Reference no: EM131226258
1- Before you start:
? Outline the facts ?Write down the facts. Provide the page number in the record or file of each fact so you can refer back when necessary.
? Research the law ?Research the law using every source at your disposal (e.g., books, the Internet, law reviews, treatises).
Familiarize yourself with the generalities of the topic ?Often, you will be unfamiliar with the topic at hand. Before researching the specifics, find a source that gives an overview of the law, such as a textbook or treatise.
Top-down research ?Once you begin your substantive research, start with the most important sources (e.g., statutes and Supreme Court decisions). These sources will provide the foundation for your argument.
Find favorable law and unfavorable law ?Do not just search for law that supports the client's position. You must address law that is helpful and harmful to the client's case.
? Chart the law against the facts ?Once you have done substantial research, create a chart that lists each essential fact or event and identify the main legal element that pertains to the event.
? Identify the issues ?Using the chart of law and facts, identify the issues that will have to be addressed, analyzed, and explained in the memorandum.
? Outline ?Using the elements of the law, create an outline of the memo. The outline should provide an explanation of how each element will be applied to each fact.
2- Heading:
TO: Lawyer
FROM: Law Student
DATE: December 13, 1995
FILE NO: 20056-3
RE: Security documents executed and registered using debtor's common law name
3- State the question presented:
At the top of the memo, type "Question Presented:" and then state the issue you were asked to research [3]
Because the memo is objective, your "statement" of the issue should not answer the question one way or the other. Instead, you should phrase the issue in neutral terms.
4- Offer a short answer:
You may quickly summarize in a few sentences what the answer is. You can write this last, after you have drafted the remainder of the memo.
? For example, "The non-competition clause is likely enforceable because it is reasonable in terms of duration and geographical scope."
Because few things in the law are cut-and-dried, feel free to qualify statements with "likely" or "unlikely."
5- Statement of Facts:
The Statement of Facts should tell the story that gave rise to the legal question. The Facts should have a tone and structure that is easy to read and that makes the issues understandable.
? Avoid unnecessary facts ?Include only those facts that are necessary for the legal analysis. The job of the writer is to sift through all of the information and pull out what is needed.
? Do not state legal conclusions ?Do not incorporate legal terms or legal conclusions in the facts.
Incorrect: Mr. Rice negligently failed to stop at the red light.
Correct: Mr. Rice failed to stop at the red light.
? Note disputed facts ?If there are facts that are in dispute, they should be clearly identified with modifying terms such as "alleged," "stated," "testified."
? Only one key fact per sentence ?Avoid sentences that include more than one essential fact. If you follow this rule, you will make it easier to apply the law to the facts in the Discussion section.
? Avoid bias or distortion ?Mention facts that are both favorable and unfavorable
6- Discussion:
I The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the Discussion section.
R The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your facts.
A The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual cases, distinguishing cases, making counter-arguments, and considering policy issues.
C The last step is to state your conclusion on the legal issue being discussed. Although you will include an overall conclusion elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn.
The Discussion section is the heart of the memorandum. It provides the venue for explaining and analyzing the law, and applying it to your facts. The Discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC.
IRAC need not be applied rigidly. Your decision about how to divide up the legal issues will influence the way that you apply IRAC.
For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue.
You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the sub-issues.
7- Write a conclusion:
The conclusion should provide a summary of the facts and law. It should not be any longer than 5 to 10 sentences.