Legal analysis: memorandum and case brief

Professionals are supposed to have extensive theoretical knowledge (e.g. medicine, law) and possess skills based on that knowledge that they are able to apply in practice. Lawyers, legislators and others in law use the specialized vocabulary of the legal profession ‘Legalese’ to express legal analysis and legal drafting. In order to be professional law students must learn legal writing (or ‘legalese’ characterized by long sentences, many modifying clauses, complex specialised vocabulary), which is a type of technical writing used by professional lawyers to express legal analysis and legal rights and duties.

As legalese, the conventional language in legal documents is based on the precedent, it is characterised by extreme formality, which can take the form of long complex constructions, loan words and phrases from other languages, archaic and hyper-formal vocabulary.

Legal analysis is divided into predictive analysis, and persuasive analysis. In the United States, predictive analysis is an outcome-predicting memorandum (positive or negative) of a given action for the attorney’s client, and persuasive analysis includes, for example, motions and briefs.

The most common type of predictive legal analysis is the legal memorandum (abbr. ‘memo’). It includes the client letter or legal opinion, which explains and applies the authorities in predicting an outcome, and concludes with advice and recommendations. The legal memo is the research done for a given legal question. Traditionally, it is formally organized and written. Legal memoranda have differing purposes in different situations. You have to decide whether the memorandum you are writing is needed for help to: a) decide whether to take a case; b) advise a client; c) draft a pleading; e) prepare for trial.

Although memoranda cannot be organised in the same way, because legal problems are various, a legal memo is a very structured type of writing that observes certain conventional rules. There are certain standard elements that a legal memorandum consists of: a) the heading (that identifies the author and recipient of the memorandum, and includes the date, client identification and subject matter), b) a summary of the relevant facts (that lists the relevant facts on which you rely on researching and preparing the memorandum), c) succinct identification of the legal issues (that state the correct legal issues, within the context of the facts of the case including legal elements that are essential to resolution of the issues), d) a discussion of the law relevant to the legal issues, and application of that law to the facts (that is the heart of the memorandum, as provides the explanation and analysis of the law, and its application to the facts. The Discussion section is divided into separate parts for each discrete legal issue covered in the memorandum. The discussion of each issue includes 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) and e) a conclusion that is responsive to the legal issues. (It is a summary of the predictions about the state of the law and its applications to the case as well as the best solutions to the problem facing the client are recommended.)

Later, most memoranda form the basis for a letter of opinion. The format easily transfers from memo to letter. However, both the language and the content should be taken into consideration when addressing the information to a client.

As one of the most common forms of communication within an office environment, the memo or memorandum serves as a quick note to convey information from one section of the company to another. A memorandum may be drafted by management and addressed to other employees or from a department head to the company at large. Generally, a memorandum will include a few basic elements, such as the name of the originator of the document, the intended recipient or recipients, the date of issue, the general topic, and the body of the document that contains the information to be shared.

There are actually a number of different types of common memorandum style documents that are employed in the business world. One often utilized format is referred to as the Memorandum of Understanding. This document is used to define and document the perimeters of a working relationship between two parties. Generally, the body of this note addresses the main reason for the partnership, the anticipated outcome, and the general terms and conditions that will govern the business arrangement. In many cases, the Memorandum of Understanding serves as a precursor to a more formal contract.

A Memorandum of Agreement, or MOA, is similar to the Memo of Understanding, in that the document is used to spell out the terms and conditions that will apply to all participants in a joint project. However, the MOA tends to go into more detail, outlining processes and procedure in addition to addressing the general perimeters of the working arrangement.

Private Placement Memoranda is a common communication tool that is involved in securities offerings. This type of memorandum is normally addressed to a select number of accredited investors, and includes all pertinent details surrounding the sale of the security, including the final date that the offer will be honoured. While not considered a contract, this form of memorandum is thought to be a more or less firm offer that precludes the actual financial transaction.

The Memorandum of Association is a foundational document for many businesses of all sizes. Commonly referred to as The Memorandum, this document essentially defines the relationship between the company and the outside of the world. The contents of the memorandum touch on the relationship to clients, vendors, and distributors. In addition to defining relationships, this type of memorandum also indicates the amount of shares a company is authorized to issue, and the range of operations that the company will engage in the pursuit of profitability.

As a general tool of written communication or as a document with a specific purpose, the memorandum is a useful tool in just about any business setting that involves two or more parties. Today, the memorandum may be issued and stored as an electronic document, as well as in hard copy form.

If you need to analyze the law throughout the process of gathering information and writing, some techniques will help you with analysis and synthesis. One of the best ways to improve your analysis and your writing is to create a structured outline of the issues by breaking down each legal issue into its constituent elements. Decide which elements are problematic and which are straightforward. Use your outline of the issues to structure your writing and to advance your analysis.

A brief, as a persuasive document, attempts to persuade a deciding authority to resolve the dispute for the benefit of the lawyer’s client. Briefs are usually submitted to judges, but also to mediators, arbitrators, and others. In addition a persuasive letter may attempt to persuade the opposing party of dispute.

In writing a persuasive document, lawyers write under the same ‘plagiarism’ rules applicable to most writers. Although plagiarism is strictly prohibited in academic work (especially in law review articles intended to reflect the author’s original thoughts), legal analysis is different where plagiarism is accepted, because of the high value of precedent. Nevertheless, legal memoranda and briefs must properly attribute quotations and source authorities, yet, a lawyer might borrow from other lawyers’ texts without attribution, in using a successful argument made in a previous brief.

A brief (from Latin ‘brevis’) is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail. However, in England and Wales, the brief refers to the papers given to a barrister by a solicitor when they are instructed.

Abrief is a written summary of the case. What general advice could we give to students? To prepare a brief, students must extract the case’s most important parts and rephrase them in their own words. The effort will provide a variety of important benefits:

1. to describe a case accurately, students must read it carefully and thoroughly. Restating the case in their own words makes them decide exactly what the courts said, which concepts and facts were essential to its decision, and the proper legal terminology and procedures.

2. after reading so many cases in each course, the case briefs will help them remember the details of each case. And what is mostly important, case briefs must be brief.

3. briefing cases exercises skills students will use throughout their legal career. As a lawyer, they will have to read and analyze cases with a careful eye to detail. They also will have to summarize cases when writing legal memoranda, briefs, and other documents and when making oral arguments to courts.

Briefs fall into the following types: ‘trial briefs’ (presented at trial to resolve a disputed point of evidence), ‘legal briefs’ (used as part of arguing a pre-trial motion in a case), ‘merit briefs’ or ‘briefs on the merits’ (refers to briefs on the inherent rights and wrongs of a case), ‘appellate briefs’ (refers to briefs that occur at the appeal stage), ‘IRAC Case Briefs’ (usually a one page review used by the attorney to find previously decided cases by an Appellate court, in State or Federal Jurisdiction, which show how the courts have ruled on earlier similar cases in court, etc).

IRAC is an abbreviation of Issue, Rule, Analysis, and Conclusion. When a potential client has an interview with an attorney and tells of the legal problem, the attorney, or office paralegal, will review prior case law to find out if the client indeed has a problem that has legal remedy.

Cases are written by lawyers for lawyers. Consequently, there’s a structure and method unlike any other type of writing. Once the structure and method are known, you will be able to proceed with cases quickly.

When writing a case (appellate) brief the following items should be stated and the following steps should be followed:

1. Parties: 1. case name to identify the parties (In a criminal case the first party is the government (state or federal) and the second party is the defendant. However, in a case before an appellate court a defendant (now the appellant or petitioner) seeks action against the state (now the appellee or respondent). E.g. Miranda v. Arizona; 2. court name; 3. page number where the case appears in the textbook; 3. date of the decision

2. Facts of the case: What happened that brought these parties to court? 1. Identify the relationship/status of the parties (Note: Do not merely refer to the parties as the plaintiff / defendant or appellant / appellee; be sure to also include more descriptive generic terms to identify the relationship/status at issue, e.g., buyer / seller, employer / employee, landlord / tenant, etc.) 2. Identify legally relevant facts, that is, those facts that tend to prove or disprove an issue before the court. The relevant facts tell what happened before the parties entered the judicial system. 3. Identify procedurally significant facts. You should set out (1) the cause of action (C/A) (the law the plaintiff claimed was broken), (2) relief the plaintiff requested, (3) defences, if any, the defendant raised.

3. Procedural History: Who won in the court below? (Appellate cases have already had a trial stage. In fact, it may already have been to several appellate courts. The case brief should identify the courts that have dealt with the case and indicate the decisions those courts have made.) You should include the following: a. The decision(s) of the lower court(s). (If the case was decided by a trial court and reviewed by an intermediate appellate court before reaching the court whose decision you are now reading, be sure to note what each court decided.) b. The damages awarded, if relevant. c. Who appealed and why.

4. Legal Issue: What fact or circumstance is at issue that will be the deciding factor in how the court rules on this case?

a. Substantive issue: A substantive statement of the issue consists of two parts: 1) the point of law in dispute; 2) the key facts of the case relating to that point of law in dispute (legally relevant facts). You must include the key facts from the case so that the issue is specific to that case. Typically, the disputed issue involves how the court applied some element of the pertinent rule to the facts of the specific case. Resolving the issue will determine the court’s disposition of the case.

b. Procedural issue: What is the appealing party claiming the lower court did wrong (e.g., ruling on evidence, jury instructions, granting of summary judgment, etc.)?

5. Reasoning / Analysis: The court applies the facts to see whether they satisfy the elements of the rule. This is the court’s analysis of the issues and the heart of the case brief. Reasoning is the way in which the court applied the rules / legal principles to the particular facts in the case to reach its decision. This includes syllogistic application of rules as well as policy arguments the court used to justify its holding (why the decision was socially desirable).

6. Rule of Law: Under what rule of law does this issue fall? This is the rule of law that the court applies to determine the substantive rights of the parties. The rule of law could derive from a statute, case rule, regulation, or may be a synthesis of prior holdings in similar cases (common law). The rule or legal principle may be expressly stated in the opinion or it may be implied.

7. Holding: What is the conclusion of the court? This is a statement of law that is the court’s answer to the issue. If you have written the issue statement(s) correctly, the holding is often the positive or negative statement of the issue statement.

8. Concurring/Dissenting Opinions: A judge who hears a case may not agree with the majority’s decision and will write a separate dissenting opinion. Another judge may agree with the decision but not with the majority’s reasoning and will write a separate concurring opinion. Note the concurring / dissenting judge(s)’ reasons for refusing to join in the majority opinion.

9. Additional Comments / Personal Impressions: What are your reactions to and critique of the opinion? Anything you like? Dislike? How does this case fall in line with the other cases you have read? Do not accept the court’s opinion blindly. Assess the reasoning in each case. Is it sound? Is it contradictory? What are the political, economic or social impacts of this decision?

The following is a sample case that is commonly used in Contracts Cases. Each element is identified.

Дата добавления: 2015-11-16