So You’ve been asked to Write a Memorandum of Law . . . stay calm and read this post

Pulling hair out

It was all fine and dandy in your legal research class, but now your boss is asking you to write a memorandum of law for a motion for discovery (it could be for any motion), and you are having a panic attack.  You have gotten so desperate that you started surfing the internet.  It happens.

Just stay calm, and remind yourself that you are a trained professional.  You can, with a little guidance, do this.

Writing a memorandum of law in support of a motion is much like putting together a puzzle.  You must identify what goes where.  For example, you will have facts to include.  There will be law that is relevant and needs to be included, and there will be the need to be persuasive at some point, so the judge is convinced of your position.  Finally, you will need to tell everyone when the motion is being heard and prove that you served it.

To that end, we have the following parts of the Motion to consider, all of which impact the memorandum of law:

  • Notice of Motion (separate document with caption/signature line)
  • Memorandum of Law, aka “Memo of Law” (attached to Motion/usually doesn’t have a separate caption/does have signature line)
  • Supporting Declaration(s) (usually attached behind Memo of Law (at least one declaration required)
  • Exhibits (usually attached to Declaration and referenced therein)
Published in: on October 9, 2013 at 10:00 am  Leave a Comment  
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Legal Writing – What’s it all about?

Many paralegals (and even some lawyers) report writing as the weakest skill area, especially legal writing.

Legal writing (writing done most often by lawyers and paralegals) breaks down into the following categories:

  • Correspondence (letters, emails, inter-office memos regarding facts)
  • Declarations (used as factual support of motions or other documents files with the court)
  • Memoranda of Law (persuasive or objective analysis of a legal issue with supporting primary sources of law)

These categories cover about 90% of the writing done by lawyers and paralegals.  Each of these categories of writing requires a slightly different set of writing skills in addition to the basics of spelling, punctuation, grammar, structure and style.  Mastering all three is essential for a successful paralegal.

Several upcoming posts will go into more detail about each type of writing.  Feel free to post specific questions if you have them.

Precedent . . . What’s it all about?

When you’re at a cocktail party, poetry reading or beach party you may want to impress your non-legal friends by using some of your Latin such as “res ipsa loquitur” or “stare decisis“.  It may make you sound more intelligent especially if you know what the Latin phrases mean.

The doctrine of  stare decisis is the foundation for all case research in the United States.  The doctrine means “to stand by and adhere to decisions and not disturb what is settled.”   The net result of the application of this doctrine to legal matters is that judges must follow the holdings or precedents that were previously decided in a matter involving the same or similar facts and legal issues.   Following this doctrine allows there to be predictability and consistency among opinions.

Precedent is what is used to determine what will be “stood by” or “adhered to” by the court in a given legal matter.  Therefore, determining what cases are precedent is a very significant determination.  Here are some simple rules that apply to precedent:

1.  A state court cannot bind another state court or a federal court by its decision

2.  Federal courts do not create binding precedent for state courts with the exception of the United States Supreme Court, and then only on an issue of federal law (Federal Question)

3.  A circuit court decision in the Federal system does not bind another circuit.

4.  A court is bound by the precedent of a court from the same or higher level (in the same jurisdiction).

In order to be precedent, a case must:

  • Be from the same Jurisdiction (e.g. State of California, Federal)
  • Be from a court at the same or higher level
  • Be current (no more recent cases which with a different result)
  • Have the same or similar facts and legal issues

Writing the Persuasive Memorandum (Part 2)

I have posted a template for a memorandum with some notes on the forms and template page.  Feel free to use that as a guide.

The issue that part 1 of this series left off with was that of determining which case law (primary authority) is binding (sometimes also referred to as “mandatory”) and which is only persuasive.  When writing the memorandum, you want to use only binding precedent whenever possible.  The doctrine of stare decisis dictates that the court must follow binding precedent.

To determine which is binding and which is persuasive, it is helpful to look at certain factors:

  • Jurisdiction
  • Hierarchy of authority
  • Currency
  • Similarity of facts and circumstances

The cases you use must be from the same jurisdiction (e.g. State of California) in order to be binding.  The California courts are not bound by decisions of the Arizona courts.

The cases must be from a court at the same or a higher level than the court to which the precedent is being offered.  The California Supreme Court is only bound by other California Supreme Court cases.

The cases you use must be current.  This does not necessarily mean recent or within the last six months.  Currency will depend on the area of law.

The cases you choose should have similar facts and circumstances.  The more similar the case is, the better.  If facts are substantially different, that could make a case more persuasive than binding.

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