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Legal Writing


 
 

The Legal Memorandum

 

In General

  1. Purpose The purpose of a legal memorandum is to analyze a legal problem and give an objective legal opinion on that problem. A legal memorandum is used to strategize approaches and to formulate arguments.

  2. Audience The audience is usually another lawyer within the same firm or legal organization. It is kept as an internal document and not seen by judges, clients, or the opposition.

  3. Approach When you write a legal memorandum, take the following steps in the order listed:

    1. Read and reread

      Read the entire record (the pleadings filed with the court prior to the memo’s completion) and then read it again. When researching the law later, you may discover that seemingly unimportant facts are essential. If you do not have a full comprehension of the substance of the record, you may miss a key element of the case.

    2. Outline the facts

      Write down the facts. Provide the page number in the record or file of each fact so you can refer back when necessary.

    3. Research the law

      Research the law using every source at your disposal (e.g., books, the Internet, law reviews, treatises).

      • Familiarize yourself with the generalities of the topic

        Often, you will be unfamiliar with the topic at hand. Before researching the specifics, find a source that gives an overview of the law, such as a textbook or treatise.

      • Top-down research

        Once you begin your substantive research, start with the most important sources (e.g., statutes and Supreme Court decisions). These sources will provide the foundation for your argument.

      • Find favorable law and unfavorable law

        Do not just search for law that supports the client’s position. You must address law that is helpful and harmful to the client’s case.

    4. Chart the law against the facts

      Once you have done substantial research, create a chart that lists each essential fact or event and identify the main legal element that pertains to the event.

    5. Identify the issues

      Using the chart of law and facts, identify the issues that will have to be addressed, analyzed, and explained in the memorandum.

    6. Outline

      Using the elements of the law, create an outline of the memo. The outline should provide an explanation of how each element will be applied to each fact.

    7. Write the memorandum

    8. Edit, edit, edit

      A memo is not complete until it has been edited and reedited. Have someone assist you in editing. If no one is available to assist, try spending some time away from the memo before returning to read it over and edit it.

  4. Sections

    A legal memorandum is made up of:

    1. Heading

    2. Questions Presented

    3. Answers

    4. Facts

    5. Discussion

    6. Conclusion

 
 

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.

 
 

Questions Presented

The Questions Presented section frames the entire memorandum. It should encompass both the legal and factual elements that must be analyzed.

  1. Incorporate legal and factual components 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. Numbering

    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 unnecessary facts

    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 state legal conclusions

    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 disputed facts

    If there are facts that are in dispute, they should be clearly identified with modifying terms such as “alleged,” “stated,” “testified.”

  4. Only one key fact per sentence

    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 distortion

    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 four-foot-high chain link fence around the backyard.

In August 1991, Mr. Rogers visited the property for a second time. He stated that it still looked abandoned, as the lawn was overgrown and the 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. Balance

    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. Synthesize law with facts

    The writer must give an explanation as to how each fact relates to the law.

  3. AIRAC

    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. Adams cultivated and improved 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. Brody, the Appellate Court for the Second Department held that mowing grass, maintaining shrubbery, planting flowers, and installing 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. Adams met the common law requirements 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. Adams’s possession was open and notorious.

      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 that the condition of the property during the vacation was reasonable and still open 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. Adams had actual possession.

      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. Adams’s possession 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 possession of Parcel A as anything but hostile toward the title of Mr. Rogers.

    4. Mr. Adams exclusively and constinuously 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.