Memorandum Writing

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Writing Trial Memorandum and Legal Opinion

description

The presentation of Attorney Loreto Ata in FEU

Transcript of Memorandum Writing

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Writing Trial Memorandum

and Legal Opinion

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Changes in the Bar Exams

1. Multiple Choice Questions

2. Essay Test

a. Trial Memorandum b. Legal Opinion

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Your role when taking the essay test

You take the role of a lawyer who is presented with a

problem and you are required to look for a solution within the framework of the legal

system

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How you will address the problem

a) Facts – Get the facts b) Rules – Know the

applicable rules & remedies c) Application – Use the

rules & remedies to address your client’s specific needs

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Examiner will test –

a) your knowledge of the “rule of law” or “legal rule”

refers to legal provisions,

court rulings or legal theories applicable to

the problem

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Examiner will test –

b) your analytical skills in • sorting out the

material and relevant facts

• finding the rule of law or legal rule involved

• identifying the issue/s

• justifying the position you have taken

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Examiner will test –

c) your persuasive skills •how to convince the reader

to your point of view

d) your English writing skills

•command of grammar and

effective writing

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Broad meaning of “memorandum”

a) A document that

presents a legal problem (facts:law= issue) and offers a solution

b) Other names- legal opinion, research, position paper, memo of law, etc.

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Bar Essay formats

Trial memorandum submitted to the court after

trial in which you state and justify your client’s position

Legal opinion advice to the client on

position to be taken regarding a legal problem

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Trial memorandu

m

Legal opinion

Presumed audience

Court Client

Your role Counsel for a party in the litigation

Counsel giving legal advice

Purposes

State and explain the position of your client, and persuade the court

Give advice and persuade the client to take your advice

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Legal reasoning =the mental process of (a) applying the law to (b) the facts of a legal

problem, and(c)drawing conclusions from such application by means

of arguments, in order to (d) support the side of a party

(trial memorandum) or to give

advice to client (legal opinion)

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Structure of your essay Traditional Formula

I R A C I Issue R Rule A Application/Analysis/ Argument C Conclusion

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Recommended F I R A C C

F Facts

I Issue

R Rule

A Application/Analysis/ Argument C Counter-Argument

C Conclusion

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FIRACC steps

1. F Start with the Facts2. I Facts suggest the Issue3. R Rule of law covers the

Issue4. A Apply the Rule to the

Facts5. C - Counter the argument of

the opposing side6. C - Wrap up with a

Conclusion

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Step 1. Start with the Facts

Kinds

• Key facts – material and relevant facts necessary to analysis

• Background facts – add to the story but not necessary to analysis

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Analyze the factual elements of the problem

What What is the thing, act or

event? Who Who are the parties? Where Where did it happen? When When did it happen?

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Step 2. The Facts suggest the Issue

• You read the facts from your background knowledge of the law

• The facts will encounter or meet with the law as you know or understand them

• The encounter of the facts with the law creates the issue

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Meaning of “Issue”

• Point of law or fact which is affirmed by one side and denied by the other

• Issue may be purely legal, or purely factual, or a mix of both

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Step 3. A Rule of Law covers the Issue

Sources of the Rule of Law

• Legal provision e.g. statute

• Intention of the law• Case law (stare decisis] • Policy • Equity

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Kind of rule of law involved

• What law is applicable?

• What is the legal theory?

• What relief is being asked?

• What procedure is required?

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Step 4. Apply the Rule to the Facts

Components of analysis

a)Apply the Rule (legal elements) to the Facts (factual elements)

• What is the Rule involved?• What Facts will prove or

disprove the element of the Rule?

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b) Take a position (proposition,

thesis, stand or point of view)

• Generally, there are two opposing positions to a legal problem

• Evaluate which position has more arguments favorable to it

• Take a position

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c) State your Arguments • to support your position

and • to counter the arguments

of the opposing side

d) Finish with a Conclusion

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“Apply the law to the facts”

• You argue based on your analysis of the rule of law• Your sources or materials

of argument will come from the rule of law

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“Rule of Law” as the material or source of your argument

a) Argument based on the Law

b) Argument based on the Intention of the law

c) Argument based on Case Law

d) Argument based on Policy

e) Argument based on Equity

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Argument based on the Law and/or Intention of the Law

1. Position: The answer is X 2. The law applicable is (state the

law). The law is intended to (state)

3. The elements of the law are (state all or the relevant elements)

4. The elements of the law are proved/disproved by the following facts (state)

5. Therefore (conclusion)

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Argument based on Case Law (reasoning by analogy)

1. Position: The answer is X2. The facts are analogous to

those in the case of ___ where the Supreme Court came out with X ruling

3. The facts of this case and those in the cited case are similar/ dissimilar (compare and contrast)

4. Therefore (conclusion)

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Argument based on Policy (the State or social policy, the good desired & the harm to be avoided)

1. The policy behind the legal provision is (state the policy)

2. This policy will be strengthened/ undermined (relate to the position you’ve taken)

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Argument based on Equity (general principles of justice & fairness to temper the harshness of strict legal application)

1. A strict application of the law will lead to (state the harmful effects)

2. Therefore (conclusion)

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Structure of your argument

“Syllogism”

a) Deductive i. Major premise – Rule of

Law ii. Minor premise – Facts iii. Conclusion

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b) Inductive i. Major premise – Facts

ii. Minor premise – Rule of Law

iii. Conclusion

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c) Argument by Analogy i. Factual setting and rule in a

decided case ii. Similarity/dissimilarity of

the facts in the problem with those in the decided case

iii. Conclusion

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Step 5. Counter the possible arguments of the opposing side

1. The opposing side may argue that (state the possible argument/s)

2. The argument/s is/are refuted by (state your reasons)

3. Therefore (conclusion)

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Step 6. Conclusion

Make a concluding statement

that wraps up your analysis

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Trial Memorandum

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Outline of Trial Memorandum

I. Statement of the CaseII. Statement of the FactsIII. Statement of the IssuesIV. DiscussionV. ConclusionVI. Prayer

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I. Statement of the Case State briefly the nature of

the case, the parties involved, subject matter, and the relief being asked

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I. Statement of the Case

Alternative headings

• The Case• The Case, In Brief• Nature of the Case• Nature of the Action

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II. Statement of the Facts Summarize the material and

relevant facts of the case

1. Be orderly. Chronological, as a rule

2. Be honest. Don’t twist deliberately..

3. Be accurate. .. or unwittingly 4. Be clear. Don’t confuse the reader5. Be brief. Stick to the material and

relevant

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II. Statement of the Facts

Alternative headings

• The Facts• The Facts, In Brief• Summary of the Facts• Factual Summary • Factual Antecedents

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III. Statement of the Issues

Suggestions:

1. Start with “Whether” or “Whether or not”

2. Keep the issue short and direct to the point

3. Omit needless words (adjectives or adverbs)

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IV. Discussion

Alternative headings

• Argument or Arguments• Argument and Discussion

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IV. Discussion

You take a position and explain

Suggestions:

1. Discuss per issue2. Use the deductive, inductive or

analogy structure

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3. State the facts which support or do not support the legal rule.

4. Give additional reasons or arguments.

5. Counter-Argumenta) State the main arguments

that may be raised by the opposing side

b) Refute

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V. Conclusion Alternative headings

1. Summary or Summation 2. Final Note or Last Word

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VI. Prayer

State the relief you are asking from the Court.

Alternative heading:• Relief

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Legal Opinion

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TRIAL MEMORANDUM

LEGAL OPINION

Statement of the Case

Subject

F Statement of the Facts

The Facts

I Statement of the Issues

Questions/ Queries

Discussion Assessment

R Applicable Laws/ Legal Theories

A Application/ Analysis/ Argument

C Counter Argument

C Conclusion/Prayer

Recommendation

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Thank you!

Atty. Loreto C. Atawww.mabgslaw.com.ph