PROFESSIONAL PRACTICE II

LAW4511

OPINION WRITING – INTERNAL

OFFICE MEMORANDUM OF LAW

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 A MEMO: Introduction
A ‘memo’ is usually for in-house use, intended to be used by legal
colleagues.
This can be
• a ‘legal practice’ document, to a colleague or senior member of a
law firm, or
• a document on legal policy, for example to a politician or an
organisation responsible for policy change, such as submission to a
law reform commission.
• The primary goals of a legal memorandum are to
o educate the reader about the law relevant to a particular issue;
and
o explain how that law will apply to specific facts.
• A memo presents an objective analysis of the law, not a persuasive
argument intended to advocate on behalf of a client.
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 Why do Lawyers Write Memo?
• Lawyers and law students write memos for a variety of
reasons.
o a legal assistant in a law firm might write a memo to a
supervising A & S who has asked a question about the
law;
o an assistant registrar/judicial clerk might write a memo
to a judge evaluating the strengths and weakness of the
opposing sides of a case and explaining what result the
law seems to require;
o a lawyer might write a memo to prepare colleagues for a
meeting with a client who wants to know how the law
affects her situation and who is seeking legal advice.
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 Wider Goals of Memo
• Purpose:
o to analyze a legal problem and give an objective legal
opinion on that problem;
o to strategize approaches and to formulate arguments;
o to convey information about a client’s case or other
matter within a law firm or other organization;
o to evaluates strengths and weaknesses of the
arguments of all sides of a case.
o The legal memorandum will become the basis for the
advice law offices will give their clients.

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Implications:
• It is extremely important that this memo
presents the strengths and weaknesses of your
client's case.
• The supervisor must make strategy decisions
based in part on what you say in the memo.
Hence the supervisor must have a realistic
picture of what the law is.
• Your goal in the memo is to analyse the law in
order to make a prediction of how a court or
other tribunal would resolve whatever dispute is
involved (or potentially involved) in the client's
case.
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• Nature:
o Written analysis of a legal problem.
o Typically objective unless your supervisor requests a
persuasive analysis.

• Audience :
o The audience is usually another lawyer (usually the
supervising lawyer) within the same firm or legal
organization.
o It is kept as an internal document and not seen by judges,
clients, or the opposition.
o A memorandum is forwarded or submitted to all offices
concerned in order to disseminate the information
contained therein.

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 PREPARATIONS
• Knowing the LEGAL ELEMENTS
o One of the very first things you should do before
writing a draft of an argument is to make sure that you
have a thorough understanding of the elements of the
law you are dealing with.
o Breaking a legal principle (statutory or case law) down
into its elements will help you better understand the
law.
o Also, the elements of a statute will eventually form
many of the sub-issues of the outline of your argument.

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 preparations …

• Knowing THE FACTS

• Before drafting your persuasive argument, you should
have a thorough understanding of the facts you are
dealing with. If you are given a set of facts, you should
first take the time to read and re-read them as many
times as possible. Oftentimes, new facts will emerge each
time you read through them.
• You should also make a note of which facts are favourable
to your client, and why. Likewise, you should begin
thinking about which facts are unfavourable to your
client, and how you will deal with them.
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 Play the ‘DEVIL’S ADVOCATE’

• You should also try to get an idea of how your opponent will
argue the case.
• You can do this by using the unfavourable facts you identified in
the client’s case and construct an argument of how you would,
hypothetically , argue the case from your opponent’s viewpoint.
• This will allow you to make a more precise argument by
addressing counterarguments before they arise. It will also better
prepare you for oral argument.
• Many law firms assign a lawyer to play the role of devil’s
advocate. The devil’s advocate’s job is to challenge all aspects of
your legal position, as strongly as possible.
• In your writing, you may wish to consider having a classmate
scrutinize your work so that you may better understand the
weaknesses of your argument.
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 FORMAT OF MEMO
• A highly structured type of writing that follows certain
conventions.
• No two memoranda will be organised in precisely the same way -
as each legal problem is distinct.
• The cardinal rule is: find out what format your supervisor prefers.
There may be office memos in old files that can be used as
models.
• But, 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.
• If your supervisor does not express a preference, you may use the
following format:
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 Suggested Memo Format
A. HEADING

B. STATEMENT OF THE ASSIGNMENT

C. QUESTIONS PRESENTED / STATEMENT OF ISSUE(S)

D. BRIEF ANSWER/S TO QUESTIONS PRESENTED

E. STATEMENT OF FACTS

F. LIST OF AUTHORITIES

G. ANALYSIS / DISCUSSION
G-i: Thesis Paragraph
G-ii: Analysis of Issues
(IRAC - CREAC ; Counter-arguments (e.g. Possible defence/s)

H. CONCLUSION

I. CONTINGENCY ISSUE/S
(remedies; quantum; evidential & procedural matters, etc)

J. RECOMMENDATIONS

K. SIGNATURE
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For Comparison:
SAMPLE OPINION FORMAT (Current local practice)
Heading
OPINION
• Introduction
• Summary of advice
• Cause of action
• Defences
• Remedies
• Other points
o Subsidiary points
o Evidence
o Procedural points
• Conclusion
(Source: Prof G.S. Nijar, Drafting for Lawyers workshop file)
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 A. HEADING
The heading of the memo contains basic information about you and the nature of the
memo.

• A caption centred at the top of the page stating the kind of document it is
(Opinion or Memorandum of Law).
• To: The name of the person to whom the memo is addressed (usually your
supervisor).
• From: The name of the person writing the memorandum.
• Date: The date your memo was completed and submitted.
• Case Name: The name of the case (client’s name and opponent, if any).
• File No: The office file number (usually keyed to the office filing system).
• Suit No: The suit number (if the suit has already been filed and the clerk of
the court has assigned a suit number).
• RE: Concise label for issue considered: your firm may file your Memo by
names or cause of action). “RE.” meaning “in the matter of” or
“concerning”.
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 Drafting the Subject-matter (RE)
• Consider your reader.
• Examples:
– Re: Nalili Pandian’s Claim
– Re: Nalili Pandian’s Potential Claim for Negligent
Infliction Emotional Distress
– Re: Extra-territorial Application of Bar Council
Rulings Regarding Advertising by Lawyers

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 Example:

OFFICE MEMORANDUM OF LAW

TO: Ms. Junita Karim

FROM: Roslan Yahya
DATE: November 11, 2015
CASE: Ramachandran v. Leong Lim
OFFICE
FILE
NUMBER: 32 – 1159
SUIT
NUMBER: C – 0068 – 2015
RE: Availability of contributory negligence defence.

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 Notes

The subject matter description in the sample above does

not merely identify the name of the client or of the client’s
case, but also briefly indicates the nature of the question
which will be treated in the memorandum. This
information is needed for at least two reasons.

First, the average law office case file will contain a large
number of documents, often including several legal
memoranda. A heading which at least briefly indicates the
nature of the subject of each memorandum makes it much
easier to locate the memorandum if the client’s file is
necessary.
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Secondly, it is unlikely that the usefulness of your memorandum
will end when the client’s case is closed out. Many law offices
maintain fairly extensive libraries of old office memoranda which
are catalogued and filed by subject matter for reference in future
cases. This avoids unnecessary and costly duplication of research
time in the event that a similar question arises in a future client’s
case. The subject-matter heading on your memorandum facilitates
the cataloguing and filing of your memorandum in such a library.

The inclusion of the date on which the memorandum was

completed and submitted is important for similar reasons. While
your analysis and conclusions may have been very accurate at the
time when the memorandum was written, subsequent changes in
the law may have occurred by the time the memorandum is next
referred to. When the reader sees the date of the memorandum,
she/he will know from what date subsequent legal research will be
needed. 24
 Formatting the Memo Body
• Spacing & content of the heading is tabbed,
everything is lined up vertically with the other
pieces
• The document heading & headings of all
sections are in bold
• Question presented & brief answer are single
spaced. If multiple issues, double-space
between each. The remainder of the memo is
double spaced.
• The document is justified left because full
justification will alter citation spacing.
• Page numbering is at the bottom of the page
after the first. 25
 B. STATEMENT OF THE ASSIGNMENT

•The statement of the assignment contains your written understanding of what your
supervisor has requested you to do.
•You should probably write this section shortly after your supervisor instructs you to
prepare the office memorandum.
•You should write out what you were asked to do. State the parameters of the
assignment. Include limitations given by your supervisor. For example:
oYou asked me not to analyze the issue of damages.
oYou asked me not to spend more than four hours on the assignment.
oThe writer was asked not to use fee-based online research at this time.
•If you encounter difficulties in drafting this component, you should consult your
supervisor to avoid any ambiguity or misunderstanding on what you are supposed to do.
Even if you do not anticipate confusion, it is a good idea to show the supervisor a draft of
your statement of the assignment before you begin extensive research and writing of the
memo.
•List the assumptions you were asked to make. For example:
–The writer was asked to assume that the impeachment case does not violate the one-
year ban in the Constitution.
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 Examples
1. “I have been instructed to prepare a memorandum of law limited to
the question of whether our client, Rokiah Ali, is required to return
the overpayment she received from the Employees Provident Fund
(EPF).”
2. “You have asked me to prepare an internal memorandum to
determine what, if any viable legal causes of action the Theresa and
Walter Davidson may have against Betty Jefferson. The Davidson’s
would like to sue Betty Jefferson because of her actions following the
shooting death of their son, Thomas Davidson by her son, Michael
West. The Davidson’s claim that in addition to the normal grief they
have suffered as a result of their son’s death, they have suffered
additional distress because their son’s body was so decomposed by
the time the death was reported that the body could not be viewed
and they could not properly say goodbye to their son.”

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C. QUESTIONS PRESENTED / STATEMENTS
OF ISSUE
• The purpose of this section is to explain to the reader the issues
discussed in the memo.
• The questions set the narrow scope of the memo both by explaining
to the reader the narrow legal issues that you will discuss, and by
omission, telling the reader what you will not discuss.
• The statement of issues should focus the reader’s attention precisely
from the beginning so that she/he will not waste time or attention
considering related, perhaps interesting, but for this problem,
unnecessary issues.
• The statement of issues section also serves as a basic organizational
tool for the reader.
• To achieve these functions, the writer must choose the subject
matter of the questions, assign their relationship, and draft them with
care.
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 Notes
“ If you spot the issues in [a] question, but write it poorly, you get a
passing grade. If you spot the issue, but do not know the details of
the law, you still have an excellent chance of passing. But if you do
not identify the issues, you have no chance at all. So it is essential
to develop the issue spotting skill early and to practice it in every course.”
Beatrice Taines

What is an issue?

An issue can be defined as the point/s of controversy in a given fact

pattern which need to be resolved by the application of legal concepts and
procedures (and their attendant rules, regulations and principles).

An "issue" is a question about how law applies to a set of facts.

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 Recommended Issue Statement Style
• Phrased as a question and ending with a question mark,
state the specific issue or issues you will address.
• Use the technique: UNDER? (describe the law); DOES?
(state the issue); WHAT/WHEN? (give the legally relevant
or "dispositive" facts).
• Do not use the commonly seen style of “Whether . . . ."
where the cause of action requires proof of essential
elements.
• The instruction to use the Under / Does / What system
selects the better practice of using full sentences.
• In contrast, the "whether" formula (although widely used)
ends up with a sentence fragment, not the best style for a
formal legal document.
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 D. BRIEF ANSWER/S TO ISSUE/S
• This part acts as “a time-saver" for your busy
Supervisor.
• Sometimes referred to as Short Answer.
• You phrased (or asked) a question/s in the section
above.
• Answer it here.
• Your Brief Answer follows the same formula and
sequence as your Question Presented.
• It answers the questions "under? does? what?" except,
the Brief Answer should include a brief statement of
your reasons beginning with the word "because.“
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• No longer than one-third of a page
• If question presented did not present legal
rule, raise it here.
• Always begin with one-word or two-word
short answer. "Yes." "No." "Probably not.”
• Place a period after the one or two words.
• Yes or No, only if legal outcome is certain.
• Lesser degree of certainty - probably yes;
probably not is often appropriate.
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 E. STATEMENT OF FACTS
• The purpose of the statement of facts in a memorandum
is to provide a factual context of the issues.
• Office memorandum being an objective assessment of
the legal merits of the client’s position, the statement of
facts must be accurate, objective and full.
• Hence, it is important that you do not decide that it can
be abbreviated just because the person for whom you
are preparing the memorandum already knows the
facts.
• Stating them shows the basis for your conclusion. Also,
your memorandum may ultimately be read by others, or
be put in the files for possible use in later cases.
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 Drafting Statement of Facts
• In most memos, explain the facts in chronological order.
• Use all relevant facts, whether favorable or unfavorable to
the client.
• Do not argue or draw conclusions; just tell the story in this
section.
• There are three categories of facts that should be included:

o the legally significant facts,

o the background facts, and
o the procedural facts.

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 Which format?

• There are various ways of dealing with Brief

Answer in a legal memorandum:
Format 1 Format 2
Facts Issues
Issues Brief Answer
Brief Answer Facts
Discussion Discussion
Conclusion Conclusion

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 F. APPLICABLE STATUES AND CASES

• This section shows the product of your research.

• It consists of a list of each authority cited.
• The listing is broken down into categories, e.g.
o constitutional provisions,
o Statutes,
o cases (listed alphabetically),
o treatises, etc.
• This is a useful device to incorporate into a legal
memorandum, particularly where the memorandum is
relatively long and complex.
• Sample draft:
“The outcome of this case is governed by ...
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 G. DISCUSSION / ANALYSIS
• Discussion follows from the research that produced the Issue Section
– the HEART of a Memorandum.
• Hence, the goal of this section is to explain your analysis of the
issue/s and sub-issue/s to the reader, an associate or partner in the
firm.
• Organisation is a critical step in constructing the discussion section
both from the reader’s perspective and from yours.
o The reader will not understand your analysis if the organisation is
haphazard.
o The process of organising the material will help you to identify and
correct problems with your analysis.
o Begin by outlining the discussion section. While it is relatively easy
to rework an outline until you are satisfied with the organisation, it
is tedious to rewrite the entire discussion because the organisation
is unclear. 37
 Outlining the Discussion

• Outlining the Discussion requires two

phases:
o develop the organization plan;
o execute the legal analysis for each
element of the plan

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Organizational Building Blocks for the Legal
Discussion Section
The most efficient way of organizing the analysis
within an issue to the reader is IRAC The
mnemonic IRAC stands for
ISSUE,
RULE,
APPLICATION, and
CONCLUSION.
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• The reader needs to know the Issue before
the rule makes sense.
• The application of the rule to the facts does
not communicate anything to the reader
without the issue and the Rule first.
• Until the Application of the rule to the facts,
there cannot be Conclusion to the analysis.

IRAC is also helpful to you as the writer,

because it forces you to articulate each part of
the analysis. It also helps you avoid omitting a
step in the analytical process.
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Each issue and sub-issue, therefore, should include all four of the following
elements:

ISSUE State the issue.

RULE The rule section may include several parts. Always work from the most general
statement of the rule to the most specific. If the rule comes from a statute,
begin by quoting the relevant portions of the statute.
When you have a spectrum of authority; that is, a case where the facts were
sufficient to meet the general rule and a case where the facts were not
sufficient to meet the general rule, be sure to include both ends of the
spectrum in the outline and in the memo. Lead off with the illustration that
agrees with the result you predict for your case. In a memo, you should include
all the facts that are legally significant to that issue or sub-issue.

APPLICATION
(OF RULE TO FACTS) - Next apply the rule to the facts of the problem. In an outline you
need to include only a summary of the facts. In a memo, you should include all
the legally relevant facts, explaining how the facts are analogous to those in one
case, but different from those in the other case.

CONCLUSION - Finally, state your conclusion for that issue.

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 IRAC and Sub-Issues
• If an issue includes sub-issues, explain under the general rule that
there are two or more sub-issues. Then proceed to give the
general rule for the first sub-issue. Illustrate that rule with a fact
specific holding of a case.

• Apply the rule to the facts of your case and reach a conclusion.
Then proceed in the same way with each additional sub-issue.

• Always remember to conclude each issue or sub-issue before going

to the next one. When you have concluded all the sub-issues of an
issue, give an overall conclusion for the issue (the Application of
the Rule to Facts is by-passed).

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 BASIC APPROACH IN WRITING THE ANALYSIS
The Thesis Paragraph

• The Thesis Paragraph or Section is the first paragraph in the

Discussion section of the Memorandum.
• A memorandum, like any other expository writing, begins with a
Thesis Paragraph that introduces the subject matter to the reader.
• It should include an overall statement of your thesis and explain the
purpose of the memo (What is your Point?’ What is your Prediction?)
• The thesis paragraph or section also provides the reader with context,
and it should serve as a road map of the memo, explaining the issues
you will be discussing in the order they will appear.
• It should identify any the statute involved, although generally not the
cases.
• Finally it should state you conclusion. You may also explain very briefly
the reasons for these conclusions if the reader is likely to understand
your rationale at the outset.
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NOTES:

Each of these functions is designed to help make the analysis more accessible
to the reader. The reader wants to know the overall thesis or conclusion at the
beginning, so she can test the analysis against this conclusion throughout the
memo. An office memorandum is neither a joke nor a mystery story; the
reader does not want to wait until the end in order to find out the punch
line. As the reader (particularly someone like your busy senior for whom the
memo is prepared) has neither the time nor the patience to try to figure out
the conclusion, it should appear at the beginning. As such the thesis
paragraph or section has been described as “a timesaver” for
the busy advocate who wishes to know the conclusion or specific
answer immediately without the necessity of reading the
discussion and conclusion.

The thesis section is only a summary of your analysis, so write it accordingly;

the details will follow. If the memo deals with only one issue and several sub-
issues, a thesis paragraph will suffice. But if the memo includes several issues
with sub-issues, a thesis section of several paragraphs may work.
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 Restatement of Question Presented

• If there is one overall issue addressed in the

memorandum, the thesis paragraph should
identify that issue and then state the applicable
legal rule; the components of the rule will
represent the sub-issues addressed in the
remainder of the DISCUSSION.
• If there are multiple independent issues, the
following the thesis paragraph is each
subsequent issue analysis .
• Reproduce the Issue Statement stated earlier.
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 Analyzing Each Issue
• Begin the analysis of each ISSUE with a
Thesis Statement or Topic Sentence.
• Thesis statement is a direct statement of the
issue and your conclusion. It indicates not only
what the issue is, but also tells the reader briefly
what your conclusion is on the issue.
• It functions as a road sign to the reader
indicating the start of a new issue.
• Here the “I” in the IRAC is more properly
executed as “Point” or “Prediction” on the
Question presented.
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 Next set forth the legal Rules that applies

• 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 facts. 47
 Case Presentation - Rebuttal

• Discuss favourable cases first.

• Followed by unfavourable cases.
• Then a rebuttal emphasizing
why the favourable cases should
be followed.

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Example:
While the Smith case is distinguishable to the present case,
the Jones case is analogous. Unlike the defendant in Smith who alleged
that he had an alibi, but failed to prove it, the Defendant in the
present case presented witnesses who established his alibi. Moreover,
both the Jones defendant and our client have alibis. Like the defendant
in Jones, who proved that he had an alibi because he was in a movie
theatre during that alleged crime, our client also has an alibi because
he was at home during the alleged crime. This Court should follow the
reasoning of Jones that defendants who establish sufficient evidence
of an alibi cannot be found guilty of the crime.

The prosecution will argue that Jones is not applicable. The alibi
witnesses in Jones were reliable. In contrast, in this case they are
biased. The prosecution’s argument is unpersuasive because the
reliability of a witness is a question of fact for a jury to decide. This
Court should hold that the Defendant is not guilty because he
establishes sufficient evidence of an alibi. 49
 Next Apply the legal rule to your facts

• This involves further analysis how the relevant

facts fits (or do not fit) the legal or factual
standard and weighing of individual cases and
distinguishing cases, and considering policy
issues.
• Don’t be so concerned about advancing a
particular position that you forget to consider
and weigh the other side(s) of the argument.

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Next state your Conclusion on the legal issue
being discussed.
• Finally, Conclude each issue with a
summarizing statement and each sub-
issue with a specific sub-issue summary.
• Although you will include overall
conclusions elsewhere in your
memorandum, it is also important to
reach a conclusion on each legal issue as
it is dealt with in turn.
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 NOTE on IRAC
• IRAC need not be applied rigidly
as long as all the elements are
covered.
• Your decision about how to divide
up the legal issues will influence
the way that you apply IRAC.
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 From IRAC to ‘CREAC’
• In its application IRAC actually becomes ‘CREAC’.
• Conclusion – Conclusion on the issue (legal question) in
the form of Thesis Statement or Topic Sentence
• Rule of Law applied in making conclusion.
• Explanation of the Rule of Law (usually by pointing out its
application by the courts in similar cases).
• Application of the Rule of Law to the facts of the present
case.
• Conclusion – Restating the summary of the outcome
derived from the Application to the present case.
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 Transitions
• Include transitions so the reader understands how the different elements of IRAC fit
together.

As you write, think about transitions. If you are moving from a paragraph that
explains the general rule to a paragraph that illustrates how the rule was applied in
a case, the transition might look like:

The court in X case applied this rule and found consideration.

The transition between cases illustrating how the rule was applied to facts at
different ends of the spectrum could be as simple as:

The court in Y case, on the other hand, did not find consideration.

The transition to the application section of IRAC might read:

When this rule is applied to the family arrangement, there is intention to create
legal relations.
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 Analysis must be Complete!
• The Discussion Section should provide a
complete analysis.
• Crucially, the memo must not be one-sided.
• Hence, when developing the organization plan,
be sure to account for both sides of a case
(particularly where the facts and law suggest
counter-arguments).
• Be mindful of the opponent’s argument!
• So, don’t ignore the opposing argument.
Ignoring it won’t make it go away.
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 Counter Argument/Defences
• You may have to act on behalf of either the plaintiff or the
defendant, and the focus of your advice will be on that party.
• However, in advising your client, you will need to be aware
of the other side's case and must be willing to take account
of any adverse evidence, competing lines of authority,
competing policy rationales, and/or a dearth of cases on
point in your jurisdiction, to affect the outcome. You should
advise accordingly, anticipating what the other party is likely
to raise ('counter-argument').
• Hence, strengths and weaknesses of client’s case must be
analysed.

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Technique: Play the ‘Devil’s Advocate’
• For every argument you make in the memo, ask yourself this
question: is it likely that the other side will agree with what I have
just written? If you think they would not agree, if you have any
doubt about whether they would agree, spend some time analysing
what their response would probably be. Explain why you have
doubts about whether the argument would be disputed.
OR
• You should try to get an idea of how your opponent will argue the
case. Using the unfavorable facts you identified in the case,
construct a rough argument of how you would, hypothetically, argue
the case from your opponent’s viewpoint. This will allow you to
make a more precise argument by addressing counterarguments
before they arise. It will also better prepare you for oral argument
later.
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Counterarguments
The use of a counterargument is a good way to
convey that the existing legal authority is not clear,
unequivocal, or unified when applied to facts like
yours. It may be the case that you cannot predict
with certainty the outcome of your case, given your
facts. There may be competing lines of authority,
competing policy rationales, and/or a dearth of
cases on point in your jurisdiction. Use of
counterarguments is also an effective way to
address, and then dispose of, the perspectives of
those with whom you differ.
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 Where to Place Counter-Analysis?
• Some experts in the field recommend that the counter-
analysis component should be placed right after the
treatment of the same issue or sub-issue and before the
conclusion on the issue.
• To help the reader, it should be introduced as a counter-
argument.
• Counterargument(s) should follow the same format as
analysis – It should be organised as an issue with the counter
argument first, the rule, the facts specific holding in
illustrative case/s, the application of the rule to the facts of
the case, and finally the conclusion on the counter argument.
• There should be a separate paragraph for each
“counterargument.”
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 Two Alternative Formats
• MAIN ISSUE • MAIN ISSUE
• RULE • RULE
• APPLICATION • APPLICATION
• CONCLUSION
• COUNTER-ANALYSIS
o Issue
• COUNTER-ANALYSIS
oIssue o Rule
oRule o Application
oApplication o Conclusion
oConclusion • CONCLUSION
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 H. CONCLUSION
• The conclusion wraps up the memo for the reader and serves as a
summary of the analysis or discussion.
• Hence, the conclusion should contain
o a specific and clear answer to the questions presented, and
o a summary of the grounds upon which the answer is based.
• It is not simply a reply that is favourable to counsel’s legal position.
• It should be supported by the discussion of the authorities and
materials contained in the memorandum.
• Counsel cannot be satisfied with a memorandum of law that avoids
answering the question directly, or evades a discussion of
apparently unfavourable or hostile authority.
• Thorough research will usually indicate a path that will lead to a
favourable solution.

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 Writing the Conclusion
• The choice in dealing with the conclusion initially depends
on the length and complexity of the memo.
• If the memo is short and treats only one or two issues, one
paragraph at the end of the analysis section will suffice.
• The purpose of this concluding paragraph is to summarise
your conclusions on each issue and sub-issue and explain
to the reader very briefly why you reached these
conclusions. It helps the reader put the sub-issues and
issues back together from your individual treatment of
them.
• Follow the basic form of the Issue section, but use the key
facts and law to draw the conclusions.
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 I. CONTINGENT-ISSUES
• No matter how firmly you believe in your prediction of what a court
or tribunal will do on an issue, be prepared for what will happen in
the event that your prediction eventually proves to be erroneous.
• Example, all issues concerning damages (how much money must be
paid to a plaintiff who has successfully established liability) need to
be anticipated and analysed in the event that the liability issue is lost.
The damage issue is thus a contingency: it comes into play only if
a prior issue is resolved in a certain way. The statement of the
damage issues in the memo should be prefaced by language such as:
“In the event that we lose the first issue, then we must discuss the
issue of …”
OR
“On the assumption that the court finds [for the other party] on the
liability issue, the question then becomes ...”
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 J. RECOMMENDATIONS
• Often, a memorandum will call not only for a conclusion derived from a
reasoned judgement of the impact of the law on the relevant facts, but also
a recommendation of step or action to be taken or strategy to be pursued.
• You may conclude, for example, that:

o “the client must file a lawsuit within ten days to prevent the statute of
limitation from running”; or
o “additional facts (which you attempt to specify) are needed in order to
give a more secure prediction of what the answer to an issue will be”;
o “additional research is needed in related areas of law”.

• Each of these ‘next steps’ should be listed in the memorandum.

• While it is permissible to simply include them in your conclusion, it is often
better to accord them a separate place in the memorandum.

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 K. THE SIGNATURE
• At the bottom of the memorandum or
opinion, counsel’s signature appears.
• It should preferably be preceded with an
acknowledgment “Respectfully submitted
by”.

65
 Writer's Questions: Focusing on Your
Audience
• Have you communicated specifically and completely the issues you will
address at the outset of the memorandum? Have you avoided making
assumptions about what the legally-trained reader will know (or will "fill
in" if there are gaps in what you present) as you draft a statement of the
legal issues?
• What information should you include in your facts section to ensure a
clear and accurate explanation of the procedural and factual context of
your issue(s)?
• What conventions of legal method and usage will a legally-trained reader
expect you to know (for example, using appropriate terms to describe
judicial rulings, distinguishing a judicial opinion's holding from dicta,
addressing a statute before discussing a case that applies it)?
• What level of detail concerning facts and judicial reasoning will a legally-
trained reader expect to see in your discussion of cases? Have you
addressed apparent shifts and/or seeming tensions in the law? 66
• What connections will your reader expect you to draw between
relevant legal authority (e.g., cases) and the facts of your case (the
application of law to fact)? Does your application of the law to your
facts make those connections clear?
• What use of paragraph structure and paragraph length will most
effectively communicate the principal ideas in your analysis? How can
your use of thesis and transitional sentences clarify the ideas, and the
relationships between/among them, that you develop in each
paragraph?
• Has your citation to legal authority, including, where appropriate, use
of signals and explanatory parentheticals, illustrated clearly the
proposition you are citing? Does your placement of citations - either in
a separate citation sentence or in a clause within a textual sentence -
foreground the proposition you are discussing and avoid "interrupting"
or "cluttering" your text?
• What will your reader expect, and what inferences might the reader
draw, from your format and visual presentation (including placement
and form of citations) and sentence-level editing (e.g., grammar,
punctuation, spelling)? 67
 THE END
THANK YOU

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