. Njeri Mathis Rutledge

2. Assignment Details
Goal: make a conclusion and support whether or not the third element can be satisfied
Closed research – no additional research allowed
Not necessary to utilize every case. Every case may or may not be helpful

3. Assignment Details Quoting – “ . . .” Warner p. 438
When referring to precedent by name – always underline or italicize
Overview paragraph – summarize other elements

4. Assignment Details Submission process
You should have already registered your password with TWEN. If not do so IMMEDIATELY
Go to class web-page; click on current students; click on assignment drop box.

5. The Memorandum Question Presented Brief Answer Statement of Facts
From Re
Question Presented
Brief Answer
Statement of Facts
Discussion
Conclusion

6. The Heading What the memo is about or regarding
To: Supervising Attorney
From: Your name
Date: Current Date
Re:
What the memo is about or regarding
Name of client, file number, nature of matter or claim, procedural status if any (appeal of conviction, settlement)

7. Drafting the Heading Consider your reader Examples:
Re: Nadine Jackson Claim
Re: Nadine Jackson’s Potential Claim for Negligent Infliction Emotional Distress
Re: Extra-territorial Application of Texas Rules Regarding Advertising by Lawyers

8. Formatting
Spacing & content of the heading is tabbed, everything is lined up vertically with the other pieces
The document heading & headings of all sections are in bold
Question presented & brief answer are single spaced. If multiple issues, double-space between each. The remainder of the memo is double spaced.
The document is justified left because full justification will alter citation spacing.
Page numbering is at the bottom of the page after the first.

9. Question Presented Some people label this “Issue Presented”
Some begin with Statement of Facts first

10. Goals of the Question Presented
Identify claim, crime, defense or elements
Summarize necessary facts related to the dispute
End with a question that identifies the disputed issue
Do not include conclusions

11. Count the Issues
Number of issue statements must match the parts in the discussion
Organize and list the question(s) in the same order of the discussion

12. Question Presented Two types
Given problem to research the state of the governing law, without referencing a client = simple legal question
Asked to apply a rule of law to a set of facts and predict a result = question + most important facts & sometimes the rule

13. Writing the Question Presented
Format: (varies)
Purely legal: simple question
What are the parameters of activity that has been permitted by disciplinary committees or courts considering the practice of “solely federal law” in Texas or other jurisdictions?
Prediction based on client facts
Whether Carrolton can enforce the Watson covenant-not-to-compete when the covenant prohibits Watson from making sales contracts for three years and applies to the three counties closest to Carrolton’s headquarters.

14. Possible Formats 1. Legal question + concise statement relevant facts
2. Legal question + concise statement in “whether” format
3. Under/does/when format

15. Legal question + concise statement
Can . . .[legal question] when [state major facts]?
Can Where
Did When
Was
May Is
Notice no rule of law in this example

16. Examples
Ex: Can Carrolton enforce the Watson covenant-not-to-compete when the covenant prohibits Watson from making sales contracts for three years and applies to the three counties closest to Carrolton’s headquarters?
Do the Texas rules concerning advertising by lawyers apply to all of our lawyers in all of our offices when advertising on the Internet?

17. Whether format Whether [legal question] . . . when [facts]
Notice, this clause will not be a real sentence, but in legal writing you should end the “whether” question with a period.
This format can include a statement of the law or not.

18. Example
Whether the Flynns have a cause of action for either public or private nuisance when Pecos Power had authorization to build the high voltage lines, the high voltage lines obstruct the Flynns’ view, the Flynns no longer use their backyard because of their fear that the EMFs from the high voltage lines may cause cancer, and the Flynns have been unable to sell their home.

19. Example
Whether it is a violation of the Texas Disciplinary Rules for a partner in our Firm to list her qualifications on the Firm’s web site when the partner is not admitted to practice in Texas and does not maintain an office in Texas.

20. Under/does/when Under . . .[rule of law] does . . .when [facts]
can
did
was is

21. Example
Under the Texas Penal Code, a person may be convicted of aggravated robbery if she uses or exhibits a deadly weapon during a robbery. Did Jane Dunn use or exhibit a deadly weapon when she brandished a crowbar at the UPS driver and threatened to hit him with it during a robbery.

22. Example
Under the Georgia common law rule that allows covenants-not-to compete only when the area restrained, the activities restrained, and the duration of the restraint are reasonable, can a covenant-not-to-compete be enforced when the covenant prohibits the covenantor from making sales contacts, for three years, and applies to the three counties closest to the headquarters of the covenant’s beneficiary?

23. Degree of Details
Traditionally, one readable sentence, but 2 clear sentences are better than 1 confusing
Can have either specific references to client or general references
Better practice is to use parties’ names

24. Let’s give it a try

25. Brief Answer Responds to question presented
Concise statement of your conclusion/prediction on the issue, which elements will be easy, which will be more difficult
No longer than one-third of a page
If question presented did not present legal rule, raise it here
Sometimes referred to as Short Answer

26. Brief Answer
Always begin with one-word or two-word short answer (compare to Shapo). Place a period after the one or two words
Yes or No, only if legal outcome is certain
Lesser degree of certainty - probably yes; probably not is often appropriate

27. Statement of Facts Remember – Predictive writing – be objective
Ex: defendant was speeding through the school zone
Defendant was traveling 40 mph through the school zone
Include favorable & unfavorable facts

28. Statement of Facts Focus on relevant facts & background facts
Relevant/determinative facts – help show how the rule will apply to client’s situation
Procedural info – current procedural posture, procedural history
Stick to the facts- no conclusions, arguments, cases

29. Statement of Facts Organization
Chronological – if order of events is important or several factual developments
Topical – complex facts, cover number of topics
Hybrid – facts have both chronological importance & descriptive
Ex. Carillo attractive nuisance – introduction of the Carillos and the neighborhood, facts surrounding purchase of trampoline, placement & purpose, chronological events of the day of the accident,

30. Statement of Facts Sometimes easier to draft AFTER your analysis
Don’t just repeat the facts from the assignment