week3 tort end

MEMORANDUM

TO:

FROM:

DATE:

RE:

_____________________________________________________________________________

FACTS:

A good memorandum starts with the Facts section, but in order to be brief, a Facts section should only include the key facts. As a rule of thumb, key facts are those whose existence not only places the case in a context, but also helps to shape the case’s outcome. How is that determined? It is done through careful reading. As you examine the facts from a case, ask yourself if a decision can be made without the fact being in existence. If not, that usually indicates a key fact that should be in your memorandum.

ISSUE:

The Issue is the brain center of the memorandum and the hardest part to grasp. A good issue asks a legal question, not an “outcome” question. To find the issue, ask: “What is in controversy in these facts.” A good issue incorporates some of the key facts into its wording. You know you have written a good issue when it stands on its own – when it, by itself, would allow a reader who has not read the case to still get an understanding of it. Write your issue in the form of a question. Begin with the word, “Whether.” Do not be alarmed if your issue reads differently from someone else’s because Issues can convey the same legal question but be expressed in different ways.

You should always use the following language to guide your thought process: “The issue is whether,” . . . then identify and state the legal conclusion you want the court to reach . . . The Defendant committed a battery, (or an offer was made, or the court can assert personal jurisdiction) . . . and connect to the “relevant” facts (the relevant facts being those facts which impact the outcome) . . . when he pushed the Plaintiff even though he knew she was in no danger of being hit by the bicyclist (or when he said, “would you buy my watch for $500 in cash next Tuesday?” or when the defendant conducted business in the forum state, had an office and a full-time staff, and paid state taxes). When completed, the sentence will read: “Whether the Defendant committed a battery when he pushed the Plaintiff even though he knew she was in no danger of being hit by the bicyclist.”

RULE:

Once you have stated the issue, you must determine the relevant rule(s) of law. State the entire rule if there are components. For example, the law of negligence has four elements: duty, breach, causation, and damages. Break the relevant rule into its components and discuss each element separately. Explain the relevant terms and concepts for the rule, e.g., forseeability. Include enough of the rule for your analysis of the facts in controversy.

The rule and the facts are inextricably linked. Your analysis of the facts will not make sense unless you have first identified the rule, which determines the legal meaning to be attributed to those facts. For example, in the case of the assaulted customer, the relevant rule of law is that a property owner’s duty to prevent harm to invitees is determined by balancing the foreseeability of the harm against the burden of preventive measures. There may be more than one relevant rule of law to a case. For example, in a negligence case in which the defendant argues that the plaintiff assumed the risk of harm, the relevant rules of law could be the elements of negligence, and the definition of “assumption of risk” as a defense. Don’t just simply list the cause of action, such as “negligence” as a rule of law. Identify what rule must be applied to the facts to determine the outcome.

ANALYSIS:

The Analysis/Reasoning section is the heart of the memo. A good reasoning section links the applicable law with the facts of the case to support the anticipated outcome. It is where you examine the issues raised by the facts in light of the rule. Your statement of the rule will drive your organization of the analysis. You simply match up each element you have identified in the rule (in order) with a fact, using the word “because” to make the connection between rule and fact. “Because” is the single most important word to use when writing the analysis. Using the word “because” forces you to make the connection between rule and fact.

Because appellate courts most often reach their conclusions through relying on case law, then a question is often raised concerning whether a reasoning section should include case citations. It generally should not, because citations by themselves, explain nothing. Your Reasoning section should revisit integral facts and apply the law thereto in order to summarize the analysis and give a basis for the conclusion being drawn.

CONCLUSION:

The Conclusion section should provide a brief summary of the facts and law reviewed in the Analysis section. It should be no more than 5–10 sentences long. A sample of the conclusion section would look like this: “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.”