Issue Statements or Questions Presented
a. Stating the Question You Will Answer: Precisely, Completely, Simply, and Neutrally
The legal issue section sets out the questions you will ultimately answer. These questions link your research to your discussion and conclusion.
The client asks questions like "Will I win?", "Am I going to jail?", "Am I liable?", or "Will I be evicted?"
The issue section reframes the client's questions into legal questions that identify the controlling legal rules and relevant client facts.
The question, "Can I sue?" becomes:
"Did the security guard at the department store falsely imprison John Crate when the guard held Crate's arm, preventing him from leaving the store until the police arrived?"
The question needs to be precise, complete, and straightforward.
In predictive writing, the question must be neutral to the point that either side might have written the same question. Otherwise, your reader could assume your analysis is not objective and may only reflect one side of the issue.
"Will John Crate be awarded damages because he was falsely imprisoned by the store's security guard?"
This would not be a neutral question because the key issue (was he falsely imprisoned?) is stated as conclusion.
Occasionally, assigning lawyers will ask an abstract or general legal question when they need an update on a specific area as background for a client matter, or for a firm newsletter, or for a presentation.
"What is the current state of the law on false imprisonment?"
However, memos usually relate to specific client facts.
Expressing the issues accurately is one of the most difficult aspects of memo writing.
Writers face the challenge of how detailed to make the issue statement, how many issues to include, and whether issues should be stated separately or as sub-questions.
Experienced legal writers expect to redraft the issue section as they rework the discussion section. While the initial version of the issues helps the writer structure the discussion, the iterative process of thinking and writing often changes the content and structure of the legal issue.
b. Issue Writing Conventions: Questions, Statements, and Multi-Sentence Formats
Clarity is your goal
There is no single way to write the issues.
Memo writers often use one of several conventions. All the conventions share certain key features. They:
- are stated in a neutral fashion, and
- alert the reader to the relevant law, the significant facts, and the questions that will be discussed.
Here is a short explanation of the most common issue writing conventions.
This is the most common way to express an issue because it directly connects to the task of answering the client's questions. A good question gives the reader an immediate sense of the key facts and the legal tests. Where you have more than one issue, each should be expressed separately, usually in number format.
Your client, Jordan William, learned that a bank employee had snooped into his banking information for personal reasons. There are no cases in your jurisdiction claiming damages for invasion of personal privacy. Here is an example of an issue statement on whether your jurisdiction will adopt a new cause of action:
Will the court recognize a civil action for invasion of personal privacy and award damages when a bank's employee examined Jordan William's bank account without authorization over a period of 10 months?
This is another common way of expressing an issue. Some lawyers prefer it because to their ear it sounds more neutral. Others don't like it because it is an incomplete, ungrammatical sentence, and can sound awkward.
Punctuation Note: "whether" introduces a statement, and not a question, so there is no question mark at the end of the sentence.
"Whether Jordan William has a claim against the bank employee for invasion of privacy because of the bank employee's unauthorized examination of his banking records."
"Under, does, when" Format
Some legal writing experts recommend this format because the structure acts as a checklist. If you follow the format you will be sure to cover the law, the facts, and the question to be answered.
"Under the common law, does Jordan William have a claim for invasion of privacy when the bank employee looked at his bank records for personal reasons?"
In this example:
- under introduces the law being applied
- does asks the legal question
- when sets out the material facts
Memo writers use single sentence issue statements because of convention; there is no rule that says you must write it in one sentence.
The single sentence issue statement can be long, complex, and hard for the reader to understand on first reading.
A multi-statement format is gaining popularity because it can be easier to read, is more comprehensive, and is more concrete. This format is essentially a longer version of the under, does, when format spread over three or four sentences. The format calls for a short explanation of the legal principle involved, then a brief note of the material facts, followed by the legal question that will be answered in the memo.
In this example the writer elaborated on the legal criteria and added more facts to support the question.
"An action for invasion of privacy under the common law can exist where there is an intentional intrusion into a person's private affairs, without legal justification, and under circumstances that a reasonable person would find highly offensive. The bank employee admitted that he looked at William's banking records over a period of 10 months for personal reasons, unrelated to the bank's business. Was this act an invasion of William's privacy entitling him to damages?"
The multi-statement format can add clarity.
There is a caveat: Be careful not to get carried away and write too much.
Skilled legal writers do everything possible to make the issue statement useful to the reader. Here are some expert tips:
- If there is more than one issue, put the important issue first.
- Be as specific as possible, incorporating key facts and the law.
- Look to the language of the governing statute or legal rule for phrasing ideas.
- Keep the same convention and format for all issues. Changing the structure can make it difficult to read. But don't be a slave to a format – the reader's understanding is more important than consistent format.
- Number the issues and use common legal writing conventions for numbering. Most writers use numbers for issues and lower case letters for sub-issues.
- Check whether your firm has preferences on style and format.
- Make sure your brief answer and discussion closely track your issues, using the identical numbering system.
d. Working with Sub-issues
You use sub-issues for clarity. Sometimes the reader will understand your analysis best if an issue is presented as a series of linked sub-issues.
Example of linked sub-issues:
- Did the landlord properly terminate the lease under the Landlord and Tenant Act where:
- She gave the notice of termination orally, not in writing,
- She told the tenant she was terminating the lease because the rent was too low, and
- She gave the tenant 10 days to vacate the premises?
Each of the sub-issues gives rise to a legal question (finding and interpreting the relevant provisions of the Landlord and Tenant Act) and involves determining the material facts.
Sub-issues can help you organize your thinking in order to structure your memo and will give you some good descriptive headings to guide the reader through your analysis.
How many sub-issues do I need?
It is not surprising that novice legal writers sometimes go overboard in writing the issues to show that they considered every possible component of a problem. As a memo writer, you do want to show that you considered every avenue of legal analysis. But you demonstrate your legal abilities more by thoughtfully homing in on the important issues, rather than with a shotgun approach.
Too many issues or sub-issues can overcomplicate the analysis and overwhelm the reader with detail. The reader is distracted from the main point if there are too many sub-levels, especially if some are not needed to answer the client's question.
As a general rule, do not go below the sub-issue level. Two levels of issues are almost always sufficient to parse a legal question and allow your readers to follow your analysis.
Keep in mind that factors or evidentiary facts that you are tempted to include as sub-issues can instead be effectively used as descriptive headings in the discussion section.
What makes a good sub-issue?
Sub-issues are legal questions to be addressed, not merely a list of the components of a legal test a court will apply to come to a result.
Novice legal writers often think they need to present each element of the legal test or each fact that needs to be proved as a separate sub-issue.
In the invasion of privacy memo, a student wrote the issue statement this way:
"Was there an invasion of Jordan William's privacy where:
- the bank employee intentionally examined his bank account
- the bank employee did not have legal justification to examine the bank account, and
- a reasonable person would find this action highly offensive?"
This is merely a list of elements of the legal test that you need to prove with evidence to succeed in your claim. These will be a large part of your analysis (and would make great descriptive headings), but they are not sub-issues.
You should only include those issues where there is a factual or legal question you need to analyse in the discussion.
Example: Ben's Memo
Ben Hall's early draft of his restrictive covenant memo made the mistake of creating a sub-question out of each factor the courts considered:
Are the terms of the restrictive covenant in the employment contract reasonable?
- Is it reasonable to restrict Bradley's future employment for three years after the termination of his agreement with the Duttons?
- Is it reasonable to restrict Bradley's future employment in any city or municipality in which the company operates or conducts business?
- Is the wording of the restrictive covenant, particularly regarding the company's clients and customers, exact and narrow?
The discussion section then followed the issue statement's structure and, as a result, the memo was repetitious and tedious.
His better version merged the elements into a single statement and the sub-issues became sub-headings in the discussion:
Does the Bradley-Tech World restrictive covenant meet the standard for an enforceable non-competition clause that must be (1) justified by special circumstances and (2) unambiguous and reasonable in time, geographic scope and the activities curtailed?
Exercise 1 – To Prosecute Or Not To Prosecute – That Is This Memo's Question
Sam Iam needed cash but didn't have a job or any prospects of one. He went to the mall to think over his future. He was sitting in the mall coffee shop contemplating whether to spend his last $5 on a latté when he saw a customer drop a tray of coffee cups. The coffee spilled over the floor around several nearby tables, splashing several other customers. The two coffee shop employees hurried around the counter to mop up the mess and blot coffee from angry customers. But the employees left the cash register open and unattended. Acting on impulse, Sam leaned over the counter and grabbed a handful of bills from the register. One of the employees turned, saw what Sam was doing, and shouted for him to put the money back. Sam quickly stuffed the bills in his pocket and turned to run out of the coffee shop. To get away, he shoved another customer into the large jar of marbles the coffee shop had as a guess-the-number-of marbles-in-the jar contest. The jar fell and the marbles rolled everywhere. The two employees started toward Sam but both fell when they stepped on the rolling marbles. One of the employees broke his arm in his fall. Sam was caught at the door by the mall's security guard.
The prosecutor needs to decide whether to prosecute Sam under s. 343 of the Criminal Code. How would you write the issue statement in the memo for a prosecutor who needs to decide whether this is the right section to prosecute under?
Criminal Code, s. 343: Every one commits robbery who
- steals, and for the purposes of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
- steals from any person, and at the time he steals or immediately before or immediately after, wounds, beats, strikes, or uses any personal violence to that person;
- assaults any person with intent to steal from him; or
- steals from any person while armed with an offensive weapon or imitation thereof.
Exercise 2 – Get Our Client an Extension to File a Claim
Our client, Sandy Jackson, required stitches when she cut her tongue and inner lip biting a sharp metal fragment in a sandwich she purchased at the Deli-King take-out restaurant. Her work colleague, Mark, helped her to the clinic, and then took the metal fragment to the Deli King. The cashier said she would give it to the manager to look into the matter. Nothing happened.
Sandy went to a lawyer who reassured her over the course of a year that everything was being taken care of. Now eighteen months later, Sandy discovered the lawyer issued a statement of claim but did not serve it on time. She has now come to us.
We are taking immediate steps to get this back on track. I spoke to the Deli King manager, who denies any knowledge of the incident or having seen the metal fragment. He also said they dispose of all unused fresh meat and any unsold sandwiches after two days, so there would be no way to determine where the metal came from or whether there was metal in any other sandwich. He also said he hires mainly students to work at the sandwich counter and they do not stay very long in his employment. There is no one still working with him who would have been there when Sandy bought the sandwich.
Rule 14.08(1) of the Rules of Civil Procedure sets a six-month time limit for serving a statement of claim after it has been issued, but Rule 3.02 (1) allows the court to extend any time limits on just terms.
The case law says that a plaintiff must show that the extension will not cause prejudice or unfairness to the defendant. However, the defendant has to demonstrate that the delay caused the prejudice claimed. There must be a change in the evidence available because of the delay.
Activity 1 – Write an Effective Issue Statement
Evaluate each of the student’s draft issue statements. Check all the boxes that apply. Then read the mentor’s comments.