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Assigning Lawyer's Comments on Anna's Civil Procedure Memo

The audio file's transcript is available on this page, underneath the audio player.

Photo of Jim Hendry, Anna's assigning lawyer.

Duration: 6 minutes and 49 seconds

A good beginning

I thought that this was a good memo. Time is really tight on this file and I can use the memo for two purposes. First, I need to prepare for a discussion with Andrew's parents where I need to tell them about the importance of discovery to the overall litigation process and the risks involved in refusing to produce Andrew for oral discovery. Second, now that we know the motion has been filed to compel Andrew to attend for oral discovery, I will be using this memo to help me put together the arguments and supporting cases for arguing the motion.

Anna's opening paragraph was effective because it reminded me of the point I had asked her to look at. I have been engaged in a long trial and have not had much time to focus on this file so it was a good idea for Anna to reiterate the point of the memo. And I was heartened by her reassuring, but not overblown assessment of her view of our position.

Anna also included a good summary of facts that focused on the specific issue of the harm Andrew might suffer if he had to go to oral discovery. I like to see students who realize the facts in a memo are supposed to be the material facts. Anna didn't have any irrelevant or distracting facts, which isn't always the case with many new writers. Most students don't think carefully about what facts make a difference to the result and simply put in everything they found in the file or from the interviews. Anna also focused on the main problem we would have on this motion, that being the inaccessibility of the key witness.

A fact that needs greater clarity

But I did wonder about a point Anna made in her summary of Dr. James' evidence. She pointed out that Dr. James said that any discussion of Andrew's injury had to be handled delicately, but then her next statement was that he would likely suffer irreparable harm if forced to attend oral discovery. The trouble is the adversarial nature of litigation would rarely permit delicate treatment, but a judge still might make an order for discovery of Andrew subject to accommodating his disability. We want to have him exempted entirely, which requires proof of potential irreparable harm. So the memo should be clear on what the Dr. will say. Will Dr. James say that discovery of Andrew would be OK if the process was not too rough or did she mean that Andrew would suffer harm just from being asked any questions about his injury? A discrepancy like this would not be something I would expect a student to pick up. With some experience, Anna will be able to spot subtle evidentiary points like this and be able to suggest ways to deal with them.

Issue statements and brief answers

The issue statement is nicely written. I know she worked hard on it. Anna's first issue was composed of three separate components, which I would have set out as separate issues, separating them early on to support a more logical discussion in the body of the memo. But she did identify those three components in sub-headings to organize her analysis. By the way, headings are always useful and they should parallel the issues identified. For a memo of this length, the issue statement was OK but if it had been a longer memo with more issues, it would have been more helpful to me to have the issues broken down very early.

A good issue statement is important because it helps the writer assess what she should be researching and answering in the memo. So a breakdown of the issues helps the writer figure out what is important in the problem and creates the organizational structure – and organization is one of the most important writing choices to make in a memo. It then helps the reader see the critical considerations that will need to be dealt with in the case. A well thought-out issue statement helps me organize my thinking and shows me where I need to turn my mind for oral argument.

Though others may differ, I usually don't like a "brief answer" section before the discussion. I often want to evaluate the cases myself before finding out what the student has concluded. But, don't get me wrong: I want to have the student's opinion. I may find myself flipping to the end early on if I am insatiably curious about the conclusion. However, there is nothing wrong with Anna's "brief answer". In fact, it is clear and allows me to approach the cases in a positive state of mind.

The discussion section

Anna starts off the discussion section on the right note. The case she mentions first is one where the court denied any discretion to exempt a party from oral discovery. She made a good choice here because it lets me know the first case the defendants will likely rely on. Keeping me out of bear traps is very helpful.

Anna also managed to avoid one of my pet peeves: short case summaries strung together without comparing the cases to each other or how they are relevant to the client in this case. A series of disconnected case summaries is not very helpful. It is also hopelessly boring to read. Anna did a good job comparing the relevant facts from the key cases to home in on the reasons why motion judges allow exemptions, including the evidence they want to see in making an exemption order.

I found the discussion of our burden of proof of potential harm from discovery to be pretty good, especially for a first effort in a new area of law. Anna focused on the points that are analogous to our case and did not simply restate the headnote of the case or string together a bunch of cases that seemed relevant, without saying how they are relevant.

Anna discovered there isn't much case law on this point, all the cases are lower court decisions, as is often the situation in procedural matters, and each decision is very fact dependent. Anna had to make sense of some very disparate holdings. I have seen other memo writers, faced with differing, fact-driven cases, give up and write, "the law is all over the place" – that's not very helpful analysis. Anna managed to do it right - she found and distilled the key facts and discussed the case holdings logically and completely, as shaped by the issues in the case.

Counseling Andrew's Parents

Just as an aside, when I talk to Andrew's parents I will tell them about importance of discovery so I can explain the possibility of his exemption in its context. This isn't a strictly a legal issue I would expect Anna to address in this memo, but it is something we will have to deal with in court as well as explaining to his parents why we have to go to the trouble of fighting the motion. The defendant has a right to information and it will not be a simple answer to say Andrew cannot be compelled to attend discovery, end of story. The parents will need to see this legal consideration in the proper context. They will also need to see why they have to pay for this proceeding when it is such a simple matter for them to see why their child has to be exempted from this process.

Conclusion and Recommendation

The final section on how to prove potential harm in this case is very helpful and supports the suggestions she makes. The weakness we have here in is that Dr. James is currently not available. Anna's Recommendation section comes up with several very practical ideas. I like to have the student's thoughts on recommendations in this kind of case because, just having finished the research, a student can contribute to the litigation strategy as a member of the team. Even if it is not the way we go, all ideas are welcome.