Transcripts
Anna's Memo – Footnote 5
Joel Oliver (mentor):
Anna prudently reminded Jim Hendry, the assigning lawyer, of the specific task. The assigning lawyer is
busy with many litigation files all at different stages. It is just so easy to lose track of a file's
details and, even in a short timeframe, what you specifically asked a junior lawyer to do. There may
have been intervening events that change either the urgency or specific client needs, and the lawyer may
forget what the original problem was. Another reason Anna needed to clearly define the task is that this
is a topic that is very likely to come up with another client file, and so she needed to include enough
information so that anyone else in the firm could quickly see if the memo is useful.
Anna's Memo – Footnote 7
Anna Okoro:
My first draft read: "It is my view that we should vigorously oppose the motion to compel Hopper's
examination." I thought the assigning lawyer would be impressed that I took such a strong stand. But
Joel Oliver pointed out that the tone of my first draft gave him the impression I was writing what the
client wanted to hear, rather than a reasoned, neutral assessment. I can see now that the original
phrase, "vigorously oppose", had an adversarial tone. So I changed it to read "we have reasonable
arguments and evidence." This makes it clear that I am presenting a fact-based analysis. Also, Joel
pointed out that phrases like "It is my view that" or "I submit" or "I contend" are egotistical and
argumentative – they make the writer more important than the point being made, clutter up the
writing, and sound like an argument. So I took them all out.
Anna's Memo – Footnote 8
Joel Oliver (mentor):
How do you refer to the parties: by litigation role, by name, by first name? Legal writers often think
they need to refer to parties by their litigation roles, such as "plaintiff", "respondent", "appellant",
"cross-appellant", "third party", "client", or "opponent". Using the litigation role becomes complicated
when there are multiple plaintiffs and defendants. Also, the parties' roles may shift over the course of
litigation; the plaintiff may become the cross-appellant and the defendant may become the applicant.
In persuasive writing, there are often strategic reasons to refer to parties by their litigation roles. A prosecutor may use the term " the accused", rather than the person's name. (See Prediction vs Persuasion in the Discussion section of Crafting the Memo's Parts.)
In predictive writing, you aim for precision and clarity so that your reader understands without effort who is who. There are simple ways to refer to parties that help the reader keep the parties straight. The reader is more likely to keep track if you identify persons by their role in the story, rather than litigation. Is the person the buyer? The seller? The customer? The spouse?
You can refer to the person by name where the role is clear or has already been established. Here, Anna refers to Andrew by his first name, rather than "the plaintiff" or the "infant plaintiff". This is a good choice for three reasons. First, there are multiple plaintiffs; his parents are also plaintiffs in the main action, and calling him the "infant plaintiff" gets wordy and tedious. Second, on this motion Andrew's legal role has shifted from plaintiff to the respondent. Third, since Andrew is a child, using his first name is appropriate. If he were an adult, it would be more respectful to call him "Hopper", or better yet, "Mr. Hopper".
Anna's Memo – Footnote 11
Anna Okoro:
My first version started with the lawsuit's chronology. I began with a description of the accident: "On
May 15, 2013, we commenced a lawsuit against Summervale Camp, Ltd., on behalf of our clients, Andrew
Hopper and his parents, for damages resulting from injuries sustained by Andrew while at Summervale
camp. The accident occurred when (and so on and so on)...". When I reread the memo, it struck me that
everything about this motion revolves around Andrew's serious pre-existing condition and how he
will be affected by oral discovery. This led me to think about Joel Oliver's frequent advice to
"put the fire first". So, I decided to start the narrative with Andrew's General Anxiety Disorder,
because it is the most important fact we have. I realized that the accident details were not very
relevant for this memo because they would not help Jim Hendry, the assigning lawyer, make a decision on
how to respond to the motion. You don't always have to start the story at the beginning; sometimes a
thematic approach works best.
Anna's Memo – Footnote 13
Anna Okoro:
I rewrote these paragraphs twice. First, I went back over my research and asked myself: what kinds of
facts did the courts rely on to come to their decisions? That meant I needed to highlight the harm to
Andrew if he is forced to answer oral questions. So I made sure those facts were clear. Then, I rewrote
these paragraphs a second time, after I finished writing the Analysis section. This time I was looking
for two things: facts that were mentioned in the analysis that were not in the fact section, and
discussion points that were not fully supported. So, this time I added Dr. James' observation that
Andrew could be harmed by discussing the injury even in a therapy session. Now, I have more clearly
connected the potential harm to Andrew if he is compelled to talk about the accident and the injury
during oral discovery. There was another point that stood out for me as I reread the analysis section.
One of the reasons for discovery is to create a record. Dr. James thinks that Andrew's inability to
interact with people and answer their questions means that his answers may unreliable. So I made sure to
add that fact. Now the facts support my discussion point that Andrew's oral examination would not serve
the usual purpose of discovery.
Anna's Memo – Footnote 15
Anna Okoro:
I had to work hard at getting the issues right. It was a rough go. I rewrote the issue statement six
times.
Here is my first attempt:
Under what circumstances can a person be exempted from oral discovery?
After I wrote this, I immediately started to outline the brief answer and after 20 minutes of intense outlining, I realized I had the makings of a law review article. Not so good.
My next attempt went right to the heart of the matter. At least that's what I wanted to do.
Here it is:
Andrew cannot be compelled to attend oral discovery because it will harm him. Do we have sufficient evidence to meet the requirements of the case law?
I read the statement out loud and immediately saw how biased it was. All I really did here is state a conclusion, and then asked if we could prove it! I had to rewrite. I had been taught that issue statements address the key legal questions and weave in the material facts. What is good about this version is it has a practical ring to it. And it helped me see what my answer would ultimately be. But, and here is the problem, I hadn't actually addressed the legal question at all.
In my next version, I decided to fill in all the blanks with sub-issues. I wanted to be very specific and comprehensive.
- Can Andrew Hopper be exempted from oral discovery?
- Will Andrew suffer harm by being forced to attend oral examinations?
- What is the standard of evidence the court will apply?
- Certainty?
- Balance of probabilities?
- Will the court treat a minor plaintiff differently than an adult?
- What alternatives do we have to present the evidence to the court?
- when the psychiatrist is unavailable
- when the parents have a pre-litigation medical report.
Writing down the sub-issues really helped me organize my thoughts in a logical order. But when I looked more closely I realized that I had gone overboard. Some of my issues are really just factors. And even worse, I am confusing possible recommendations with legal issues. So, back again to rewrite.
I looked at some memos written by others in the firm to see how they wrote the issues. I saw that many of the lawyers, in particular the lawyer who assigned me this memo, sometimes used a multi-sentence format. Their issue statements had three components; the legal principle, the material facts, and the legal question in the case.
I had seen this before and so I gave it a try. Here is what my version looked like:
Courts will exercise discretion to exempt minor parties from oral discovery when there is cogent proof of a risk of psychological harm. Andrew's psychiatrist, Dr. James, is of the view that Andrew will be harmed; however, she is unavailable to provide the cogent proof required. Are we able to establish the psychological harm to Andrew sufficiently to convince a court, using any of the alternatives available to us – an adjournment until Dr. James returns, a report from a new psychiatrist, or an affidavit by Bill, Andrew's father?
I think this works, for the most part. But, I'm not really confident that the last sentence captures the legal question. And it all sounded so long-winded.
So, another try.
Can Andrew Hopper be exempted from oral discovery if there is potential psychological harm proved by cogent evidence?
This version is certainly shorter and it does catch the key legal and factual elements. But my mentor pointed out that this memo will be used to prepare our case for litigation. The assigning lawyer will want to see the issues broken down a bit more in order to help evaluate the risks and set up the litigation strategy. This one sentence question doesn't isolate the elements of the issues enough.
One last try:
- Will a court exempt a child from oral discovery where there is a risk of harm by aggravating a pre-existing medical condition?
- What will the court accept as cogent evidence of the harm where the primary witness, the treating psychiatrist, is unavailable to provide evidence?
I'm happier with this version for a couple of reasons. I think it captures the general legal question we need to answer: can Andrew be exempted and on what basis? And it sets out the legal points: an exemption from discovery is possible, but only where there is cogent evidence of a real risk of harm. It also captures the most important facts.
I know I will have to break open the first issue in order to answer it well. But I think I can handle this with headings. We'll see how well this works when Jim looks at it.
Anna's Memo – Footnote 18
Joel Oliver (mentor):
Keep in mind that assigning lawyers will probably turn to the Brief Answer before they read anything
else. You need to take a position and make a prediction. Sometimes the outcome is a tough call;
Sometimes the answer is conditional. But it is your job to exercise judgment. Lawyers know that your
prediction will fall on a continuum ranging from highly likely to highly unlikely and that you can never
guarantee a result. Anna has given a conditional answer. She says there is a "reasonable chance" of
success, if we have medical evidence that Andrew will be harmed. Her answer makes it clear that the
outcome depends on the evidence falling into place.
Anna's Memo – Footnote 19
Anna Okoro:
In my first draft, I made the classic beginner mistake of not giving the reader the statutory provisions
before starting my analysis. My mentor, Joel Oliver, reminded me that my reader will want to have either
the complete wording of any statutory authority or an accurate paraphrase, in order to understand my
discussion. Jim Hendry often wants to see the specific language, in part to make sure I am on the right
track. And it is really not a great idea to make Jim look it up himself. Joel also said that if there
are a lot of provisions, you can first paraphrase them and then put them all in an appendix. So, because
there are only a few short provisions involved, I added a new section with the Rules of Civil
Procedure referred to in the memo, and I put it right before the Analysis.
Anna's Memo – Footnote 21
Joel Oliver (mentor):
Readers will appreciate a brief overview of your memo's legal premise at the start of your discussion.
Writing experts describe this in a number of ways: an umbrella statement, an overview, a roadmap, a
thesis statement, synopsis, or the theory of the case. Whatever you call it, starting with a framework
is a good idea. Readers can follow very complicated material if they see from the
beginning where you are heading.
Anna's Memo – Footnote 22
Anna Okoro:
I worked hard at finding the right descriptive headings for the Analysis section. I know I always find
it helpful when there are headings to follow along with, so I used headings to highlight the key
components, factors and tests. This way, if someone is reading the memo quickly, for a particular point,
they can zoom in on it. Joel Oliver gave me some other tips on headings. He said headings keep the memo
short and focused. A good heading can actually replace a whole sentence. And he also told me about an
editing technique using headings and topic sentences to check your memo's logic and flow. If you pull
out the headings and topic sentences and run them together in a separate document, it should read
clearly and logically. When I did this, I was amazed by what I saw. I could immediately see a few spots
where my headings and topic sentences were disjointed and in the wrong order. I went back to revise.
Anna's Memo – Footnote 23
Anna Okoro:
Joel Oliver suggested that I first discuss whether the court has discretion, even though it is likely
settled law. He told me it was sort of a threshold point. After all, unless the court has discretion, we
don't have a legal leg to stand on. Jim Hendry will want to know the answer right away.
Anna's Memo – Footnote 24
Anna Okoro:
I was worried about starting this section with the Nyilas case since I thought it was no longer
good law. But Joel said for this memo it worked. The law has evolved away from Nyilas for
policy reasons but Nyilas is still the starting point for a court's discussion of its
discretion. Plus, I wouldn't want Jim to be surprised if the other side raised this case during the
argument on the motion.
Anna's Memo – Footnote 25
Anna Okoro:
I went back and forth on how to discuss the case law. I was uncertain how much detail Jim Hendry would
need in order to see the relevance of each case I relied on. My first draft stuck to stating the legal
principles the cases stood for, with practically no facts. But then Joel Oliver told me that all I had
done was to list cases and rulings; lawyers need case facts to understand the court's reasoning. My next
draft went overboard on the facts; there was so much detail that it would be difficult for Jim to see
the material facts the court relied on. Joel told me I needed a better filter to weed out the
distracting details. For example, in discussing the facts in Nyilas, I had originally included
the detail that it was a claim for over $2 million. Joel asked me whether it was important for the
reader to know about the amount of damages and I had to admit it wasn't. I got the point and got rid of
it. Now when I edit, I pay attention to whether a fact made a difference to the court's reasoning. If
not, do I need it for context or background? If neither, then I leave it out.
Anna's Memo – Footnote 26
Anna Okoro:
In my first draft I used all kinds of waffle words in evaluating Nyilas' impact. I had phrases
like, "It seems that the courts will no longer take this position…" and "It appears the analysis in
Nyilas has been rejected". I was afraid to take a stand, in case I got it wrong. But really, it
struck me that Jim would not have confidence in my work if I didn't demonstrate it! So, I made sure I
was correct on the law, and that I was not overstating what the case stood for, and then I rewrote it
and took a stand. I said that Nyilas has been rejected by subsequent courts.
Anna's Memo – Footnote 27
Joel Oliver (mentor):
This is a good example of synthesis and an example of point first writing. Anna starts her discussion
on the issue of certainty of harm with a short statement capturing the legal standard. She lets the
reader know that she will be explaining how the law has evolved, and why the evidence in her client's
case meets either standard. The lawyer will now read the next few paragraphs knowing where Anna is
headed. I like how Anna kept this up throughout the analysis section – she really paid attention when we
talked about point first writing.
Anna's Memo – Footnote 28
Joel Oliver (mentor):
Anna came to see me to discuss whether there was a way to distinguish the F(J) case. We looked
at a number of differences and similarities between F(J) and Hopper and I suggested Anna focus
on the material facts that will make a difference in the result. Anna was able to use the facts that the
plaintiff in F(J) was an adult and did not have a pre-existing condition that had worsened.
Anna gives the reader a logical basis for why the ruling or result in F(J) would not likely be
followed in Hopper.
Anna's Memo – Footnote 29
Anna Okoro:
I really appreciated Joel Oliver discussing how to distinguish a case. But, even after I zeroed in on
the material facts as he suggested, I was still a bit reluctant to conclude that the case would not
apply. In my first draft I wrote, "This may be sufficient…". Joel told me "may" is a difficult
word in legal writing. It sounds as if I am giving the court permission to distinguish the case instead
of trying to show my reader the likelihood of that happening. I replaced "may" with "would likely be",
even though I used three words to replace one. I now include a search for the word "may" in my final
edits to make sure I am not sending the wrong message.
Anna's Memo – Footnote 30
Anna Okoro:
I wanted to be sure I covered all bases. Because I could not say for sure that F(J) would be
distinguished, I wanted my assigning lawyer to know that we could meet the test with the evidence we
had. I hope this shows I'm always trying to find the answer and that I'm thinking about a problem from
more than one angle.
Anna's Memo – Footnote 31
Joel Oliver (mentor):
Anna gives the reader a short conclusion at the end of each section. This is a good organizational
principle because the reader knows the bottom line before moving on to the next section of the
discussion.
Anna's Memo – Footnote 32
Anna Okoro:
I try to use issues, sub-issues, or elements of the legal test as headings to make sure my reader can
follow my analysis. This particular heading, How to Prove the Risk of Harm, is different than my other
headings. It is not just descriptive. It states a practical problem. I thought the assigning lawyer
might want to skip right to this section before even reading my legal analysis. Highlighting it in a
separate section and with a descriptive heading makes it easy to find.
Anna's Memo – Footnote 33
Anna Okoro:
I know I'm not the only one who struggles over how much case detail to give. My first draft did not give
a lot of the facts from the Kidd case. This was a mistake. To start with, Kidd seems
to be the leading case. It had the best explanation of the balancing test. But you need the facts to see
where the court went with the test. Also, from my discussions with Jim Hendry, I know he will want
enough facts to make an independent judgment on whether to rely on the Kidd case. And I
understand from Joel that most senior lawyers want to see the facts. And of course, Jim will want to
know what specific facts Justice Aitken found important in measuring the risk of harm. Most importantly,
Kidd is a case where the court accepted a range of medical and non-medical evidence, and that
may be the exact position that we will be in if we have to argue this motion. I needed to compare and
contrast the Kidd facts with our client's facts.
Anna's Memo – Footnote 34
Anna Okoro:
I also wondered when it was smart to describe a case's procedural history. Certainly you don't need it
for every case. But when does it make a difference? In this memo I decided to cut out all the procedural
histories expect for the Kidd case. In Kidd, Justice Aitken confirms the motions
court's result and then elaborates on it, making the motion court's reasoning important to my analysis.
Anna's Memo – Footnote 35
Joel Oliver (mentor):
Anna asked me a question that at first she was embarrassed to ask because she thought it was something
she should already know. She asked whether she should name the judges in the cases she was referring to,
or should she just say "the judge" or "the court"? I did a bit of digging and concluded there is no
rule: it is a writing choice, not a legal writing convention. Generally, you do not need to state the
name of the judge, although you should specify the court level –for example, you would say
"applications judge" or "trial judge". You may also just say "the court". However, I would note that it
is my practice to capitalize the "c" for any reference to the Supreme Court. Personally, I find it
useful to mention the judge's name if the judge has particular knowledge or experience in the area of
law. Then I use the name to add some emphasis to the discussion. Here, Anna chose to mention Justice
Aitken by name because later cases specifically cite her reasoning. As for asking embarrassing
questions, Anna and I had a good laugh when I came clean about one of my early questions. I had asked a
law professor what was it with all these judges who all had the first initial J.". I also confessed that
in first year law I thought that Regina was the most litigious city in Canada, but that's another story.
Anna's Memo – Footnote 36
Anna Okoro:
The facts that Justice Aitken accepted in Kidd are very similar to ours, so I made a point of
including them here and in detail.
Anna's Memo – Footnote 37
Joel Oliver (mentor):
The welfare of children will be the key factor for Andrew's case so I advised Anna to raise the factor
in a short, one-sentence paragraph. Anna was uncomfortable having a one-sentence paragraph. I suggested
that if you want to emphasize a point, use short, active voice sentences and use short words, if you
can. Use white space to make your point stand out on the page. A one-sentence paragraph is fine.
Anna's Memo – Footnote 38
Anna Okoro:
I thought the judge's additional advice to litigators is very useful and my assigning lawyer should see
it in detail. This advice could help us develop our strategy for this motion. It offers us options, some
of which I followed up on in the Recommendations section.
Anna's Memo – Footnote 39
Anna Okoro:
In this paragraph I tried to bring our practical options all together. I summarized all the possible
ways we could present the evidence of the risk of harm to Andrew, based on what the courts had accepted.