case review memos, letters and report writing
Arun1990
008035.pdf
Graded Project
Legal Writing Project 2 By
Mike Wilson, Esq.
Reviewed by
Brian Bastyr, Esq.
All terms mentioned in this text that are known to be trademarks or ser vice marks have been appropriately capitalized. Use of a term in this text should not be regarded as affecting the validity of any trademark or ser vice mark.
About the Author
Mike Wilson is a freelance writer and college instructor who has had wide legal and educational experience.
He graduated with his Bachelor of Arts degree in English from the University of Kentucky in 1976, and three years later received his law degree from the same school. He has been a partner in a law firm, a solo practitioner, and has done work in general and family mediation. He has also been a full-time instructor in Paralegal Studies at Sullivan College in Kentucky. He was given the “Teacher of the Year” award in 1997.
Mr. Wilson has had a number of papers published on law-related topics in both scholarly and popular journals.
About the Reviewer
Brian Bastyr is a senior attorney editor for West Group, a legal pub- lishing company. He earned a bachelor’s degree at the University of Illinois, and a Juris Doctor from the University of Illinois College of Law. He is currently a member of the Illinois bar, and has published a number of articles in legal journals.
Copyright © 2001 by Penn Foster, Inc.
All rights reserved. No part of the material protected by this copyright may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.
Requests for permission to make copies of any part of the work should be mailed to Copyright Permissions, Penn Foster, 925 Oak Street, Scranton, Pennsylvania 18515.
Printed in the United States of America
Reprinted 2002
06/16/06
iii
INTRODUCTION 1
THE CASE 1
ASSIGNMENT INSTRUCTIONS 3
FORMAT REQUIREMENTS 4
TIPS 8
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INTRODUCTION
For this graded project, you’ll be presented with a parental custody case, a list of relevant facts, and the testimonies of two expert witnesses. You’ll need to research the law in your own jurisdiction regarding factors used to determine cus- tody. Then, you’ll write two memorandums, one for each of the opposing sides, applying the law you found to the facts of the case.
THE CASE
You should know the following information about the case.
The Participants
Sally Bright asked her husband, John, to move out tem- porarily due to marital difficulties. After a brief separation, Sally filed for divorce and received temporary custody of their 14-year-old daughter, Chastity. John’s response to Sally’s divorce petition requested custody and the court ordered that the child have visitation with John every weekend.
Nine months later, the court conducted a final hearing in the divorce matter. Both parties still want custody of Chastity.
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Legal Writing Project 2
The Facts
Among the facts that came out during the hearing, and are undisputed, are the following:
• Sally will be moving to another part of the country soon to take a job.
• A psychologist that counseled Chastity about her emotional problems testified that Chastity would prefer to stay with her dad so that she doesn’t have to go to a new school and make new friends.
• John has realized that he is gay and has met a male companion who doesn’t live with John presently but someday might.
• Chastity testified that she feels “weird” around John’s new companion.
• John makes $125,000.00 per year and Sally’s new job in another part of the country will pay $35,000.00.
• John has, on several occasions, physically abused Sally, but he never did so in front of Chastity and has never abused Chastity.
• Both parents have been actively, and almost equally, involved in the day-to-day care of Chastity throughout her life.
The Testimonies
There have been two separate testimonies given.
Testimony of Dr. Samuel Stoller. I counseled Chastity at the request of her father, John, who said she was having problems at school since her mother filed for divorce. Chastity clearly wants to stay in the area so she can be with her friends as she moves into high school. Given the stress of the divorce, I think it’s in Chastity’s best interest that she remains in the safe, secure environment that she is familiar with. Since her mother is moving away, Chastity should stay with her father. The fact that John is gay has no bearing, since studies show that a parent’s sexual orientation doesn’t usually affect his or her ability to be a good parent.
Legal Writing Project 22
Testimony of Dr. Frank Edwards. I was appointed by the court to interview the parties and the child and make a rec- ommendation regarding custody. I found that both parents were suitable custodians, but I think the better custodian would be the mother. Chastity says that she feels uncomfort- able around her father’s new companion. I’m not biased against gays, but I think Chastity could be teased at school.
Another factor is John’s drinking. He denied having a drink- ing problem, but Sally says he drinks to excess on occasion. This could be dangerous, especially if he were transporting the child while intoxicated.
The Judge
After the hearing was completed, the judge said that she was prepared to decide all of the issues except custody. She has directed both of the attorneys to submit a memorandum on the custody issue. The parties are to submit memorandums simultaneously. The judge will review the memorandums, and will then make a decision about custody.
ASSIGNMENT INSTRUCTIONS Your first task is to take the role of a legal researcher for the attorney arguing that the mother should have custody. The first memorandum should be written from this perspective. Your second task is to take the role of a legal researcher for the attorney arguing that the father should have custody. The second memorandum should be written from this per- spective. In your research for each memorandum, you should check both statutes and cases, keeping in mind the facts of the case.
Wait until after you have completed the CALR, Part 1 and Part 2 study units to begin your research for the Legal Writing 2 Project (00803500). You’ll need the skills you have learned in the CALR study units to conduct your research. You MAY use Lexis to perform your research for this proj- ect; however, you MUST use at least one source other than a source obtained through lexis.com.
Legal Writing Project 2 3
Grading Criteria for This Project
Content 70%
Each Memo (35%)
Student selects correct facts and emphasizes those facts that support his or her position 5%
Student selects correct issues (at least three) 5%
Student selects appropriate authority that will answer the issues selected and at least one non-Lexis source 5%
Student applies the law to the facts 5%
Student uses proper citation form 5%
The memorandum is well organized, easy to read, and persuasive 5%
The student tries to address the stronger arguments likely to be raised by the opposing party 5%
Written Communication 20%
Student uses correct grammar and spelling; writes in clear and concise sentences; uses appropriate legal terminology; memos have no typographical errors
Format 10%
Student uses correct memorandum format and other formatting requirements as specified in the assignment, including attaching a printout of all law used in the memorandum
FORMAT REQUIREMENTS
Each memorandum should conform to the following format.
Legal Writing Project 24
Caption
Use a heading, like the one in Figure 1, at the top of the first page of each memorandum, but change the court to the one where this matter would be heard in the jurisdiction where you live.
Facts
The word “facts” will be the all-capital-letter, boldfaced head- ing for Roman numeral number I.
State the facts of the case, remembering to select the ones that are relevant to the issue to be decided. Emphasize the facts favorable to your argument and de-emphasize unfavor- able facts. You can express emphasis by the order in which you present the facts, by how much time you spend dis- cussing each fact, and by how you describe, or characterize, the facts. Remember that in this section you’re not yet pre- senting your full argument. Rather, you’re simply stating the facts. Your application of relevant cases and statutes to these facts should appear in the next section of the memorandum.
Legal Writing Project 2 5
_______ _______ COURT (name of court)
Civil Action No. _______________ (insert number)
IN RE THE MARRIAGE OF
SALLY BRIGHT PETITIONER
V. MEMORANDUM
JOHN BRIGHT RESPONDENT
Comes ________________________, by counsel, and for _____________ Memorandum states as (petitioner/respondent) (her/his)
follows:
FIGURE 1—Fill in the blanks for your memorandum heading.
Legal Writing Project 26
Issue
State the issue as a question to be answered or a contention that you’ll prove. This statement of the issue will be the all capital letters (all caps), boldfaced heading for Roman numeral number II.
Begin your analysis by explaining the relevant law. You may organize the issue into sub-issues, labeled successively as “A., B., C.,” (boldfaced) and with the title of the sub-issue following, also all caps and boldfaced and so on, if you think it will help the reader to understand your argument better.
For example, a sub-issue heading might be
A. PETITIONER’S CHILD ISN’T AN ADULT.
Remember to cite cases in proper form, giving the case name, volume number, reporter, page, and year of the case. For example, a case citation might read
Smith v. Harris, 651 SW 2d 299 (1966).
If you’re quoting from the case, use quotation marks and indicate the page at which the quoted material can be found. After citing and explaining a point of law relevant to deciding custody, apply it to the facts in the present case. State the conclusion that the reader should draw from application of the law cited to the facts in this case, even if the conclusion seems obvious to you.
You also should address the factors that aren’t favorable to your side of the case, explaining why they’re less important or interpreting them in a way that makes them less harm- ful.
You must submit printouts of the cases, statutes, rules, etc. that you cite.
Conclusion
The word “conclusion” will be the boldfaced and all caps heading for Roman numeral number III.
In a sentence or two, sum up the main reasons why the judge should rule in your favor. Figure 2 gives you an abbreviated example of the format for a legal memorandum. The memorandums that you’ll submit for this project should be much more thorough and complete–addressing all the important facts.
Legal Writing Project 2 7
LAFAYETTE CIRCUIT COURT Civil Action No. 113
IN RE THE MARRIAGE OF
GEORGE BRETLAND PETITIONER
V. MEMORANDUM
JANE BRETLAND RESPONDENT
Comes Petitioner, by counsel, and for his Memorandum states as follows:
I. FACTS
On January 1, 1999, George Bretland filed for divorce from his wife of five years, Jane Bretland.
In dispute is the ownership of the house, valued at $500,000. The mortgage on the house has been
financed through the Albright State Bank.
. . . .
II. DOES PREVIOUS FAMILY OWNERSHIP LEGALLY OUTWEIGH HARDSHIP FACED BY THE OTHER PARTY?
The overriding factor in determining such cases is the hardship faced by the nonworking
spouse. P.R.S. § 602.565 identifies factors that should be considered when determining the
ownership of property after a divorce.
A. THE FACT THAT A SPOUSE CAN’T WORK DUE TO ILLNESS AND FACES SIGNIFICANT HARDSHIP DUE TO A DIVORCE SUGGESTS THAT OWNERSHIP SHOULD BE AWARDED TO SAID SPOUSE.
P.R.S. § 602.565 (2) (f) says that a court deciding ownership must consider “(information,
records, and evidence of inability to work due to serious illness.”
. . . .
III. CONCLUSION
Awarding ownership to the husband could endanger the wife’s financial and physical health.
FIGURE 2—An Abbreviated Legal Memorandum
Legal Writing Project 28
TIPS
Style • Avoid long words and legal jargon.
• Cut out anything that isn’t absolutely necessary.
• Write in the active voice as much as you can.
• Avoid overusing the verb “to be.”
Citiations • Use proper citation format.
• Make sure that the authority cited logically applies to the facts of this case.
• Use recent precedent, if possible. All cases cited should still be good law.
Proofreading and Editing • Rewrite grammatically incorrect or awkward sentences.
• Check for errors of spelling, punctuation, or format.
• Proofread and make your final editing review from a paper copy, not directly from the computer screen.
After proofreading and editing the agreement, submit your final draft for grading along with the answer sheet.
Additional Instructions
When you submit your project, include only the first three (3) pages of any case law or other supporting documentation that you’re submitting with your Memos. We don’t need you to copy and submit more than the first three (3) pages. However, you must be sure you’ve read the entire case, statute, or other type of document to ensure it’s applicable to your memo and that you’re using for the correct proposition.
Note: We won’t return to you any of the case law or other supporting documentation you submit with your Memos. Please be sure to copy all supporting law before submitting it for grading if you would like to keep a copy for your records.
Legal Writing Project 2
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Graded Project Legal Writing Project 2
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Comments: ______________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
When you’ve completed the two memorandums, send your graded project, along with this answer sheet, to Education Direct in the envelope provided in this shipment.
Good luck with your project.
Reminder: Students must submit printouts of the cases, statutes, rules, etc., cited in the memorandums.
