9/7/16

Legal Research &

Writing 6A
Harvard Law School
Fall 2015
September 8, 2016

Agenda

I.

Quilt Recap

II.

Analogies and Distinctions

III.

Components of a Legal Memo

IV.

Organization of a Multi-Issue Discussion Section

9/7/16

Key Points from the Quilt

Exercise
1. Locate and paraphrase rules.
The mental assent of the parties is not requisite for the formation of a contract. If the
words or other acts of one of the parties have but one reasonable meaning, his
undisclosed intention is immaterial except when an unreasonable meaning which he
attaches to his manifestations is known to the other party.
The law, therefore, judges of an agreement between two persons exclusively from
those expressions of their intentions which are communicated between them.
An agreement or mutual assent is of course essential to a valid contract but the law
imputes to a person an intention corresponding to the reasonable meaning of his
words and acts. If his words and acts, judged by a reasonable standard, manifest an
intention to agree, it is immaterial what may be the real but unexpressed state of his
mind.

2. In rule proof, make sure you have given

enough information about the rule to make
its meaning clear.
3. Application paragraphs should rely on
analogical thinking.

9/7/16

California v. Casey., 471 U.S.

386(1985)
Rule: Police may not search a private
home without a warrant.
Rule: Police may search a car without a
warrant.

Question: Do the police need a warrant

to search a motorhome?

9/7/16

California v. Casey., 471 U.S.

386(1985)
While

it is true that respondent's vehicle possessed

some, if not many of the attributes of a home, it is
equally clear that the vehicle falls clearly within the
scope of the exception laid down in Carroll and applied
in succeeding cases. Like the automobile in Carroll,
respondent's motor home was readily mobile. Absent
the prompt search and seizure, it could readily have
been moved beyond the reach of the police.
Furthermore, the vehicle was licensed to operate on
public streets; [was] serviced in public places; . . . and
[was] subject to extensive regulation and inspection.

Components of a Legal Memo

S Heading
S Question(s) Presented
S Brief Answer(s)
S Facts
S Discussion
S Umbrella paragraph rule, conclusion, roadmap
S CRuPAC organized by issue
S Conclusion (if the memo is long and/or complexno

need for one in this memo)

9/7/16

Headings

S Name of the requesting attorney

S Your name
S The date
S Subject line:
S The clients name
S The file number, where applicable
S Phrase identifying the legal matter or issue

Sample heading

TO:

Edward Bennett Williams

FROM:

Judith Richards Hope

DATE:

August 17, 2014

RE:

Don Draper (file #08-24795); enforceability of

Sterling Cooper covenant-not-to-compete.

9/7/16

Question Presented
1. Can [state the legal question] when
[state the relevant facts]?
2. Under [state legal rule] can
[state the question] when [state the
facts]?
3. [State the relevant facts in one or two
sentences.] Can [state the question]?

Other verbs include Did ? Was ? May ? and Is?

Sample Questions Presented

S Can [Sterling Cooper enforce the Draper covenant-not-to-

compete under New York law] when [the covenant

prohibits Draper from making sales contacts for three
years and applies to the three counties closest to Sterling
Coopers headquarters]?

S Under [the New York common law rule that allows

covenants-not-to-compete only when the area restrained,

the activities restrained, and the duration of the restraint
are reasonable], [can a covenant-not-to-compete be
enforced] when [the covenant prohibits the covenantor
from (1) making sales contacts, (2) for three years, and
(3) applies to the three counties closest to the
headquarters of the covenants beneficiary]?

9/7/16

Sample Ques4ons Presented

S [Don Draper left his ad agency, Sterling Cooper, to

open another agency in the city. His contract with

Sterling Cooper included a covenant not to compete
that required him not to make sales calls in the three
counties in and around New York City for three
years.] [If New York law requires that a covenant not
to compete be reasonable in its restrictions, can
Sterling Cooper enforce the covenant against
Draper?]

Brief Answer
General principles:
S Answer question directly
S State rule, summarize reasoning
S Take a stand
S No counter-arguments
S Generally no citation to authority
S Generally 1/3-1/2 page long; 4-5 sentences.

9/7/16

Sample Brief Answer

S Probably not. Under New York law, a covenant not

to compete is unenforceable when its restraints on

the content, time, and geographic scope of postemployment activities are unreasonable. Drapers
covenant not to compete is unreasonable in each of
these respects.

Sample QP/BA
Question Presented
Is an attorney in Oz who does not appear in court for his
clients trial guilty of criminal contempt if he was notified of the
trial date but did not record it, and on the day of the trial, had
the case file in his briefcase along with files of cases for which
he did appear?
Brief Answer
Probably not. In Oz, the attorneys failure to appear must
have been willful, deliberate, or reckless. Mr. Bass did not act
with the intent required. Instead he inadvertently did not
appear in court because he forgot to write down the court date
and never took the case file from his briefcase in the rush of his
other court appearances.

9/7/16

Multi-part QPs and BAs

1.

2.
1.

2.

Questions Presented
In the Seventh Circuit, does the filing of a motion to reopen
automatically toll the period of voluntary departure within which an alien
must depart the United States?
If so, did our clients steps to ensure filing satisfy the standard?
Brief Answers
Probably yes. The statutory structure does not require an alien to waive
his right to a motion to reopen if he receives a grant of voluntary
departure, and basic statutory interpretation principles suggest that any
waiver requirement would have to be clearly specified in the statute.
Probably yes. Under the multi-factor test for what constitutes filing,
courts have found that signing the affidavit accompanying the motion,
leaving the motion with the attorney to file, and notarizing the motion, all
of which our client did, satisfies the standard for filing.

Statement of Facts
Which facts?
S
S
S
S
S

All legally significant facts, favorable and unfavorable

Coherent story
Emotional facts
Any needed/missing facts?
Identify client, clients situation, procedural posture

Organization
S Usually chronological or topical

Neutrality

9/7/16

Examples of Neutrality

S Write this: The defendant was traveling 50 MPH through the

school zone.

S Not this: The defendant was speeding through the school

zone.

S Write this: Wade struck Baker on the head, resulting in a cut

over the eye.

S Not this: Wade brutally beat the victim.

The Discussion Section

1. Include an introductory paragraph (the umbrella) in which you:
S Lead with a brief statement of your conclusion for entire issue;
S Summarize the rule;
S Briefly outline laws application to facts;
S Identify genuinely undisputed issues;
S State the order in which the remaining issues will be discussed

(the roadmap); and

S If necessary, identify any related legal issues not covered by the

memo.

10

9/7/16

Umbrella Example
Buckley will likely be permitted to disaffirm the
contract. Generally, one who is a minor at the time of making a
contract can disaffirm the contract within a reasonable time after
reaching the age of majority. [Citations.] However, a minor is
estopped from disaffirming a contract if (a) the minor made a
false and fraudulent representation of his or her age; (b) the
contracting party justifiably relied on the minors representation;
and (c) the minor had reached the age of discretion. [Citation.]
Thus, if Willis Chevrolet can establish these three elements,
Buckley would be estopped from disaffirming the contract. This
memo will first address whether Buckley misrepresented his
age, because Williss reliance on Buckleys shrug may not
satisfy that element. It will then address the second and third
elements in that order.

The Discussion Section

1. Include an introductory (umbrella) paragraph

2. Organize by issue or element, not by case

11

9/7/16

Bad Organization
In Adams v. State, the defendant had committed battery because
he had impermissibly applied force to the person of another. Jones
put poison into Smiths coffee and impermissibly applied force to him.
In Art v. Florida, the defendant was convicted of battery. The
court said that the defendant had acted without the victims consent
and impermissibly. Jones acted impermissibly in not getting Smiths
consent when he put that poison into Smiths coffee.
In Bable v. Florida, the defendant put something into motion
which touched the victim. Jones put poison into Smiths coffee and
Smith drank that coffee.
As the defendants in Adams, Bable, and Art, Jones committed
battery.

Better Organization
Jones likely committed battery. Battery is the
impermissible application of force to the person of another.
Adams v. State, [cite]. Jones impermissibly applied force to the
person of another when he put poison into a cup of coffee
Smith later drank. Therefore, Jones likely committed battery.
Joness act was impermissible. An impermissible act
is one done without the victims consent. Art v. Florida [cite]
(holding that a defendant who did not get plaintiffs consent
prior to kicking him in the shins acted impermissibly). Jones
placed poison in the victims, Smiths, coffee without Smiths
consent. Therefore, Joness act was impermissible.
Jones also applied force to Smith.

12

9/7/16

The Discussion Section

1. Include an introductory (umbrella) paragraph
2. Organize by issue or element, not by case
3. Give each issue or element a subheading possibilities include
the following:
S Dispositive issues
S Important issues
S Threshold issues
S Familiar order

Example familiar order

Rule: In order to gain title through adverse possession, the

claimant must show that the possession was (1) open
and notorious, (2) hostile, and (3) continuous
throughout a 15-year statutory period.
1.

The Bernsteins possession of the property was open

and notorious.

2.

The Bernsteins possession of the property was hostile.

3.

The Bernsteins possession of the property was

continuous.

13

9/7/16

CRuPAC in action, continued

1.

The Bernsteins possession of the property was open and

notorious.
An action is sufficiently open and notorious if a man
reasonably attentive to his own interests would have known
that an adverse right was being asserted. Zuanich [cite].
[flesh out rule with additional rule proof]
The Bernsteins use of the property to raise horses was
both open and notorious. The court ruled in Zuanich that X,
Y, and Z meant that possession was open and notorious
because. As in Zuanich, the Bernsteins use of the land
contained X, Y, and Z factors. Therefore, it is likely that a
court will conclude that the Bernsteins can satisfy the open
and notorious requirement.

Conclusion

S Useful if analysis long and complex.

S No more than one-two sentences.
S Not necessary for the closed memo.

14