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  1. The Pivotal Element
  2. Organizing: Writing for the Busy and Skeptical Lawyer
  3. Prediction vs Persuasion
  4. Can the Lawyer Rely on Your Prediction?
  5. Case Discussion
  6. Exercise

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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:

  1. the court's discretion to exempt Andrew from oral discovery
  2. 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:

Content:










Watch out for:




Tone:
  • Predictive issue statements do not presuppose an answer
  • Persuasive issue statements lead the reader to reach the writer's conclusion
Compare these issue statements:

"Whether Andrew Hopper can be exempted from oral discovery because of potential psychological harm."

versus

"Andrew Harper should be exempted from oral discovery based on the likelihood that his mental health will deteriorate if he is required to relive the accident."


Word Choice:




Compare:

"During his access weeks, Mr. Petty nearly always forgets to pick up his son, Stephen, at the daycare. He routinely sails in just as the centre's frustrated director is preparing to call Stephen's mother to come and rescue the boy. Stephen is now a fretful and anxious child, refusing to go to daycare at all, deeply fearing that his father will abandon him completely."

versus

"Mr. Petty was frequently late picking his son up from the daycare. He often arrived just as the Centre was closing and the Director was preparing to call Stephen's mother to pick him up. Stephen now exhibits symptoms of anxiety. He told his mother that he does not want to go to daycare because his father might not pick him up."

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:

  1. the court's discretion to exempt Andrew from oral discovery
  2. 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:

  1. the key facts (plaintiff's age, injury, trauma),
  2. procedural history (lower court's holding and reasoning),
  3. the medical evidence available to the lower court (a letter from the minor's family doctor focusing on specific behaviours), and
  4. 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.

Exercise 1 – Predicting a Good Result

You are confident that your client, Alliance, will prevail if Generator sues for economic loss.

How will you state your prediction? Write the opening sentences in the paragraph in which you give your prediction.


Choose the example below that you think best matches your own and read the firm's mentor says about it.

  1. "The contract was not modified."

    Feedback

    Where there is no doubt and you are absolutely certain of a result, you may use declarative language such as this. But this means you are essentially guaranteeing the result. In practice, lawyers rarely make such declarations. If there is any argument to be made (and there are usually two sides to every story), you must use less definitive language.

  2. "Based on these facts and the line of authority in our jurisdiction, a court should find that Alliance is not liable to pay Generator because there was no fresh consideration for the modification to the contract."

    Feedback

    This answer shows the reader that you know there is a case to be made, likely a good one, but it is not 100% guaranteed.

  3. "The court may accept the argument that Alliance's oral waiver of the exemption was an invalid contract modification because there was no fresh consideration and, if so, Alliance will not be liable to pay Generator."

    Feedback

    This language is too tentative and qualifies the prediction to the extent that the reader is wondering what the answer actually is. The word "may" is usually too ambiguous to convey any prediction. Also, the sentence is way too complicated.

  4. "Alliance will likely not be liable to Generator because courts in our jurisdiction continue to follow the long-standing rule that a contract modification requires fresh consideration, despite other jurisdictions moving away from the rule."

    Feedback

    This answer shows that while you are confident about how the case should be decided in your jurisdiction, you are not guaranteeing the result. You are also appropriately qualifying your prediction by pointing to a trend that could change the result. You have signaled that your later analysis will discuss case law trends.

Exercise 2 – Delivering Bad News

You think that Alliance stands a strong chance of having to pay Generator for the economic loss.

Write the opening sentences in the paragraph in which you give your prediction that there is considerable risk in Alliance's position.


Choose the example below that you think best matches your own and read what the firm's mentor says about it.

  1. "Alliance will have to pay for Generator's losses because the contract was modified."

    Feedback

    This sounds like you have thrown in the towel. There are always arguments that you will be exploring in your analysis. Don't give up on your client.

  2. "It will be difficult for Alliance to make the case that the contract was not modified. The best argument we could make on these facts is that Generator and Alliance both understood that the earlier payments were one-time goodwill gestures."

    Feedback

    This demonstrates to the reader that the client's facts present an uphill battle, although you have a reasonable argument to make.

  3. "It is highly unlikely that Alliance will be able to persuade a court that the contract was not modified by the previous payouts to Generator given the trend in the case law accepting post-contract modification. We will argue that the payments were strictly limited to the specific shipments, but Alliance will have difficulty explaining away a pattern of payments."

    Feedback

    This tells the reader that the client's legal position is weak and you are predicting that on these facts the court will not be persuaded. This is a strong bad-news introduction to your discussion.