2 Assignment DetailsGoal: make a conclusion and support whether or not the third element can be satisfiedClosed research – no additional research allowedNot necessary to utilize every case. Every case may or may not be helpful
3 Assignment Details Quoting – “ . . .” Warner p. 438 When referring to precedent by name – always underline or italicizeOverview paragraph – summarize other elements
4 Assignment Details Submission process You should have already registered your password with TWEN. If not do so IMMEDIATELYGo to class web-page; click on current students; click on assignment drop box.
5 The Memorandum Question Presented Brief Answer Statement of Facts FromReQuestion PresentedBrief AnswerStatement of FactsDiscussionConclusion
6 The Heading What the memo is about or regarding To: Supervising AttorneyFrom: Your nameDate: Current DateRe:What the memo is about or regardingName of client, file number, nature of matter or claim, procedural status if any (appeal of conviction, settlement)
7 Drafting the Heading Consider your reader Examples: Re: Nadine Jackson ClaimRe: Nadine Jackson’s Potential Claim for Negligent Infliction Emotional DistressRe: Extra-territorial Application of Texas Rules Regarding Advertising by Lawyers
8 FormattingSpacing & content of the heading is tabbed, everything is lined up vertically with the other piecesThe document heading & headings of all sections are in boldQuestion presented & brief answer are single spaced. If multiple issues, double-space between each. The remainder of the memo is double spaced.The document is justified left because full justification will alter citation spacing.Page numbering is at the bottom of the page after the first.
9 Question Presented Some people label this “Issue Presented” Some begin with Statement of Facts first
10 Goals of the Question Presented Identify claim, crime, defense or elementsSummarize necessary facts related to the disputeEnd with a question that identifies the disputed issueDo not include conclusions
11 Count the IssuesNumber of issue statements must match the parts in the discussionOrganize and list the question(s) in the same order of the discussion
12 Question Presented Two types Given problem to research the state of the governing law, without referencing a client = simple legal questionAsked to apply a rule of law to a set of facts and predict a result = question + most important facts & sometimes the rule
13 Writing the Question Presented Format: (varies)Purely legal: simple questionWhat are the parameters of activity that has been permitted by disciplinary committees or courts considering the practice of “solely federal law” in Texas or other jurisdictions?Prediction based on client factsWhether Carrolton can enforce the Watson covenant-not-to-compete when the covenant prohibits Watson from making sales contracts for three years and applies to the three counties closest to Carrolton’s headquarters.
14 Possible Formats 1. Legal question + concise statement relevant facts 2. Legal question + concise statement in “whether” format3. Under/does/when format
15 Legal question + concise statement Can . . .[legal question] when [state major facts]?Can WhereDid WhenWasMayIsNotice no rule of law in this example
16 ExamplesEx: Can Carrolton enforce the Watson covenant-not-to-compete when the covenant prohibits Watson from making sales contracts for three years and applies to the three counties closest to Carrolton’s headquarters?Do the Texas rules concerning advertising by lawyers apply to all of our lawyers in all of our offices when advertising on the Internet?
17 Whether format Whether [legal question] . . . when [facts] Notice, this clause will not be a real sentence, but in legal writing you should end the “whether” question with a period.This format can include a statement of the law or not.
18 ExampleWhether the Flynns have a cause of action for either public or private nuisance when Pecos Power had authorization to build the high voltage lines, the high voltage lines obstruct the Flynns’ view, the Flynns no longer use their backyard because of their fear that the EMFs from the high voltage lines may cause cancer, and the Flynns have been unable to sell their home.
19 ExampleWhether it is a violation of the Texas Disciplinary Rules for a partner in our Firm to list her qualifications on the Firm’s web site when the partner is not admitted to practice in Texas and does not maintain an office in Texas.
20 Under/does/when Under . . .[rule of law] does . . .when [facts] candidwasis
21 ExampleUnder the Texas Penal Code, a person may be convicted of aggravated robbery if she uses or exhibits a deadly weapon during a robbery. Did Jane Dunn use or exhibit a deadly weapon when she brandished a crowbar at the UPS driver and threatened to hit him with it during a robbery.
22 ExampleUnder the Georgia common law rule that allows covenants-not-to compete only when the area restrained, the activities restrained, and the duration of the restraint are reasonable, can a covenant-not-to-compete be enforced when the covenant prohibits the covenantor from making sales contacts, for three years, and applies to the three counties closest to the headquarters of the covenant’s beneficiary?
23 Degree of DetailsTraditionally, one readable sentence, but 2 clear sentences are better than 1 confusingCan have either specific references to client or general referencesBetter practice is to use parties’ names
25 Brief Answer Responds to question presented Concise statement of your conclusion/prediction on the issue, which elements will be easy, which will be more difficultNo longer than one-third of a pageIf question presented did not present legal rule, raise it hereSometimes referred to as Short Answer
26 Brief AnswerAlways begin with one-word or two-word short answer (compare to Shapo). Place a period after the one or two wordsYes or No, only if legal outcome is certainLesser degree of certainty - probably yes; probably not is often appropriate
27 Statement of Facts Remember – Predictive writing – be objective Ex: defendant was speeding through the school zoneDefendant was traveling 40 mph through the school zoneInclude favorable & unfavorable facts
28 Statement of Facts Focus on relevant facts & background facts Relevant/determinative facts – help show how the rule will apply to client’s situationProcedural info – current procedural posture, procedural historyStick to the facts- no conclusions, arguments, cases
29 Statement of Facts Organization Chronological – if order of events is important or several factual developmentsTopical – complex facts, cover number of topicsHybrid – facts have both chronological importance & descriptiveEx. Carillo attractive nuisance – introduction of the Carillos and the neighborhood, facts surrounding purchase of trampoline, placement & purpose, chronological events of the day of the accident,
30 Statement of Facts Sometimes easier to draft AFTER your analysis Don’t just repeat the facts from the assignment