Chapter 21 The Legal Memorandum

1. Chapter 21The Legal Memorandum Dante Gatmaytan

2. The most basic application of the lessons learned in legal method is the memorandum of law. First year law students are given a legal problem to analyze by using the analytical skills they have been developing. • This analysis is typically done through a legal memorandum. Writing memoranda is also among the basic skills a paralegal or lawyer is expected to master.

3. Definition • A legal memorandum is a document written to convey information within a law firm or other organization. • It is written analysis of a legal problem that evaluates the strengths and weakness of each party’s arguments. • The legal memorandum will become the basis for the advice law offices will give their clients. • Helene S. Shapo et al., Writing and Analysis in the Law 141 (Fourth Edition 2003). • John C. Dernbach and Richard V. Singleton, A Practical Guide to Legal Writing and Legal Method 70 (1981).

4. Kinds of Memoranda of Law • 1. The Interoffice memorandum of law. • This memo is an internal document and the main audience here is your supervisor or someone in your office. • The goal is to analyze the law in order to predict how a court or other tribunal will resolve the dispute in the client’s case.

5. This memo should present the strengths and weaknesses of the client’s case. The supervisor will make decisions based on your work and she should have a realistic picture of the law is. • The writer must force herself to write arguments in favor of both sides of the dispute—a hallmark of a professional is the ability to look at both sides of the issue.

6. 2. External or Advocacy Memorandum of Law. • The audience is someone outside the office—a judge or officer on a tribunal. • The goal is to convince the reader to side with your client. • The writer highlights the strengths of the client’s case and the weaknesses of the opponent’s position. • William P. Statsky, Introduction to Paralegalism: Perspectives, Problems, and Skills 633-638 (6th ed. 2003). The rest of the chapter draws heavily fromStatsky. In some cases his text has been adopted for the Philippine context.

7. Structure of an Interoffice Memorandum of Law • Determine the format preferred by your supervisor. If there is none, consider the following: • Heading. The heading of the memo contains about the writer and the nature of the memo: • A caption of memorandum centered at the top of the page stating that kind of document that it is. • The name of the person to whom the memo is addressed. • The name of the author.

8. The date the memo was completed and submitted. • The name of the case—the name of the client and the opponent if any. • The office file number. • The court docket number (if suit is already filed). • A very brief summary of the subject matter of the memo following the notation RE: meaning “in the matter of” or “concerning”

10. The Subject matter description is needed for two reasons: • Law offices have a large number of files with several memoranda. The heading makes it easier to locate in the client’s file. • The memo might be examined sometime in the future. Many offices catalogue old memos by subject matter. The heading will facilitate the filing of your memo.

11. 2. Statement of the Assignment • You should write out what you were asked to do. State the parameters of the assignment. Include limitations given by your supervisor. For example: • You asked me not to analyze the issue of damages. • You asked me not to spend more than four hours on the assignment. • The writer was asked not to use fee-based online research at this time.

12. List the assumptions you were asked to make. For example: • The writer was asked to assume that the impeachment case does not violate the one-year ban in the Constitution. • Assignment: You asked me to write a memorandum of law on whether the Secretary of Justice can lawfully prevent former President Arroyo from leaving the country limited to the latter’s constitutional right to travel.

13. Assignment: You asked me to write a memorandum of law on whether the Secretary of Justice can lawfully prevent former President Arroyo from leaving the country solely on whether the Supreme Court’s temporary restraining order was officially received by the Department of Justice under the Rules of Court.

14. 3. Issues • The two critical components of an issue are a) a brief quote from the element of the law in contention and b) several of the important facts relevant to that contention.

15. Let us use facts from the case of Yambot v. Tuquero. On May 26, 1996, the Philippine Daily Inquirer (PDI) printed an article headlined Judge mauled me, says court employee, carrying the by-line of petitioner Volt Contreras. The article reported an alleged mauling incident that took place between respondent Makati Regional Trial Court (RTC) Judge Escolastico U. Cruz, Jr. and Robert Mendoza, an administrative officer assigned at the Office of the Clerk of Court of the Makati RTC. G.R. No. 169895, March 23, 2011.

16. Claiming the article to be false and malicious, Judge Cruz initiated a Complaint for libel with the City Prosecutor of Makati. In particular, Judge Cruz protested the following sentence in said article: • According to Mendoza, Cruz still has a pending case of sexual harassment filed with the Supreme Court by Fiscal Maria Lourdes Garcia, also of the Makati RTC.

17. Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. • The following elements constitute libel: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

18. The issue in this case might be written this way: • Whether Contreras made a “public and malicious imputation of a crime, or of a vice or defect” when he wrote that “[Judge] Cruz still has a pending case of sexual harassment filed with the Supreme Court.” • The issue is made up of a quote from the element in contention and facts that are relevant to that element.

19. 4. Facts • Your statement of facts is one of the most important components of the memorandum. Make sure that it is concise, accurate and organized. Statskyexplains these characteristics:

20. Conciseness. An unduly long statement of facts frustrates the reader. A writer can trim the facts down after writing the issue. A review of the facts after writing the facts will help identify the facts that are not pertinent to the case. In the same way, facts that are not discussed in the analysis of the memo may be discarded as they would seem to be superfluous.

21. Accuracy. If the case is at its beginnings, there may be no record of facts yet. Do not assume that disputed facts will be resolved in your client’s favor. Assess the legal implications of facts that are both favorable and unfavorable. If the facts are unknown, conduct an investigation if time allows.

22. Organization. A disorganized statement of facts not only prevents the reader from understanding the events in question but also interferes with the understanding of your analyses. When the facts are long, a one or two sentence summary might be in order.

23. For example: Facts: • During the 12 years of employment at Sinclair Chemicals, Inc. Mary Kiley was subjected to numerous instances of sexual harassment. When she began work there in 1990, she… • Then provide the chronological statement of the detailed facts.

24. 5. Discussion or Analysis • Present the law and explain how they apply to the facts. It is at this point that you answer the question raised in the issue. Interpretation or construction of the law may become necessary at this point. Give opposing views for the elements in contention. Anticipate how the other side will interpret these elements. Provide an analysis of the case from the other perspective.

25. 6. Conclusion • Give your opinion as to which side has better arguments. Do not state any new arguments—simply state your view on the strengths and weaknesses of your arguments.

26. 7. Recommendations • State recommendations you think are appropriate in view of the analyses and conclusions you provided. You may want to recommend further investigation of the facts or whether correspondence should be made to any person regarding the case.

27. 8. Appendix • Include special items, if any, that you referred to in the memo such as photographs, statistical tables, or the full text of statutes.

28. Politics and the Memo • On August 1, 2002, in response to a request from White House Counsel Alberto Gonzales, the Office of Legal Counsel (OLC) issued a memorandum entitled “Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2430(A).” This “Torture Memo” sparked outrage and disgust in legal circles and the public-at-large after it was leaked almost two years later by the Washington Post. The OLC claimed that although torture is a crime, the law does not prohibit cruel and inhumane treatment of the detainees. The OLC then defined torture very narrowly—only the most extreme acts that are specifically intended to inflict severe mental or physical pain and suffering. • Milan Markovic, Can Lawyers be War Criminals?, 20 Geo. J. Legal Ethics 347 (2007).

29. According to the OLC, even if interrogation techniques did constitute torture, the rules proscribing torture would be unconstitutional as infringing on the President’s inherent powers. Finally, the OLC claimed that the President could claim either self-defense or necessity to justify the use of torture. The outrage was even more justified because the OLC is one of the most elite groups of lawyers in the federal government charged to serve as the primary legal advisor to the executive branch. It is peopled by the brightest minds of the legal profession and its reputation has always been stellar and unimpeachable. After the release of the “torture memo” Critics suggested that the lawyers behind the “torture memo” were unethical and can face sanctions as war criminals. • Marisa Lopez, Professional Responsibility: Tortured Independence in the Office of Legal Counsel, 57 Fla. L. Rev. 687,716 (2005). • David Luban, Liberalism, Torture, and the Ticking Bomb, inThe Torture Debate in America 35, 83 (K. J. Greenberg ed. 2006). • See Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum, 1 J. Nat’l. Sec. L. & Pol’y 455,472 (2005).

30. After the release of the “torture memo” Critics suggested that the lawyers behind the “torture memo” were unethical and can face sanctions as war criminals. • Marisa Lopez, Professional Responsibility: Tortured Independence in the Office of Legal Counsel, 57 Fla. L. Rev. 687,716 (2005). • David Luban, Liberalism, Torture, and the Ticking Bomb, inThe Torture Debate in America 35, 83 (K. J. Greenberg ed. 2006). • See Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum, 1 J. Nat’l. Sec. L. & Pol’y 455,472 (2005).

31. There was a concerted effort for President George W. Bush to abandon the practices at Guantánamo Bay. Bar associations and members of the academe objected to the arguments that justified the Guantánamo policy, producing a massive body of work replete with criticisms. These works reflected a variety of perspectives that included international law, constitutional law, and legal ethics and succeeded in forcing the Office of Legal Counsel to abandon its Torture Memorandum. Even former OLC lawyers jumped into the fray by proposing guidelines to depoliticize their office in an effort to refurbish its reputation.