Tuesday, May 20, 2014

How to Write a Legal Memorandum



Legal memoranda, like legal briefs, are usually written in a formulaic fashion, following certain rules that make is easy for a judge or other legal professional to digest the document quickly. Legal memoranda usually provide the underpinnings for most legal briefs. So, whether you need to prepare a memorandum or brief or merely need to decipher one, it may be helpful to know that most memoranda and briefs follow the same format. A very simple legal brief format follows this discussion.

The format is called IRAC, which stands for Issue, Rule, Analysis/Argument and Conclusion. The following further explains the format.

Issue

In a clear and succinct manner, state the issue at hand. The issue can be formulated as a heading such as: “Whether the statute of limitations prohibits the cause of action for negligence by the plaintiff.” This may be how you see the issue stated in a legal brief. This heading is numbered and centered on the page as are all the subsequent headings.

In a legal brief, you want to write persuasively, that is, you want to persuade the reader that your way of seeing the facts and the law applied to the facts is the correct one. Thus, you might see the issue stated in a persuasive fashion in a heading, such as “The statute of limitations does not apply nor prohibit plaintiff’s cause of action for negligence.”

Below this heading, you provide the facts that you will later discuss in the analysis section. You state the relevant facts in chronological order as they pertain to the issue being briefed. Leave out all facts that are not relevant to the issue. This is often difficult to do. It is tempting to put in more facts than is necessary or to embroider the facts for the sake of argument. Reserve argument for later and state only the facts that are important to the issue.

Rule

Next, you state the applicable rule, also as a heading. A legal memorandum or brief must be well-researched. Each jurisdiction has both statutory law and case law. Some issues are covered only by statutory law. Some are covered only by case law, and some are covered by both. In the case of a statute of limitations, California statutory law and case law cover the issue and both must be examined.

The rule is stated as a heading and it may state for example: “Code of Civil Procedure Section 200000 doesn’t act as a bar to plaintiff’s action for negligence as the common principle of discovery tolls the action.”

The applicable law is quoted in the paragraph or two beneath the heading and then case law interpreting the law may also be quoted. This makes a nice transition into the argument or analysis section of the document.



Analysis/Argument

This is the meat of any legal memorandum or legal brief. In this section you argue your position on the issue at hand. This is also often the longest portion of a legal memoranda or brief. It is in this section that you apply the law to the facts at hand to determine an outcome.

Legal memoranda are usually prepared before any briefing is done for the court on a case. They are meant to be informative to the attorney and client rather than persuasive. Thus, often the legal memorandum will contain the most important statutes and case law both in your favor and that which may be argued against your position. In the memorandum you will look at the facts and the nuance of the facts cited in the cases to determine if a particular case cited is applicable. More importantly, you will prepare the analysis that will later persuade a judge that they should decide the issue in your favor.

In this section, all legal authorities cited within the legal memorandum or brief are cited within the document. While it is beyond the scope of this article to explain all the rules regarding citation, you should know that citation rules are quite formalized, precise and that they vary depending upon the jurisdiction in which the matter is pending.




Conclusion

In the conclusion, you summarize the argument and ask the court again to find in your favor. This section should be short and concise.




Sample legal memoranda[i]




A. Whether the statute of limitations prohibits the cause of action for negligence by the Plaintiff

Plaintiff A first purchased and used Defendant B’s product for the control of facial wrinkles on or about December 10, 1979. Plaintiff A continued to purchase and use said product on a fairly continuous basis for the following 20 years. Plaintiff A discovered that she had contracted skin cancer on her face in all the areas where she had used Defendant B’s product on or about June 25, 2002 when diagnosed by her doctor. This action was filed on September 20 2002.


B. Code of Civil Procedure Section 20000000 does not bar Plaintiff’s action for negligence as the common principle of discovery tolls the action.

Code of Civil Procedure Section 2000000 provides a one year period of time to file an action for negligence within this jurisdiction. The case of Swinerton v. Coft (2001; made up jurisdiction, 241 jurisdictional reporter, 61) discusses the above Code of Civil Procedure Section and provides that the limitations period barring any action for negligence does not begin to accrue until the damage is discovered. (Swinterton, p.66)


C. Swinerton is the applicable law and mandates that the statute of limitations is tolled until the damage is discovered. Plaintiff A is well within the mandated time to file.

The facts of Swinerton are very similar to those at issue in this case. In Swinerton like here, the Plaintiff used a topical skin product which was discovered to have caused damage some 5 years after use. In Swinerton like here, use was consistent for a number of years. In Swinerton, the court tolled the statute of limitations and the statute of limitations should be tolled in this case as well.


D. Swinerton is applicable and Plaintiff filed in a timely manner.

Swinerton is applicable. Plaintiff filed in a timely fashion and her case should proceed.

[i] All facts and law stated in this article are fictional and are for illustrative purposes only. They should not be relied upon as authorities for any legal position.

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