Online Companion: Legal Research, Analysis, and Writing
Chapters 16 & 17
CHAPTER 16 SUMMARY
The drafting of an office legal memorandum is one of the most important and often difficult types of legal writing assignments a paralegal or law clerk is required to perform. It requires the integration of the research, analysis, and writing skills discussed throughout this text.
An office memorandum is designed for office use and is usually drafted for the supervisory attorney. It involves the legal analysis of issues raised by the facts of a clientÆs case. It is designed to identify the law that applies to the legal issue, analyze how the law applies to the issue, and present a proposed solution or conclusion based on the analysis.
It is recommended that you follow the writing process presented in Chapter 15 when preparing an office memorandum. The recommended format for the organization of the office memorandum is as follows:
Statement of Assignment
Statement of Facts
Rule of law
Case law (if necessary)ùinterpretation of rule of law
Application of law to facts of case
This chapter presents the considerations involved in the preparation of the heading, statement of assignment, issue, brief answer, and statement of facts sections of the office memorandum. The considerations involved in the preparation of the analysis through recommendations sections are discussed in Chapter 17.
The heading section contains information describing who the memo is from and to, the name of the case, and the nature of the issue. The statement of assignment section provides a description of the topic covered and the parameters of the assignment.
The issue section follows the statement of assignment. It is one of the most important parts of the memo. It informs the reader of the precise legal question addressed in the analysis section of the memo. It should include the applicable rule of law, the exact legal question, and the key facts that are necessary for the resolution of the issue. The brief answer section provides a brief and precise answer to the issue and a brief summary of the reasons in support of the answer.
The statement of facts section provides the facts of the clientÆs case that gave rise to the issue addressed in the memo. It includes the background and key facts of the dispute and should provide sufficient factual information to allow the reader to understand the analysis without having to refer to the case file or any other source outside the memo.
Many of the procedures and steps involved in preparing an office memorandum apply to the preparation of legal writing designed for external use, such as correspondence to clients and documents to be filed with a court, including trial court and appellate court briefs. In order to thoroughly cover this topic, the analysis, conclusion, and recommendations sections of the office memorandum are covered in the next chapter.
CHAPTER 17 SUMMARY
This chapter addresses considerations involved in preparing the second half of an office memorandum: the analysis, conclusion, and recommendations sections. The focus of the chapter is on the analysis section.
The heart of an office memorandum is the analysis section. The purpose of a memorandum is to inform the reader of the law that governs the issue and how the law applies in the clientÆs case. This information is conveyed in the analysis section of the office memo. In this section, the reader is informed through:
• A presentation of the law that governs the issue
• An explanation of how the law applies through reference to court opinions that applied the law in similar situations
• A discussion of how the law applies to the issue(s) in the clientÆs case
Included in the analysis is a discussion of any counterargument the opposing side may raise.
The recommended basic format for the analysis section is as follows:
Part A.áRule of law
Part B.áCase law (if necessary)ùinterpretation of rule of law
1.áName of case
2.áFacts of caseùsufficient to demonstrate case is on point
3.áRule or legal principle from case that applies to the clientÆs case
Part C.áApplication of the law to the facts of the clientÆs case
Following the analysis section is the conclusion. Since the application of the law to the issue is discussed in the analysis section, the conclusion should contain a summary of the law and analysis already presented. It should inform the reader of all the applicable law and how it applies.
The recommendations section is the last section of the office memo. It includes any recommendations concerning the next steps to be taken or further research or investigation that should be conducted. In some law firms, the recommendations section is included in the conclusion or not required at all.
The format discussed in this chapter is a recommended format. There is no standard office memorandum format. Different law offices have different preferences. Use the format presented in this chapter if appropriate; modify it according to your needs.
CHAPTERS 16 and 17 ASSIGNMENTS
In each of the following exercises, the assignment is to prepare an office memorandum. Each assignment contains the assignment memo from the supervisory attorney that includes all the available facts of the case. Complete the memo based on these facts. If additional facts need to be identified, note this in the recommendations section of the memo. When preparing the heading of each assignment, use your name for the To line, and put Supervisory Attorney after the From.
Following each assignment is a reference to the applicable enacted and case law. In some assignments the case citation includes a reference only to the regional reporter citation; the state reporter citation is not included. Use only the citation presented in the assignment.
The first time you cite the opinion, use the citation format you are given for the opinion in the assignment.
For Example: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993).
This is how you should cite this opinion the first time it is used in the memorandum. When you need to quote from an opinion in the memo, cite to the regional reporter page cite only.
For Example: Melia, 846 P.2d at 258, or Id. at 258.
The page number where each page begins is printed in bold and preceded by two asterisks.
Martin Melia filed suit seeking compensatory and punitive damages against Dillon **259 Companies, Inc., (Dillon) upon allegations of false imprisonment and malicious prosecution. The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200.
Page 259 begins after **259.
Do not conduct additional research. Complete the assignment using the facts, enacted law, and case law contained in each assignment. For purposes of the assignments, assume the cases have not been overturned or modified by subsequent court decisions.
To: (Your name)
From: Supervisory Attorney
Re: Duran v. Shoptown
Janet Duran was shopping at Shoptown, a local grocery store. She thought she needed only a few items so she didn't get a grocery cart. As she shopped she realized she needed another item, and her hands being full, she put the extra item, nail polish, in her coat pocket. Later she realized she didn't need the polish and put it back. A store security person saw her put the polish in her pocket, but did not see her put it back. When she left the store, the guard stopped her and took her to the manager's office, stating she was being held for shoplifting. The store manager searched her purse and told her to empty her pockets. The security person and the manager were both extremely rude. After she emptied her pockets and the manager searched her purse, the store manager told her she could leave. Mrs. Duran was upset and embarrassed by the ordeal, and she wants to sue.
What is the likelihood of Mrs. Duran prevailing on a false imprisonment claim?
Statutory Law: Kan. Stat. Ann. º 21-3424 Criminal Restraint
(1) Unlawful restraint is knowingly and without legal authority restraining another so as to interfere substantially with his liberty.
. . . .
(3) Any merchant, his agent or employee, who has probable cause to believe that a person has actual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandise from a mercantile establishment, may detain such person (a) on the premises or (b) in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor an unlawful restraint.
Case Law: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993). The case is presented in Chapter 4, Web Assignment 7.
To: (Your name)
From: Supervisory Attorney
Re: Frampton v. City
On the evening of January 15, city police officers stopped Jerry Myers on suspicion of drunk driving. One passenger, Susan Lane, accompanied Mr. Myers. Mr. Myers was obviously intoxicated and arrested for DUI. Although officers smelled alcohol on SusanÆs breath, it did not appear to them that she was intoxicated. Susan had been taking drugs in addition to drinking. The officers did not require Susan to take a field sobriety test. After talking to her for a few minutes and determining that she lived only two blocks away, they decided it was safe for her to drive the automobile to her house. On the way home she lost control of the vehicle, and it swerved into a car driven by our client, Mrs. Frampton, who suffered extensive injuries.
We intend to sue the city for negligence. With the above facts in mind, prepare a memo addressing the following questions:
1. Did the officers owe a duty of care to Mrs. Frampton?
2. Are the city police officersÆ actions protected by sovereign immunity?
Controlling Law: Assume the common law of Florida provides that the four elements of negligence are duty, breach, proximate cause, and damages.
Fla. Stat. Ann. º 768.28(1) (West 1997). Waiver of sovereign immunity in tort actions, provides:
ôIn accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury . . . caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employeeÆs office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
Case Law: Henderson v. Bowden, 737 So.2d 532 (Fla 1999).
To: (Your name)
From: Supervisory Attorney
Re: McKnown v. Grieten
On July 6, our client, Johann Grieten, gave his daughter, Joanne, the car keys and told her to drive to the shopping mall and purchase some paint. The mall is approximately eight miles from their home. He told her, "Go directly to the mall and come directly home. Don't, I repeat, don't go anywhere else. Don't go to your friends house, don't go shopping." Joanne purchased the paint and returned home. Her father had gone to a neighbor's and was not home. He left a note saying "I'll be back in a couple of hours." Joanne's friend Sally called and said, "You've got to see the new car my dad is going to buy me." As Joanne drove to the dealership to meet Sally, she failed to yield at a stop sign and collided with Jeffery McKnownÆs car. McKnown is suing Mr. Grieten. Mr. Grieten owns the car his daughter was driving. Under state law, is Mr. Grienten liable given the fact that his daughter exceeded his instructions in regard to the use of the car?
Statutory Law: Minn Stat. Ann. º 170.54 Driver deemed agent of owner.
"Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof."
Case Law: Jones v. Fleischhacker, 325 N.W.2d 633 (Minn. 1982).
Perform Assignments 1 through 3 using your state's statutory and case law.
CHAPTERS 16 and 17 INTERNET RESOURCES
The Internet resources for this chapter are the same as those listed in Chapter 15. Due to the large number of sites, the best strategy would be to narrow your search to a specific type of legal writing and topic, such as "issues, legal memorandum, public service contracts," " analysis, legal memorandum, public service contracts,ö or ôapplication of law, legal memorandum, highway construction."
Power Point Presentations
Basic Research Memorandum Format
MEMORANDUM OF LAW
To:Supervising AttorneyFrom:Sandra Black, ParalegalDate:May 22, 2010Case:Dixon v. CareyRe:Probate of holographic willStatement of AssignmentI have been assigned the task of determining, within the meaning of the state statue, whether Thomas Dixon’s
would be admissible for probate when there were no witnesses and onlyhalf of the will is handwritten.IssueUnder Texas Statutory Law, Probate Code. Ann. § 59
Requisites of a Will
(Vernon 1980), isthere sufficient evidence to support that Thomas Dixon’s
is invalid. The Petitioner allegesthat the will is contestable due to the method of preparation and signature.
Brief Answer Qualification is highly probable. In the case of
Dean v. Dickey
, 225 S.W.2d 999 (Civ. App. Tex.1949) upheld the trial court’s judgment that the
was invalid under Section 59. Holographic
must be written wholly in the hand of the testator and signed.Statement of FactsMary Cary is the Personal Representative of the Thomas Dixon estate. Ms. Cary has submittedthe
for probate to the court. The first half of the
was written in Thomas Dixon’s ownhandwriting. The second half of the
was typewritten and completed by his neighbor, Edgar Mae. Mr. Mae stated that Mr. Dixon asked him to finish his
by typing it out because he wastoo physically weak to complete it himself. The
is signed by Mr. Dixon but there were nowitnesses to attest to the signing. The
does include a self-proving affidavit that meets therequirements of the statute. However, the statute clearly states that a
must be entirely and