Dante Gatmaytan
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The most basic application of the lessons learned
in legal method is the memorandum of law. First
year law students are given a legal problem to
analyze by using the analytical skills they have
been developing.
This analysis is typically done through a legal
memorandum. Writing memoranda is also among
the basic skills a paralegal or lawyer is expected
to master.
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A legal memorandum is a document written to
convey information within a law firm or other
organization.
It is written analysis of a legal problem that
evaluates the strengths and weakness of each
party’s arguments.
The legal memorandum will become the basis for
the advice law offices will give their clients.
 HELENE S. SHAPO et al., WRITING AND ANALYSIS IN THE LAW 141
(Fourth Edition 2003).
 JOHN C. DERNBACH AND RICHARD V. SINGLETON, A PRACTICAL
GUIDE TO LEGAL WRITING AND LEGAL METHOD 70 (1981).
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1. The Interoffice memorandum of law.
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This memo is an internal document and the main
audience here is your supervisor or someone in
your office.
The goal is to analyze the law in order to predict
how a court or other tribunal will resolve the
dispute in the client’s case.
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This memo should present the strengths and
weaknesses of the client’s case. The supervisor
will make decisions based on your work and she
should have a realistic picture of the law is.
The writer must force herself to write arguments in
favor of both sides of the dispute—a hallmark of a
professional is the ability to look at both sides of
the issue.
2. External or Advocacy Memorandum of Law.
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The audience is someone outside the office—a judge
or officer on a tribunal.
The goal is to convince the reader to side with your
client.
The writer highlights the strengths of the client’s case
and the weaknesses of the opponent’s position.
 WILLIAM P. STATSKY, INTRODUCTION TO PARALEGALISM: PERSPECTIVES,
PROBLEMS, AND SKILLS 633-638 (6th ed. 2003). The rest of the
chapter draws heavily from Statsky. In some cases his text has
been adopted for the Philippine context.
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Determine the format preferred by your supervisor.
If there is none, consider the following:
Heading. The heading of the memo contains
about the writer and the nature of the memo:
◦ A caption of memorandum centered at the top of the
page stating that kind of document that it is.
◦ The name of the person to whom the memo is
addressed.
◦ The name of the author.
◦ The date the memo was completed and submitted.
◦ The name of the case—the name of the client and the
opponent if any.
◦ The office file number.
◦ The court docket number (if suit is already filed).
◦ A very brief summary of the subject matter of the memo
following the notation RE: meaning “in the matter of” or
“concerning”
Interoffice Memorandum of Law
To: Dan Gatmaytan, Esq.
From: Maria Cruz
Case: Kramer v. Kramer
Office File Number: 98765
Docket No: 123456
RE:
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The Subject matter description is needed for two
reasons:
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◦ Law offices have a large number of files with several
memoranda. The heading makes it easier to locate in
the client’s file.
◦ The memo might be examined sometime in the future.
Many offices catalogue old memos by subject matter.
The heading will facilitate the filing of your memo.
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2. Statement of the Assignment
You should write out what you were asked to do.
State the parameters of the assignment. Include
limitations given by your supervisor. For example:
◦ You asked me not to analyze the issue of damages.
◦ You asked me not to spend more than four hours on the
assignment.
◦ The writer was asked not to use fee-based online
research at this time.
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List the assumptions you were asked to make.
For example:
◦ The writer was asked to assume that the impeachment
case does not violate the one-year ban in the
Constitution.
◦ Assignment: You asked me to write a memorandum of
law on whether the Secretary of Justice can lawfully
prevent former President Arroyo from leaving the country
limited to the latter’s constitutional right to travel.
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Assignment: You asked me to write a
memorandum of law on whether the Secretary of
Justice can lawfully prevent former President
Arroyo from leaving the country solely on whether
the Supreme Court’s temporary restraining order
was officially received by the Department of
Justice under the Rules of Court.
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3. Issues
The two critical components of an issue are a) a
brief quote from the element of the law in
contention and b) several of the important facts
relevant to that contention.
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Let us use facts from the case of Yambot v.
Tuquero. On May 26, 1996, the Philippine Daily
Inquirer (PDI) printed an article headlined Judge
mauled me, says court employee, carrying the byline of petitioner Volt Contreras. The article
reported an alleged mauling incident that took
place between respondent Makati Regional Trial
Court (RTC) Judge Escolastico U. Cruz, Jr. and
Robert Mendoza, an administrative officer
assigned at the Office of the Clerk of Court of the
Makati RTC. G.R. No. 169895, March 23, 2011.
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Claiming the article to be false and malicious,
Judge Cruz initiated a Complaint for libel with the
City Prosecutor of Makati. In particular, Judge
Cruz protested the following sentence in said
article:
According to Mendoza, Cruz still has a pending
case of sexual harassment filed with the Supreme
Court by Fiscal Maria Lourdes Garcia, also of the
Makati RTC.
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Libel is defined as a public and malicious imputation of
a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status or circumstance
tending to discredit or cause the dishonor or contempt
of a natural or juridical person, or to blacken the
memory of one who is dead.
The following elements constitute libel: (a) imputation
of a discreditable act or condition to another; (b)
publication of the imputation; (c) identity of the person
defamed; and, (d) existence of malice.
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The issue in this case might be written this way:
◦ Whether Contreras made a “public and malicious
imputation of a crime, or of a vice or defect” when he
wrote that “[Judge] Cruz still has a pending case of
sexual harassment filed with the Supreme Court.”
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The issue is made up of a quote from the element
in contention and facts that are relevant to that
element.
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4. Facts
Your statement of facts is one of the most
important components of the memorandum. Make
sure that it is concise, accurate and organized.
Statsky explains these characteristics:
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Conciseness. An unduly long statement of facts
frustrates the reader. A writer can trim the facts
down after writing the issue. A review of the facts
after writing the facts will help identify the facts
that are not pertinent to the case. In the same
way, facts that are not discussed in the analysis of
the memo may be discarded as they would seem
to be superfluous.
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Accuracy. If the case is at its beginnings, there
may be no record of facts yet. Do not assume that
disputed facts will be resolved in your client’s
favor. Assess the legal implications of facts that
are both favorable and unfavorable. If the facts
are unknown, conduct an investigation if time
allows.
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Organization. A disorganized statement of facts
not only prevents the reader from understanding
the events in question but also interferes with the
understanding of your analyses. When the facts
are long, a one or two sentence summary might
be in order.
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For example: Facts:
◦ During the 12 years of employment at Sinclair Chemicals,
Inc. Mary Kiley was subjected to numerous instances of
sexual harassment. When she began work there in
1990, she…
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Then provide the chronological statement of the
detailed facts.
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5. Discussion or Analysis
Present the law and explain how they apply to the
facts. It is at this point that you answer the
question raised in the issue. Interpretation or
construction of the law may become necessary at
this point. Give opposing views for the elements
in contention. Anticipate how the other side will
interpret these elements. Provide an analysis of
the case from the other perspective.
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6. Conclusion
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Give your opinion as to which side has better
arguments. Do not state any new arguments—
simply state your view on the strengths and
weaknesses of your arguments.
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7. Recommendations
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State recommendations you think are appropriate
in view of the analyses and conclusions you
provided. You may want to recommend further
investigation of the facts or whether
correspondence should be made to any person
regarding the case.
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8. Appendix
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Include special items, if any, that you referred to in
the memo such as photographs, statistical tables,
or the full text of statutes.
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On August 1, 2002, in response to a request from White
House Counsel Alberto Gonzales, the Office of Legal
Counsel (OLC) issued a memorandum entitled “Standards
of Conduct for Interrogation Under 18 U.S.C. §§ 23402430(A).” This “Torture Memo” sparked outrage and
disgust in legal circles and the public-at-large after it was
leaked almost two years later by the Washington Post. The
OLC claimed that although torture is a crime, the law does
not prohibit cruel and inhumane treatment of the detainees.
The OLC then defined torture very narrowly—only the most
extreme acts that are specifically intended to inflict severe
mental or physical pain and suffering.
 Milan Markovic, Can Lawyers be War Criminals?, 20 GEO. J. LEGAL ETHICS
347 (2007).
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According to the OLC, even if interrogation techniques did constitute
torture, the rules proscribing torture would be unconstitutional as
infringing on the President’s inherent powers. Finally, the OLC claimed
that the President could claim either self-defense or necessity to justify
the use of torture. The outrage was even more justified because the
OLC is one of the most elite groups of lawyers in the federal
government charged to serve as the primary legal advisor to the
executive branch. It is peopled by the brightest minds of the legal
profession and its reputation has always been stellar and
unimpeachable. After the release of the “torture memo” Critics
suggested that the lawyers behind the “torture memo” were unethical
and can face sanctions as war criminals.
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Marisa Lopez, Professional Responsibility: Tortured Independence in the Office of Legal
Counsel, 57 FLA. L. REV. 687,716 (2005).
David Luban, Liberalism, Torture, and the Ticking Bomb, in THE TORTURE DEBATE IN AMERICA
35, 83 (K. J. Greenberg ed. 2006).
See Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum, 1 J. NAT’L. SEC.
L. & POL’Y 455,472 (2005).
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After the release of the “torture memo” Critics
suggested that the lawyers behind the “torture
memo” were unethical and can face sanctions as
war criminals.
 Marisa Lopez, Professional Responsibility: Tortured
Independence in the Office of Legal Counsel, 57 FLA. L. REV.
687,716 (2005).
 David Luban, Liberalism, Torture, and the Ticking Bomb, in THE
TORTURE DEBATE IN AMERICA 35, 83 (K. J. Greenberg ed. 2006).
 See Kathleen Clark, Ethical Issues Raised by the OLC Torture
Memorandum, 1 J. NAT’L. SEC. L. & POL’Y 455,472 (2005).
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There was a concerted effort for President George W.
Bush to abandon the practices at Guantánamo Bay.
Bar associations and members of the academe
objected to the arguments that justified the
Guantánamo policy, producing a massive body of
work replete with criticisms. These works reflected a
variety of perspectives that included international law,
constitutional law, and legal ethics and succeeded in
forcing the Office of Legal Counsel to abandon its
Torture Memorandum. Even former OLC lawyers
jumped into the fray by proposing guidelines to
depoliticize their office in an effort to refurbish its
reputation.