10 Common Missteps in First Memos

1. 10 Common Missteps in First Memos Professor Provenzano CLR

2. #1 -- Rules • (T) Next, the prosecution can prove that Smith “knew or learn[ed] of a reasonable method of identifying the owner” of the locket. (R) To be “reasonable,” the method need not guarantee success, it must only allow the finder to reasonably identify the owner. • Rule insufficiently defined

3. #2 -- Rules • (T) The fourth issue is whether Smith failed to take “reasonable measures to restore the property to the owner.” (R) In applying this element, courts will not “place heavy burdens on a finder of property.” • Rule states only the negative

4. #3 -- Rules • (T) The fourth issue is whether Smith failed to take “reasonable measures to restore the property to the owner.” (R) A defendant fails to take reasonable measures when he sees the owner pass by but makes no attempt to contact the owner. • Rule too narrow; reflects incomplete synthesis

5. #4 -- Explanations • (E) In Mann, a boater found a water ski floating on a lake, picked it up, and 30 minutes later unloaded it onto the dock. When the boater returned an hour later, he discovered that a storm had washed away the ski. The court concluded that the boater had “obtained control” over the water ski because nothing in the statute requires a finder to be in control of the property for a specified length of time. • Reasoning incomplete – rule stated generally, but not applied to precedent facts

6. #5 -- Explanations • (E) In State v. Mann, Mr. Mann picked up a water ski he found floating in a lake. He saw that the ski was marked with the name “Cypress” and a local marina’s well number. As he was driving into shore, Mann passed a boat bearing the name “the Cypress” but failed to call out to the boat’s owner. The Court concluded that Mann failed to take reasonable measures to return the ski to its owner. • Reasoning missing – E states only facts and holding, forcing reader to bring them together and to discern the “why”

7. #6 -- Explanations • (E) In State v. Stone, Ms. Stone took the broken watch she had found on the train to be appraised and fixed. During this time, she never discussed looking for the owner, or explained that the watch had been lost. From these facts, the court concluded Ms. Stone intended to keep the watch. • Reasoning incomplete – unclear which facts produced the holding and why

8. #7 -- Applications • (A) Similar to Stone, Smith had clues about where to begin looking for the locket’s owner and had information about the owner’s identity from the locket’s initials. • Undeveloped analogy – facts from precedent missing

9. #8 -- Applications • (A) Analogous to the watch in Stone, Smith’s acts of putting the locket in his pocket and walking in the opposite direction of the YWCA revealed his intent to permanently deprive the owner of the locket. • Problematic analogy – facts not comparable

10. #9 -- Applications • (A) This case parallels Stone. Smith did not talk to anyone about the locket. He observed the locket closely, put it in his pocket and walked in the opposite direction of the YWCA. He also noticed that the locket’s initials were the same as his sister’s initials. • Missing law/main point – no engagement with rule or precedent

11. #10 -- Applications • (A) Smith also claimed control over the locket. Just like Mann, Smith temporarily protected the locket by placing it in his pocket. Unlike Mann, however, Smith did not actually bring the locket back to a secure place. Thus, Smith’s “control” of the locket was different from Mann’s “control” of the ski, because Smith did not supervise it or restrict access to it, as defined by the statute. Smith therefore did not “obtain control” over the locket. • Unclear conclusion – goes back and forth