legal memo 法律备忘录(7)

legal memo

The brief answer should clearly and fully respond to the question presented. Begin 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. Summarize for your reader how the relevant law applies to your significant facts. As a general rule, include no citations.

FACTS

Provide a formal and objective description of the legally significant facts in your research problem. The legally significant facts are the facts that are relevant to answering the legal question presented. For example, in an issue involving whether a minor can disaffirm a contract, a legally significant fact would include the nature of the item or service contracted for (was it clothing, food, shelter, related to health care, etc.) and whether the minor had access to the item in any case, without having to become contractually obligated to pay for it. The description should be accurate and complete. Present the facts in a logically coherent fashion, which may entail a chronological order. Include legally significant facts - facts upon which the resolution of the legal question presented will turn, whether they are favorable or unfavorable to the client for whom you are writing - and include background facts that will make the context of the problem clear. In this section, do not comment upon the facts or discuss how the law will apply to the facts. All factual information that later appears in the discussion section of the memorandum should be described in the facts section.

DISCUSSION

This is the heart of the memo. Here, you need to educate the reader about the applicable legal principles, illustrate how those principles apply to the relevant facts, and explore any likely counterarguments to the primary line of analysis you present.

Many law offices will expect you to begin with a short thesis paragraph that briefly identifies the issue and the applicable rule (without elaboration), and restates the short answer. Follow with an introductory section, which provides a map or framework for the discussion as a whole. The introductory section should summarize and synthesize the rule, setting out all subparts of the rule and clarifying how they relate to one another. When the synthesized rule is derived from case law, the discussion of the cases should focus on general principles, on the criteria that courts use to describe the rule, rather than on the specific facts and reasoning of the cases. The introductory section is also where you would mention, if applicable, information about the procedural posture of a case, about burdens and standards of proof, and about rules of interpretation pertinent to the law you are applying. You should identify any undisputed issues, and explain why they are not in dispute. Then state the order in which the remaining issues or subparts of an issue will be discussed. For a useful discussion of an introductory section, please see pp. 111-114 in Linda H. Edwards, Legal Writing and Analysis (Aspen 2003).

You should use "CRRACC" as a guide to constructing the discussion section. Use a separate "CRRACC" for each issue or sub-issue.

After setting forth the conclusion and the rule, you should explain the rule by providing an in-depth discussion of the cases from which the rule is derived. Your discussion of the cases should be specific as to their facts and reasoning.

In your application section, you should compare the facts and the reasoning of the cases to the facts of your client's situation. You need to analogize and distinguish the cases - show why they are similar to or different from your client's circumstances. Be sure to address any counterarguments that could be raised, but show why you believe they would not prevail.

Ultimately for each issue or sub-issue you should conclude as to how you think a court would likely rule on your facts. The basic structure of the discussion section might look like this:

Short thesis paragraph: = C

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