Did you miss me? :
• Welcome back!
Recap of the Assignments from Weeks 6 &
7….SORRY if there was any confusion on this….
• For Week #6
• Read the e-mail detailing your legal memo
assignment (available in DocSharing). Prepare a draft
of the first four sections of the legal memo
(statement of facts, questions presented, brief
answers, and applicable statute).
So here is what needs to be done:
• Please draft a legal memorandum addressing the issues in the
Attired case. Make sure that your memorandum includes all
the required sections: facts, issues, brief answers, applicable
statute, discussion, and conclusion. Use only the legal
authority which has been provided to you: the New Mexico
Unemployment Compensation statute and the three cases
you briefed interpreting the statute.
• You will prepare several drafts of the memorandum. In Unit 6,
you will draft the Statement of Facts, Issues, and Brief Answer
sections. In Units 7 & 8, you will draft and revise the
discussion and conclusion sections. In Unit 9, you will combine
all the sections together into a final memorandum of law.
The Internal Legal
Memorandum
LEGAL MEMORANDUM
Purpose of the Internal Legal
Memorandum
• Convey information about a client’s
case or other matter within a law firm or
other organization
• Written analysis of a legal problem
• Typically objective unless your supervising
attorney requests a persuasive analysis
• Evaluates strengths and weaknesses of the
arguments of all sides of a case
A legal memorandum is a document
that:
• Communicates the result of legal research.
• Advocates and pleads for a client in court.
•
Legal memorandum is the medium in which a paralegal or an attorney must
express the analysis of an issue and seek to persuade others on their client’s
behalf. Any legal document that the paralegal writes to be signed by the attorney
should be concise and clear and should conform to the objective standards that
have evolved in the legal profession. A legal memorandum is structured writing
that follows certain conventions. We’ll study the structure and organization of
legal memoranda in the subsequent lectures.
•
After understanding the meaning and use of legal memoranda, let’s move on to
learn about the role and responsibility of a paralegal in drafting legal memoranda.
Role of a Paralegal When Drafting
Legal Memoranda
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•
A paralegal’s role when drafting legal memoranda is that of a researcher,
an analyzer of information, and an investigator. A paralegal should
consider the following important points while drafting legal memoranda:
The paralegal must review the case file for clues, answers to questions,
and information that might assist in the preparation of any type of legal
document, including legal memoranda.
•
The paralegal should be clearly aware of the client’s case. The paralegal
should analyze the pros and cons of the case that the attorney is handling.
•
The paralegal is not licensed to give legal advice, and every legal
document drafted by the paralegal that interprets and summarizes the law
and renders legal advice or recommendations should be signed by the
attorney.
There are generally two types of legal
memoranda:
• Internal Memoranda
• External Memoranda
• Internal memoranda are a balanced analysis of a legal
problem or issue. Examples of this type are interoffice
memoranda and letters to clients. There are internal legal
memoranda from paralegals to attorneys, from clerks to
attorneys, and from attorneys to clerks and paralegals. A
paralegal should be sensitive to the needs, level of interest,
and background of the parties to whom it is addressed to be
effective in this form of writing. A memorandum to a partner
in the same firm might have legalese without detailing of the
legalese. A letter to a client, however, should have an
explanation, if legalese is used, of even the basic legal
concepts to provide a legal background.
• External memoranda are persuasive. Examples of this type
are appellate briefs and negotiation letters written on a
client’s behalf. A paralegal drafts external legal memoranda to
a client, opposing counsel, or the court. One of the reasons a
paralegal will draft a legal memorandum to the court is
because the court has requested more legal research and
analysis to provide its ruling on a previous issue, which was
presented to the court by the paralegal. Such documents
should persuade the audience without provoking a hostile
response through disrespect or by wasting the recipient's time
with unnecessary information. In presenting documents to a
court or administrative agency, the paralegal should conform
to the required document style.
Organizing Internal Legal Memoranda
• An internal legal memorandum carefully analyzes a specific legal problem
that involves identifying and summarizing the relevant cases, statutes, and
other sources of law. It analyzes the probable application of the legal
principles to the facts of the given situation by evaluating the strengths
and weaknesses of alternative courses of action. Internal legal
memoranda should be objective, weighing, and exploring all sides of the
issue, rather than an advocacy document, because its purpose is to
explain the case and not to convince the judge.
• Different law firms might have different standards for preparing internal
memoranda. It is important for a paralegal to understand and follow the
format used, which is chosen or formulated by the attorney, in the legal
office where the paralegal works. It is however, significant that the
necessary information be included while preparing the memorandum.
Heading
The heading of an internal legal memorandum includes:
• To: The name of the person to whom it is addressed
• From: The name of the person or paralegal writing the
memorandum
• Date: The date when the memorandum is written
• Re: The client’s name, billing number, case name, and subject
of the research
• Issues/Questions Presented
• The Issues section includes the legal issue in the case
being researched.
• Conclusion/Answer to the Question Presented
• This section includes a short summary of the results
of the research. The summary is a short answer to
the legal question presented for the case being
researched.
The Discussion section (AKA the Analysis section) is the most important
section of the memorandum. This section includes the summary of facts and
the legal principles that relate to the issue in the case being researched.
•
Describe important facts, and be specific in providing the facts.
•
Illustrate the legal principles relating to the case.
•
Analyze the case law and statutes.
•
Explain the law descriptively.
•
Discuss both sides of the case — the strengths and weaknesses of the case being researched.
•
State whether the law goes against or is in favor of the case being researched.
•
Cite quotations from relevant case law.
Conclusion
• This section of the memorandum includes a
conclusion of the case that is provided to
convince the judge to rule for your client. The
conclusion is written as "For the foregoing
reasons, plaintiff's/defendant’s motion to
dismiss should/should not be granted."
Consider Your Audience
• Your supervising attorney is busy—inform him
or her clearly and concisely
• Use professional tone and language
• Proofread your grammar and spelling
• Use plain language where possible
• Avoid unnecessary wordiness
Choose Your Language Carefully
• Example of professional language:
• Do not begin your memo like this: “For
starters, let’s decide if John Doe’s parents are
immune from suit.”
• Instead: “The first issue is whether John Doe’s
parents are immune from suit.”
• Use simple and direct words and
sentences.
Elements of the Internal Legal
Memorandum
• Statement of Facts: What happened? Who is
involved? When did the events occur?
– Include only legally relevant facts
– Do not use conclusions, legal principles, or source
references
– Include procedural history if applicable
– Do not omit facts unfavorable to your client
– First paragraph should identify your client, the legal
problem, and the relief sought.
Elements of the Internal Legal
Memorandum
• Question Presented or Legal Issue
– What is the primary legal issue(s) or question(s)
arising from the situation?
• May use question format: “Is the contract between Mr.
Smith and Mr. Jones valid under the Statute of Frauds?”
• Or use “whether” format: “Whether the contract
between Mr. Smith and Mr. Jones is valid under the
Statute of Frauds?”
Elements of the Internal Legal
Memorandum
• Brief Answer or Short Answer
– Here, you will set out one or two sentences
answers to your Question(s) Presented or Legal
Issue(s)
• No. The contract between Mr. Smith and Mr. Jones is
not valid because the contract involved the sale of real
property, and there was no writing to evidence the
agreement. The Statute of Frauds requires contracts
relating to the sale and purchase of real property to be
in writing.
Elements of the Internal Legal
Memorandum
• Applicable Statutes
– If there are statutes that potentially apply to the
fact situation, you might include a separate
section where you set out all relevant statutes
with proper Legal Bluebook citation.
Elements of the Internal Legal
Memorandum
• Discussion or Analysis Section
– This is the substantive portion of your legal
memorandum
– You will analyze the legal issues(s) as they apply to the
facts of the client’s situation.
– If there is more than one legal issue, you may choose
to use sub-headings in order to organize your analysis.
– Discuss the law as it specifically controls the legal
problem(s).
– Use proper Legal Bluebook citation format for all
sources.
Elements of the Legal Memorandum
• Conclusion
– You may choose to include a wrap-up paragraph
tying the facts, legal issue, and analysis together in
summary form.
The End
Checklist
• Issue
--Does it start with “Whether” or “Does”?
•
•
--Is it fact specific enough?
--Can one read the Issue and know the parties, the
cause of action, and the basic legally significant facts leading
to the cause of action?
Statement of Facts
--Are
my facts the right length?
--Can I tell from the first few sentences who and
what the suit is about?
--Are my facts objectively written?
Statement of Facts (Cont’d)
--Do I have an appropriate chronology? Are
there dates for context if any are given?
--Do my facts end with the procedural posture
of the case?
Statement of Facts (Matters of
Style)
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•
•
•
Are my facts accurate?
Do my facts tell a “story?”
Or do they read like a list?
Do my facts have varied sentence structure?
Short Answer
• Do I state a general rule and list the
elements?
• Are there Elaborations/Exceptions regarding
pertinent terms?
• Or am I saying the same thing over and over
again?
Short Answer
• Am I applying my rules to my facts to reach a
conclusion and a prediction regarding the
litigation?
Discussion
• Are the synthesis paragraphs structured in a
“holding, facts, rationale” fashion?
• Does the analysis explain why the court
reached its decision based on the specific
facts of the case ?
Discussion (Continued)
• Does each paragraph focus on the point being made
without excess facts, procedure, or dicta?
• Is each new point being made preceded by an
appropriate transition?
Counter-Arguments
• Are counterarguments and refutations
addressed and organized appropriately
(transition, premise, analogy made)?
Grammar and Style
• Do my topic/transition sentences clearly indicate to
the reader what’s going on and convey a connection
between what was said previously and what is
coming next?
Grammar and Style (Continued)
• Are any paragraphs longer than 4-5
sentences?
• Are my sentences too long?
• How far is the main verb from the main
subjects in my sentences?
• Are paragraphs appropriately divided?
Conclusion
• Does the conclusion review the overall general rule
of law and necessary elaborations?
• Does the conclusion review arguments for both
sides and then advise?
• Does the conclusion go beyond merely a repeat of
the introductory paragraphs?