Basic Legal Memo For Law Students

 

The Format Format of a Legal Memorandum Most memoranda share a common format: a heading, an issue, a short answer, a statement of facts, a discussion, and a conclusion. Code: H I S S D C  The Heading consists of four lines: to, from, date, and subject (re:). You should include your client’s name as well as a descriptive subject in the re: line, as each client file typically will require multiple memoranda.  The Issue section usually contains a statement of the issue the memo addresses. Sometimes the issue is called the “question presented.”  The Short Answer answers the question presented succinctly and should supply a summary of the key reasons supporting the answer.  The Statement of Facts section, often shortened to "Facts," includes an objective statement of the client’s facts that are pertinent to the issue described in the memo.  The Discussion section collects and describes the law, both favorable and unfavorable, applicable to the client’s situation.  The Conclusion is a short section summarizing the contents of the entire memo. It pulls together the most critical facts and legal analysis into a few sentences. In shorter memoranda, lawyers commonly omit the conclusion.

Discussion on the Format Heading  The typical memorandum begins with a “TO:”, “FROM:”, “DATE:”, and “RE:” heading. Although the heading may seem unimportant, it is essential for record keeping that the heading be properly and throughly completed. Sample Heading Memorandum of Law  TO: John W. Lincoln FROM: Abraham Booth DATE: January 3, 2004 RE: Applicability of Wilks v. Ford to a defendant with prior convictions. Issue/Questions Presented  The Questions Presented section frames the entire memorandum. It should encompass both the legal and factual elements that must be analyzed. 1. Incorpor Incorporate ate legal and factual compo components nents into the issue  The issue presented should be stated in terms specific to the case, including both the legal and factual elements at issue. Incorrect: Was the defendant denied effective assistance of counsel? •

Correct: Did an attorney’s failure to file a timely appeal constitute ineffective assistance ofcounsel? 2. Num Numberi bering ng •

 

Each question should be numbered in the same order that it will be addressed in the memo. Answers  The Answers section should consist of brief answers to the Questions Presented. They should be answered in the same order they appear in the Questions Presented. Statement of Facts  The Statement of Facts should tell the story that gave rise to the legal question. The Facts should have a tone and structure that is easy to read and that makes the issues understandable. 1. Avoid unn unnecessary ecessary fa facts cts Include only those facts that are necessary for the legal analysis. The job of the writer is to sift through all of the information and pull out what is needed. 2. Do not st state ate legal con conclusion clusions s Do not incorporate legal terms or legal conclusions in the facts. Incorrect: Mr. Rice negligently failed to stop at the red light. Correct: Mr. Rice failed to stop at the red light. 3. Note dispute disputed d fact facts s If there are facts that are in dispute, they should be clearly identified with modifying •

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termsone such asfact “alleged,” “stated,” “testified.” 4. Only k key ey per sen sentence tence Avoid sentences that include more than one essential fact. If you follow this rule, you will make it easier to apply the law to the facts in the Discussion section. 5. Avoid bias or distor distortion tion Mention facts that are both favorable and unfavorable. Sample Statement of Facts: In 1981, our client, Alan Adams, purchased a 1OO'-by-1OO' parcel of property (“Parcel A”), which included a brick house. Mr. Adams purchased the Grafton County, NH, property from Jason Johnson. Mr. Adams did not properly record the deed to Parcel A and has no separate records of the sale, as they were destroyed in a fire in 1995. In 1982, Robert Rogers purchased the adjoining 100'-by-150' empty lot (“Parcel B”), as well as Parcel A, from Jason Johnson. Mr. Rogers properly recorded the deed to both properties in 1982. Mr. Adams and his family have lived in the house since the year of the purchase, with the exception of an annual two-month vacation during the summer. They did not make any structural or exterior improvements to the house. However, they maintained flower gardens originally planted by Jason Johnson, mowed the lawn in the late spring, raked the leaves in the fall, and planted four trees in 1983. Robert Rogers, a resident of Florida, did not visit the property after purchasing it until July 1982. He stated that he “saw no signs of life,” and that the house “looked as if it could have used some grooming,” as ivy was growing on the side.  The Adams family widened the driveway by five feet in 1985 and placed their name on the mailbox located at the foot of the driveway in 1986. in 1990, they constructed a fourfoot-high chain link fence around the backyard. In August 1991, Mr. as Rogers visited propertyand for athe second time. He stated that it still looked abandoned, the lawn wasthe overgrown garden contained only dead flowers. He said that he did not see the trees the Adams family planted, the name on the

 

mailbox, the fence in the backyard, or the wider driveway.  The Adams family has paid taxes for Parcel A every year. Mr. Rogers only paid taxes on Parcel B, but only discovered so in December of 1999. Upon his realization that he was only paying taxes on one parcel, he visited the property and discovered that the Adams family was residing on Parcel A. Upon this discovery, Mr. Rogers initiated an action of ejectment against the Adams family. Mr. Adams has asked us to assess whether he has gained title of Parcel A through adverse possession, and thus is protected from this action by Mr. Rogers.  The Discussion  The Discussion section, which is considered the heart of the memorandum, must provide objective yet convincing support for the conclusion. 1. Ba Balan lance ce Unlike an appellate brief (see below), a legal memorandum usually is not an advocacy paper. Although the purpose is to reach a legal conclusion, the arguments presented must be objective. The writer should explain why favorable law applies and why unfavorable law most likely does not apply; however, the writer must not attempt to convince the reader of the absolute correctness of the conclusion. Instead, the writer should acknowledge the weaknesses of the argument. 2. The Synthes Synthesize izemust law with facts ctsexplanation as to how each fact relates to the law. writer givefa an 3. AIR AIRAC AC Every section of the Discussion must contain five elements: Answer, Issue, Rule, Analysis, and Conclusion (“AIRAC”). Sample Discussion: Mr. Rogers’s action of ejectment most likely will fall. Whether Mr. Rogers’s action of  ejectment will succeed depends upon whether Mr. Adams obtained title to Parcel A through adverse possession. When a party is seeking to obtain title through adverse possession on a claim not based upon a written instrument, they must prove both the statutory and common law requirements. Halley v. Winnicki, 255 A.D.2d 489,491 (2d Dep’t 1998). Furthermore, because courts look dlsfavorably upon claims of adverse possession, the proof must be “clear and convincing” Anderson v. Mazza, 258 A.D.2d 726 (3d Dep’t 1999). Here, a court reviewing the facts of Mr. Adams’s case would most likely agree that he has clearly and convincingly satisfied both the common law and statutory requirements. 1. Mr Mr.. Adams cultivated and impr improved oved the land sufficiently to give him title by widening the driveway, planting trees, maintaining the garden, mowing the lawn, and raking the leaves. Mr. Adams met the statutory requirements to obtain title to the property. When claiming title to property not based upon a written instrument, the claimant must show that the land has been “usually cultivated or improved.” N.Y. Real Prop. Acts. §522. The possession must be for a minimum of ten years. N.Y. Real Prop. Acts. § 501 (McKlnney 1998). Here, Mr. Adams usually cultivated or improved the property, and thus a court would most likely find that the statutory elements have been met. In Birnbaum v. maintaining Brody, the Appellate Court for the Secondand Department that mowing grass, shrubbery, planting flowers, installing held playground equipment in the backyard of a house was sufficient to establish usual cultivation.

 

548 N.Y.S.2d 691 (2d Dep’t 1989). Similar to Birnbaum, the Adams family mowed the grass and maintained flowers. They did plant four trees, although they did not maintain the shrubbery. Moreover, while they did not have a playground set, they did widen the driveway. Although each determination is very fact-specific, which makes it impossible to determine with certainty the outcome, the facts are analogous enough to predict that a court would probably reach the conclusion that the cultivations and improvements were sufficient so as to satisfy the statutory requirements. 2. Mr Mr.. Adams met the common law rrequirements equirements because his possession was open and notorious, actual, hostile, and exclusive and continuous. Mr. Adams probably has fulfilled the common law requirements for obtaining title to Parcel A through adverse possession. To obtain title through adverse possession, the possession be (1) open and notorious, (2) actual, (3) hostile, and (4) exclusive and continuous Brand v. Price, 324 N.E.2d 314, 316 (1974). 1. Mr Mr.. Adams’s possession was open and no notorious. torious.  The question of whether the Adams family’s occupancy was open and notorious is somewhat mixed, but the evidence probably is sufficient to meet this requirement, in order to establish that the possession of the property was open and notorious, it must be shown that the possession was “sufficiently visible such that a casual inspection by the owner of the property would reveal the adverse possessor’s occupation and use thereof.” Weinstein v. Pesso, 237 A.D.2d 516 (2d Dep’t 1996). A court probably would find that a casual inspection of Parcel A would reveal the occupancy of the Adams family. In West v. Tilley, 33 A.D.2d 228, 230 (4th Dep’t 1970), the owner of the property contended that the occupation was not open and notorious because the land was “wild, overgrown and lettle [sic] used.” Id. However, the court disagreed, holding that if the owner had made a “casual inspection” he would have noticed the changes, improvements, and other signs of occupancy. Similar to the West case, a casual inspection of the land here probably would have revealed open and notorious signs of  occupancy. The name on the mailbox, the widening of a driveway, the erection of a chain-link fence, and the planting of trees all appear to be discoverable upon inspection.  The fact that Mr. Rogers did not see the signs of occupancy probably is irrelevant. The timing of Mr. Rogers’s visits coincided with times when signs of  occupancy were less apparent, thus making the element of open and notorious more difficult to prove. Since Mr. Rogers’s two visits occurred when the Adams family was on vacation, thus the maintenance of the garden, mowing of the grass, and raking of the leaves were not apparent to the owner of the parcel. How a court would deal with this issue is difficult to predict; however, the holding in Beacon v. Garner, 88 N.Y.2d 154 (1930) does provide some insight. That court applied a standard of reasonableness when determining whether the common law requirements have been met, by asking if owners of properties of similar character, condition, and location would have done the same as the claimant. Id. at 159. Since it is common for homeowners to take summer vacations, a court might find and thatstill the open condition of the property during the vacation was reasonable and notorious signs of occupancy. The fact that there were more permanent indications of 

 

occupancy, such as the widening of the driveway and chain-link fence, will provide additional support for this argument. 2. Mr Mr.. Adams had actual possessi possession. on.  The fact that the Adams family lived on the property is sufficient to establish actual possession. Courts consistently have held that “acts of dominion and control over the premises are indicative of actual possession.” Miller v. Rau, 793 A.D.2d 868, 869 (3d Dep’t 1979). A court unquestionably would find that the acts of Mr. Adams, such as mowing the lawn and widening the driveway, are ones of dominion and control. Furthermore, Parcel A was the place of  residency for Adams family; thus it can be said that they actually possessed the property on which they lived. 3. Mr Mr.. Adams’s posses possession sion was hostile title.  The facts conclusively establish hostility toward the title of Mr. Rogers, it is well established that a plaintiff is required to show only that the possession constitutes an invasion of the owner’s rights to establish hostility. Katona v. Low, 226 A.D.2d 433, 434 (2d Dep’t 1996). Payment of taxes “coupled with other acts” can also evidence hostility toward title. New York v. Wilson, 15 N.E.2d 408, 412 (1938). Because the Adams family entered the property in violation of Mr. Rogers’s rights, paid taxes, and evidenced “other acts” of  hostility it is doubtful, if not impossible, that a court would view the Adams family’s Rogers. possession of Parcel A as anything but hostile toward the title of Mr. 4. Mr Mr.. Adams exclusively and constinuous constinuously ly occcupied.  There is sufficient evidence that the Adams family occupied the property exclusively and continuously in determining whether the element of continuity has been met, courts consider not only the adverse possessor’s physical presence on the land, but also the other acts by the possessor that would appropriately be reasonable of an owner in the same position. Id. It is common that homeowners take vacations, and thus an annual trip unquestionably would not constitute a break in the continuity of the possession. Because there were no other residents on the property and thus the occupancy was exclusive, a court could not disagree that this element is satisfied. Conclusion  The Conclusion section should provide a brief summary of the facts and law reviewed in the Discussion section. It should be no more than 5–10 sentences long. Sample Conclusion: In light of all of the facts, a court most likely would rule that Mr. Adams has gained title to Parcel A through adverse possession; thus Mr. Rogers’s action of ejectment would be barred. Mr. Adams most likely has satisfied both the statutory and common law elements of adverse possession as required to gain title. While he has not substantially enclosed his property, he did improve or cultivate the land for ten years, and thus he has satisfied N.Y. Real Prop. Acts. § 501. Furthermore, Mr. Adams has satisfied the common law elements that the possession be (1) actual; (2) open and notorious; (3) hostile; and (4) exclusive and continuous. While the greatest challenge lies in clearly and convincingly proving open and notorious possession, Mr. Adams will probably prevail in this action.

 

Sample Legal Memorandum MEMORANDUM  TO: Chief Prosecuting Attorney FROM: Anne Onimus DATE: August 21, 2007 RE: Charging Joseph Haney with Commission of Armed Robbery Question Presented Did Joseph Haney effectively simulate a deadly weapon and create a life-threatening environment, sufficient to satisfy the Arizona armed robbery statute, by thrusting his hand into a pocket and telling the store clerk that it was a "holdup" and to "[l]ie still if you want to live," when the victim was unsure whether Haney had such a weapon, when Haney used both hands to grab money from the cash register, and when the only objects found in Haney's possession were the stolen cash and a package of mints? Brief Answer No. Mere words and threats to use a deadly weapon are insufficient to support such a charge, because under Arizona law, the victim must reasonably perceive that the robber is armed with a deadly weapon, even if the robber is merely simulating the presence of  the weapon. ambiguity actions and the fact that Haney's victim didrobbery not perceive thatThe he was armedof doHaney's not satisfy the requirements of the Arizona armed statute. Statement of Facts  This office is considering whether to prosecute Joseph Haney for armed robbery. Haney was arrested on August 12, 2007, for robbing Albert's Quik-Stop, a convenience store in  Tempe. According to the store clerk, Richard Lopez, Haney entered the store at approximately 10:30 p.m. No other customers were in the store. Haney, who was visibly nervous, approached Lopez, thrust his right hand into the pocket of his windbreaker, and shouted, "Can't you tell this is a holdup? Give me the money in the register, man! Don't make me hurt you!" Lopez stated he was unsure whether Haney had a weapon in the pocket. He described Haney as being large and muscular, and he said that Haney's physical size persuaded him to cooperate by opening the register. When Lopez did so, Haney jumped over the counter and knocked Lopez to the ground, saying, "Lie still if you want to live." Haney grabbed money from the register with both his hands and placed the bills in the pockets of his  jeans and windbreaker. Haney then leaped back over the counter and fled from the store. A patrol car had just pulled up to the Quik-Stop's gas pumps, and the officer driving it observed Haney running from the store. The officer pursued and captured Haney and, upon a search of the suspect's pockets, discovered the stolen money and a cylindrical package of mints in the windbreaker pocket. He did not find any type of weapon. Discussion It is unlikely that Joseph Haney will be convicted of armed robbery because the State will not be able to establish that the victim of the robbery perceived Haney to be armed with a deadly weapon.

 

In order to successfully prosecute Joseph Haney for armed robbery, the State must prove that he was armed with or that he used or threatened to use a deadly or a simulated deadly weapon. Ariz. Rev. Stat. Ann. § 13-1904(A) (West 1984). Because Haney did not have an actual weapon when he committed the robbery, the issue here is whether Haney's victim reasonably perceived Haney to be armed with a deadly weapon. Mere words indicating the presence of a deadly weapon are not enough to satisfy the statute. In one case, the court found that a robber's verbal threats to use a deadly weapon were not enough to support the perception that she was armed. State v. Rodriguez, 791 P.2d 633, 638 (Ariz. 1990). In the Rodriguez robbery, the defendant kept her right hand out of sight and threatened to "shoot the smile off" the victim's face if he did not cooperate with her. Id. at 634. In concluding that the robber did not simulate a deadly weapon, the Rodriguez court found it significant that her hand was not visible and that she did not make any physical movement to indicate that she had a deadly weapon. Any object may suffice as a simulated deadly weapon, provided that the victim reasonably perceives it to be an actual weapon. State v. Felix, 737 P.2d 393, 394 (Ariz. App. 1986). The defendant in Felix pressed a nasal inhaler against his victim's back, declaring that he had a gun. Based on what he felt, the victim perceived that a gun was pressed against his back. Id. On these facts, the court had no difficulty in finding that the defendant simulated a deadly Id. In another had decision focusing on theweapon. victim's perception, the court upheld the armed robbery conviction of a man who used his hand under his clothing to simulate a gun during a robbery. State v. Ellison, 819 P.2d 1010, 1013 (Ariz. App. 1991). The court found it significant that the defendant simulated a weapon with his hand, observing that "[t]he victim's perception is the same whether the weapon appears to be or is in fact real." Id. at 1012. In the court's view, the defendant's act posed the same potential for harm to or reaction from the victim and any bystanders. Id. at 1013. Because the victims in Ellison could reasonably have believed that the shape they saw under the defendant's clothing was a gun, rather than his hand, the defendant created the life-threatening environment which the armed robbery statute seeks to punish. The court distinguished this case from Rodriguez by noting that in Rodriguez, "the victim never saw anything resembling a weapon; the defendant only implied that she had a gun when she threatened to 'shoot the smile off' the victim's face." Id. at 1012 (citing Rodriguez, 791 P.2d at 633). While these distinctions are small, they are supported by the policy behind the armed robbery statute. In passing the armed robbery statute, the Arizona legislature meant to punish more severely those who used deadly or simulated deadly weapons in the course of a robbery and who thus created "[t]he potential for increased danger to, or sudden and violent reaction by, the victim or bystanders." Rodriguez, 791 P.2d at 637. Indeed, the Rodriguez court observed that if the penalty were the same for those who possessed a weapon and those who were unarmed, there would be no deterrent to the use of  weapons. Id. Taken together, these cases suggest that, in ambiguous circumstances, it is important to determine whether the victim could have reasonably believed that the robber had a deadly weapon. In the present case, the question is whether the store clerk could reasonably have perceived that Haney was armed. Haney's words were not enough. Like the robber in the

 

Rodriguez case, Haney verbally threatened his victim with harm, shouting, "Don't make me hurt you!" and instructing him to "[l]ie still if you want to live." Unlike that robber, however, Haney accompanied his words with action, thrusting his hand into his pocket. Although the arresting officer found a cylindrical package of mints in Haney's pocket, nothing in Lopez's account suggests that Haney used the package to simulate a weapon in the way the defendant in Felix used the nasal inhaler to approximate the barrel of a gun. And although the Ellison case established that a person's hands could be perceived to be a deadly weapon, this analysis does not fit the facts of the Haney case. Haney simply thrust his hand into his pocket. Had he simultaneously claimed that he had a gun, or had he used more definitive gestures to suggest a gun, such as poking his finger into the fabric of his windbreaker pocket or simulating the barrel of a gun with the package of  mints, there might be a basis for prosecution. Nothing in the victim's statement, however, indicates such a perception. For one thing, Lopez admitted not knowing whether Haney had a weapon. Lopez said he opened the cash register because he felt physically intimidated by Haney's size, not because he feared Haney was armed. Haney's words, while threatening, did not expressly suggest that he had a deadly weapon. Moreover, Lopez stated that he watched Haney use both hands to scoop the cash into his pockets, including the windbreaker pocket. Had Haney been a weapon, ispocket unlikelyand he he would have it go; the hand holding thefacts weapon wouldholding have remained in it his would notlet have put cash there. These show that Lopez never perceived the presence of a weapon, and therefore, Haney did not create the life-threatening environment which is necessary to support a prosecution under the armed robbery statute. Prepared by: Claire Jamboy Dollisen B. Law-2 2010 Websites: http://www.suite101.com/content/legal-writing-basics-a113381 http://sparkcharts.sparknotes.com/legal/legalwriting/section2.php http://www.ualr.edu/cmbarger/SAMPLE_MEMO.HTML#QP%20comment