Legal Memo Writing

1. Legal MemoWriting Legal Research & Writing II Mike Brigner, J.D.

2. Trial Brief = “Post-trial Memo” = “Persuasive Memo” =“Advocacy Memo” Argument 50 points (Writing only) Rough Draft Due 2nd Week of Quarter Final Draft Due 4th Week Information Memo = “Interoffice Memo” = “Long Memo” Objectivity 100 pts (Research and Writing required) Rough Drafts & Memos Due end of Quarter (see Master Calendar) Different Purposes of Memos

3. Trial Brief Use your advocacy (argument) skills • Trial’s over - now persuade the judge that your client should prevail, based upon the proof (case summary) & the law (6-7 cases) • Re-read Text, Chap 17; and ALWD Citation Manual, Chap 29 + Parts 5 & 6 • Use all the tips your learned in R & W I • Use the caption you received in assignment • Use citation style you received in assignment • Use ONLY the 6 cases you received

4. Interoffice Memorandum Back to objectivity skills • Re-Read Text, Chap 16 • Read fact scenario (coming mid-term) • Identify issue(s) and key words to research • Start research with A.L.R. article. • This will lead you to cases to find and read • Format: Interoffice Memo • Correct citations required: from ALWD

5. Getting Started • Read each case • Outline relevant part of each case • Put outline in order you want to discuss • Prep heading in proper Memo Format • Write • Re-write, edit • Re-write

6. Advocacy Memo Format • Use exactly the format given you in the assignment • This is how court pleadings start • The advocacy memo is a court pleading, a memorandum to the court on an issue of law

7. Info Memo Format • To: Mike Brigner, Supervising Attorney • From: Perceptive L. Paralegal • Date: December 6, 2003 • Re: Potential liability of our client Clyde Crankcase for driving a golf cart into his neighbor’s swimming pool • ISSUE: Do DUI laws apply when. . . .

8. Q - S - F - A - CAdvocacy Memo • Question -- What is legal issue/question? • Short Answer – One or two sentences summarizing law & answering “Question” • Facts -- Summary (mostly favoring our client) • Argument -- Discuss EACH case, & how it applies to your facts, & favors our client • Conclusion -- Briefly stated, why should the court decide in our client’s favor?

9. Q - S - F - A - CInformation Memo • Question -- What is legal issue/question? • Short Answer -- One or two sentences summarizing law & answering “Question” • Facts -- Summary, favorable & unfavorable • Analysis -- Analyze EACH case: facts, ruling & how it helps/hurts our client’s position • Conclusion -- Briefly stated, what advice can firm give client, per your research?

10. Try This Order of Writing • Question 1st: What is Q? (Do this before any reading, research, or writing!!!) • Facts 2nd: Easiest • Analysis/Argument is 3rd: Do 1-2-page outline of each case • Conclusion 4th: Sums up all of A in 1 or 2 paragraphs • Short Answer 5th: Boils C down to 1 or 2 sentences

11. Q – S – F – A – C • Q = Question (Issue) Presented • Write Q so it can be understood even by a reader who doesn’t know facts of the case • (Parties are described generally; facts are described specifically) • “Do DUI laws apply when an individual is operating a golf cart on private property?” • NOT: “Is Mr. C legally liable for his action?”

12. Q– S – F – A – C • Q = Question (Issue) Presented • Make question a readable length • Use short concrete subject and active verb • Avoid passive subjects that are nouns made out of verbs or gerunds (made by adding –ing) NO: “Whether the failure to appear is contempt” YES: “Does an attorney commit contempt when he fails to appear at a court hearing?” NO: “Does refusing to stop constitute eluding?” YES: “Does a driver ‘elude’ police if he refuses…”

13. Q – S – F – A – C • S = Short Answer to “Question” • Give a brief summary of how the law you have found answers the question raised • Not just “Yes” or “No.” Give a summary of the law, in a few sentences • Be conclusory. Give answer and reason w/o the pros & cons or strengths & weaknesses

14. Q – S – F – A – C • S = Short Answer to “Question” • No discussions of authority in this section • (QUESTION was: “Do DUI laws apply when an individual is operating a golf cart on private property?”) EXAMPLE OF SHORT ANSWER: • “An individual can be charged with DUI for driving a golf cart while intoxicated, because a golf cart fits the legal definition of ‘motor vehicle’ in the statute. A person charged with DUI cannot claim a defense that he was on private property at the time because the statute applies anywhere in the state, not just on public roads.”

15. Q – S – F – A – C • F = Facts • Purpose of Facts section is to briefly state the facts of our case and tell what happened • Omit irrelevant facts, conclusions, citations of law, procedural matters • If you are asked for a memo on a legal issue only (“Does Ohio have a law that forbids cruelty to wild animals?”) you can omit the Facts section

16. Q – S – F – A – C • F = Facts • Use only relevant facts: those that are used to prove or disprove the legal conclusion • Every fact that is mentioned in other sections, or gives necessary background information should be included • Do not omit unfavorable facts. Those are as important to a legal evaluation as favorable facts are.

17. Q – S – F – A – C • F = Facts • Start with who the client is, what the client wants, and what the problem is about • Then explain who the other parties are • Give necessary descriptions • Often chronologically is best approach • Sometimes topically is best • Group like facts. Don’t be random.

18. Q – S – F – A – C • A = Argument or Analysis • Briefly give facts of FOUND case • Then tell what that court did and WHY • The WHY is the critical “Legal Reasoning”. This IS “The Law” • “Apply the law to the facts” = • Analyze by applying the relevant legal reasoning from the FOUND case to the facts of OUR case

19. Q – S – F – A – C • A = Argument or Analysis • Also examine the facts of the FOUND case: • to compare those facts with your facts, & • to examine the logic for that court’s ruling • The purpose is to determine whether the facts of the FOUND case are: • sufficiently similar to make that case and its legal principle applicable to our case • OR sufficiently different to make the FOUND case “distinguishable” from our case

20. Q – S – F – A – C • A = Argument or Analysis • For EVERY case discussed, before moving on to next case, “APPLY THE LAW”: • Reach a conclusion about the legal principle of the FOUND case and predict how it will affect the outcome of OUR case • EXAMPLE: “The court’s ruling that a golf cart is a motor vehicle under the DUI statute is significant to the Crankcase situation, because. . .”

21. Q – S – F – A – C • A = Argument or Analysis • Within the ‘A’ Section, try the FRA approach: • F Facts – Briefly state facts of found case • R Rule of Law – What the court did concerning the issue we seek, • and WHY, WHY, WHY • A Apply – How is our case decided if our judge relies exclusively on this Rule of Law?

22. Q – S – F – A – C • C = Conclusion • Summarize here the Analysis & “apply the law” sections from all of your cases • Apply the controlling law to your problem • Reach an overall conclusion about the controlling legal principles from all your research, and predict how they will affect the outcome of our case • Clearly and accurately answer the Question Presented

23. Q – S – F – A – C • C = Conclusion • Again, reach a conclusion. DON’T SAY: • “It’s all up to the court.” • “The court will have to decide. . .” • “It depends on whether the jury believes. . .” • “If the court can be persuaded that. . .” • These are just ways of not answering the Q • Give your conclusion. What do you think the court should do? (Adv) Will do? (Info)

24. Rough Drafts • TRIAL BRIEF: Turn in Draft Sept 18 • I grade & return Sept 20 • Final Draft due Sept 27 • Purpose is partly evaluation (to give you a grade – 20%), and partly assessment (to give you direction & guidance) • I’ll suggest strengths, areas for improvement • With my advice, you will need to reorganize & rewrite the draft into final memo • INFO MEMO: Bring two (2) copies of your completed memorandum to Rough Draft Meeting Nov 13

25. Take a Break

26. Rough Draft Meeting Rules • “Completed” means completed & typed • Do not turn in or bring a stack of notes, index cards, copies of cases, partial memo • An outline does NOT = a rough draft • Number all pages • No complete rough draft, or no rough draft meeting = you lose 10 points & start out with a “B” • Be on time for your Info Memo appointment

27. Strategies for Effective Writing • Techniques to achieve the five hallmarks of effective legal writing: • Precision • Clarity • Readability • Brevity • Order

28. Plain Language Initiative • Writing should be reader-oriented, clearly showing the author is writing to the customers of the agencies, not to other government employees; • Writing should use natural expressions, using commonly known and used words; and • Documents should be visually appealing.

29. Guidelines for Plain English • Use short sentences. • Use definite, concrete, everyday language. • Use the active voice rather than the passive voice. • Use tables and lists to present complex information. • Avoid legal and financial jargon and highly technical business terms. Continued, next slide

30. Guidelines for Plain English • Avoid multiple negatives. • Avoid weak verbs, abstract terms, and superfluous words. • Enhance readability through attractive design and layout.

31. Ten Pointers for Effective Brief Writing • Know the rules of the court to which the brief will be submitted. • Do more than summarize the cases. • Write from the client’s perspective. • Avoid a rote or routine method of writing. • Avoid string-citing unless there is a definite need to do so. • Avoid sarcasm, humor, or irony. Continued, next slide

32. Ten Pointers for Effective Brief Writing • Avoid the overuse of quotations. • Keep the focus on your argument. • Do not distort or overstate your position. • Use prominent placement to emphasize the strongest arguments.

33. Reviewing and Revising:Stage One • Your initial review should be to ensure that the writing accurately conveys all the information needed. • Focus on content and organization.

34. Reviewing and Revising:Stage Two • Focus on these four specific areas: • Sentence length • Needless words and phrases • Legalese • Passive voice

35. Techniques for Proofreading • Place a ruler under each line as you read a document. • Read the project backwards, from the last page to the first page and from right to left. • Read the document aloud with a partner who has a copy of the document. • Read sections of the project out of order. • Devote extra attention to the parts of the project that were prepared last.

36. Check Your Voice • One of the secrets of clear writing: • The reader must ALWAYS be able to tell who is speaking EVERY sentence. • Your brief states: The law says the defendant goofed. • Who SAID that? • The trial court? • The appeals court? • YOU?

37. Cases Fit Where? • You cases fit into your overall Q-S-F-A-C outline at where? Analysis/Argument MEMO: • Question • Short Answer • Facts • Analysis – Cases go here • Conclusion

38. Outlining Each Case for A • Narrative paragraphs. Don’t label these sections. • 1. Start with Transition (more on this later) • 2. FACTS: Facts in FOUND case, briefly • 3. RULE: Question/Issue in FOUND case • The What & Why. What did court do? Why did it say it did that? This is “The Law”; the court’s reasoning; the most important part of each case outline • 4. ANALYSIS: Finally, apply RULE from FOUND case (court’s reasoning) to OUR facts. Then give your conclusion about how this case affects our client’s case.

39. May choose chronological Maybe group Ohio & Other States Maybe group federal & state cases Maybe group positive cases & negative Recall & Use: Mandatory & Persuasive Mandatory: U.S. Sup Court; 6th Cir App; So Dist of Ohio Fed Trial Courts Persuasive: Other Circuits; Other Fed Trial Cts Mandatory: Oh Sup Ct; 2nd Dist Ct of Apps; Montg Co Trial Cts Persuasive: Other State Sup Cts; Other Ohio App Dists; Other State App Cts; Ohio Trial Cts; Other State Tr Cts What is Correct Order of Cases? Insert each 1-2 page outline in the “A” section

40. Memorandum Requirements • Final memo must be printed, double-spaced, & follow Quality Standards • Correct spelling & grammar required • Number the pages • Use past tense for all but latest cases • Citations must be in proper format • For Advocacy Memo: Use format style attached to assignment • For Information Memo: Use ALWD Manual

41. Writing Techniques • A legal memorandum is a professional piece of writing, so: • Avoid slang • Avoid contractions & informal speech • NO: “they’ll” or “she’d” or “shouldn’t” • Use 3rd person pronouns, not 1st or 2nd • “He/she/it/they will act properly” • NOT “I think” or “You can tell”

42. Avoid Legalese • Don’t use stilted terms like “whereas,” or “herein,” or “the said document” • Don’t use convoluted sentences • “One can conjure up multiple scenarios for fulfillment of the client’s several objectives.” • INSTEAD: “The client can fulfill her objectives in several ways.”

43. Avoid Legalese • Use the active voice, not the passive voice • “The court held. . .” • NOT “It was held by the court. . .” • Don’t use empty phrases • “It is clear that. . .” or “the fact that. . .”

44. But, • This doesn’t mean you should avoid all legal words • Legal words from statutes or court opinions are sometimes essential, even though the public wouldn’t say it that way • Theft: “A person shall not knowingly exert control over the property of another with the purpose to deprive the owner thereof.” • Avoid “Cease & desist” unless law says that!

45. Effective Paragraphs • A paragraph is a group of sentences developing a dominant idea, usually beginning with a topic sentence that summarizes that paragraph’s basic idea • A ¶ should have unity and coherence • Unity = Every sentence relates to topic • Coherence = Smooth and logical flow

46. Paragraphs Transitions • See Text, page 507 • Transitions are the glue that holds your argument/discussion together • They help reader move from one paragraph to another, one idea to another • Shows reader how you are building your ideas

47. And Also Moreover In other words Furthermore In addition Equally important However Next Finally Besides Similarly Another reason Likewise Although Because Transitions: Can be 1 word

48. Transitions: Careful! • But DON’T just stick a transition word at beginning of each paragraph! • Think about what you are saying • One word may be OK, but a transition phrase/sentence is probably much better • The most important transitions are the ones that connect your cases.

49. Transition Purposes • Raise a new point • “Although Poe sang, he also wrote poetry.” • Keep track of issues • “The second exception to that rule is when…” • Show relationship between paragraphs • “Those excuses do not explain the defendant’s other actions, such as fleeing the scene…” • Show connection with prior paragraph • “Because of that law, the court will require evidence that our client burps quietly.”

50. Legal MemoWriting Concluded Thank you Mike Brigner, J.D. END OF CLASS: (EVERY Class) Clean up classroom; log off computers; check for personal property & computer disks; make sure you have signed in.