Organization of the Office Memorandum

1. Organization of theOffice Memorandum -IRAC Common Errors/Review-Outlining the Closed Memo-Parts of the Legal Memorandum

2. IRAC Common Errors • The Issue- should have beenfact and law specific: • Whether Peterson created an unreasonable riskof harm by leaving the hammerin the tool box in his basement.

3. The Rules Section • -Should have included a case discussion which: • Introduced the case; • Gave facts relative to the holding and analytical categories; • Gave the holding and reasoning which identified the law and analytical categories (obvious/intrinsic danger and accessibility).

4. The Application Section • Should have discussed the analytical categories in separate paragraphs while comparing the facts of your case with the facts of the precedent case and responding to counter-arguments • Under obvious/intrinsic danger, you should have compared the hammer and the golf club. • Under accessibility, you should have compared the backyard with a toolbox in a basement.

5. The Conclusion • Also should have been fact and law specific: • The court will likely hold that Peterson created an unreasonable risk of harm by leaving the hammer in the tool box in his basement because . . .

6. The Outline of the Memo • Should cover ONLY the legal discussion or analysis part of the memo • Should be no more than one page (single or double spaced) • Should include a cover page • Is due in class this Monday, Sept. 9.

7. The Outline of the Memo • Should resemble the sample outline. • Should address only one issue. • Should include a place for the statutory road-map. • Should include a place for case discussions, applications, counter-analysis and a response.

8. The Office Memorandum • Lawyers communicate legalanalysis by letters, motions,appellate briefs but mostcommonly with the office memo. • The office memo presents to a senior lawyer your analysis of the case at any given time. 

9. The Office Memorandum • Be objective as opposed to persuasive. • Evaluate strengths andweaknesses of the case. • The office memo shouldenable the senior attorneyto emphasize the strongerarguments and respond tothe counter-arguments.

10. Using a legal tone • The objective tone of the memo, unlike a law school essay exam, should NOT convey a detached indifference to the outcome. • Be an advocate for your client. • Do not abandon a client’s cause to readily but instead recommend ways to overcome weaknesses/counter-arguments in the case.

11. Remember Your Audience: • Most attorneys will not needa lesson in fundamental legalprocedure, even if that waspart of your research. • However, the attorney may notbe a specialist in the field youare researching and thus willexpect to receive core ofinformation about the controlling law.

12. The Six Parts of the Memo Serve to Accomplish the following: • Identify the precise legal issues; • Record the known facts; • Identify and cite the important legal authorities; • Provide facts, holding and reasoning of the precedent cases; • Present a legal analysis of the issues; and • Predict the way a judge or jury might rule.

13. Informational Heading To: Dan Powell,Senior Partner From: Jay Davis,Junior Associate Date: September 5,2002 Re: Stumble v. Host ________________________________ The heading should identify the author, recipient, the subject matter (in a way that it can be later filed or identified) and the date.

14. The Questions Presented • Questions presented pose the precise legal issues in dispute. They should appear in the same order as the topics in your discussion section. • They should also link rules of law to the relevant facts of the client’s case. • Do this by referring to the precise law under which the plaintiff is suing, and the key relevant facts.

15. COMPARE: • (FACT) Is the contract for sale of real property between Mr. Jones and Mrs. Smith valid? • (LAW) Under Alabama common law, is a contract between a mentally incompetent adult and his guardian valid? WITH • (LAW and FACT) Under Alabama common law, is the contract for sale of real property between Jones, a mentally incompetent adult and his guardian, Smith valid.

16. Use “Under-does-when”for Questions Presented • UNDER . . . (THE APPLICABLE LAW) • DOES/IS/CAN . . . (INSERT LEGAL QUESTION) • WHEN . . . (INSERT MOST IMPORTANT FACTS)

17. For Writing The Questions Presented • Isolate the specific legal issue. • Do not make legal conclusions. • Keep the question to a manageable length. • Keep it readable by moving from the general to the specific.

18. The Rule of LawIllinois Animal Control Act • If a dog or other animal,withoutprovocation, attacks or injures anyperson who is peaceably conductinghimself in any place where he maylawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained. 510 Ill. Comp. Stat. Ann. (West 1993)

19. The Questions Presented • Even though you do not have the benefit of having read the case law, what facts do you think are relevant to being classified as the dog’s owner within the meaning of the statute?

20. The Facts The Plaintiff, Sara Stumble, sustained injuries as a result of being bitten and pawed by a dog, Oscar, while Stumble was visiting the defendant, James Host, and sitting on the deck of his residence. Before the attack Host knew the dog well, regularly threw him table scraps and regularly brushed and checked him for ticks. Immediately prior to the attack, Stumble, grasped and stated “Oh!” as Oscar came onto the deck, and when as she stood up from her chair to pet the dog, Stumble lost her balance and tripped, hitting Oscar on the nose with her right hand.

21. The Questions Presented • Under the Illinois Animal Control Act, can Host be classified the dog’s owner within the meaning of the statute, when Host knew Oscar well, regularly threw table scraps to Oscar, and regularly brushed and checked Oscar for ticks?

22. The Questions Presented • What facts are relevant in determining whether the dog was provoked under the statute?

23. The Facts The Plaintiff, Sara Stumble, sustained injuries as a result of being bitten and pawed by a dog, Oscar, while Stumble was visiting the defendant, James Host, and sitting on the deck of his residence. Before the attack Host knew the dog well, regularly threw him table scraps and regularly brushed and checked him for ticks. Immediately prior to the attack, Stumble, grasped and stated “Oh!” as Oscar came onto the deck, and when as she stood up from her chair to pet the dog, Stumble lost her balance and tripped, hitting Oscar on the nose with her right hand.

24. The Questions Presented: • Under the Illinois Animal Control Act,did Stumble provoke Oscar within the meaning of the statute, when she grasped and stated “Oh!” as Oscar came onto the deck, and when as she stood up from her chair to pet the dog, Stumble lost her balance and tripped, hitting Oscar on the nose with her right hand?

25. The Conclusion Section • Your memo should contain mini-conclusions at the end of the discussionof lengthy elements and aconclusion section at the end of each issue which addresses the question presented. • The reasoning of your conclusions should integrate the law with the facts of your client’s case as well as make predictions

26. Example of a Conclusion: • The court will likely find that Host was an owner under the Animal Control Act. (prediction) • A person who harbors a dog can be classified as the dog’s owner within the meaning of the Animal Control Act. (law part) • Because Host undertook to care for Oscar by feeding him on a semi-permanent basis, as well as regularly brushing him, Host provided a sufficient level of care to be considered an owner under the statute.(fact/application part)

27. See Shapo Exercise 7-B • Which Question Presented and Brief Answer is the best pair? • # 3 is the best. The QP sets out the cause of action and the relevant facts. The Brief Answer answers the QP, specifically refers to the facts raised in the QP, and links them to the legal standard for criminal contempt. (It should however start with, “No, . . . “)

28. The Brief Answer Section • The brief answers, answer the questions presented. • They give an indication of the degree of certainty the lawyer can provide, and a word or two of explanation. • They do incorporate law and fact but do not fully explain the conclusion reached or include discussions of the relevant authorities.

29. Example of a Brief Answer • Likely yes. (answer part)The definition of owner within the Illinois Animal Control Act includes one who harbors a dog. (law part)Because Host provided for Oscar a measure of care that only owners would do, the court will likely find that Host did harbor Oscar and that he can be classified as the dog’s owner. (fact/application part)

30. Statement of Facts • The Statement of Facts introduces the legal problem by telling what happened. Therefore, use only facts in this section;do not use conclusions, legal principles, or citations to authorities. • If the problem for your memo is already in litigation, you should include its procedural history as well.

31. In a typical statement of facts there may be three different kinds of facts: • Legally significant facts that a court would consider significant either in deciding that a statute or rule is applicable, • Emotionally significant facts that although not legally significant, may effect the way a judge or jury decides a case, and • Background facts necessary to provide the context for the other facts. • Also identify any facts which are unknown

32. Writing the Statement of Facts • Begin with an introductory paragraph that identifiesthe parties by first and last name (and then by last names only) and the cause of action. • Present the facts using chronological, or topical organizational schemes. • The facts themselves usually dictate which type of scheme you should use.

33. Writing the Statement of Facts • For example, if the case involves a series of events where the dates are important, then present the material chronologically. • If however, there are a number of facts that are not related by date or a number of events occurring about the same time, then organize the facts topically.

34. See Shapo exercise 7-A • Which statement of facts is the best? • Example 1 is the best Statement of Facts. • The first paragraph establishes the context. • The second includes the facts relevant to Wheeler’s intent to change domicile to Connecticut. • The last paragraph explains the issue that the writer has been asked to analyze.

35. The Legal Discussion Section:Threshold Questions Presented • The order in which you discuss your questions presented (legal issues) depends upon the particular problem or issue. • Threshold questions always come first because their application dictates whether analysis of other legal rules are necessary.

36. Ordering the Questions Presented • For example, if a court lacks jurisdiction or if a statute of limitations has run, the issue of liability is irrelevant. • If the problem does not involve a threshold question, argue your stronger issue first to win favor with the reader.

37. Organizational Plans • Under each issue, select theorganizational plan whichbest suites the content ofyour claims and issues. • The most common plan is one used for element analysis. (The elements may be from a statute or a common law cause of action.)

38. The Element Analysis • With element analysis plan, begin your rule section by setting out the statute or identifying the common law elements. • Provide a road-map by identifying the elements which are not in dispute and then those which are disputed (in the order you plan to discuss them). • For the elements which are in dispute, set out the applicable rules, case discussions, arguments and counter-arguments.

39. The Discussion Section • Statute/Statement of general rule/elements (ROAP MAP) Undisputed element(s) Explain element(s) is(are) not in dispute First Disputed Element (I) 1. Rules/case discussions (R) Analogous cases 2. Arguments (A) 3. Mini-conclusion (C) Second Disputed Element