HOW TO WRITE A TRIAL MEMORANDUM:
Note: Pre-work is indispensable to a substantial and convincing trial memorandum. It will do well for you, therefore, to go over the pleadings, the transcript of testimonies of the witnesses, and the documentary exhibits. Working on these materials, identify the legal dispute involved and based on it, draw up the principal issue in the case. From there, proceed to make an outline of the relevant facts that the opposing parties claim and pin point the issues that you need to address. (Abad, 2009)
1. HEADING
2. SUMMARY OF THE NATURE OF THE ACTION Determine what actions were filed by the plaintiff against the defendant and other proceedings which the parties have undergone prior to the filing of the present action. (Ibid.)
3. A SUMMARY OF THE FACTS OF THE CASE This refers to the transaction or event that brought about the legal dispute and the lawsuit as seen from the opposing points of view of the parties. (Ibid.) Read the materials and make an outline of the relevant facts of the case, arranging them the order of time and carefully narrating each if the parties’ version without veering towards any of the parties’ side. (Ibid.) Determine the legal dispute by ascertaining what right of a party the other has violated. Afterwards, study the laws and rules involved in such dispute. (Abad, 2009)
4. STATEMENT OF RELEVANT ISSUES THAT THE PARTIES PRESENT FOR RESOLUTION List down all the issues involved and identify the controlling issue or issues that, when resolved, will end the legal dispute.(Ibid.)
5. AN ORDERLY PRESENTATIONS OF THE ARGUMENTS THAT SUPPORT YOUR CLIENT’S POSITION Rough out your argument on a paper, using the balance sheet format (Ibid.). You need to be guided by your proposition or where you stand on the issue. Draft out arguments against you as well as those arguments in your favor.
Lastly, write your closing statement appealing to the good senses of the reader.
Write up your memorandum introducing the issue/issues, arguments and closing statement. Edit your work to rid out of needless words.
Below is the structure of a memorandum, opinion, brief, petition, comment, position paper, decision, or similar legal writing: (Ibid.) Statement of the Case Statement of the Facts Plaintiff’s version of the facts Defendant’s version of the facts
The issue or issues Body of Arguments Relief
Preparing a legal memorandum
A legal memorandum is a highly structured type of writing that follows certain conventions. The structure and conventions are discussed below, and a sample memorandum is included. Because each legal problem is distinct, no two memoranda will be organised in precisely the same way. Do not slavishly follow the sample memorandum. Rather, focus on learning about the general structure and components of this form of writing, and apply them to your research assignment in the most effective way for your particular problem.
A legal memorandum is comprised of certain standard elements: the heading a summary of the relevant facts succinct identification of the legal issues a discussion of the law relevant to the legal issues, and application of that law to the facts a conclusion that is responsive to the legal issues.
Each of these elements is discussed in greater detail below.
The heading The heading should identify the author and recipient of the memorandum, and include the date, client identification, and subject matter.
Facts The Facts portion should list the relevant facts on which you have relied in researching and preparing the
memorandum. If you have made assumptions, indicate this. State the facts objectively and clearly. Usually, the order is chronological. Use definitions to standardize terminology for persons and things that will be referred to frequently in the memorandum. This prevents clutter and inconsistent references to the same thing. The Facts portion can either precede or follow the Issues and Conclusions portions of the memorandum. Various formats are listed below. If the Issues and Conclusions will not make sense without reference to the Facts, then put the Facts first. Alternatively, if the Facts portion of the memorandum is quite lengthy, your reader may want to see the Issues and Conclusions first.
Issues The Issues portion of the memorandum is crucial. You must succinctly identify the correct legal issues, within the context of the facts of your case. Include legal elements that are essential to resolution of the issues. The more narrow and descriptive your issue statement is, the more effective it will be. Compare these three issue statements, derived from the sample memorandum research problem: #1
Is the security enforceable?
#2
Will security documents signed and registered using the debtor’s common law name be enforceable against the debtor and the debtor’s creditors if the debtor later changes to using his legal name?
#3
Will personal property security documents granted in favour of the Bank, signed and registered in British Columbia using the Debtor’s common law name David Black, be enforceable against the Debtor and the Debtor’s creditors now that the Debtor has changed to using his legal name David Brown?
#1 asks the basic question that needs to be answered. However, when compared to #2 and #3, it is clearly inadequate. #2 is a good issue statement. It provides a concise summary of the legal issue, and includes the essential elements. It is less wordy than #3, making it easier to read and understand. However, it is less complete than #3, because it does not incorporate the specific facts of the case. #3 is an excellent issue statement. It sets out the precise legal issue to be resolved. Just as each legal case is decided within the confines of the facts of that case, a legal memorandum is intended to address the narrow legal issue raised by a particular problem. If there is more than one issue to be addressed, list the issues in the order in which you will be discussing them in the memorandum.
Conclusions When preparing a legal memorandum, remember that your reader does not want to be kept in suspense. A crisp, clear, responsive answer must be provided as near the beginning of your memorandum as possible.
Which format? There are various ways of dealing with conclusions in a legal memorandum: Format 1
Format 2
Format 3
Format 4
Facts
Issues
Issues
Brief Answer
Facts
Issues
Issues
Conclusions Brief Answer Facts
Conclusions Facts
Discussion
Discussion
Discussion
Conclusion
Conclusion
Discussion
Format 1 is the simplest approach, and is the format used in the sample memorandum. In this format, the Conclusions section follows immediately after the Issues section. Alternatively, Formats 3 and 4 include a Brief Answer immediately after the Issues section, and a longer Conclusion section at the end of the memorandum. Most legal writing books advise that Formats 3 or 4 be adopted. However, students often have difficulty keeping their Brief Answer sufficiently brief, and usually end up repeating its contents verbatim in the Conclusion section. Also, an extremely short Brief Answer (such as Yes or No) does not provide your reader with enough information to understand why you reached that conclusion. If your research problem requires a lengthy conclusion, you may want to follow one of the Brief Answer formats. That way, you can provide a short answer near the beginning of the memorandum, and provide a more detailed conclusion at the end. If your Brief Answer and your Conclusion are likely to be identical, use Format 1. Equivocation One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when the law is uncertain generally, or as it applies to your facts. Since the purpose of the memorandum is to answer the legal question posed, you cannot simply say that the law is unclear and leave it at that. In some circumstances there may be a practical solution that enables you to avoid confronting the uncertainty in the law. The sample memorandum provides an example of this. However, usually you have to make a decision about what a court would likely do if faced with your fact situation. Try to avoid using equivocal language in your memorandum. This is particularly important in the Conclusion section. The Discussion portion of the memorandum should also be reviewed for equivocal language. Sentences that begin with the phrase “It would appear that” or “It seems that” should alert you to equivocation.
By all means indicate where the law is unclear. But also state what you think is the better view or probable outcome.
Discussion The Discussion section is the heart of the memorandum. It provides the venue for explaining and analysing the law, and applying it to your facts. The Discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC.
I
The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the Discussion section.
The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your R facts. A
The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual
cases, distinguishing cases, making counterarguments, and considering policy issues.
C
The last step is to state your conclusion on the legal issue being discussed. Although you will include an overall conclusion elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn.
IRAC need not be applied rigidly. Your decision about how to divide up the legal issues will influence the way that you apply IRAC. For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue. You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the sub-issues.
