Draft Format: (1) double-spaced, (2) standard memorandum heading
If writing on Google Docs, work on formatting when you print out the final memo to hand in
Length: 10-12 pages, excluding your Works Cited
PLEASE FOLLOW THE FILE NAMING PROTOCOL FOR GOOGLE DOCS: document_draft #_name
You are a junior partner in a law firm. A new client has brought you a case. This client won a law suit but the other side is appealing the decision. Your firm has agreed to represent the client for the appeal.
It is your job to identify the issues presented in the fact pattern, research those issues, and write a memorandum to your senior partner that impartially assesses the issues and possibility of success.
Regardless of who was the plaintiff and who was the defendant in the case below, the person bringing the appeal is called the Petitioner . Your client, who is defending the appeal, is called the Respondent .
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This legal memo is an internal office document that impartially and honestly assesses the issues on both sides . You must approach this memo as if it is two memos. You must analyze the issues first as if you represented your client and second, as if you represented the opposition. I'll say it again –
EVALUATE THE CASE TWICE . This dual assessment is crucial in order to:
1. advise your senior partner/law firm of the issues your opponents will be raising and the issues you will be raising
2. anticipate what the other side is likely to do
3. advise your law firm whether you should take the case or not
4. use the memo as the respondent's brief when it is time for oral arguments (we do not have time to write briefs from both sides)
Legal writing in general:
Legal writing genres tend to be quite formulaic and often repetitive from section to section . Regardless of how repetitive the form is, it doesn't pay to break the rules. Judges – your primary audience for many writings – as well as other attorneys and you yourself – expect a certain format and it actually makes everyone's job easier when information is where we expect it to be. If we need to clarify a fact, we look in the fact section. If we want to examine how the facts support a particular argument, we look in the discussion section (or subsection).
You solve legal problems just like you solve math problems. You break them down into their smallest elements, and you work one piece at a time - and show your work. Think prime numbers! Think geometry proofs! That's how you build a memo.
Lynn Rhys-Jones
1 FYI: Depending on the jurisdiction, the Petitioner may be called the Appellant and the
Respondent called the Appellee. Petitioner and Respondent is less confusing than Appellant and
Appellee.

What Rhys-Jones has just described in the essence of analysis. Breaking something down to its component parts in order to understand the whole. Rhys-Jones goes on to note the qualities of every good legal memo:
1.
It's well-organized.
2.
It's reader-friendly in format, in language, and in flow.
3.
It leads the reader through the analysis, step by step. No guessing or surprises.
4.
It's accurate down to the last detail.
5.
Every citation, every fact, every everything, is included for a specific reason.
6.
It gives a precise source for every single idea that is not the writer's own, and makes it easy for the reader to find that source.
7.
It's grammatically correct and contains no spelling errors.
8.
It accomplishes what it sets out to do (whatever that may be).
9.
It reflects the writer's thorough understanding of the subject matter. In other words, if you don't understand it, you're not ready to write it.
10.
It's not just written. It's crafted.
Legal writing is also rather formulaic within paragraphs . We state the main premise, then discuss it. So it is very important that topic sentences be your claim (thesis statement) for that paragraph. We do this, first, because it’s expected in legal writing. We do this, second, because this is a business writing.
Readers tend to skim – and that means they read the first sentence or two of each paragraph. Hiding your topic sentence or working up to your claim can be a very effective strategy when arguing – but not in legal writing.
1. Standard memorandum heading with a line underneath:
To: Senior Partner
From: (your name here)
Date: (date submitted)
Re: (case name)
Client: (name of client)
______________________________________________________________________
2.
Facts: This section will give a brief account of the relevant and material facts in the case. Begin with who your client is and how he/she came to the office. For all of you, this will be a statement something like: "X" has brought this case to us on appeal. You can also note that he/she won at the trial level.
Include those facts (there are extras in the fact patterns) that are material – for your side or the opposition. Do not include everything you know about this case in the fact section. In the case of a neutral memo, you will include more facts that you will when writing your petitioner's brief because certain facts and issues may favor petitioner or respondent, and at this time, you are not preferring one side over another. This section will probably be one or two pages long.
Do your best to tell a story.
Everyone loves a good story ~even senior partners and judges – and we remember stories better than we remember an unconnected string of fact. Remember the reading by Foley and Robbins about writing a persuasive fact section by using storytelling techniques.
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Do not quote the language of the fact pattern - the “testimony” is summary, not direct testimony from a trial transcript or deposition. (That would be fun, but I don’t have time to recreate seven trials word for word.) Pick out the facts you need and put them into your own words.
Note : in a real legal memo, you would have to give pinpoint cites, a precise source for each fact, naming the document (such as a brief or transcript) and the exact page where the information could be found. We cannot be as exact since we only have a summary of the testimony. Therefore, do not quote the testimony directly (unless something is in quotation marks). Instead, cite to
“Testimony of X” or “X.” You may also cite to “the record” when a specific citation is not required.
But be as exact as possible.
Finally: You are not going to argue the facts of the case - that was done at the trial level. You are going to argue public policy – social theory and social issues. Facts are important because they determine the public policy that applies and direct how that policy is applied. It’s easy to get caught up in the facts. But use them only as your entrée to the larger issues.
3. Issues: As you organize and write the discussion section, identify each issue you are going to discuss in the memo using a heading or question . These issues/headings will be the large, underlying social conflicts and public policy issues you have identified as being raised by the facts in your case. Some examples:
Tenure: definition
Does tenure protect academic freedom?
Should the United States joint the International Criminal Court?
4. Discussion/Analysis: In this section, you will discuss the large, underlying social conflicts and the public policy issues raised by the facts in your case. You will report who the experts are and what they say about those issue. You will need to describe these issues in a neutral fashion, identifying alliances and disagreements between your sources. In essence, the legal memo builds a menu of all the issues raised by the facts – and builds a team of expert opinion for each side of the issue(s).
You will need to use MLA or APA (or talk to me about the citation format you use in your major) citation format to indicate where your sources come from. I estimate that this section will require at least 5 pages.
Please see the readings on public policy .
NOTE: You will be analyzing the case from your client’s point of view. This point of view may be similar to or very different from the other Petitioners or Respondents. These points of view may also be in direct conflict – but that happens because each client has unique interests.
5.
Recommendations/Analysis: In this section, having identified the issues raised by your facts, you will identify for your senior partner the best arguments for you as Respondent. In this section, you predict which issues are winners/losers for you and the opposition. In this section, you strategize the best way to tackle the case.
You will not have space in the brief or time during oral argument to work with more than two or three arguments/issues. Pick the best ones. Think carefully about which points are going to be your strongest – and why – using the arguments you have discovered and any facts you may have. You should rank these arguments for your senior partner, from strongest to weakest. You will also identify those arguments and the supporting evidence or facts that your analysis shows are likely to be used by Petitioner. As I stated before, what you are doing here is predicting – and strategizing.
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"If Petitioner argues X, we should argue Y because . . . ." I estimate that you should be able to do this in 3-5 pages.
6. Works Cited: You will need to include a Works Cited (MLA or APA formatting) page with your memorandum. See "Research Documents" below.
7. Appendix: Research Documents As you do your research, you need to keep hard copies or electronic files of the scholarly articles that support your analysis and that you have cited in your memo. You need to do this for several reasons. First, you need to be able to return to the original documents as necessary for clarification or confirmation of information. Second, you will need these articles for cite checking (more on that in class). Third, just as you would provide copies of the important and relevant cases to your senior partner, you will need to turn this information over to the other side when we begin to write briefs. This is a courtesy for those who will be relying on this memo in the future, as well as a way to have the necessary material at your fingertips when it comes time to prepare for oral arguments. If you and co-counsel use the same source, only one of you needs to copy it. It may be helpful to think of this as providing a copy of each source referenced in your Works Cited section.
Note: We may be able to create a document repository for each case on Google Docs.
In real life, attorneys often rely on research done by associates, interns and partners. It does no one any good if you do not assess the case fairly and impartially at this stage – in fact, you will hurt your case if you are not neutral, accurate, or thorough. Do a good job of researching this case because:
(1) you will be using it when you prepare for oral argument as Respondent;
(2) this memo will be used by the "other side" when they write the Petitioner's brief;
(3) it goes to the judges as Respondent's Brief; and
(4) you are going to be the Petitioner in another case and you will be relying on the accuracy and thoroughness someone else's research.
Think of it as an application of the golden rule - analyze and present the information in a way that you would want to rely on. You might also think of your job as that of fortune teller - you need to anticipate what will be important to your side AND the other side.
1. Post the final draft for opposing counsel and the judges in the folder designated on Google
Docs.
2. Due dates will be strictly enforced as the memo will serve a Respondent’s Brief – and briefs not filed on time are not accepted by the Court.
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