The Rest of the MemoThe Rest of the Memo

Drafting the Question Drafting the Question Presented, Brief Answer & Presented, Brief Answer &

Statement of FactsStatement of Facts

© © Prof. Njeri Mathis RutledgeProf. Njeri Mathis Rutledge

Assignment DetailsAssignment Details

Goal: make a conclusion and support Goal: make a conclusion and support whether or not the third element can whether or not the third element can be satisfiedbe satisfied

Closed research – no additional Closed research – no additional research allowedresearch allowed

Not necessary to utilize every case. Not necessary to utilize every case. Every case may or may not be Every case may or may not be helpfulhelpful

Assignment DetailsAssignment Details

Quoting – “ . . .” Warner p. 438Quoting – “ . . .” Warner p. 438When referring to precedent by When referring to precedent by

name – always underline or italicizename – always underline or italicizeOverview paragraph – summarize Overview paragraph – summarize

other elementsother elements

Assignment DetailsAssignment Details

Submission processSubmission processYou should have already registered You should have already registered

your password with TWEN. If not do your password with TWEN. If not do so IMMEDIATELYso IMMEDIATELY

Go to class web-page; click on Go to class web-page; click on current students; click on assignment current students; click on assignment drop box.drop box.

The MemorandumThe Memorandum

ToTo FromFrom ReRe

Question PresentedQuestion PresentedBrief AnswerBrief AnswerStatement of FactsStatement of FactsDiscussionDiscussionConclusionConclusion

The HeadingThe Heading To:To: Supervising AttorneySupervising Attorney From:From:Your nameYour name Date:Date: Current DateCurrent Date Re:Re:

Re:Re:What the memo is about or regardingWhat the memo is about or regardingName of client, file number, nature of Name of client, file number, nature of

matter or claim, procedural status if matter or claim, procedural status if any (appeal of conviction, settlement)any (appeal of conviction, settlement)

Drafting the HeadingDrafting the Heading

Consider your readerConsider your readerExamples:Examples:

Re: Nadine Jackson ClaimRe: Nadine Jackson ClaimRe: Nadine Jackson’s Potential Claim Re: Nadine Jackson’s Potential Claim

for Negligent Infliction Emotional for Negligent Infliction Emotional DistressDistress

Re: Extra-territorial Application of Re: Extra-territorial Application of Texas Rules Regarding Advertising by Texas Rules Regarding Advertising by LawyersLawyers

FormattingFormatting

Spacing & content of the heading is Spacing & content of the heading is tabbed, everything is lined up vertically tabbed, everything is lined up vertically with the other pieceswith the other pieces

The document heading & headings of all The document heading & headings of all sections are in boldsections are in bold

Question presented & brief answer are Question presented & brief answer are single spaced. If multiple issues, double-single spaced. If multiple issues, double-space between each. The remainder of space between each. The remainder of the memo is double spaced.the memo is double spaced.

The document is justified left because full The document is justified left because full justification will alter citation spacing.justification will alter citation spacing.

Page numbering is at the bottom of the Page numbering is at the bottom of the page after the first.page after the first.

Question PresentedQuestion Presented

Some people label this “Issue Some people label this “Issue Presented”Presented”

Some begin with Statement of Some begin with Statement of Facts firstFacts first

Goals of the Question PresentedGoals of the Question Presented

Identify claim, crime, defense or Identify claim, crime, defense or elementselements

Summarize necessary facts related Summarize necessary facts related to the disputeto the dispute

End with a question that identifies End with a question that identifies the disputed issuethe disputed issue

Do not include conclusionsDo not include conclusions

Count the IssuesCount the IssuesNumber of issue statements must Number of issue statements must

match the parts in the discussionmatch the parts in the discussionOrganize and list the question(s) in Organize and list the question(s) in

the same the same orderorder of the discussion of the discussion

Question PresentedQuestion Presented

Two typesTwo typesGiven problem to research the state of Given problem to research the state of

the governing law, without referencing a the governing law, without referencing a client = simple legal questionclient = simple legal question

Asked to apply a rule of law to a set of Asked to apply a rule of law to a set of facts and predict a result = question + facts and predict a result = question + most important facts & sometimes the most important facts & sometimes the rulerule

Writing the Question PresentedWriting the Question Presented

Format: (varies)Format: (varies)Purely legal: simple questionPurely legal: simple question

What are the parameters of activity that has What are the parameters of activity that has been permitted by disciplinary committees or been permitted by disciplinary committees or courts considering the practice of “solely courts considering the practice of “solely federal law” in Texas or other jurisdictions?federal law” in Texas or other jurisdictions?

Prediction based on client factsPrediction based on client factsWhether Carrolton can enforce the Watson Whether Carrolton can enforce the Watson

covenant-not-to-compete when the covenant covenant-not-to-compete when the covenant prohibits Watson from making sales contracts prohibits Watson from making sales contracts for three years and applies to the three for three years and applies to the three counties closest to Carrolton’s headquarters.counties closest to Carrolton’s headquarters.

Possible FormatsPossible Formats1.1. Legal question + concise Legal question + concise

statement relevant factsstatement relevant facts

2. Legal question + concise 2. Legal question + concise statement in “whether” formatstatement in “whether” format

3. Under/does/when format3. Under/does/when format

Legal question + concise Legal question + concise statementstatement

Can . . .[legal question] . . . when Can . . .[legal question] . . . when [state major facts]?[state major facts]?CanCan WhereWhereDidDid WhenWhenWasWasMayMayIsIs

Notice no rule of law in this exampleNotice no rule of law in this example

ExamplesExamples Ex: Ex: CanCan Carrolton enforce the Watson Carrolton enforce the Watson

covenant-not-to-compete covenant-not-to-compete whenwhen the the covenant prohibits Watson from making covenant prohibits Watson from making sales contracts for three years and applies sales contracts for three years and applies to the three counties closest to Carrolton’s to the three counties closest to Carrolton’s headquarters?headquarters?

DoDo the Texas rules concerning advertising the Texas rules concerning advertising by lawyers apply to all of our lawyers in all by lawyers apply to all of our lawyers in all of our offices of our offices whenwhen advertising on the advertising on the Internet?Internet?

Whether formatWhether format

Whether [legal question] . . . when Whether [legal question] . . . when [facts][facts]

Notice, this clause will not be a real Notice, this clause will not be a real sentence, but in legal writing you sentence, but in legal writing you should end the “whether” question with should end the “whether” question with a period.a period.

This format can include a statement of This format can include a statement of the law or not.the law or not.

ExampleExample WhetherWhether the Flynns have a cause of action the Flynns have a cause of action

for either public or private nuisance for either public or private nuisance whenwhen Pecos Power had authorization to build the Pecos Power had authorization to build the high voltage lines, the high voltage lines high voltage lines, the high voltage lines obstruct the Flynns’ view, the Flynns no obstruct the Flynns’ view, the Flynns no longer use their backyard because of their longer use their backyard because of their fear that the EMFs from the high voltage fear that the EMFs from the high voltage lines may cause cancer, and the Flynns lines may cause cancer, and the Flynns have been unable to sell their home.have been unable to sell their home.

ExampleExample WhetherWhether it is a violation of the Texas it is a violation of the Texas

Disciplinary Rules for a partner in our Firm Disciplinary Rules for a partner in our Firm to list her qualifications on the Firm’s web to list her qualifications on the Firm’s web site site whenwhen the partner is not admitted to the partner is not admitted to practice in Texas and does not maintain practice in Texas and does not maintain an office in Texas.an office in Texas.

Under/does/whenUnder/does/when

Under . . .[rule of law] Under . . .[rule of law] does . . .when [facts]does . . .when [facts]

Under . . .[rule of law] Under . . .[rule of law] doesdoes

cancandiddidwaswasisis

ExampleExample

UnderUnder the Texas Penal Code, a person the Texas Penal Code, a person may be convicted of aggravated robbery may be convicted of aggravated robbery if she uses or exhibits a deadly weapon if she uses or exhibits a deadly weapon during a robbery. during a robbery. DidDid Jane Dunn use or Jane Dunn use or exhibit a deadly weapon when she exhibit a deadly weapon when she brandished a crowbar at the UPS driver brandished a crowbar at the UPS driver and threatened to hit him with it during and threatened to hit him with it during a robbery.a robbery.

ExampleExample

Under the Georgia common law rule that Under the Georgia common law rule that allows covenants-not-to compete only when allows covenants-not-to compete only when the area restrained, the activities the area restrained, the activities restrained, and the duration of the restraint restrained, and the duration of the restraint are reasonable, can a covenant-not-to-are reasonable, can a covenant-not-to-compete be enforced when the covenant compete be enforced when the covenant prohibits the covenantor from making sales prohibits the covenantor from making sales contacts, for three years, and applies to the contacts, for three years, and applies to the three counties closest to the headquarters three counties closest to the headquarters of the covenant’s beneficiary?of the covenant’s beneficiary?

Degree of DetailsDegree of DetailsTraditionally, one readable sentence, Traditionally, one readable sentence,

but 2 clear sentences are better than but 2 clear sentences are better than 1 confusing1 confusing

Can have either specific references Can have either specific references to client or general referencesto client or general referencesBetter practice is to use parties’ namesBetter practice is to use parties’ names

Let’s give it a tryLet’s give it a try

Brief AnswerBrief Answer Responds to question presentedResponds to question presented Concise statement of your Concise statement of your

conclusion/prediction on the issueconclusion/prediction on the issue, which , which elements will be easy, which will be more elements will be easy, which will be more difficultdifficult

No longer than No longer than one-thirdone-third of a page of a page If question presented did not present legal If question presented did not present legal

rule, raise it hererule, raise it here Sometimes referred to as Short AnswerSometimes referred to as Short Answer

Brief AnswerBrief AnswerAlways Always begin with one-word or two-begin with one-word or two-

wordword short answer (compare to short answer (compare to Shapo). Shapo). Place a period after the one or Place a period after the one or two wordstwo words

Yes or NoYes or No, only if legal outcome is , only if legal outcome is certaincertain

Lesser degree of certainty - Lesser degree of certainty - probably probably yes; probably notyes; probably not is often is often appropriateappropriate

Statement of FactsStatement of Facts

Remember – Predictive writing – be Remember – Predictive writing – be objectiveobjectiveEx: defendant was speeding through the Ex: defendant was speeding through the

school zoneschool zoneDefendant was traveling 40 mph Defendant was traveling 40 mph

through the school zonethrough the school zone Include favorable & unfavorable factsInclude favorable & unfavorable facts

Statement of FactsStatement of Facts

Focus on relevant facts & background Focus on relevant facts & background factsfacts

Relevant/determinative facts – help Relevant/determinative facts – help show how the rule will apply to client’s show how the rule will apply to client’s situationsituation

Procedural info – current procedural Procedural info – current procedural posture, procedural historyposture, procedural history

Stick to the facts- no conclusions, Stick to the facts- no conclusions, arguments, casesarguments, cases

Statement of FactsStatement of Facts

OrganizationOrganization Chronological – if order of events is important Chronological – if order of events is important

or several factual developmentsor several factual developments Topical – complex facts, cover number of Topical – complex facts, cover number of

topicstopics Hybrid – facts have both chronological Hybrid – facts have both chronological

importance & descriptiveimportance & descriptive Ex. Carillo attractive nuisance – introduction of the Ex. Carillo attractive nuisance – introduction of the

Carillos and the neighborhood, facts surrounding Carillos and the neighborhood, facts surrounding purchase of trampoline, placement & purpose, purchase of trampoline, placement & purpose, chronological events of the day of the accident, chronological events of the day of the accident,

Statement of FactsStatement of Facts

Sometimes easier to draft AFTER Sometimes easier to draft AFTER your analysisyour analysis

Don’t just repeat the facts from the Don’t just repeat the facts from the assignmentassignment