Memorandum of Law

Research and Writing

Memorandum of Law Objective analysis of how a court will or

should rule (predictive memo) Office Memorandum Bench Brief

Involves research and writing

The Starting Point Discovering the facts of your case

Client, witnesses, investigation, discovery, transcripts

Initially analyzing and sorting your facts Relevant Explanatory Non-essential

Initially identifying issue

Research Strategy General Background Research when needed

As soon as you have a general idea of how to focus you research, reexamine your facts and issues

Research Strategies

Formulate the issue

Create the vocabulary list

Use a legal dictionary and thesaurus

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Research Strategies (cont.) Create a research plan

Know where you are going to start Secondary or primary General, background research or specific

Take your research vocabulary to the indexes

Use the index volumes to add terms to your research vocabulary list

Note: Be sure to check index supps

© 2000 by Prentice-Hall, Inc., Upper Saddle River, NJ 07458

Research Strategies (cont.)

Go to Primary Sources

Update and validate your research results

© 2000 by Prentice-Hall, Inc., Upper Saddle River, NJ 07458

Research Strategies (cont.) Take notes when working with

printed materials

Take notes and record results when working with on-line or CD-ROM materials

Organize photocopied or downloaded materials

© 2000 by Prentice-Hall, Inc., Upper Saddle River, NJ 07458

Knowing When to Stop Stop periodically and organize what you have

Pinpoint what you need and then continue

At some point you must write—even if research not finished

Prepare an Outline

Reading Law Code sections: list elements/requirements Cases

Identify key facts Identify issue and holding Read case and identify relevant rules of law

stated in the case

Using Case Law Stare Decisis— Involves comparing facts and

issues As authority for a rule of law stated in the

case In Memo you need to summarize or

synthesize the law before you compare to your facts or apply rules to your facts.

LEGAL WRITING Interoffice memorandum

Often objective Know your assignment

Memorandum of Points and Authorities Used in trial courts—often in support of or in opposition to

a motion Used limited to a specific topic Argumentative document

Trial Brief Concerns issues expected to arise during trial Substantive law of case or evidentiary issues Argumentative document

LEGAL WRITING Appellate Brief

Used in appeals courts Argues selected points of law relating to claimed

errors at trial Must contain references to transcript when

referring to facts (i.e R.T. 345:7-10)

Component parts of the Office Memo

Heading Question Presented (Issue) [Brief Answer] Statement of Relevant Facts Discussion

Thesis Paragraph Explanation/Synthesis of Relevant Rules of Law Application of Relevant Rules to Your Facts Use “Headings” to separate Rules from Application

Conclusion

The Memo—Let’s Look Sample Office Memorandum--Berger

Discussion/Argument The “Rules” section requires usually requires

reference to several cases and maybe code section. This section deals exclusively with law—you are not

applying law to facts here Synthesis—more than just a summary Explanation of law that involves showing the

relationship between various rules/cases

Writing the Discussion—Rules of Law

Use mandatory, primary law (Constitutonal provisions, codes, and/or cases) Persuasive or secondary law sometimes used for

reinforcement or where no mandatory primary law exists

This section requires a “synthesis” of the various cases

Purpose of Synthesis In the Discussion section of a memorandum

of law (or any court memo or brief) the writer must summarize and explain all the relevant law for the reader Both good and bad Not just a list of cases or a list of statutes Must present the “whole picture” and show the

relationship between the various cases/statutes etc.

Case Synthesis A case synthesis compares the outcomes of

cases and attempts to harmonize these outcomes into a set of logically consistent rules of law. E.g. Your complete statement of the rule(s) of

law should apply to or be consistent with all of the cases you are synthesizing

Some Types of Synthesis (or Relationships) Grouping of similar cases

Combining cases that have additional or different facts but the same result

Combining cases that have similar facts but different results

Synthesis There is no synthesis if the cases have nothing

in common!

Usually in synthesis you need to use the facts of the cases you cite.

Relationship “Words” And, in addition, moreover, similarly

However, but, on the other hand, distinguishable, unless, except

Case Synthesis—Other Example

i.e Ordinarily, police need a warrant to enter a private home. (cite) However where police reasonably believe an emergency exists, they may enter without a warrant. (cite) For example, if a neighbor reports hearing a gunshot come from a house, police may enter without a warrant because of the emergency situation. (cite) On the other hand, the fact that a child has been locked out of a home when it is known that the parent is absent, is not an emergency situation (cite)

.(Still need to create a topic sentence for this paragraph)

Trivial defect summary

Topic Sentence suggestion The Fourth Amendment protects our homes

against unreasonable intrusions by police.

IMPORTANT CONSIDERATIONS

Did Courts base their decisions on law from same jurisdiction?

If rationale based on state law, is same state law being applied?

Is there a question of state or federal law?

Has there been any intervening statutory law that could make court come up with another result?

Has there been any intervening U.S. Supreme court ruling that might change things?

First Step to Synthesis-Fact/Rule Chart

Application of law to your facts Apply each of the rules/cases you use in the

Rules section to your facts i.e. explain why you used the law

Review Berger

Analogous Comparison In the instant case, the Minnesota Supreme Court's application of Terry to

the facts presented here is on all fours with this Court's application of Terry to the facts presented in Sibron. Like Patrolman Martin, Officer Rose was looking for narcotics. Like Patrolman Martin, Officer Rose's examination of the tiny lump he felt in Mr. Dickerson's pocket was wholly unrelated to a search for weapons. Like Patrolman Martin's search, Officer Rose's search was "not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception -- the protection of the officer by disarming a potentially dangerous man." Sibron, 392 U.S. at 65. Like Patrolman Martin's search, Officer Rose's search violated the guarantee of the Fourth Amendment which protects the sanctity of the person against unreasonable intrusions by government agents. Id.

Distinguishing a Case Because Officer Rose's brief manipulation of the object in respondent's pocket was

part of the ongoing, legitimate pat-down search, this case is distinguishable from Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, the Court held that a police officer violated the Fourth Amendment when, during the search of an apartment where a shooting had just occurred, he moved a turntable to see its serial number, based on a reasonable suspicion that the turntable was stolen. 480 U.S. at 324-329. The Court found that the officer's movement of the turntable constituted "a 'search' separate and apart from the search for the shooter, victims and weapons that was the lawful objective of his entry into the apartment." Id. at 324-325. The officer's action was "unrelated to the objectives of the authorized intrusion * * * [and] produce[d] a new invasion of [the defendant's] privacy unjustified by the exigent circumstance that validated the entry." Id. at 325. The "search" of the turntable was conceded to have occurred without probable cause. Holding that probable cause was required to support a search under the "plain view" doctrine, the Court concluded that the search of the turntable was unreasonable under the Fourth Amendment.

Examples Review Berger

Basic Writing Mechanics Choose the “right words”

Strong verbs Keep sentences short (less than 3 lines) Keep paragraphs short

Use a topic sentence Use point headings as a “roadmap” Think visual Write Introduction (Thesis Paragraph) last

Planning Break overall task into parts and calendar dates

Review of documents General research Review facts and issues of your case Targeted research

Organize research Brainstorm the points you want to make Outline discussion/argument

Outline often becomes basis for headings Outline ideas first—then plug in law

Write first draft—if necessary in pieces Edit