Writing Trial Memorandum and Legal Opinion

Changes in the Bar Exams 1. 2. Multiple Choice Question Essay Test

a. b.

Trial Memorandum Legal Opinion

Your role when taking the essay test

You take the role of a lawyer who is presented with a problem and you are required to look for a solution within the framework of a legal system.

How will you address the problem?

FACTSRULES-

get the facts. know the applicable rules and remedies. use the rules and remedies to address your Clients specific needs.

APPLICATION-

Examiner will test

a)

Your knowledge of the rule of law or legal rule Refers to legal provisions, court rulings or legal theories applicable to the problem.

b)

Your analytical skills in

Sorting out the materials and relevant facts. Finding the rule of law or legal rule involved Identifying the issue/s Justifying the position you have taken

c)

Your persuasive skills How to convince the reader to your point of view

d)

Your English Writing Skills Command of grammar and effective writing

Broad meaning of Memorandum

a)

A document that presents a legal problem (facts:law=issue) and offers a solution.

b) Other names-legal opinions, research, position paper, memo of law, etc.

Bar Essay Formats Trial Memorandum Submitted to the court after trial in which you state and justify your clients position. Legal Opinion Advice to the client on position to be taken regarding a legal problem.

Trial Memorandum Presumed audience Your role Purposes Court Counsel for a party in the litigation State and explain the position of your client and persuade the court

Legal Opinion Client Counsel giving legal advice Give advice and persuade your client to take your advice

Legal reasoning = The mental process of (a) Applying the law to (b) The facts of a legal problem, and (c) Drawing conclusions from such application by means of arguments, in order to (d) Support the side of a party (trial memorandum) or to give advice to client (legal opinion)

Structure of your essay Traditional Formula I R A C I- Issue R- Rule A- Application/Analysis/ Argument C- Conclusion

Recommended F I R A C C F- Facts I - Issue R - Rule A- Application/Analysis/ Argument C- Counter-Argument C- Conclusion

FIRACC steps 1. F- Start with the Facts 2. I- Facts suggest the Issue

3. R- Rule of law covers the Issue 4. A- Apply the Rule to the Facts 5. C- Counter the argument of the opposing side 6. C- Wrap up with a Conclusion

Step 1. Start with the Facts Kinds

Key facts- material and relevant facts necessary to analysis Background facts- add to the story but not necessary to analysis

Analyze the factual elements of the problem What: What is the thing, act or event? Who: W ho are the parties? Where: W h ere did it happen? When: When did it happen?

Step 2. The Facts suggest the Issue

You read the facts from your background knowledge of the law The facts will encounter or meet with the law as you know or understand them

The encounter of the facts with the law creates the issue Meaning of Issue Point of Law or fact which is affirmed by one side and denied by the other Issue may be purely legal, or purely factual, or a mix of both Step 3. A rule of law covers the Issue Sources of the Rule of Law Legal provision e.g. statute

 Intention of the Law Case Law (stare decisis] Policy Equity Kind of rule of law involve

What law is applicable? What is the legal theory? What relief is being asked? What procedures required?

Step 4. Apply the Rule to the Facts Components of analysis

a)

Apply the Rule (legal elements) to the Facts (factual elements)

What is the Rule involved? What Facts will prove or disprove the element of the Rule?

b)

Take a position (proposition, thesis, stand or point of view) Generally, there are two opposing positions to a legal problem Evaluate which position h as more arguments favorable to it Take a position State your arguments To support your position and to counter the arguments of the opposing side

c)

Finish with a conclusion

Apply the law to the facts You argued base on your analysis of the rule of law Your sources or materials of argument will come from the rule of law

Rule of Law as the material or source of your argument

a) b) c) d) e)

Argument based on the Law Argument based on the Intention of the Law Argument based on the Case Law Argument based on the Policy Argument based on the Equity

Argument based on Law and/or Intention of the Law: 1. Position: the answer is X
2.

The law applicable is (state the law). The Law is intended to (state). The elements of the law are (state all or the relevant elements). The elements of law are proved/disproved by the following facts (state). Therefore (conclusion)

3. 4.

5.

Argument based on Case Law (reasoning by analogy): 1. Position: the answer is X 2. The facts are analogous to those in the case of _ _ _ where the Supreme Court came out with X ruling
3.

The facts of this case and those in the cited case are similar/dissimilar (compare and contrast) Therefore (conclusion)

4.

Argument based on Policy (the State or social policy, the good desire and the harm to avoid):
1. 2.

The policy behind the legal provision is (state the policy) The is policy will be strengthened undermined (relate to the position youve taken)

Argument based on Equity (general principles of justice & fairness to temper the harshness of strict legal application):

1.

A strict application of the law will lead to (state the harmful effects). Therefore (conclusion)

2.

Structure of your argument Syllogism

a) Deductive
i. ii.

Major premise - Rule of Law Minor premise - Facts Conclusion

iii.

b) Inductive
i. ii.

Major premise - Facts Minor premise Rule of Law Conclusion

iii.

c) Argument by Analogy i. Factual setting and rule in a decided case ii. Similarity/dissimilarity of the facts in the problem with those in the decided case iii. Conclusion Step 5. Counter the possible arguments of the opposing side 1. The opposing side may argue that (state the possible argument/s) 2. The argument/s is/are refuted by (state your reasons) 3. Therefore (conclusion) Step 6. Conclusion Make a concluding statement that wraps up your analysis.

Trial Memorandum

Outline of Trial Memorandum I. II. Statement of the Case Statement of the Facts

III. Statement of the Issues IV. Discussion V. Conclusion VI. Prayer

I.

Statement of the Case

State briefly the nature of the case, the parties involved, subject matter and the relief being asked.

I.

Statement of the Case

Alternative headings

 The Case The Case, In brief Nature of the Case Nature of the Action

II.

Statement of the Facts

Summarized the material and relevant facts of the case

1. 2. 3. 4. 5.

Be orderly. Chronological as the rule Be honest. Dont twist deliberately Be accurate. .. or unwittingly Be clear. Dont confused the reader Be brief. Stick to the material and relevant

II.

Statement of the Facts

Alternative headings

The Facts The Facts, In Brief Summary of the Facts Factual Summary Factual Antecedents

III.

Statements of the Issues

Suggestions:

1.

Starts with Whether or Whether or not

2. Keep the issue short and direct to the point 3. Omit needless words (adjectives or adverbs)

IV.

Discussion

Alternative Headings

Argument or Arguments Argument and Discussion

IV.

Discussion

You take a position and explain

Suggestions:

1. Discuss per issue 2. Use the deductive, inductive or analogy structure

3.

State the facts which support or do not support the legal rule

4. Give additional reasons or arguments 5. Counter Argument a) State the main arguments that may be raised by the opposing side

b) Refute

V.

Conclusion

Alternative headings

1. Summary or Summation 2. Final Note or Last Word

VI.

Prayer

State the relief you are asking from the Court

Alternative headings

Relief

Legal Opinion

F I R A C C

TRIAL MEMORANDUM LEGAL OPINION Statement of the case Subject Statements of the Facts The Facts Statements of the Issues Questions / Queries Discussions Assessments Applicable Laws / Legal theories Application / Analysis / Argument Counter Argument Conclusion / Prayer Recommendation