Discussion or Analysis Section
a. The Pivotal Element: Everything Turns on the Discussion Section
The discussion is where you add your value to the firm's work and the client's problem.
You predict the likely outcome of the case using your research, knowledge, experience and judgment.
- You do not have a crystal ball, and you can never guarantee a result. Nonetheless you are being paid to give an answer.
- You are also being paid to deliver a candid assessment, which can mean delivering a clear message that there is significant risk in going forward. In other words, sometimes you have to deliver bad news.
- You want to write a prediction that gives the reader confidence in your answer.
You support your prediction with the law and the facts.
- Keep in mind that the legal reader is cautious and skeptical, and has a professional obligation to thoroughly vet your predictive memo.
- You have to support your prediction with an accurate synthesis of the law, a detailed case law analysis, and a candid application of the law and cases to the client's situation.
- Your prediction has to be logical, sensible, and deal with risks.
Check your discussion using the OATS criteria: Objective, Accurate, Thorough, Specific
- Objective
Would you write the same analysis if you represented the other side? - Accurate
Did you include all relevant facts, issues and case law, even if it complicates the analysis or hurts your client's case? - Thorough
Did you consider all sides of the issues, alternative interpretations of the facts and law, and all counterarguments? - Specific
Would a busy lawyer be able to read the memo and understand the discussion without reading the cases and authorities cited?
b. Organizing an Effective Discussion: Writing for the Busy and Skeptical Lawyer
To organize the discussion, it helps to step back from the thinking and research process and put yourself behind the desk of the busy and skeptical lawyer. Ask yourself:
"How can I communicate concisely, accurately, thoroughly, and quickly what the lawyer needs to know to make a decision, no matter how complex the matter?"
There is no universal organizing formula. Legal writers are sometimes encouraged to use (or discouraged from using) variations of the following as the basic writing framework:
- IRAC: Issue, Rule, Application and Conclusion or
- FILAC: Facts, Issues, Law, Analysis, and Conclusion or
- CREAC: Conclusion, Rule, Explanation, Application, and Conclusion
No one formula will fit the bill every time; however, these acronyms will help you remember the essential elements of any legal discussion.
And remember, some firms and lawyers have preferences, so it always pays to check. One lawyer may want a detailed conclusion at the memo's beginning. Another may expect a short overview of the law integrated into the discussion section.
Here are some helpful writing principles you can apply, that work with any writing framework, and keep the busy lawyer in mind. Use these principles as guides, not hard and fast rules.
Threshold Issues
There may be threshold issues that can dispose of the matter before a court even considers the substantive legal rules. Consider discussing the threshold issues first.
Examples: Threshold Issues
- Jurisdiction: The court lacks jurisdiction because the plaintiff has not followed the arbitration process agreed to in the contract.
- Res Judicata: The case should be dismissed based on the doctrine of res judicata because the plaintiff raises the same issues that were determined in previous proceedings between the parties.
- Statute of Limitations: The case should be dismissed because the action was started two years after the statute of limitations has run.
- Statutory Definition: The statute requires minors to wear bicycle helmets, and the defendant was nineteen years old when the ticket was issued.
- Statutory Definition: The statute imposes absolute liability for dog bites on owners who do not control their dogs. The defendant does not own the dog.
Orient the Busy Reader
Discuss first the issues you think the court is most likely to base its decision on. Presenting the most important issues upfront helps a time-pressured lawyer more quickly assess the overall strength of the client's position.
Tell the busy lawyer upfront what result to expect so that the lawyer can read with a purpose in mind.
Skilled writers use the technique of "point first writing" because they know it is easier for the reader to absorb and remember their points if they are laid out in advance.
Telling the reader up front also means that you provide an overview for each section and subsection.
Example
In Anna's memo, she included an overview to set up a framework for her discussion:
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.
To succeed under Rule 2.03, we will need to establish two elements:
- the court's discretion to exempt Andrew from oral discovery
- the standard of proof for an exemption from oral discovery
Educate the Reader before Applying the Law
The senior lawyer needs to understand the law in order to evaluate your prediction. Start with the law before you present your analysis. And remember, the skeptical lawyer also needs proof – so cite the authority.
Starting with the law does not mean you merely recite the results in the series of cases you found in your research. You do not begin your discussion section with a section, "the Law", where you list and describe all the cases. Educating means analyzing and synthesizing, as opposed to simply summarizing the legal authorities.
The assigning lawyer wants an active presentation that compares and contrasts the facts and reasoning of the cases, and explains how statutes and regulations fit together and are interpreted by case law.
The busy lawyer wants an analysis, not a book report.
Weave Together the Case Discussion and Your Facts
Most legal writing experts suggest that after you discuss a case you immediately apply it to your own case facts.
Weaving the case discussion and application together helps the reader follow and evaluate your analysis. And you avoid needless repetition.
Use Familiar Structures Whenever Possible
You want to make it easy for the busy lawyer to follow your reasoning. Lawyers are used to certain types of reasoning, so you help them see your point quickly if you follow a familiar structure.
If the legal issue is controlled by case law, your discussion might track the elements established in the leading cases. Ben's restrictive covenant memo effectively organized the discussion using separate subheadings that paralleled the analytical frame used in the leading Supreme Court case.
Similarly, if the statute relied on in the claim or defense mandates certain elements, you can organize the discussion section to track those elements.
If you are relying on drawing analogies with case precedents, you might highlight the key elements or facts you want to pinpoint for comparison by setting each one out as a separate subsection, subheading, or paragraph.
If each side must prove important facts, your memo sub-topics might follow the burden of proof.
Use Structure to Create Emphasis
Structure signals importance to a reader, whether the writer intends it or not!
Readers tend to pay attention to and remember what they read first. With this in mind, you might:
- discuss the issues out of sequence and start with the one that is most important to your prediction, or
- begin with a threshold procedural issue that the court will consider before anything else, particularly if the memo is going to be used to determine a litigation strategy.
Make Maximum Use of Descriptive Internal Headings
Descriptive headings and sub-headings communicate your message and make even a complicated memo readable.
Major discussion headings can announce the law and your prediction.
Headings like the ones in Ben Hall's restrictive covenant memo create emphasis and tell the reader exactly what to look for as they read:
"Covenants Not to Compete in Employment Contracts Require Special Circumstances"
"The Bradley-Tech World Employment Relationship Does Not Present Special Circumstances"
Descriptive sub-headings create a visual reference point – a mini-table of contents that readers can use to quickly locate points.
Ben Hall turned the criteria in his overview paragraph into descriptive sub-headings that outlined the points for easy reference:
"Breadth of Restriction"
"Nature of Tech World's business and Bradley's role"
"Scrutiny of non-competition clauses in employment agreements"
Ben's descriptive sub-heading took a long discussion section and made it readable by:
- breaking it up into manageable chunks
- signaling the start of a new sub-topic
- helping the reader keep track of where they are.
Headings also create "white space". Think of white space as increased oxygen for the brain. White space is easy on the eye and lets the reader pause, breathe, and think.
c. Prediction versus Persuasion
Your Professional Role: The Advisor vs the Advocate
Skilled legal writers take every opportunity to meet their objective.
As an advisor, your objective is to:
- inform
- warn
- advise
- explain and, most importantly,
- predict the likely outcome from a neutral and objective point of view.
Predictive Writing for Office Memos
The reader depends on you to present strengths and risks objectively. The predictive memo is a document used for decision-making, whether it is:
- the senior lawyer deciding strategy in a case or
- a client deciding whether to continue with litigation.
Persuasive Writing for Factum and Briefs to the Court, Demand Letters, etc.
On the other hand, persuasive writing is strategic. As an advocate, you craft every element to convince the reader that your position is correct.
Elements of Predictive and Persuasive Writing
The elements of predictive and persuasive writing will be the same. Both must:
- include all the relevant facts
- accurately state the law
- cite supporting and unfavorable precedents.
The tone, word choice, sentence structure, organization, and emphasis in predictive and persuasive writing differ greatly:
- Predictive writing uses neutral language while persuasive writing uses loaded words to appeal to a reader's reason or emotion.
- Predictive writing present the facts in a balanced fashion, while persuasive writing often plays up the facts important to the client's position and plays down facts that are less favorable.
- Predictive writing discusses all sides of an issue while persuasive writing emphasizes the arguments that support the client's position and distinguishes all other arguments.
Neutrality doesn't mean you abandon the client's interests or goals. You still make your best effort to overcome weaknesses and address counterarguments.
The Challenge of Objectivity
Our professional role as the neutral and objective advisor is often challenged by some subtle and some not so subtle biases:
- We often have our clients' image and their problem in our mind as we research and evaluate the case law.
- We hear the clients' version of the facts first and are inclined towards their perspective.
- We would prefer to give clients good news about the strength of their position or the likelihood they will achieve their objectives.
And then there is the other natural tendency of many lawyers to want to win.
Predictive memos must withstand the natural tendency to lean towards your side's point of view.
Auditing Your Memo for Neutrality and Objectivity
A good habit to get into is to audit your memo's content, tone, and word choice for neutrality and objectivity.
Here are some questions to query your text with:
d. Can the Busy and Skeptical Lawyer Rely On Your Prediction?
As your discussion section moves from explaining to applying the law, legal readers start to test your analysis against their own thinking process and knowledge.
Legal readers will be looking for cues that you have thought through the multiple ways cases, statutes, and client facts can be interpreted.
Your analysis has to be clear, explicit, and reasonable.
Consider the following mini-checklist:
Now review your own memo writing experience and add to this checklist.
Tip:
Anna's mentor suggested an editing technique for checking the memo's organization and flow. You first pull out the headings and then run them together in a separate document. The reader should be able to follow your discussion with just the headings. Then, to spot if your sentences are disjointed and out of order, you pull out the topic sentence for each paragraph and read them together with the headings.
Example
Anna used this tip to revise and reorder the topic sentences in her Analysis sections to make her points coherently. Here are the headings and topic sentences from the first issue in Anna's Analysis Section:
Analysis
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.
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:
- the court's discretion to exempt Andrew from oral discovery
- the standard of proof for an exemption from oral discovery
a) The court has discretion to exempt a child from oral discovery
Courts have not always considered psychological harm in determining exemptions from discovery.
The courts no longer take this position but are willing to grant an exemption from oral discovery where cogent medical evidence shows psychological harm would likely result from it.
b) The standard of proof is the balance of probabilities
Courts now look to persuasive medical evidence of harm to exempt parties from examinations under Rule 31.
The risk of harm does not need to be a certainty
Early decisions required certainty of harm.
In an early case, F(J) v Roman Catholic Episcopal Corporation for the Diocese of Toronto in Canada (1996), 42 O.R. (3d) 312 (Gen. Div.), Lax J. did not grant an exemption from oral discovery in the case of the adult plaintiff in a sexual abuse case.
There is a good argument that F(J) would not apply to our case because the facts differ significantly.
Recent cases show that certainty is too high a standard, even in the case of adults.
Thus, it is likely that in Andrew's case the court will not require proof of certain harm, and will instead be satisfied by the balance of probabilities test
However, even if the principle of "certain injury" applies, the evidence from Dr. James will support the argument that Andrew should be exempt from examination.
The court has more flexibility with respect to child plaintiffs
Courts have accepted a broader range of evidence in cases involving children.
To strengthen the case for an exemption for Andrew, we should argue the proposition that the court has a duty to protect vulnerable minors from a risk of harm, proved on the balance of probabilities.
Therefore, the evidence of Dr. James should be sufficient to support the position that Andrew be exempted from oral discovery.
e. Case Discussion
How much case detail do you need to put in a legal memo?
This is not a simple question to answer because there are competing demands at play.
Demands | Amount of detail |
---|---|
You want the assigning lawyer to have confidence in your analysis. | Details needed |
The assigning lawyer doesn't want to read every case you discuss. | Details needed |
You need to be specific; every detail must relate to a legal issue in your memo. | Fewer details needed |
You are analyzing, not summarizing or writing a law review article. | Fewer details needed |
Memos are most effective when they are brief and to the point. | Fewer details needed |
You need to draw analogies, distinguish an unfavourable case from your client's situation, or support a policy argument. | Details needed |
Oh, yes, and then there is the assigning lawyer's preference!
- One lawyer wants to know the procedural history for every case.
- Another lawyer wants you to include the facts in a footnote.
- And still another lawyer expects you to boil down the case's essence to a line or even a parenthetical phrase.
It is a balancing act. You need to include enough of the relevant facts, holding, and reasoning to give the assigning lawyer confidence that he or she doesn't need to read the case to double check your analysis, while at the same time you need to write a focused, uncluttered case analysis that connects the case to your memo's legal points.
Your decision on how much case detail is needed comes down to:
- the context, audience, and purpose for your assigned memo, and
- why you have chosen to include the specific case.
In the "Restrictive Covenant" memo, Ben grappled with how much detail to give on the Elsely case. Because Elsely is a leading case, Ben's first thought was to skip over most of the facts because the assigning lawyer was likely very familiar with the case. However, ultimately Ben opted for a detailed discussion, in part, because subsequent cases used the legal principles from Elsely to arrive at opposite results, and because Ben needed to distinguish Elsely's facts from his client's facts. Ben needed the Elsely details to put his case synthesis in context and to support how he applied the case law principles to his client's facts.
In the Civil Procedure memo, Anna discussed one case in great detail (Kidd) and then was sparser with the details for all the other cases she cited. Anna delved into the Kidd case because it is the leading case and one of Anna's practical recommendations is based on the type of evidence accepted in Kidd.
Anna included:
- the key facts (plaintiff's age, injury, trauma),
- procedural history (lower court's holding and reasoning),
- the medical evidence available to the lower court (a letter from the minor's family doctor focusing on specific behaviours), and
- the appeal court's analysis of the evidence and reasons.
In contrast, for each of the other cases Anna cited, she only included the specific fact or court reason relevant to the sub-issue or paragraph's subject matter.
Here are some questions you can ask yourself in thinking through how much case detail to include. And, of course, your decision on what to include for each case will have to balance the answer to several of these questions.
Context:
- What is the background for including this case?
- How does this case fit in the court's evolution of the legal principles I am applying and my overall analysis?
- How will it assist the reader in decision-making?
Questions to ask yourself | Amount of detail |
---|---|
Is this a leading case that most people know very well? | Less detail |
Am I raising this case because it sets out the principle of law that all courts follow, but the facts are not very important? | Less detail |
Is this case central to my analysis? | More detail |
Does the case present a novel legal issue or argument? | More detail |
Does my client's case present a novel issue or argument addressed by this case? | More detail |
Is the case one of many cases that illustrate the same point? | Less detail |
Is the case outdated and no longer a precedent I rely on? | Less detail |
Is the law starting to evolve away from the case's reasoning? | More detail |
Does the case have limited precedential weight, either because it is a lower court holding or from another jurisdiction? | Less detail, unless I argue it should be followed |
Are there procedural issues in the case that are central to the result? | More detail |
Audience:
What are the characteristics and expectations of the reader?
Questions to ask yourself | Amount of detail |
---|---|
Does the assigning lawyer know the area of law well? | Less detail |
Will the memo go into the firm's memo bank? | More detail |
Has the assigning lawyer asked for a memo applying established case law to a routine client matter? | Less detail |
Does the assigning lawyer or firm have a preference for how cases should be discussed? | Need to inquire |
Purpose:
How am I using this case?
Questions to ask yourself | Amount of detail |
---|---|
Do I need this detail to make sure that my conclusion is clear? | More detail |
Do I need details to demonstrate parallels with my client's case? | More detail |
Do I need details to distinguish the case from my client's case? | More detail |
Is this case being used for a collateral or parenthetical point? | Less detail |
Is this case a key authority in my synthesis? | More detail |
Am I asking the court to overrule this case? | More detail |
Am I using this case to support a policy argument that the law should be changed? | More detail |
f. Exercise
Stating Your Prediction
Predicting the Outcome:
Here is a brief overview of the client's situation and the case law for the following two exercises:
You represent the seller (Alliance) in a case where the buyer (Generator) wants the seller to pay $100,000 in economic losses your client suffered when the seller's equipment malfunctioned. The written contract has a limited warranty that limits the buyer's remedy to replacement or repair and specifically excludes damages for economic loss. Earlier in the year, Alliance paid Generator $5,000 to cover losses related to equipment failures in two shipments, one in February and then again one in May. Generator says that the Alliance's President orally modified the original contract by waiving the limited warranty's exclusion clause.
A long-standing appellate level case in your jurisdiction requires new consideration to support a contract modification. A more recent appellate level case in a neighboring jurisdiction adopted a "modern commercial reality" approach that recognized post-contract modification of ongoing contracts without new consideration, as long as the contract change was not obtained through economic duress. No cases in your jurisdiction have followed the commercial reality approach; however, your Court of Appeal has not yet considered a case arguing the modern commercial reality approach.