a. The Circle of Facts: Write and Rewrite, and Rewrite Again
Facts drive every legal matter. The facts are the starting point for your research, the core of your legal prediction, and ultimately the turning point of every court decision.
You write the fact section so that someone unfamiliar with the matter will get a concise and complete picture of the facts used in your legal analysis and conclusion. You include enough background facts to present the client's story coherently.
Writing the fact section forces you to look closely at each fact, place it into an organized context, and rethink its meaning, importance, and relevance to the legal issue, and the client's desired outcome.
You sift through the client's account of events, relationships, complaints, injuries, and future plans and goals, and review all the client's documents to decide what legal issues to research.
You start with the fullest version of the facts possible so that you don't overlook any legal issue that might affect your advice.
You won't know what facts are relevant to your analysis until you finish your research.
And your research often leads you to new areas. If possible, you want to avoid having to make assumptions in a memo. So you will often call the client back to check facts and ask more questions. Check before you write your first draft.
In the memo's discussion section, you again sift through the client's account and documents to place them into your research framework. You filter out superfluous bits. You evaluate how information affects the case's strengths and weaknesses.
Finally, you rewrite your memo's fact statement, checking that the final version includes everything you used in your discussion and enough background information so anyone reading the memo understands the context.
Hear Ben and Anna (icon) describe what information came in and out as they wrote and rewrote their fact statements.
Duration: 1 minute 44 seconds
Duration: 1 minute 8 seconds
b. Be Purposeful and Complete: Legally Relevant, Background, and Emotional Facts
Lawyers are alert and purposeful readers. As they read, lawyers search for the potential meaning in the details you provide them.
Unnecessary details in your fact statement draw lawyers down the wrong path and distract them from what is actually important.
If your memo says:
"Bradley wants to quit on 30-days notice"
the lawyer will mentally look for how the 30-day notice time period affects the client's legal rights.
If the 30-days is not relevant, either leave out the detail or be more generic:
"Bradley wants to quit with the minimum allowable notice"
Every detail should have a purpose. Review your facts to make sure that each one serves one of the following purposes:
- Legally Relevant:
- Ask yourself: Does this fact prove or disprove an element in the case?
- These are the facts (helpful and hurtful) that you use in your discussion section.
- Make sure every fact in the discussion is also in your fact statement.
- Ask yourself: What's needed to paint the big picture?
- These are the facts that tell your client's story.
- Anyone reading the memo now knows how the legal issues arose.
- Ask yourself: What fact might influence a decision-maker, even though it is not legally relevant?
- Emotional facts are often excluded from predictive memos because they distract the reader from making an objective assessment.
- In contrast, emotional facts are often used in persuasive writing to:
- Evoke sympathy: Larry had just lost his job when he walked out of the drug store without paying for a candy bar.
- Infer state of mind: Larry was distracted by an emergency phone call when he put the $2.00 candy bar in his shirt pocket.
- Evoke prejudice: Larry was living in a drug half-way house when he took the candy bar without paying.
- Emotional facts can have an important role in a predictive memo if the fact will influence how the senior lawyer determines the content and tone of the advice.
In his memo on restrictive covenants, Ben deliberately chose to describe an emotional shouting match between the client and his employer because he thought that the senior lawyer would want to take this animosity into account when deciding what to recommend as next steps.
c. Chronological or Thematic: Help the Reader Grasp The Facts and See the Issues
Readers take in and remember information best in chunks; it helps to organize information based on patterns, or categories, or sequences that act as memory cues for the reader.
The key questions for organizing the fact section are:
- How can you group the facts to help the legal reader quickly grasp how they connect to each other and then, later on, how they support your discussion and conclusion?
- Will a chronological or thematic approach, or a mix of the two, best connect the relevant facts to the legal issues?
Chronological: What happened when?
Many legal questions turn on the sequence of events. Lawyers often end a client meeting by reviewing the facts chronologically to make sure the information is complete. Organizing the facts chronologically is usually convenient and efficient.
Ben's restrictive covenant memo follows a chronological order of the relevant facts:
- Bradley's sale of Tech World to the Duttons two years ago
- The surrounding circumstances and the restrictive covenant term
- Bradley's employment role immediately following the sale
- Bradley's wife's terminal illness and death, and Bradley's time off
- The change in working conditions upon Bradley's return
- Recent disagreement with the Duttons
The facts end with the reason Bradley is hiring the law firm: Bradley's plan to leave Tech World to start a new company.
This chronology tells a story that makes it easy to see the context (why Bradley wants to leave) and the legal question (is the restrictive covenant valid?).
Thematic: Who, What, Where, Why, How
A thematic or topical approach works well if the legal issues revolve around:
Who are the parties and what is their relationship to each other?
- Sally lived with Harry for 30 years. Is Sally a dependent spouse entitled to share in Harry's estate?
What happened? What is required? What is the condition?
- Did George trip over his own shoelaces or did Larry push him in front of the bus? Has Larry assaulted George?
- Bruce climbed over Hillary's fence to retrieve his football. Was Bruce trespassing?
- Was the car in proper working order when Jane sold it to Bill? Can Bill rescind the contract?
- The fight started in the schoolyard. Is the school board liable for the injuries?
- Alex gave $100,000 to his niece Pearl to start a law practice when she graduated. Did Alex intend a loan or a gift?
- How can Pam demonstrate she is the parent best able to meet the children's needs?
Anna's memo on seeking an exemption from oral examination uses a thematic approach. The chronological details of the accident leading up to the lawsuit are not discussed because they are tangential to whether Andrew's condition satisfies the criteria for an exemption. She covers:
- Who her client Andrew is: A minor who suffers from GAD.
- How an oral deposition will exacerbate her client's condition.
- What type of evidence is available to exempt Andrew?
d. Predict Don't Persuade: Resist Bias, Assumptions, and Legal Conclusions
Resist Bias: Word Choice Matters
Predictive memos must state facts objectively.
Persuasion – shaping the facts to get your point of view accepted – is for factums, briefs, and letters to counsel for the other side.
You do not do your client a favour if you slant the facts to fit the desired outcome.
You do not do your client a favour if you leave out unfavourable or complicating facts.
Ben's fact statement originally read:
"Bradley and his deceased wife developed a new educational program that is now ready for marketing."
In the final rewrite, Ben added a missing and complicating fact:
"Bradley and his deceased wife developed a new educational program while Bradley was on leave, but still employed by Tech World."
The fact that Bradley developed the program while still employed by Tech World complicates the story, makes the outcome a bit more uncertain, and adds another legal issue to research.
Better to give potentially bad news now, and then develop a strategy to deal with the news, than to face an unexpected lawsuit on a new issue. Your job is to fully inform the assigning lawyer of the good, the bad, and the ugly.
Be careful of assumptions masquerading as fact.
Facts are verifiable. You can point to the witness statement or document that proves the fact.
Assumptions still need to be verified. People often state something as a fact when they have merely assumed it is true.
If you predict the legal outcome based on an assumption that does not hold up, your analysis will be seriously flawed. For example, where a woman comes to your firm seeking a property division upon the break-up of a 30-year relationship and she speaks of "her husband", you could just assume they were legally married, but the legal conclusions in your memo could be wrong when you discover later that they were not.
Legal writers are often told to note their assumptions. This means specifically warning the reader you are making an assumption and suggesting ways to validate it. While this is good advice, remember, the more assumptions you need to make, the less confidence the assigning lawyer will have in your prediction. If you find you have made too many assumptions, you should try to fill in the missing information before you write.
Memos predict legal outcomes, but do not make legal conclusions. Judges come to legal conclusions on the facts and arguments.
Find the three conclusions in the following student draft memo:
"Denny was speeding through the construction zone when his car hit the sandbag negligently left by the road crew creating a hazardous obstruction."
- the car was speeding
- the construction crew was negligent
- the sandbag was a hazardous obstruction.
Now read the final rewrite that provides specific information instead of conclusions:
"Denny was traveling 90 KPH through the 50 KPH construction zone when his car hit the sandbag left by the construction crew on the road's shoulder."
e. Tip: Using a Double Highlighting Strategy to Check Your Facts
Here is a checking technique that is easy and fun. You get to play with colours and it is a break from heavy thinking.
Use different colour highlighters to mark each fact in the discussion section and then immediately highlight the same fact in the fact statement with the same colour.
You will very quickly see if a fact mentioned in the discussion has been left out of the facts because there will be no matching colour.
Also, every non-highlighted fact in the fact section will now stand out, making it easy to ask yourself:
- Is this a fact that I could have used effectively in the discussion?
- Is this a fact that should be kept in because it is useful background, or is it a distracting or superfluous detail that I can edit out?
Student Example of Double Highlighting
Janine has written a legal memo on a consumer matter. She has decided to use double highlighting to make sure her facts and discussion sections are complete and do not have distracting or superfluous details.
Review her double-highlighting results. Jot down your thoughts on whether:
- all the facts in the discussion are also in the fact section
- Janine has made the best use possible of the facts to support her discussion
- there are any distracting and superfluous details that can be edited out
Then read what Janine learned by using double highlighting.
Laura Craig wanted a new dining room table and chairs for her new home. After shopping around, she finally settled on a $12,000 modern dining room suite from ABC Furniture.
The salesperson handed Laura the contract to sign and then turned away to answer a phone call. While waiting for the salesperson to get off the phone, Laura picked up the contract and flipped through it. [(purple) Laura stopped on the second page and read the first two terms on the top of the page:]
All sales are final.
[(yellow) ABC Furniture will not be held liable for any damage incurred in the shipping or delivery of furniture due to any accident, flood, fire, or act of God.]
When the salesperson hung up the phone he asked Laura to sign and date the contract. [(beige) He asked, "is everything in order?"]
Laura was holding the contract open to the second page. [(pink) Although Laura had not gone any further than the second page, she signed the contract without reading any of the other terms and conditions.] Laura paid for the dining room suite in full and arranged for delivery.
The next day, a dented ABC furniture van arrived at Laura's house. While the table was being unloaded Laura saw a scratch down the middle of the tabletop.
Laura refused delivery and demanded an undamaged suite. Later that day, the manager at ABC Furniture called Laura and told her that [(orange) the delivery van had been hit by a bus, causing the furniture in the van to jostle and become scratched.] [(yellow) The manager told Laura that the contract she signed clearly stated that ABC furniture is not liable for damage that occurred during shipping or delivery.]
[(yellow) ABC Furniture relies on a contract clause specifically shifting the liability for any damage that incurred during shipping or delivery to the buyer, Laura Craig, to support its position that it has fulfilled its contract for sale of a dining room suite.] [(blue) ABC's manager states that the dinette set was inspected prior to being loaded on the delivery truck and that it was in perfect condition.] The delivery truck driver says that [(orange) the scratch occurred when a bus hit the delivery truck and jostled its contents.]
A party relying on an exclusion or a limiting term in a consumer contract must show that they did everything that was reasonable in the circumstances to bring the term of the contract to the attention of the consumer. The courts have been hesitant to extinguish or limit common law rights of consumers who have not been provided with adequate notice. The onus is on the party relying on the term to prove that proper notice was given.
Cases have held limitation clauses unenforceable because the customer was not told about them until after the contract was signed, (Trigg and Gregario) or because the clause did not stand out from the rest of a four-page contract. (Mendelson).
This case differs from Trigg and Gregario since [(purple) Laura read the exclusion clause before signing the contract.] The case also differs from Mendelson since [(lime) the exclusion clause in Laura's contract was bolded.]
Laura may argue that since [(pink) she had not read the entire contract], she could not appreciate the exclusion clause's effect, and it should have been explained to her. However, no case has held that the seller is required to specifically explain the exclusion clause. [(beige) ABC can point out that the salesperson gave Laura an opportunity to clarify the terms or ask for more time to read, when he asked her if everything was in order.]
ABC Furniture likely met its burden of showing that it took reasonable steps to ensure Laura was aware of the contract terms.
After Janine used double highlighting she realized that:
(1) Two facts are colour-highlighted in the discussion section that are not included in the facts.
- The (blue) highlighted statement in the discussion – ABC's manager says the dinette set was inspected prior to being loaded on the delivery truck – is not included in the facts.
- The (lime) highlighted fact – the exclusion clause was bolded – is not included in the fact section.
Janine has decided to rewrite the facts to include the missing information.
(2) the fact that Janine was still holding the contract open to the second page when the salesman asked if she was ready to sign is not highlighted.
Janine is now considering whether she should have included this fact in the discussion. Does this fact support Laura's position? Could Laura argue that the salesman should have asked her if she had finished reading and if there was anything on the second page that needed further explanation?
Janine is going to review the case law and think about revising the discussion.
(3) the contract term, "All sales are final", in the fact section is not highlighted.
Janine realizes that the only contract term that is important to the matter is the exclusion of liability term. She now thinks that the reader will be distracted by the "All sales are final" term. Janine does not want the reader to think the term is relevant, when it is not.
Janine is going to edit this term out of her final rewrite.
Exercise 1 – Finders Keepers?
The firm's client, Mary Ames, found $250,000 in a used book she got at Brown's Book Store. Jill was asked to write a memo on who has the greater right to the money: Mary or the bookstore owner. The law states that a finder must show possession and intent to control the item. The owner of the premises where the item is found can prevail over the finder if the owner has shown a manifest intention to control items found on the premises.
Jill wants to edit her fact section to make it concise, complete, and neutral. She only wants facts that are legally relevant, contain helpful background, and provide useful emotional content.
Select and delete all the words you think are superfluous. As you delete, watch the word count decrease, then listen to Jill's mentor's comments on Jill's first draft. Finally, compare Jill's draft to her mentor's rewrite.
Listen to Jill's mentor's comments. Then read how he rewrote Jill's first draft.
Duration: 3 minutes 26 seconds
Jill's 1st Draft
Mary Ames arrived early for her poetry reading at Brown's Books as part of an annual City-wide Writer's Festival. Sam Brown owns Brown's Books. He hosts the event to bring customers into his struggling business. There was a box of books in the store's vestibule, a space between the street door and a door leading into the shop that functions to keep cold air out during the winter. Mary tripped over the box as she entered the store. Mary dragged the box inside, looked through it, and discovered a battered book of Wordsworth poetry that she wanted.
Mary asked Sam what he wanted for it. Sam gifted the book to Mary. Without looking up, he said, "Oh, people leave garbage books in the vestibule all the time. I haven't gone through that box yet but go ahead and take it." Once home, Mary discovered $250,000 in an envelope hidden inside the book's front cover.
Word Count: 162
Mary Ames arrived early for her poetry reading at Brown's Books as part of an annual City-wide Writer's Festival. Sam Brown owns Brown's Books. There was a box of books in the store's vestibule, leading into the shop. Mary dragged the box inside, looked through it, and discovered a book she wanted.
Mary asked Sam what he wanted for it. Without looking up he said, "Oh, people leave garbage books in the vestibule all the time. I haven't gone through that box yet but go ahead and take it." Once home, Mary discovered $250,000 in an envelope inside the book's front cover.
Word Count: 102
Exercise 2 – Jim's Used Car
Your mentor has told you that you need more practice writing concise, complete, and neutral facts.
You have been working on a series of cases involving consumer transactions.
Here is your summary of the case law principles on consumer contracts.
- In a consumer or retail transaction, a merchant can only enforce a contract term limiting the merchant’s liability for damages, if the merchant did everything reasonable under the circumstances to specifically bring the term to the consumer’s attention before the contract was completed.
- The person relying on a limitation term must prove that the consumer had proper notice of the term.
- Once a contract is completed, it can only be modified if there is a new exchange of value between the parties.
- The person relying on a contract modification must prove that there was a new exchange of value.
After interviewing two clients with consumer contract problems you wrote the first drafts of the facts. You are now ready to edit, keeping only the legally relevant and essential background facts.
Exercise 4 – Choosing Relevant Facts
Anna Okoro's law firm represents Andrew Hopper, age 15, and his parents in a personal injury action against Summervale Camp for injuries Andrew suffered at camp. Anna was assigned a legal memo on whether the court is likely to exempt Andrew from oral discovery. Andrew suffers from general anxiety disorder and his parents and doctors think he will regress if he has to speak about the accident in an oral discovery.
Joel Oliver, Anna's mentor, told her to make sure that every detail in the fact section had a purpose. Anna asks you for help reviewing the facts. You have Anna's summary of the law and her list of facts she thinks could go in the fact section.
Identify which facts Anna should include and which she should leave out. Then read Joel Oliver's comments on your choices.
Anna's Summary of the Law
Under Rule 31.04(1), any party is entitled to examination of discovery of a plaintiff. Under Rule 2.03, courts can grant an exemption from any rule "only where and as necessary in the interest of justice."
Case law recognizes the courts' discretion to exempt parties from oral discovery, but courts do not easily permit exemptions. The onus is on the party seeking the exemption to present a clear case. The courts are willing to grant an exemption from oral discovery where cogent medical evidence provides specific details on the psychological harm that is likely to result from the discovery process itself.
In cases involving minor plaintiffs, courts have been more lenient because of the court's role in protecting the well-being of minors and have accepted formal medical evidence, such as a doctor's letter in addition to other evidence of the risk of harm.