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Facts – Footnote 1

Ben Hall:
I prepared a quick, relatively unfiltered, fact summary right after the client interview. The client's story poured out chaotically and emotionally, and my notes were just as chaotic. So before I started my research I stepped back and wrote a chronology starting with Bradley and the Duttons' first meeting to discuss Tech World's sale. I left both the unfiltered summary and the second chronology in the file because I figured they would be useful later on. As part of my research, I did a chart summarizing factors from the cases. The chart helped me distinguish between the material facts and distracting details. For example, I edited out almost all of the details on the original business sale and most of Bradley's business and family history.


Facts – Footnote 2

Anna Okoro:
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 supported fully. 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.


Facts – Exercise 1 – Jill's Mentor's Comments

What's legally relevant in the draft fact section? Right now you have mixed relevant and irrelevant facts together. We can edit it to remove those unnecessary and distracting words that do not serve our purpose. You'll see that my final word count drops to 102 words from the draft's 154. Now you may be thinking: is it really worthwhile to spend the time to take out 52 words? You will be very glad you got into the habit of writing concisely the first time you are told to "keep it short". Briefs are called brief for a reason! Just wait until a judge tells you that your brief cannot be more than 5 pages.

Here's how I did it:

The first two sentences are fine. There are some unnecessary details (for example: arriving early, annual Festival) but they set the stage for the story and tell us who's involved.

You can take out the third sentence entirely. The bookstore's economic woes may tell us something about Sam Brown's desire to have the money, but it is not legally relevant to the issue of who has the greater right to the money.

The next three sentences can be edited to remove non-relevant facts. To start with, I don't need a description of the vestibule and how it keeps out cold air in winter. Only, if you are going to tell me there are cases where items found in a store's entrance were held to be outside of the storeowner's control would the function of the vestibule be relevant.

Next, do we care that Mary tripped over the box? Well, we would if this were a tort claim, but it's not. You don't want to make the reader think that Mary tripping is important, so take it out.

Finally, this dispute is about money, and not about a valuable book. I got momentarily distracted into thinking that this was going to be about a rare edition of Wordsworth's poetry. Knowing Mary's taste in poets might help me decide whether to go to her next poetry reading, but doesn't tell me anything about her legal rights in this case. All I need to know is that Mary took a book from the box.

I like how you reported the exchange between Mary and the owner; it is very straightforward and factual, except for one important thing. The sentence, "Sam gifted the book to Mary" is a legal conclusion. You need to keep legal conclusions out of the statement of facts. You don't want to show bias and you don't want to skew how the reader takes in the information. As soon as I read that this was a gift, I started to think very differently about the problem. If this is a gift, then perhaps the case turns on whether there was donor intent, and I am no longer interested in whether the storeowner has manifested control over items on his premises. This might suggest that you researched the wrong legal issue. So, if gift is a possibility, then make sure you cover it in the discussion section. But don't put legal conclusions in your facts.

One additional point – take out the word "hidden". Whether an item was "hidden" by someone as opposed to mislaid and forgotten is sometimes legally significant in finders cases. You don't want to draw a legal conclusion about the state of mind of the person who left the money in the book because you just don't have this fact.


Introduction – Wetlands Exercise – Footnote 1

Although you have reminded the assigning lawyer why the memo was written, you have left out important context. It is unclear who the client is. Now I happen to know that our client is Pat Smith, but I would not have guessed that from this introduction. Also, I can't tell the status of the matter. Has a legal action been filed or are we looking for grounds to commence an action? Try again.


Introduction – Wetlands Exercise – Footnote 2

Watch out for the word "may" – it doesn't really tell the assigning lawyer anything. The lawyer already knows that the Society may have an easement. That is why she asked for the memo in the first place. She wants to know how strong the Society's easement claim is or how likely a court will find in its favour. And you need to explain what you mean by the character and quality of an easement – but make it short and clear. Try again.


Introduction – Wetlands Exercise – Footnote 3

There are two problems with this sentence. First, you have stated a legal conclusion that the Society's use of the wetlands is an easement. Second, you are packing too many concepts into this sentence. You have stated the grounds that might defeat an easement, without saying how the Society meets the criteria for establishing an easement by long-term use. I had a hard time making the connection. I know introductions are supposed to be short. But put yourself in the reader's shoes to make sure there is logical flow to the points presented. Try again.


Getting Ready to Write – Mapping

Let’s look at three different tools you can use to organize your research and plan your writing. Let’s have a look at what one of your peers has prepared on her experience with these three tools. Anna’s supervising lawyer has asked her to write a memo on whether a court is likely to excuse their 15 year old client, Andrew Hopper, from an oral examination. Andrew and his parents are the plaintiffs in a negligence case. Andrew has an anxiety disorder that became worse immediately after the accident. And his parents are now concerned that the stress of an oral examination will harm him and interfere with his recovery.


Getting Ready to Write – Mapping

The first tool is mapping. It is very easy to get overwhelmed by the volume of research on any writing project. Mapping can help. Whether you call it mind-mapping or concept-mapping, mapping is brainstorming the problem you are writing about and recording your thinking in a non-linear fashion. Essentially you take the information from the legislation and cases you are researching and you use your right brain, your creative side to draw a map of the problem. This may be a new process for you. And not everyone is comfortable with mapping. But students tell us that mapping helps manage their research, will give them insights into the material they didn't anticipate and always results in an overview of the whole writing project on one page. So give it a try and see what it can do for you.

In mapping you essentially create a visual representation of the legal issues, relevant facts and the law. It helped me see connections, sort out relationships and think through the question.

Mapping lets me think out loud on paper.

I decided to put my general research question at the top of the map:

I posed a broad question:

When can the court exempt a party from oral discovery?

As I read through the cases and secondary sources, I listed key words, phrases, statutes and ideas that I thought might be relevant without any firm idea of how they related. I put these on the side of the page. I added and struck out words as I went along.

I decided to put Oral Discovery in the center of the map because I wanted to start with the big picture. I wanted to make sure I included anything that would help me understand the topic. Link broad question (When can the court exempt a party from oral discovery?) to Oral Discovery

I posed two preliminary questions for myself. What is the Purpose of Oral Discovery? And what is the Process of Oral Discovery? I then filled in what I had learned from secondary sources concerning Purpose and Process.

Next, came the Rules of Civil Procedure that governed the discovery process.

Rule 31.03(1) of the Rules of Civil Procedure, party may examine for discovery.
 Rule 31.02(1) of Rules of Civil Procedure, examination for discovery may take the form of oral examination. Or written but they can't do both without leave of the court.

With the background mapped out, I turned back to the research question: When can the court exempt a party from oral discovery?

I wrote down key words on the three Rules of Civil Procedure from my research.

Rule 1.04(1) : Construe rules liberally
Rule 2.03: Discretion to dispense with rule compliance
Rule 31.03(5): Persons under disability: (a) litigation guardian provides information (b) can be examined if competent to give evidence

I saw that cases took two routes. One route stemmed from Rules 2.03 and 1.04 that give judges discretion to dispense with compliance of any rule and called for liberal interpretation of the rules. The other route stemmed from Rule 3.03(5) that deals with a party under a disability who is not competent to give evidence.

Now the assigning lawyer Jim Hendry had specifically told me not to research competency and I could see myself that the cases on competency really didn't involve facts like the Hopper case. I made a quick note that the Michriky v Hack case was not relevant and wrote NA in red in the box. Make note that Michriky v Hack – deals only with competence and sound mind.

Before mapping the cases I wrote down a new question: Why can this be done? And below it the phrase: In the interest of justice. Question and answer are linked to rules 1.04(1) and 2.03.

Mapping the cases was an organic process. I was constantly rearranging words, boxes and arrows and putting stars on key cases and caution on outdated ones.

What emerged was the main connecting idea – The interest of justice is served if the exemption prevents psychological harm to the party. Answer to the question, why can this be done? Link it to all cases. I put a star on the Kidd case because it was key. I put an orange Caution on the Nylias case because it is outdated.


Getting Ready to Write – Charting

The second tool is charting. Many students and new writers struggle with applying case law to a problem and end up writing book-report style memos – this case says this, that case says that, instead of writing a coherent picture of the law with an answer to the question asked. As a basic tool charting gives you another way of organizing your research. But there is a more important benefit to charting. It can help you determine what are the most relevant cases for your problem. So have a look at the case chart and the factors chart Anna prepared for her memo. Then try them for yourself.

Case Charts and Factors Charts

A table appears on the screen, each case is listed in different rows.

Charting helped me first to organize and rank the cases by relevance, and then to sift through them to see the most important facts that led the courts to the rulings.

For the Hopper case I did both a case-summary chart that I organized chronologically, and a factors chart.

My case-summary chart had columns for the Rule of Civil Procedure, Issues, Facts, Result / Reasons, and Relevance. Because it was chronological I could see at a glance how the law evolved away from the restrictive standard in the1985 Nylias case, until by the time 1998 rolled around, in the Kidd case, the court exempted a party based on proof of potential psychological harm on a balance of probabilities.

Also, because I had a column tracking the Rules of Civil procedure Michriky v Hack stood out because it only dealt with competence under Rule 31.03(5)(b)– which was not at all useful for my memo.

Research Question: When can the court exempt a party from oral discovery?

Case-summary Chart

Case / Date/ Court Civ Pro Rule Issue Facts Result / Reasons Relevance
Nyilas et al. v Janos (1985), 50 C.P.C. 91 (Ont. Master) 31.03(9) re multiple examinations. Can minors be excused if there is danger of psychological harm? Minor plts' sister killed by auto. Psychologist report, "serious risk plts may suffer psychological damage" from examination. If the minor plts are competent, then oral exam can only be refused if vexatious under rule 31.03(9) Outdated. Courts no longer take this position –see Ferrara and Kidd
Ferrara v Roman Catholic Episcopal Corporation [1996] O.J. no 2164, Lax J Rule 2.03 discretion to dispense with oral exam in the interest of justice. Can adult Plt in a sexual abuse case be exempt from oral discovery? Only evidence of harm was an affidavit by plt's counsel reporting on a phone conversation with the plaintiff on her fear and anxiety. No exemption. Party seeking has onus. Dispense with rules only in the "clearest and most positive case" and to avoid certain injury.
Lawyer's affidavit was "clearly hearsay"
Sets a high standard. Distinguish from Hopper– adult plaintiff, no medical evidence, no pre-existing condition.
Kidd v Lake (1998),  42 O.R. [3d] 312 (Gen. Div) Rule 2.03 Can injured minor plt be exempt based on potential psychological harm? 10 year old lost a limb, suffered trauma. Evidence (1) Family Dr. letter on distractibility, low attention span and energy. (2) minor won't talk about accident, age, and changes to life. Aitken upheld motion court's exemption. Real potential for psychological harm on balance of probability. Courts' overriding responsibility to protect children. Considered totality of evidence, not just medical evidence. Medical evidence was not up to "court's expectation"
Michriky v Hack
(2005) 137 A.C. W. S. (3d) 913 (ONSC)
Rule 31.03(5)(b) Def under disability can be examined if competent When is a person under disability competent to give evidence? Def diagnosed with chronic paranoid schizophrenia. No medical evidence of incompetence. Exemption not granted where no medical evidence produced. Not relevant to Hopper case.
Case limited to competence to testify.
Mohanadh v Thillainathan
2010 ONSC 2678
Rule 2.03 What medical evidence can support an exemption based on mental health? Plt injured in a slip and fall had previous diagnosis of schizophrenia. Drs reports and letters state oral discovery will increase anxiety and symptoms. Exemption granted based on compelling and persuasive medical evidence. Limiting def to written discovery only a slight prejudice. Plt's pre-existing condition parallels Hopper case.
Ontario AG v Singer, 2012 ONSC 5485 Rule 2.03 What medical evidence will support an exemption? Adult defs sought exemption based on Drs notes that oral examination would exacerbate depression and diabetes. Exemption denied. Medical evidence not compelling, persuasive, nor cogent. Recent trial level case. Evidence weak and not well linked to pre-existing condition.

While I was researching I took notes on the categories of facts – or factors – the courts used to determine how the rule applied to the case before them. This let me create a factors chart that was invaluable to figuring out the material facts in Hopper.

I saw that the main factors the courts considered over and over were: the age of the plaintiff, whether there is a pre-existing condition that was aggravated either by the harm that is the subject of the lawsuit or by oral examination for discovery, and the type and sufficiency of the evidence of the potential harm. When I did my chart for this case, I realized that a pre-existing medical condition was often one of the determinative factors. Andrew has a serious psychological condition. So, in my memo, I made sure I raised this fact and in my analysis focused on those cases where the courts dealt with that factor.

Another factor that stood out on the chart was the need for cogent or sufficient proof of the harm. So, I made sure I identified the problem we will have in addressing this factor and highlighted the material facts about the evidence we do have.

So, in my memo, I made sure I raised this fact in the issue statement and, in my analysis, focused on those cases where the courts dealt with that factor. Another factor was the evidence offered as cogent or sufficient proof of the harm.

The charts really help me organize my research and get me quickly to the essential elements of the case.

Rule: Courts can exempt a party from oral discovery where there is evidence of potential psychological harm.

Factors Chart

CASE Minor or adult party? Context Nature of harm Proof of harm Result Comment
Nyilas et al. v Janos (1985), 50 CPC 91 (Ont. Master) 2 boys – plaintiffs in action, eye witnesses to sister killed in motor vehicle accident No pre-existing condition aggravated by witnessing the sister's injury Medical evidence that they would suffer psychological damage from oral examination. No exemption. Since the minors were competent, no discretion to exempt unless vexatious Reasoning outdated. Courts no longer take this position - Ferrara and Kidd.
Ferrara v Roman Catholic Episcopal Corporation [1996] O.J. no 2164, Lax J. Adult plaintiff in sex abuse case No pre-existing condition aggravated by abuse The evidence was an affidavit by counsel setting out a phone conversation with the plaintiff where she talked of fear and anxiety No exemption.
Evidence was clearly hearsay and not sufficient.
Cogent evidence required.
Kidd (K) v Lake (1998) 42 OR (3d) 312 (Gen. Div) Aitken J. Child – plaintiff seriously injured in motor vehicle accident Pre-existing condition aggravated by injury No direct medical evidence of psychological harm from oral examination.
Had evidence from family doctor on distractibility, low attention span, inability to talk about accident
Exemption from oral discovery. The court has an overriding responsibility to protect the interests of children. Need cogent medical evidence but also consider all circumstances. Found potential for psychological harm on balance of probabilities. Can look at all relevant circumstances, not just medical evidence. Standard of proof linked to protection of children
Mohanadh v Thillainathan
Ontario Superior Court of Justice
2010 ONSC 2678
Adult injured in slip and fall. Pre-existing condition – schizophrenia Doctors' reports and letters confirming oral discovery would increase anxiety and symptoms. Exemption from oral discovery. There was compelling and persuasive medical evidence. Defendant limited to written discovery Need compelling evidence of harm from oral discovery.
Ontario (Attorney General) v Singer,
Ontario Superior Court of Justice
2012 ONSC 5485
Two adults One had diabetes, other had depression. One doctor's handwritten note, no details, saying oral discovery would aggravate depression. Second doctor's report vague on details, not address potential effects of discovery No exemption. The medical evidence was not compelling, persuasive or cogent. Shows evidence must specifically address the risk of harm from oral discovery, not generic "harm from litigation"

Getting Ready to Write – Outlining

The third tool is outlining. How often have you jumped right from your research to writing your first draft because you've got deadline and you think you must start writing. But then you find you don't really know what you want to write. If you take a few minutes for one more step – outlining – you will be able to better organize your thinking and writing. You will save time and you will have a better writing product, no question. Remember, at the end of the day, organization is what makes the difference between a few pages of interesting discussion and a coherent, effective piece of legal writing. So, let's look at Anna's outline to see how she organized her material.

I started with a skeletal outline that simply put down points to include in my first draft; and then I wrote a more detailed outline.

I decided to organize my outline using standard memo headings, Introduction, Brief Answer, Facts, Issues, Analysis, and Conclusion so that I could start to see the memo take shape. I used the outlining process to think through how my client's facts fit with the case law. I also made little notes to myself about things I needed to look for to fill in.

I started my analysis section chronologically. This way I could see the evolution from the Nyilas case– which I think is outdated - to the Kidd case - which I think sets the standard for the more recent cases.

I included mini-case briefs in this initial outline. I didn't put in the secondary sources, although they were critical background for me since I didn't know anything about civil procedure before I started this memo.

The outline will keep me organized and ensure that I don't leave out points. But I know that I will re-arrange things as I go and I certainly won't put in mini-case briefs. I want to show I can think, not just list cases.

Outline: Hopper v Summervale

  1. Introduction: Research Question-Issue
    1. Question– Can Andrew Hopper be exempt from oral discovery based on potential psychological harm?
    2. Memo does not examine Andrew's competency therefore Rule 31.03(5)(b) not relevant.
  2. Brief Answer
    1. Andrew can be excused from oral discovery if there is compelling, persuasive, and cogent medical evidence that the discovery process will cause him psychological harm.
    2. Andrew's medical condition will satisfy both a balance of probabilities test (Kidd) and a higher "certainty of harm" test (Ferrara).
  3. Facts
    1. Andrew was hospitalized from injuries that occurred while a camper at Summervale camp.
    2. The accident and injuries aggravated Andrew's pre-existing general anxiety disorder.
    3. Andrew's treating psychiatrist reports Andrew regressed as a result of the accident, and cannot talk about it even in therapy.
  4. Analysis
    1. Case law has evolved from Nyilas - Master Rodger – If the 4 minor plts are competent, then oral exam can only be refused if, under Rule 31.03(9), the multiple examinations are vexatious.
    2. Case law turns to Rule 2.03, which allows courts to exercise discretion.
    3. Ferrara (1996) did not grant an exemption for an adult plaintiff in a sexual abuse case. Test was "certainty of harm" which was not met. The only evidence of potential psychological harm was an affidavit from the plaintiff's lawyer describing a telephone conversation with the plaintiff.
      1. Distinguish Hopper (adult vs minor; Hopper has pre-existing injury; Hopper has psychiatrist report.
    4. Kidd (1998) Granted exemption to a 10 year old girl who had lost a limb and was traumatized. Court followed reasoning in Ferrara but used a balance of probabilities test rather than Ferrara's higher certainty of harm standard.
      1. Court concerned with protecting children
      2. Medical evidence weak- family doctor's letter describing problems in school, and decreased attention span and energy levels.
      3. Court looked at totality of evidence including age, nature of trauma, certainty of harm.
      4. Case facts closest to Hopper. Minor plaintiff.
    5. Post Kidd cases all use Kidd standard – balance of probabilities and persuasive and cogent evidence of harm.
      1. Mohanadh v Thillainathan 2010 exemption granted to adult plaintiff - prior diagnosis of schizophrenia. Dr's reports and letters that oral discovery will increase anxiety
      2. Ontario AG v Condominium Units 2012 – exemption not granted to adult plaintiffs with depression and diabetes. Drs notes were not persuasive.
  5. Conclusion
    1. Medical evidence that Andrew's pre-existing condition will worsen together with other evidence of Andrew's decline in school and socially, will likely support an exemption.