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The Rest of the Memo Drafting the Question Presented, Brief Answer & Statement of Facts © Prof. Njeri Mathis Rutledge.

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Presentation on theme: "The Rest of the Memo Drafting the Question Presented, Brief Answer & Statement of Facts © Prof. Njeri Mathis Rutledge."— Presentation transcript:

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2 The Rest of the Memo Drafting the Question Presented, Brief Answer & Statement of Facts © Prof. Njeri Mathis Rutledge

3 Assignment Details Goal: make a conclusion and support whether or not the third element can be satisfied Goal: make a conclusion and support whether or not the third element can be satisfied Closed research – no additional research allowed Closed research – no additional research allowed Not necessary to utilize every case. Every case may or may not be helpful Not necessary to utilize every case. Every case may or may not be helpful

4 Assignment Details Quoting –... Warner p. 438 Quoting –... Warner p. 438 When referring to precedent by name – always underline or italicize When referring to precedent by name – always underline or italicize Overview paragraph – summarize other elements Overview paragraph – summarize other elements

5 Assignment Details Submission process Submission process You should have already registered your password with TWEN. If not do so IMMEDIATELY You should have already registered your password with TWEN. If not do so IMMEDIATELY Go to class web-page; click on current students; click on assignment drop box. Go to class web-page; click on current students; click on assignment drop box.

6 The Memorandum To To From From Re Re Question Presented Question Presented Brief Answer Brief Answer Statement of Facts Statement of Facts Discussion Discussion Conclusion Conclusion

7 The Heading To:Supervising Attorney To:Supervising Attorney From:Your name From:Your name Date:Current Date Date:Current Date Re: Re: What the memo is about or regarding What the memo is about or regarding Name of client, file number, nature of matter or claim, procedural status if any (appeal of conviction, settlement) Name of client, file number, nature of matter or claim, procedural status if any (appeal of conviction, settlement)

8 Drafting the Heading Consider your reader Consider your reader Examples: Examples: Re: Nadine Jackson Claim Re: Nadine Jackson Claim Re: Nadine Jacksons Potential Claim for Negligent Infliction Emotional Distress Re: Nadine Jacksons Potential Claim for Negligent Infliction Emotional Distress Re: Extra-territorial Application of Texas Rules Regarding Advertising by Lawyers Re: Extra-territorial Application of Texas Rules Regarding Advertising by Lawyers

9 Formatting Spacing & content of the heading is tabbed, everything is lined up vertically with the other pieces Spacing & content of the heading is tabbed, everything is lined up vertically with the other pieces The document heading & headings of all sections are in bold The document heading & headings of all sections are in bold Question presented & brief answer are single spaced. If multiple issues, double-space between each. The remainder of the memo is double spaced. Question 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. The document is justified left because full justification will alter citation spacing. Page numbering is at the bottom of the page after the first. Page numbering is at the bottom of the page after the first.

10 Question Presented Some people label this Issue Presented Some people label this Issue Presented Some begin with Statement of Facts first Some begin with Statement of Facts first

11 Goals of the Question Presented Identify claim, crime, defense or elements Identify claim, crime, defense or elements Summarize necessary facts related to the dispute Summarize necessary facts related to the dispute End with a question that identifies the disputed issue End with a question that identifies the disputed issue Do not include conclusions Do not include conclusions

12 Count the Issues Number of issue statements must match the parts in the discussion Number of issue statements must match the parts in the discussion Organize and list the question(s) in the same order of the discussion Organize and list the question(s) in the same order of the discussion

13 Question Presented Two types Two types Given problem to research the state of the governing law, without referencing a client = simple legal question Given problem to research the state of the governing law, without referencing a client = simple legal question Asked to apply a rule of law to a set of facts and predict a result = question + most important facts & sometimes the rule Asked to apply a rule of law to a set of facts and predict a result = question + most important facts & sometimes the rule

14 Writing the Question Presented Format: (varies) Format: (varies) Purely legal: simple question Purely legal: simple question What 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? What 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 facts Prediction based on client facts Whether 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 Carroltons headquarters. Whether 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 Carroltons headquarters.

15 Possible Formats 1.Legal question + concise statement relevant facts 1.Legal question + concise statement relevant facts 2. Legal question + concise statement in whether format 2. Legal question + concise statement in whether format 3. Under/does/when format 3. Under/does/when format

16 Legal question + concise statement Can...[legal question]... when [state major facts]? Can...[legal question]... when [state major facts]? CanWhere CanWhere DidWhen DidWhen Was Was May May Is Is Notice no rule of law in this example Notice no rule of law in this example

17 Examples Ex: 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 Carroltons headquarters? Ex: 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 Carroltons 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? Do the Texas rules concerning advertising by lawyers apply to all of our lawyers in all of our offices when advertising on the Internet?

18 Whether format Whether [legal question]... when [facts] 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. 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. This format can include a statement of the law or not.

19 Example Whether 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. Whether 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.

20 Example Whether it is a violation of the Texas Disciplinary Rules for a partner in our Firm to list her qualifications on the Firms web site when the partner is not admitted to practice in Texas and does not maintain an office in Texas. Whether it is a violation of the Texas Disciplinary Rules for a partner in our Firm to list her qualifications on the Firms web site when the partner is not admitted to practice in Texas and does not maintain an office in Texas.

21 Under/does/when Under...[rule of law] does...when [facts] Under...[rule of law] does...when [facts] Under...[rule of law] does Under...[rule of law] does can can did did was was is is

22 Example Under 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. Under 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.

23 Example Under 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 covenants beneficiary? Under 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 covenants beneficiary?

24 Degree of Details Traditionally, one readable sentence, but 2 clear sentences are better than 1 confusing Traditionally, one readable sentence, but 2 clear sentences are better than 1 confusing Can have either specific references to client or general references Can have either specific references to client or general references Better practice is to use parties names Better practice is to use parties names

25 Lets give it a try

26 Brief Answer Responds to question presented Responds to question presented Concise statement of your conclusion/prediction on the issue, which elements will be easy, which will be more difficult Concise statement of your conclusion/prediction on the issue, which elements will be easy, which will be more difficult No longer than one-third of a page No longer than one-third of a page If question presented did not present legal rule, raise it here If question presented did not present legal rule, raise it here Sometimes referred to as Short Answer Sometimes referred to as Short Answer

27 Brief Answer Always begin with one-word or two-word short answer (compare to Shapo). Place a period after the one or two words Always begin with one-word or two-word short answer (compare to Shapo). Place a period after the one or two words Yes or No, only if legal outcome is certain Yes or No, only if legal outcome is certain Lesser degree of certainty - probably yes; probably not is often appropriate Lesser degree of certainty - probably yes; probably not is often appropriate

28 Statement of Facts Remember – Predictive writing – be objective Remember – Predictive writing – be objective Ex: defendant was speeding through the school zone Ex: defendant was speeding through the school zone Defendant was traveling 40 mph through the school zone Defendant was traveling 40 mph through the school zone Include favorable & unfavorable facts Include favorable & unfavorable facts

29 Statement of Facts Focus on relevant facts & background facts Focus on relevant facts & background facts Relevant/determinative facts – help show how the rule will apply to clients situation Relevant/determinative facts – help show how the rule will apply to clients situation Procedural info – current procedural posture, procedural history Procedural info – current procedural posture, procedural history Stick to the facts- no conclusions, arguments, cases Stick to the facts- no conclusions, arguments, cases

30 Statement of Facts Organization Organization Chronological – if order of events is important or several factual developments Chronological – if order of events is important or several factual developments Topical – complex facts, cover number of topics Topical – complex facts, cover number of topics Hybrid – facts have both chronological importance & descriptive Hybrid – facts have both chronological importance & descriptive Ex. 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, Ex. 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,

31 Statement of Facts Sometimes easier to draft AFTER your analysis Sometimes easier to draft AFTER your analysis Dont just repeat the facts from the assignment Dont just repeat the facts from the assignment


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