1. Memorandum of Law
Research and Writing

2. Memorandum of Law
Objective analysis of how a court will or should rule (predictive memo)
Office Memorandum
Bench Brief
Involves research and writing

3. 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

4. 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

5. Research Strategies Formulate the issue Create the vocabulary list
Use a legal dictionary and thesaurus
© 2000 by Prentice-Hall, Inc., Upper Saddle River, NJ 07458

6. 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

7. Research Strategies (cont.)
Go to Primary Sources
Update and validate your research results
© 2000 by Prentice-Hall, Inc., Upper Saddle River, NJ 07458

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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)

14. 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

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

16. 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

17. 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

18. 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.

19. 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

20. 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

21. 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.

22. Relationship “Words” And, in addition, moreover, similarly
However, but, on the other hand, distinguishable, unless, except

23. 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

24. Topic Sentence suggestion
The Fourth Amendment protects our homes against unreasonable intrusions by police.

25. 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?

26. First Step to Synthesis-Fact/Rule Chart

27. 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

28. 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.

29. 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 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 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.

30. Examples
Review Berger

31. 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

32. 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