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As you read law student Anna Okoro’s memo for senior lawyer Stephen Acker, click on the
Practice Tip icons for text, audio, and video pointers from Anna and her mentor Joel Oliver.
Close the Practice Tip by clicking anywhere on the page or pressing the esc key. An alternate
version of this memo is available for accessibility.
Before reading the memo, learn more about the Hopper v Summervale matter.
Context: The Client’s Story
Read the email exchange between plaintiff Andrew Hopper’s father and the family’s lawyer Jim
Hendry to understand the family’s concern about Andrew’s upcoming oral discovery.
Purpose: The Assigning Lawyer’s Email Instructions
Now read Jim Hendry’s email instructions to law student Anna Okoro, to more fully understand
the memo’s purpose.
Anna’s Research
Go to Getting Ready to Write, to see how Anna used mind mapping, charting, and outlining to
organize her research. You can also review Anna Okoro’s research notes if you want more
details on the law she used in her memo.
Audience: Assigning Lawyer’s Comments on Anna’s Civil Procedure Memo
Do you think the memo met the assigning lawyer’s expectations? After you read Anna Okoro’s
memo, hear what Jim Hendry thinks of the final memo’s effectiveness.
Memo
Memorandum
To:Jim Hendry, Senior Lawyer
From:Anna Okoro, Law Student
Client:Andrew Hopper, Bill and Sandy Hopper
File:2013-097-15H
Subject:Exemption from Oral Discovery: Hopper et al. v Summervale Camp
Date:September 6, 2013
Purpose
Anna's introductory paragraph immediately tells the assigning lawyer what this memo is about and why it
should be read. All the parties are identified and the need to respond to the defendant's upcoming motion is
clear. The last sentence captures the key elements of the legal test to be met and gives an immediate answer.
Anna used a generic paragraph label, "Purpose". Some writers dispense with any paragraph label and some use
the generic label "Introduction".
You asked me
Anna personalized the memo by referring to herself as the memo writer. Alternatively, some memo writers prefer to
take themselves out of the narrative saying for example, "this memo examines" or "this memo responds to…"
to research the question of whether Andrew Hopper, a child, could be exempted from oral
discovery in a personal injury suit against Summervale Camp for injuries sustained by him and
his parents. The defendant has filed a motion to compel Andrew's oral discovery, returnable
October 15, 2013. Case law focuses on the question of psychological harm linked to a pre-
existing medical condition. We have reasonable arguments and evidence to establish that
Andrew would suffer irreparable harm if forced to participate in oral discovery, likely sufficient
to defend a motion to compel Andrew to attend discovery.
You instructed me
Remind the assigning lawyer what you were told NOT to do. Busy lawyers can forget their instructions. Other
readers may wonder why you left out an obvious issue.
to not consider the law on competence or whether Andrew is competent to give evidence.
Facts
"Facts" in Crafting the Memo's Parts has more instruction, strategies, and exercises on writing complete
fact statements.
Andrew was diagnosed at age nine with generalized anxiety disorder (GAD). He suffered for
two years with significant, persistent, and uncontrollable anxiety. From age 11 to 15, with
medication and cognitive behavioural therapy, he had only minor symptoms until his injuries as a
camper at Summervale Camp. These injuries are the basis of the litigation against Summervale.
In addition to the serious physical injuries (Andrew was hospitalized for three weeks, requiring
surgery and intensive physiotherapy, and he lost 15% of his mobility) and losing a term of high
school and a promising football career, he suffered a reappearance of serious GAD symptoms.
Readers instinctively look for important information in two places: at the beginning and the end of a sentence,
paragraph, section, and document. This is an example of putting the important information at the end of the sentence so
the reader easily sees that the psychological injury is relatively more important than the physical injuries, which were
noted only in parenthesis.
According to his parents, the GAD symptoms have left him unable to deal with people in social
situations, and he has trouble making eye contact with anyone other than his parents and his
psychiatrist. In particular, he panics uncontrollably in new situations and is often unable to sustain
a conversation or respond to questions.
A month after the injury, he restarted medication and began intensive cognitive behavioural
therapy with his psychiatrist, Dr. Sandra James. She reported to his parents that he will require
extensive therapy, both medication and cognitive behavioural, in order to gain back his pre-injury
level of psychological stability. In Dr. James' opinion, Andrew is not yet psychologically stable
enough to deal with his injuries and their consequences. She recommended that any discussion
of his injury, even in therapy, let alone litigation, be handled very delicately to avoid further injury.
In August, we asked Dr. James for more information. In a letter to us, Dr. James wrote that
forcing Andrew to describe the accident in oral discovery would likely cause him irreparable
psychological harm. She added that he is having great difficulty interacting with other people and
may be unable to respond to questions. Even if able to answer questions, his responses may not
be reliable.
Dr. James' testimony would be of great assistance in responding to the defendant's motion to
compel Andrew to attend oral discovery; however, she is now unavailable for several months and
cannot be reached to swear an affidavit or provide a report, unless we were able to secure a
lengthy adjournment.
Dr. James' absence leaves us with the following documentary evidence:
• Dr. James' notes and Andrew's file
• Dr. James' report to Andrew's parents, pre-litigation
• The letter to us explaining Andrew's likely reaction to oral discovery.
Issue
1 Will a court exempt a child from oral discovery where there is a risk of harm by aggravating a
pre-existing medical condition?
2 What will the court accept as cogent evidence of the harm where the primary witness, the
treating psychiatrist, is unavailable to provide evidence?
Brief Answer
1 Yes. Anna started the brief answer with a one-word conclusion – Yes. She was following a common convention
where your brief answer responds to the specific question posed with a bottom line prediction: Yes, No, Likely,
Probably. Other memo writers incorporate the prediction into the first sentence. As with many elements in
memo writing, there are no rules. It is prudent to check the firm's memo bank to confirm preferences.
There is a reasonable chance we would succeed in exempting Andrew from oral
examination. The court has discretion to exempt a party from oral discovery where there
is a risk of psychological harm. The harm must be proved by cogent evidence, preferably
from the party's doctor. Where a minor party is involved, courts have been more flexible
in the evidence they accept.
2 Ideally, the cogent medical evidence would be an affidavit or report from Andrew's psychiatrist
describing the risk of harm to Andrew. Dr. James is currently unavailable so we should
seek an adjournment, if possible. If Dr. James is not available in the foreseeable future,
we have three alternatives:
◦ Andrew could be examined by another psychiatrist;
◦ Counsel or Bill Hopper could swear an affidavit setting out Dr. James' written and oral
communications, as well as their own knowledge of Andrew's history. This is
hearsay, but there is support in the case law;
◦ Dr. James' report could be filed as a Rule 53 report.
Courts do not easily permit exceptions to the well-established requirement in Rule 31.04(1) that a
party to an action is entitled to examine for discovery any other party adverse in interest.
However, case law holds that the right of discovery is not absolute and, under Rule 2.03, the
court will determine whether an exemption is appropriate. The onus rests on the party seeking the
exemption and the court must be satisfied that a clear case has been made out on the evidence.
1. Courts will exempt child plaintiffs from oral discovery if there is cogent evidence that
the child risks psychological harm from participating in the discovery process.
To succeed under Rule 2.03, we will need to establish two elements:
a the court's discretion to exempt Andrew from oral discovery
b the standard of proof for an exemption from oral discovery