Transcript The Rest of the Memo - South Texas College of Law

The Rest of the Memo
Drafting the Question Presented,
Brief Answer & Statement of Facts
© Prof. Njeri Mathis Rutledge
Assignment Details
Goal: make a conclusion and support
whether or not the third element can be
satisfied
 Closed research – no additional research
allowed
 Not necessary to utilize every case. Every
case may or may not be helpful
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Assignment Details
Quoting – “ . . .” Warner p. 438
 When referring to precedent by name –
always underline or italicize
 Overview paragraph – summarize other
elements
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Assignment Details
Submission process
 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.
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The Memorandum
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To
From
Re
 Question
Presented
 Brief Answer
Statement of Facts
 Discussion
 Conclusion
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The Heading
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To:
From:
Date:
Re:
Supervising Attorney
Your name
Current Date
Re:
 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)
Drafting the Heading
Consider your reader
 Examples:
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 Re:
Nadine Jackson Claim
 Re: Nadine Jackson’s Potential Claim for
Negligent Infliction Emotional Distress
 Re: Extra-territorial Application of Texas
Rules Regarding Advertising by Lawyers
Formatting
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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
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.
Page numbering is at the bottom of the page
after the first.
Question Presented
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Some people label this “Issue
Presented”
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Some begin with Statement of Facts first
Goals of the Question Presented
Identify claim, crime, defense or elements
 Summarize necessary facts related to the
dispute
 End with a question that identifies the
disputed issue
 Do not include conclusions
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Count the Issues
Number of issue statements must match
the parts in the discussion
 Organize and list the question(s) in the
same order of the discussion
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Question Presented
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Two types
 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
Writing the Question Presented

Format: (varies)
 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?
 Prediction
 Whether
based on client facts
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 Carrolton’s headquarters.
Possible Formats
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1. Legal question + concise statement
relevant facts
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2. Legal question + concise statement in
“whether” format
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3. Under/does/when format
Legal question + concise statement
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Can . . .[legal question] . . . when [state
major facts]?
 Can
 Did
Where
When
 Was
 May
 Is
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Notice no rule of law in this example
Examples
Ex: Can Carrolton enforce the Watson covenantnot-to-compete when the covenant prohibits
Watson from making sales contracts for three
years and applies to the three counties closest
to Carrolton’s 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?
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Whether format
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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.
 This format can include a statement of the
law or not.
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Example
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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.
Example
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Whether it is a violation of the Texas Disciplinary
Rules for a partner in our Firm to list her
qualifications on the Firm’s web site when the
partner is not admitted to practice in Texas and
does not maintain an office in Texas.
Under/does/when
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Under . . .[rule of law] does . . .when
[facts]
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Under . . .[rule of law]
 can
 did
 was
 is
does
Example
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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.
Example
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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 covenant’s beneficiary?
Degree of Details
Traditionally, one readable sentence, but 2
clear sentences are better than 1
confusing
 Can have either specific references to
client or general references
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 Better
practice is to use parties’ names
Let’s give it a try
Brief Answer
Responds to question presented
 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
 If question presented did not present legal rule,
raise it here
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Sometimes referred to as Short Answer
Brief Answer
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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
 Lesser degree of certainty - probably yes;
probably not is often appropriate
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Statement of Facts
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Remember – Predictive writing – be
objective
 Ex:
defendant was speeding through the
school zone
 Defendant was traveling 40 mph through the
school zone
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Include favorable & unfavorable facts
Statement of Facts
Focus on relevant facts & background
facts
 Relevant/determinative facts – help show
how the rule will apply to client’s situation
 Procedural info – current procedural
posture, procedural history
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Stick to the facts- no conclusions,
arguments, cases
Statement of Facts
Organization
 Chronological – if order of events is important or
several factual developments
 Topical – complex facts, cover number of topics
 Hybrid – facts have both chronological
importance & descriptive
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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,
Statement of Facts
Sometimes easier to draft AFTER your
analysis
 Don’t just repeat the facts from the
assignment
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