Law 34 - Legal Research
Why Prepare a Legal Memorandum
Why is this important?
1. You won't really know whether your research is done until you try to write it up. You have undoubtedly had the experience of thinking you understood something until the moment when you had to put pen to paper.
2. The second important function of a legal memorandum is to provide you with an accessible record of the fruits of your research after time, has erased the memories from your mind. It is unfortunately common for people to put in a day or two of research in the law library on a particular issue, neglect to take an extra hour or two to write it up and later have to spend another day in the library because they are unable to use their notes to reconstruct what they found.
3. The third important function of a legal memorandum is to communicate the results of your research to someone else. This will be necessary if you are a paralegal doing research for a supervising lawyer, or if you are doing your own case and wish to inform the judge and opposing party of what you've found.
How to Prepare a Legal Memorandum
Judicial opinions almost always have four primary elements:
· statement of the facts
· statement of the issue or issues
· decision or holding on the issue or issues, and
· discussion of the reasoning underlying the holding.
2. Distinguishing Internal From External Memoranda
Internal memoranda, memoranda intended solely for your own use or the use of your employer. However, legal memoranda are also prepared for external purposes. Commonly called "briefs" or "memoranda of points and authorities," these documents are ordinarily submitted to the court in the course of a lawsuit to advance a particular position with the utmost vigor. The brief submitted for the other side of the case will do the same with respect to that side. A brief presents all the law that is helpful to one's side and attempts to distinguish and downplays any law that is harmful.
3. Internal Consistency
The main idea is to structure your legal memorandum so that
it is internally consistent. For example, you have to include
enough relevant facts in the memo for your statement of the issue
to make sense. If your issue is whether a new owner of an apartment
house can evict a tenant for having pets even though the prior
landlord allowed them, your statement of facts would have to include
such items as:
· the kind(s) of pet(s) in question
· the date ownership was transferred
· information about any rental agreement or lease that was executed by the tenant, and so on.
In a similar way, your discussion of the reasoning that you use to arrive at your conclusion has to include cases or statutes that are relevant to the facts that you've listed in the memo. If your law sources and facts don't match up on some level, your reasoning is faulty.
This internal consistency requirement sometimes means that you have to go back and add or subtract a fact or two, or slightly restate the legal issue to square with your conclusion or reasoning. It's very much like fine-tuning a television set or car-all of the operating elements have to be adjusted relative to each other.
4. Additional Points for Paralegals
Especially if you are a paralegal and are asked to prepare a legal memorandum for your supervising attorney, three additional points may be useful.
1. It is usually a good idea to list the resources that you've checked, even if some or many of them didn't pan out. This is because attorneys like to feel secure, and the more thorough your legal research, the more secure they will feel.
2. Keep your sentences short and avoid jargon when possible. It is all too easy to get wrapped up in a research project and produce mile-long, convoluted sentences.
3. All statements about what the law is should be supported by some primary legal authority, such as statutes, regulations, cases or ordinances. Other legal materials generally comprise somebody else's opinion about what the law is. It's okay and even desirable to include references to these secondary or background sources, but they cannot replace primary authority
notes provided from Nolo Press, "How to Find and Understand