America'S #1 legal reference chart--12 pages


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AMERICA'S #1 LEGAL REFERENCE CHART--12 PAGES
LEGAL WRITING
HOW TO WRITE A LEGAL MEMORANDUM
LEGAL MEMO:
FOUNDATION OF ALL LEGAL ANALYSIS

SINGLE MOST IMPORTANT SKILL FOR LAW STUDENTS TO LEARN
1.Lawyer's basic work product — it gives a legal opinion
2.Combines organization, issue framing, and legal analysis in a professional format
EXAMPLES IN THIS CHART
1.Items in (italics) usually are signposts to identify what immediately follows them
a. For teaching purposes
b. Not what you actually write in a memo
2.Items in [brackets] are things that you would have to supply, i.e. proper citations to legal authority
 

ELEMENTS OF A LEGAL MEMORANDUM

HEADING
1. Standard form  
2. Identifies case, date, main legal issue, writer
ISSUE
1. States the legal question which the memo answers
2. Usually one sentence that also mentions the key facts that underlie the legal problem
CONCLUSION
1. Gives the brief answer to the question stated in the Issue
2. 1-4 sentences that note the key facts and legal points that support the answer
FACTS
1. Sets forth the facts which the legal analysis will use, plus enough background facts to give context
2. Not a detailed restatement of all of the facts of the case
DISCUSSION
1. Organizes and explains the analysis of the facts and law that leads to the Conclusion
TIP: Try writing the memo in this order:
(1) Write the Heading
(2) Write the first draft of the Facts section
(3) Research the legal theories that apply
(4) Write the Issue section
(5) Write the Discussion section (legal analysis)
(6) Write the Conclusion section
(7) Revise and trim the Facts  section to include only the relevant facts and necessary background
 
 

SAMPLE HEADING

This sample Heading follows a typical format. The "TO" and "FROM" items identify who wrote the memo for whom. The "DATE" items gives the effective date of the legal research and analysis — a key fact on which future readers will rely. The "RE" item specifies the case name, the internal file number, and the memo's general purpose.

Memorandum of Law

TO:       Thomas Jefferson
FROM:   Patrick Henry
DATE:    September 1, 1997
RE:        State v. Kellogg: file no. 5797;
Defendant's potential criminal
liability for  larceny  under
Virginia law.
 
 

EXPLAINING THE FACTS

ELEMENTS
1. The Facts section should contain the facts important  to   the   legal   analysis,   plus background information for context
2.1n most memos, explain the facts in chrono­logical order
3. Use all relevant facts, whether favorable or unfavorable to the client
4. Do not argue or draw conclusions; just tell the story in this section
SAMPLE FACTS SECTION [LARCENY PROBLEM]
"Witnesses saw the following events at about 5:30 p.m. on July 1, 1997: Mrs. Harris's purse was on the sidewalk outside the grocery store. Defendant stood near the purse, looked around in all directions, then picked up the purse. He carried the purse to his car, put it in the back seat, and drove away."
"At about 6:15 p.m. the same day, a policeman stopped Defendant on a tip from one witness. When the policeman came up to Defendant's car window, Defendant did not say anything about the purse until he was specifically asked. Defendant then told the policeman that "I was going to take the purse to the police station tomorrow to turn it in. I never even opened it." The policeman reported that the purse was sitting on the back seat in plain view, and was closed."
 "Once the purse was in custody, Mrs. Harris inspected it but found nothing missing from its contents. Mrs. Harris requested, however, the district attorney to charge Defendant with larceny."
 
 

DEFINING THE ISSUE

SPOTTING AND DEFINING "ISSUES” IS CRUCIAL
1. An "issue" is a question about how law applies to a set of facts
2. In the legal memo, the Issue section presents the legal question using the key facts
3. To draft the Issue for the memo, follow these three steps:
Step 1: From your initial research, identity the elements of the legal principle.
           (Example)    Larceny is (1) the taking (2) and carrying away of (3)  another
                              person's  property.  with (4) intent to permanently  deprive that
                              person of it
Step 2: Locate the key facts that might either prove or disprove the elements of the crime or legal theory. Before starting to write the memo, make an outline that connects the facts with the elements of the legal theory
          (Example outline of elements and facts)
          (element 1)   Def. picked up purse
          (element 2)   Def. carried away purse
          (element 3)   Mrs. Harris owned purse
                              Def. said he was going tc it in
          (element 4)   Def. still had it 45 minutes later
                              Def. did not tell police until asked
                              Def. explained his plan to turn it in
                                      Purse was unopened plainly visible in the car
Step 3: Write the question that the memo will answer,  in  one  concise  sentence possible). Use the key facts that appty to the elements. Refer to the jurisdiction.
SAMPLE ISSUE SECTION
1.   (Good example)  Did  defendant  commit larceny under Virginia law when he picked up the shopper's purse, put it into his car and drove  away,  but explained that he was planning to turn the purse into the police the following day?
2.   (Poor example)   Did   defendant commit larceny under Virginia law?  (Missing are the key facts — issue is too bbroad)
3.   (Poor example) Did defendant commit a crime by taking a purse that did not belong to him? (Missing are the jurisdiction, the actual legal theory, and key facts for each element)
4.   (Poor example)   Can a defendant be convicted of larceny under Virginia  law?  (This is a different issue — the correct issue involves the particular factts of this case, not all defendants generally)
 

Page - 1
WRITING THE DISCUSSION SECTION

LEGAL ANALYSIS OF THE ISSUE
1. Discussion follows from the research that produced the Issue Section
2. Writing the Discussion requires two phases: a Develop the organization plan
b. Execute the legal analysis for each element of the plan
3. Usually, the Discussion Section should provide a complete analysis
4. When developing the organization plan, be sure to account for both sides of a case  (particularly where the facts and law suggest counter arguments)
DEVELOP THE ORGANIZATION PLAN FOR THE LEGAL ANALYSIS
1. The larceny example above is a fairly simple problem, with a single main event and a single legal theory
2. Legal memos can present much more complicated situations
3. ln general, follow these four steps to organize and execute the analysis:
Step 1: Divide the situation into discrete events or transactions
Step 2: For each event or transaction, identify the  main  legal theory, statute  or cause of action involved
Step 3: Break the  applicable  statute,  legal theory  or cause  of action into  its elements; number them
Sample format:
I. (Event 1)  Defendant insults and throws a punch at Plaintiff, but misses; Plaintiff screams and faints.
A. (Legal theory) Civil Assault
1. (element) Intentional act
2. (element) Without privilege
3. (element) Causing reasonable fear of imminent physical harm
B. (Legal theory) Intentional  Infliction of Emotional Distress
1. (element)  Intent to inflict emotional distress
2. (element)  Outrageous and intolerable conduct
3. (element)  Causing severe emotional distress
II. (Event 2) Defendant pours drink on Plaintiffs unconscious body; stains expensive clothing
A. (Legal Theory) Civil Battery
1. (elements)
B. (Legal Theoiy) Trespass to Chattel
1. (elements)
Step 4: For each element, execute an IRAC-style legal analysis.
TIP: Use a descriptive subheading for each item in the organization plan. Subheadings help you break down the argument into segments, and they help the reader follow along.
 
 

EXECUTE EACH ANALYSIS USING IRAC

1. Every  analysis  explaining  how the  law applies to facts must contain four elements:

Issue, Rule, Analysis, and Conclusion (IRAC)
a. Legal analysis technique that directly employs these elements is abbreviated IRAC
2. Terms defined:
Issue — Presents a question of how a legal principle applies to speecific facts
Rule — States the legal principle orr definition that applies
Analysis — Explains how the facts do/don't support the Rule<
Conclusion — Answers the question assked by the Issue, using a complete sentence which gives the result of the Analysis
SAMPLE IRAC
[The example below shows the elements of IRAC, as applied to the second element of larceny. A sample subheading is also included. Every explanation of a legal point in a legal memo should contain the elements of IRAC.]

(Subheading:)

2. Second  Element of Larceny:"Taking Away"
(Issue:)          When Defendant moved the purse away from the store and put it in his car, did he "carry it away" under the definition of larceny?
(Rule:)            To "carry away" property means to move it away from the possession of the owner. [Cite law] Moving property out of the sight of the owner without permis­sion or off the owner's premises, consti­tutes a "carrying away." [Cite law]
(Analysis:)      Here, Defendant not only moved the purse from the area of the store, but he put it into his car and drove away. He took the purse far from the view of the owner, had the owner been nearby.
(Conclusion:) Accordingly, Defendant's conduct satisfies larceny's "taking away" element.
 
SIMPLE LARCENY EXAMPLE
[This example illustrates how to organize and execute the larceny analysis in a brief Discussion Section. ]

DISCUSSION

Whether Defendant is guilty of larceny depends on whether the facts support the four elements of larceny: (1) taking, (2) carrying away, (3) the property of another, (4) with intent to permanently deprive the owner of possession. [Cite law for this definition]. The evidence satisfies the first three elements.

(Subheading):

1. Defendant Did "Take" the Purse
The first issue is whether Defendant did "take" the purse. Under the definition of larceny, a person "takes" property when he or she "lays hold or grasps it." [Cite law]. There is no dispute that Defendant grasped the purse in his hands, and thus satisfied the "taking" element.

(Subheading):

2. Defendant Did "Carry Away" the Purse.
Second, when Defendant moved the purse away from the store and put it in his car, did he "carry it away" under the definition of larceny? To "carry away" property means to move it away from the possession of the owner. [Cite law] Moving property out of the sight of the owner without permission or off the owner's premises, constitutes a "carrying away." [Cite law] Here, Defendant not only moved the purse from the area of the store, but he put it into his car and drove away. He took the purse far from the view of the owner, had the owner been nearby. Accordingly, Defendant's conduct satisfies larceny's "taking away" element.

(Subheading):

3. The Purse Was "Property of Another."
Third, there is no dispute that the purse was the "property of another." Mrs. Harris will testify that she owned the purse. Defendant in effect admitted he did not own it when he told the officer he planned to turn it into the police.

(Subheading):

4. Evidence of "Intent to Deprive Permanently."
The evidence is mixed on the fourth element of larceny, "intent to deprive permanently." Intent is a subjective mental state. [Cite law]. Evidence that proves intent, however, can be both the direct testimony of the defendant and circumstantial evidence. [Cite law].     
(Argue prosecution’s case:) Circumstantial evidence supports finding that the Defendant had the intent to deprive. Before picking up the purse, he looked around, perhaps to avoid being seen. He did not report the lost purse to the store manager. He put it into his car and drove away. When stopped by a policeman, Defendant did not volunteer that he had the purse. These facts show that Defendant intended to keep the purse, at least until he had a chance to check its contents.
(Argue the defense case:) On the other hand, Defendant will testify that he planned to turn the purse into the police. If a jury believes his testimony, then that evidence alone would be enough to acquit him, because it would show he lacked the intent to deprive. [Cite law on reasonable doubt raised by defendant's testimony]. Also, according to the policeman, Defendant left the purse in plain view and did not deny having the purse when asked. This evidence shows that Defendant was not hiding the purse, and thus is evidence showing lack of intent to commit the crime. [Cite law on general intent to commit crime].

(Subheading):

5. Sufficiency of Evidence of Larceny
(Summarize and conclude:) There is suffi­cient evidence  to  charge  Defendant  with larceny because there is evidence of each of the crime's four elements.  [Cite law on sufficiency of evidence for charge]. There is little factual dispute on the first three elements, but on the intent element there is evidence on both sides. The defense evidence, if believed, could raise reasonable doubt about whether Defendant intended to keep the purse or its contents. [Cite law on burden of proof of larceny]. Defendant did not hide the purse, did not open the purse, and did not deny having the purse. His conduct is consistent with his stated plan to turn the purse into the police the following day. There appears a good chance, on the facts currently known, that a jury would acquit Defendant of larceny.
 
 

WRITING THE CONCLUSION

Follow the basic form of the Issue section, but use the key facts and law to draw the conclusions.
SAMPLE CONCLUSION
Defendant likely will not be found guilty of larceny because he lacked the "intent to deprive" element. His picking up Mrs. Harris's purse from the sidewalk and putting it into his car is enough evidence to support the first three elements of larceny under Virginia law. However, Defendant did not hide the purse or deny having it when asked by the police officer, and he will testify that he planned to turn in the purse to the police. A reasonable jury who believed these facts would likely conclude that Defendant did not intend to permanently deprive Mrs. Harris of her purse.
 

Page - 2
EXAMPLES OF MORE
 COMPLEX ORGANIZATION PLANS

Organizing the legal memo is usually the hardest step in writing it.  Use the four steps to organize all kinds of legal analysis problems. See "Writing the Discussion Section"
Steps 1 and 2: Divide situation into discrete events or transactions; identify legal theories
1. Criminal law example: Without permis­sion. Defendant came onto property, opened the front door and entered a private home, and took away a television set. What is the Defendant's potential criminal liability?
a. Break into three events:
i.  Defendant came onto property. (Analyze criminal trespass)
ii. Defendant entered dwelling without permission. (Analyze burglary)
iii.Defendant took away television without permission. (Analyze larceny)
2. Contract law example:  Jason calls a plumber to repair a problem with his bathtub; the two never discuss a price for the work.  Plumber arrives a day earlier than scheduled, and works on the kitchen sink, not the tub. Who will owe whom how much?
a. Break into four events:
i.  Initial telephone call.  (Analyze: Was a contract formed?  What were material terms of the contract?)
ii. Plumber arrived a day early. (Analyze: Was this a breach of a material contract term? Did Jason suffer damage? How much?)
iii.Plumber did not fix the bathtub. (Analyze: Was this a breach of a material contract    term?   Did Jason  suffer damage? How much?)
iv Plumber fixed kitchen sink.  (Analyze: Did the work fall within the initial contract  (if any)? If not, is plumber entitled to any compensation? Did Jason suffer damage? How much?)
3. Tort law  example, with  IRAC  analysis employing analogy: Knowing that Matt had one previous conviction for drunk driving, Jerry let Matt use his car only to pick up groceries. Matt picked up the groceries, but then started drinking beer in the car and went on a joyride across town, during which he injured the Plaintiff. Can Jerry be liable to Plaintiff for the tort of "negligent entrustment of a dangerous instrumentality?"
a. Break into three events:
i.   Jerry  allowed  Matt to  drive the  car. (Analyze Jerry's negligent entrustment)
ii.  Matt drove outside the scope of Jerry's permission. (Analyze  effect of Matt's
     conduct on Jerry s potential liability for negligent entrustment)
iii. Matt’s driving injured Plaintiff. (Analyze whether Jerrys negligent act actually and
  proximately caused the injuries, or whether Matt s conduct beyond the scope of
      permis­sion was the actual and proximate cause)
Step 3 (Break theory into elements, number them) and Step 4 (Execute IRAC-style    analysis) on first event

(Descriptive Subheading)
Jerry's Potential Liability for
Negligent Entrustment
(First Event = First Issue)

The first issue is whether Jerry committed the tort of negligent entrustment when he allowed Matt to drive his car, knowing that Matt had a previous conviction for drunken driving.

(Elements of cause of action; numbered)

Under [this state's] law, a car owner is liable for "negligent entrustment of a dangerous instrumen­tality" if the owner entrusts his car to a driver, when the owner (1) knows or has reason to know, either (2) that the driver is intoxicated or (3) that the driver is incompetent to drive. [Cite law]

(Quickly dispense with element 2)

Element (2) of the negligent entrustment theory does not apply here because there is no evidence that Matt was intoxicated when Jerry entrusted the car to him.

(Elements I & 3 - knowledge of incompetence)

Elements (1) and (3) of negligent entrust­ment might apply because Jerry did know that Matt had previously been convicted of drunk driving.

(The general rule on element 3 — incoompetence)

Courts have held that just because a person has a prior drunk driving conviction does not render him an "incompetent driver" in this context. [Cite cases]

(Set up the case analogy)

In P. v. S, the parents of the driver knew of the driver's three previous accidents in the previous two years, yet allowed the driver to use their car again. [Cite] That Court held the driver's record did not rise to the level of "habitual reckless conduct," so the parents did not have knowledge that the driver was "incompetent." [Cite] Similarly, the Court in L. v. H, held that a single prior traffic violation is insufficient evidence of driver incompetence as a matter of law.

(Compare the analogous cases to the present facts)

Here, Jerry had less knowledge, and less reason to believe the driver to be incompetent, than did the owners in P. v. S. Jerry knew of only a single prior conviction, which is insuffi­cient proof of incompetence under L. v. H.

(Conclusion)

Therefore, at the time he let Matt use the car, Jerry likely did not commit negligent entrustment.
 
 

TYPES OF LEGAL LOGIC

Logical   Deduction   and   Reasoning   by Analogy   are   the   two   most   persuasive techniques in legal analysis.
LOGICAL DEDUCTION
1. Occurs in a legal analysis whenever you identify or classify something, and thereby show whether it falls inside or outside a given category
2. Example of logical deduction:
Statute 2.2 forbids bringing "pets" aboard an airplane. [Cite] Bob's cats and canaries are all pets under the law, because companion Statute 2.3 defines pets to include "common household animals including dogs, cats, and all birds (except poultry)." [Cite] As Bob's animals fall within Statute 2.3's list, Statute 2.2 forbids bringing Bob's animals aboard.
REASONING BY ANALOGY
1. Explains how the legal result in a different case should apply to the facts of the present case
2. An analogous case involves things that are similar to the present case, such as similar (1) physical facts or events, (2) relationships among the parties, (3) legal principles, or (4) notions of fairness
3. Analogous cases can show upper and lower limits, such as (1) how bad conduct has to be to amount to "extreme and outrageous," or (2)  how much performance of a contract constitutes "substantial performance," or (3) how much and what type of circumstantial evidence is necessary to prove a person's "intent"
4. Example of reasoning by analogy to a case: Statute 2.2 forbids bringing "pets" aboard an airplane.[Cite] In Rex v. State, the Court held that a frog was not a "pet" under Statute 2.2. The Rex Court reasoned that the term "pet" referred to any animal, warm or cold blooded that was commonly kept for companionship, but frogs are not "companionable." [Cite] Bob's piranha is a cold-blooded animal, and like a frog is not "companionable." Applying Rex here. Bob's piranha is not a "pet" under Statute 2.2. Therefore, Statute 2.2 does not prohibit Bob from bringing his piranha on an airplane.
TIP: Do these examples seem simple and obvious to you? They are obvious to you now, because you have seen the logic explained clearly here. You must do the same for your readers (lawyers, professors, judges):  show every step of the logic. Do not skip any logical step just because you think it is too simple and obvious.  Make your reasoning obvious by showing every step.
 
 

FINAL TIPS

EVERY LEGAL MEMO MUST:
1. Address question asked in Issue section.
2. Discuss both sides of points in dispute.
3. Take a neutral tone.
4. Cite law for every legal point.
TEN  STEPS TO  BETTER  LEGAL MEMOS
1. Verify spelling, grammar, punctuation.
2. Use active voice throughout.
3. Every sentence should advance the reader's understanding.
4. Delete legalese; define legal terms.
5. Avoid nouns or adjectives that were created from verbs; change to verb forms: (reach an agreement => agree; make an objection => object; is probative of => proves).
6. Never leave pronouns such as "this," "that," "those,"  or "them"  standing  alone  in  a sentence;  always  state the referent:   "this holding," "that car," "those plaintiffs."
7. Use concrete words, not abstract ones: "car" (not "vehicle") " left" (not "exited").
8. Minimize the number of negative words in each sentence (e.g., absence, fail, deny, lack, omit, not, no, non-, never).
9. Never say "clearly," "obviously," "without question,"  etc. (unless quoting a legal authority).
10. Eliminate all first person pronouns: I, me, my, we, us, our.
RED FLAGS
These indicate possible problems with a sentence's clarity, logic, length, or legal or factual support
1. Vague connectors: "as to," "in terms of," "in relation to," "relating to"
2. Sentences that start with "While," "Inasmuch as," "Although"
3. The phrase "in other words"
4. Terms of personal conviction: "clear," "clearly," "obvious," "obviously," "undoubt­edly," "presumably," "certainly," "without question"
5. Sentences that contain more than two of any of these connectors: "which," "but," "but only,"  "nevertheless,"  "though,"  "while," "although,"  "except,"  "unless,"  "notwith­standing"
 

Page - 3
PLAIN ENGLISH TABLE

Word/Phrase ……………….. Replace¦.. Replace With
accordingly....................................... so
adequate number.............................. enough
advise............................................... tell, recommend
afford an opportunity........................ let
anticipate.......................................... expect
approximately................................... about
acquire............................................. get
adjudicate......................................... decide
along the lines of.............................. like
ascertain........................................... find out, learn
assist................................................ help
as to................................................. about, on, of
at that / this point in time................. then / now
at the present time............................ now
at the time........................................ when
be benefited by................................. benefit from
be determinative of........................... determine
be dispositive of................................ dispose of, finish
benefit.............................................. help
by and between................................ between
by means of...................................... by
by reason of...................................... because of
by virtue of....................................... by, under
close proximity.................................. near
commence........................................ begin
communicate.................................... write, tell, talk
compensate...................................... pay
complete........................................... fill out
consequence..................................... result
contiguous to.................................... next to
covenants (noun & verb)................... promises
demonstrate..................................... show, prove
despite the fact that.......................... although
due to the fact that........................... since, as, because
during the time that.......................... during, while
effect (verb)..................................... make, cause
elect................................................. choose
endeavor (verb)................................ try
ensue............................................... follow
excessive number............................. too many
exhibit.............................................. show, display
file a motion...................................... move
for the period of................................ for
for the purpose of............................. to
for the reason that ........................... because
forward (verb)................................... send, mail
from the point of view....................... from, for
furnish.............................................. send, give
give consideration to......................... consider
hence............................................... so, thus
has the capability.............................. can
however............................................ but
identical............................................ same
implement......................................... carry out, do
in the event that............................... if
in the nature of................................. like
in the near future.............................. soon
in view of the fact that...................... as, since
in accordance with............................ by, under
in addition........................................ also
in an effort to.................................... to
in cases which................................... when, where, if
in connection with............................. with, about, concerning
in favor of......................................... for, favoring
in lieu of........................................... instead of
in order to......................................... to
in relation to..................................... about, concerning
in so much as.................................... as, since, because
in terms of........................................ in, by, with [or rephrase entirely]
in the case of.................................... when
inasmuch as...................................... as, since
inception........................................... start, beginning
incumbent upon................................ must
indicate............................................. show, explain, say, testify
insufficient........................................ not enough
is able to........................................... can
is applicable...................................... applies
is binding upon................................. binds
is entitled to...................................... may
is required to.................................... must
locate................................................ find
location............................................. place
made and entered............................. made (or entered)
make contact with............................. see, meet, talk to
make reference to............................. refer to
nevertheless..................................... but, however, even so
notwithstanding the fact that............ although
numerous......................................... many, most, several, [est. count]
observe............................................. see, watch, look at
on the basis of.................................. by, from, because of
on the part of.................................... by
personnel.......................................... people, persons, staff, employees
presently........................................... soon, now
prior to.............................................. before
provided that.................................... if, unless
pursuant to....................................... under
relating to......................................... about, on, [or a specific connector]
said (as an adjective)........................ the, this, that, it [or actual name]
state (verb)....................................... say
subsequent(ly)................................. later, next
subsequent to................................... after
sufficient.......................................... enough
terminate (non-legal usage).............. stop, end
The reason...is because..................... The reason...is that (or rephrase)
this is a topic that............................. this topic
time period........................................ time
to be sure......................................... of course
transpire........................................... happen
transport........................................... bring, send
under the provisions of..................... under
until such time as.............................. until
utilize/utilization............................... use
viable................................................ workable, possible
whereas............................................ as, since
with a view to.................................... to
with reference to............................... on, about, concerning
with regard to................................... on, about, concerning
with respect to.................................. on, about, concerning
witnessed......................................... saw
 
Delete these entirely
 
Aforementioned................................ Therein
Herein............................................... Whereas
Hereinbefore..................................... Wherefore
Hereinafter........................................ Whereof
Hereunto........................................... Witnesseth
insofar as...is concerned
Know all men by these presents
Now therefore
 

Page - 4

 
 
 
 
 

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