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Class 5: Research Memo (cont)

Class 5: Research Memo (cont). Wednesday 6 October 2010. Last week: First Research Memo Elements. A. heading B. summary C. facts D. issues. This week: Remaining Memo Elements. E. Short answers/Conclusions F. Discussion/Analysis. . Next week: . Citations

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Class 5: Research Memo (cont)

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  1. Class 5: Research Memo (cont) • Wednesday 6 October 2010

  2. Last week: First Research Memo Elements • A. heading • B. summary • C. facts • D. issues

  3. This week: Remaining Memo Elements • E. Short answers/Conclusions • F. Discussion/Analysis.

  4. Next week: • Citations • Misc. matters re. legal memo writing.

  5. E. Short Answers/Conclusions • Answers questions from issues section up front. • Orient reader to scope of memo.

  6. E. Specific content of section: • Answers should combine facts and law • Phrased objectively.

  7. E. Structure tips: • For assignment: include section after Issues section. • Use one para for each qn you have to answer.

  8. E. Style: • Not too abstract, not too specific. • Include only key elements in each answer. • Clear and concise.

  9. E. Heading? • Varies: • “Short Answers” • “Brief Answers” • “Conclusions” etc • (convey purpose of section)

  10. E. Length of this section: • Average = one moderate paragraph.

  11. E. What if the answer is uncertain? • State best prediction about how ct would decide. • May use language like “probably” or “most likely”

  12. E. Relationship with “Discussion” section of memo • Matters in section E should also appear in some detail in section F.

  13. F. Discussion/Analysis Section

  14. F. Discussion/Analysis Section • Most impt/longest section. • Displays research, analytical + writing skills • Justify/explain short answers in prev. section.

  15. F. Purpose of Legal Memo: explore issues, not convince • So, this section is: • expository and descriptive • not argumentative/ persuasive.

  16. F. Organization/Structure • Useful to make brief outline of section structure before start writing • i.e. figure out logical order to discuss issues.

  17. F. Organize/structure using headings and subheadings • Helps alert reader to transitions btw issues/topics.

  18. F. When coming up with your discussion outline: • First, think about big picture/overall ordering of issues e.g. level of importance or logical order.

  19. F. When coming up with your outline (cont): • Next, think about finer ordering/what you want to talk about within each issue/sub-issue.

  20. F. You do this outline/structuring with FILAC/IRAC structure in mind • I.e., keep an eye out for “Issues” and “Rules/Law” elements of FILAC/IRAC

  21. Three helpful steps in outline/structuring stage: • 1. ID issues, deal w them separately/logical order.

  22. 3 Steps (cont) • 2. For each issue, find major legal principle that applies to issue (e.g. common law rule; statute; regulation etc).

  23. 3 Steps (cont) • 3. Separate the applicable legal rule into its component parts.

  24. Example: structuring answer re rule with several elements • In tort case involving negligence, your analysis may begin as follows:

  25. Negligence example (cont) • “The question whether Mr. Smith is liable for Mr. Jones’ injuries. At common law, a plaintiff must prove the following elements before a defendant can be held liable:”

  26. Negligence example (cont) • 1. Df owed duty of care to pf • 2. Df breached DOC • 3. Pf suffered damage from the breach • 4. Damage not too remote a consequence of breach.

  27. Negligence example (cont) • You’d then go through FILAC/IRAC process for each element of test (i.e. each step is effectively a legal issue).

  28. Having come up with outline for this section, now move on to actually doing the analysis • FILAC/IRAC process

  29. Applying FILAC/IRAC process • Re negligence example, go through FILAC for each element of negligence test (i.e. each step is effectively a legal issue).

  30. Applying FILAC/IRAC process (cont) • F + I: State each legal issue, re the relevant facts • L: Incorporate relevant primary authorities from your research

  31. L (cont): • Determine which authorities relevant: • Cases: How close are the facts?

  32. Applying FILAC/IRAC process (cont) • A(pplication) stage: • Reasoning about how Law resolves particular Issue.

  33. Applying FILAC/IRAC process (cont) • C(onclusion): conclude on each issue

  34. Structure of Discussion/Analysis memo section: • Issue 1 (or step 1 of legal test): • F, I, L, A, C • Issue 2 (or step 2 of legal test): • F, I, L, A, C • And so on…

  35. Style, re discussing cases • state facts & court’s rulings in the past tense • state legal rules and principles in the present tense.

  36. Style, re cases (cont) • Usu., avoid using lots of citations (can be distracting). • Lead w strongest/most relevant case found.

  37. Style, re cases (cont) • Deal w cases separately, for clarity. • Avoid excessive quotes. Often better to paraphrase/ summarize ratio.

  38. Deciding what Case Law to discuss • Closed Memo Assignment – use only provided cases. • Normally though, need to research for case law for a memo.

  39. Case Law (cont) • May want to draft case briefs. • (For your understanding, organization).

  40. Read the cases with a critical eye • What did Ct say about the rule? • How did Ct not/apply the rule? • What facts did Ct emphasize?

  41. Critical reading (cont) • What do leading commentators say about the case? • What policy considerations did the Ct describe?

  42. Is the reasoning in the case: • Rule-based? • i.e. court reached an answer by establishing and applying a rule of law. • Or…

  43. Reasoning style (cont) • Analogical: • a case with similar facts should govern. • Or…

  44. Reasoning style (cont) • Policy-based: • court considered what result will be best for society at large. • Or…

  45. Reasoning style (cont) • Narrative: • case tells a story that calls forth this result. • Or…

  46. Reasoning style (cont) • A combination of the above styles of legal reasoning.

  47. Weigh the cases, considering: • Ct level and jurisdiction • closeness of the facts to your case • the closeness of the legal issues to your case

  48. Weight the cases (cont): • the age of the case • soundness of reasoning • did the Ct consider pertinent case law in reaching its decision?

  49. “Note up” important cases • Will discuss “noting up” cases later in term. • For today, means: • How have other Cts looked at this case? • Is the legal rule still good law?

  50. “Noting up” (cont) • E.g. case overturned by appellate ct? • Legal rule/reasoning affirmed by higher ct?

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