legal memo 法律备忘录(11)

legal memo

CONCLUSION 23

On these facts, the court will probably 24 find that the claimant has failed to state a cause of action for breach of contract because the ad did not constitute an offer but merely an invitation to negotiate.

1) The question presented states the question(s) the memo is to address: how does the relevant law apply to the key facts of the research problem? The question should be sufficiently narrow and should be objective.

2) Generally, include the name of the jurisdiction involved, e.g., New York, the Second Circuit, etc.

3) The Question Presented is usually one sentence. It often begins: "Whether...." or "Does...." Here, the writer has chosen "did." Although questions are usually framed so that they can be answered yes or no (or probably yes or probably no), sometimes they cannot (such as "Under New York law, has a retailer made a binding offer when...?").

4) The author of this memo has been careful not to use language that assumes the answer to the legal question it raises. Here, since the question presented is designed to highlight whether the facts indicate that a formal contract offer has been made, you would not use the term "offer" in framing the question, i.e., you would not write "Did an advertising circular describing merchandise constitute an offer when it offered the merchandise for sale starting at a designated date and time?" because that formulation of the question assumes a legal conclusion -- that the conduct at issue meets the requirements of an offer. Rather, reserve your legal conclusions (here, whether or not the advertisement constituted a formal offer) for the short answer section.

5) Here, note how the writer has constructed the question in this memo to alert the reader to the following facts: description of merchandise in an advertising circular, statement in circular that item is a "manufacturer’s closeout," statement in circu lar indicating that the early shopper will be rewarded.

Although the "question presented" section is short, it must (i) provide a concise reference to the legal claim and relevant doctrine and (ii) incorporate the most legally significant facts of your case. A complete and well-balanced question presented is incisive — it immediately gets to the heart of the legal question — and it orients the reader to the factual context.

You may not be sure which facts are most legally significant when you first start writing the memo. Your thinking may become clearer and better organized as the writing proceeds. You would ascertain which facts are legally significant by referring to the factual criteria (based on elements or factors) in the legal authority relevant to the question — e.g., statutes or case law. For this reason, many people do not write the final version of the question presented (or the short answer) until they have almost completed the "discussion" section of the memo.

6) The short answer contains a clear answer to the question (i.e., a prediction) and an explanation of that answer. The balanced description of law and fact that you provide in the question presented should be mirrored in the short answer.

The short answer serves two functions: (i) it provides hurried readers with an accessible, bottom-line prediction as well as the core of the relevant law and facts; and (ii) it provides the more thorough readers with an outline or digest of your subsequent discussion section. The short answer should function as a roadmap to help readers feel oriented when they move on to the discussion.

7) Begin the short answer with your conclusion: yes, no, probably yes, etc., if the question can be answered that way. Then give

a brief (usually no more than four or five sentences long) self-contained explanation of the reasons for your conclusion, applying the rule to the facts of your case. As a general rule, include no citations.

8) The facts section contains all the factual premises upon which your subsequent legal analysis is based. Certainly, all the facts cited in the application section (The "A" in IRAC or CRRACC) of your discussion should be presented as part of the story told in the facts section.

Bear in mind that the busy law-trained reader will value conciseness in this section, so try to present only those facts that are legally significant or that are necessary to make the problem clear. At the same time, bear in mind that the office memo should

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