Introduction

a. Introductory Paragraphs: The Well-Lit Path

Powerful legal writing leads the reader down a well-lit path.

Your introduction is your well-lit path for the assigning lawyer.

If you tell it all and tell it well in the first few paragraphs, the assigning lawyer will know:

• Why to read the memo – what legal problem is being solved and for whom.
• What the predicted outcome is – your conclusion and the facts and law that support it.
• What decisions need to be made – what the recommendations are and the next steps.

The assigning lawyer is now motivated and primed to read and understand your discussion and analysis.

And, if the lawyer reads no further than the introduction – a possibility in a busy law practice – you still delivered your message.

Not All Memos Have an Introduction

Some firms and some lawyers go directly from the memo heading to the issue statement and brief answer. You can still apply the principles for strong introductions elsewhere in the opening paragraphs of your facts and in the discussion section.

b. What Every Journalist And Great Legal Writer Knows – Front Load Your Message

Legal readers are impatient and want immediate answers – not a suspense story. A good introduction gives readers a purpose and then helps them read efficiently and effectively by presenting the key information upfront.

In less than a page and a half your introduction can:

• Grab the reader's attention
• Boil down the facts to the key elements
• Identify the legal problems addressed
• State the legal criteria applied
• Deliver a conclusion

Grab the Reader's Attention

Put the legal issue into its larger context while making sure that you maintain the predictive memo's neutral tone:

• What is the human background to the legal issue?
• What client goal or case strategy decision rests on the memo's prediction?

In one sentence tell the reader what is at stake.

Examples:

• Cheryl Lane, age 62, has been unable to find a job since she was fired twelve months ago from her non-unionized job after she sent an email to co-workers about a union organizing meeting.
• Alex Beachwood wants a variation of his joint custody agreement so that he can accept a new job and move with his children to another city.
• Alice Baker, a social worker at Maplewood Gardens Retirement Home, has been subpoenaed to testify at a hearing to determine a resident's mental competence.
• Our client, Harry Artist, has a deportation hearing in five days.
• Nancy Ames received an eviction notice on the grounds that she has a dog in her apartment.

Now That You Have the Assigning Lawyer's Attention

Make the memo accessible and ensure that your points stick in the lawyer's mind by previewing:

• the key facts
• legal issues
• how the facts fit with the law to support your conclusion

Examples:

• Our client, Harry Artist, has a deportation hearing in five days. Mr. Artist entered the country as a visitor and worked without pay for his employer for two weeks pending the approval of his work permit. Under the Immigration Act, a deportation order will permanently bar Mr. Artist from entering the country. Working while a visitor is a ground for deportation even if the visitor is a volunteer. Mr. Artist can avoid a deportation by voluntarily leaving the country. Mr. Artist will likely need to leave the country voluntarily to avoid a deportation order and then re-enter with the work permit.
• Nancy Ames received an eviction notice on the grounds that she has a dog in her apartment. A new tenant with an extreme fear of dogs has moved into the building. Under the Residential Tenancies Act, Ms. Ames can be evicted based on the presence of an animal only if the animal's past behavior has substantially interfered with the reasonable enjoyment of another tenant. It is highly unlikely that another tenant's fear of dogs will be grounds for eviction when the dog has not been a nuisance or acted in a hostile way towards tenants.

c. Housekeeping Information: Tell me again – what did I ask you to do?

Busy lawyers can lose track of a file's details or the instructions they gave, even after a short period of time. Part of your task is to remind the assigning lawyer and to provide sufficient information to a future reader who may be looking for memos on a similar issue.

Two examples of opening sentences that both grab attention and remind the instructing lawyer about the assignment:

• You asked me to research whether a court is likely to award our client, Cheryl Lane, damages for wrongful dismissal. Ms. Lane, age 62, has been unable to find a job since she was fired 12 months ago from her non-unionized job after she sent an email to co-workers about a union organizing meeting.
• Alice Baker, a social worker at Maplewood Gardens Retirement Home, has been subpoenaed to testify at a hearing to determine a resident's mental competence. You asked me to research whether Alice's status as a social worker prevents her from repeating information obtained from residents during confidential conversations.

Remind the Assigning Lawyer of Any Instructions on What NOT To Do

There are often practical reasons for not pursuing an issue. For example, the assigning lawyer may already be up to speed on the law or may want to save time by consulting with other firm lawyers before doing any research. Be clear about your research limits so that the assigning lawyer, or someone else picking up the file, doesn't wonder how you could have missed an obvious issue.

Information Sources

Another housekeeping item you may want to cover is your information sources. Did you:

• attend the client meeting?
• review the complete file or only certain documents?
• contact the client for follow-up information?

The assigning lawyer will have more confidence in your work if you can verify you had complete information.

d. The Writing Process

Your first words are important, but they are not necessarily the words you write first. Many memo writers spend too much time crafting the perfect first paragraph, only to find it needs to be rewritten after they review and revise their analysis.

Writing the discussion section is a rethinking process. You won't know what you really want to say in the introduction until you have tested your initial theory against the client's facts and your re-reading of your research notes. Your views on the likelihood of success may strengthen or weaken as you commit your ideas to paper.

Tip: Try writing the discussion section first. If you can't get started without an introduction, take ten minutes to write down a few sentences covering:

• Who is involved?
• What problem needs to be solved or what decision needs to be made?
• What is the matter's current status?
• What do you think a court will do?

Then move on knowing you will come back to revise again.

e. Exercise: Who Gets To Use the Wetlands?

A law student working at a law firm for the summer has sent her first draft to her mentor. Read her introduction and think about how to improve it.

• What's missing?
• What could be stronger?
• Does it make a prediction?

Introduction – First Draft: Are the Wetlands Subject to an Easement?

Click on the footnote after each sentence to hear the mentor's comments. Then, help the student rewrite the introduction by choosing new sentences that address the mentor's points.

The purpose of this legal memo is to provide a legal opinion on whether the Englewood Bird Watchers Society has a right to use the wetlands located in the northwest corner of Pat Smith's property, known as Garden Grove, based on an easement created by prescriptive use ¹. The Bird Watchers Society may have an enforceable right with respect to the use of the Garden Grove wetlands because the right has the character and quality of an easement ². Unless there is evidence that proves an agreement or consent, either oral or written, existed between the Society and the previous owner, an easement in favour of the Society based on long-term use will be recognized ³.

Mentor's comments on sentence one.
¹ Transcript

Duration: 27 seconds

Mentor's comments on sentence two.
² Transcript

Duration: 31 seconds

Mentor's comments on sentence three.
³ Transcript

Duration: 39 seconds

Help Rewrite the Introduction:

Each of the original sentences needs to be replaced by one or more sentences that together address the mentor's comments. Reread each original sentence. Then, choose all the sentences you would substitute for the original. Click on the mentor comments to read what she thinks of your choices. When you are finished, you can read the revised introduction and the mentor's final comments.

First Sentence – Original Version:

The purpose of this legal memo is to provide a legal opinion as to whether the Englewood Bird Watchers Society has a right to use the wetlands located in the northwest corner of Pat Smith's property, known as Garden Grove, based on an easement created by prescriptive use.

Sentences to choose from:

1. This memo reviews how the Englewood Bird Watchers Society can establish a right to use paths over wetlands in the northwest corner of our client, Pat Smith's property.

   Mentor's Comments

   This revision helps a bit, because now it is clear who our client is. But I still don't know enough about the problem's context. Why are we looking into this matter? Has a legal action been filed by the Society, or are we looking for a way to stop them from continuing to use the property? Also, the sentence reads like you are working to help the Society justify its use, instead of finding a way for our client, Pat Smith to stop them. Try again.

2. You have asked me to research what grounds our client, Pat Smith, can use to defeat the Englewood Bird Watchers Society’s claim to a prescriptive easement to walk over paths in a wetland area in the northwest corner of Mr. Smith’s property based on the Society’s thirty years of monitoring bird migration and activities in the wetlands.

   Mentor's Comments

   This revision goes a long way to addressing my feedback. But I think you can go further. What's good is that the reader knows the parties, the facts, and the research assignment. Also, referring to the client as Mr. Smith is a respectful choice. What's missing is information on the matter's status. Why are we looking into this matter? Has a legal action been filed by the Society, or are we looking for a way to stop them from continuing to use the property? I think you can improve this. Give it another try.

3. You have asked me to research what grounds our client, Pat Smith, can use to defeat the Englewood Bird Watchers Society’s action for declaratory relief to establish that the Society has a prescriptive easement to walk over paths in a wetland area in the northwest corner of Mr. Smith’s property based on the Society’s thirty years of monitoring bird migration and activities in the wetlands.

   Mentor's Comments

   This is a very complete introductory sentence. The reader knows the parties, the facts, the research assignment, and the purpose of the memo – to assist the lawyer in responding to an action for declaratory relief. Also, referring to the client as Mr. Smith is a respectful choice. Good work.

4. Mr. Smith is concerned that he will be unable to sell the property if it is subject to the Society’s claimed easement.

   Mentor's Comments

   This is a very helpful reminder of the client's practical and financial concern – we always need to keep in mind what is at stake for the client. After all, our job is to resolve people's problems, not answer abstract legal questions. Don't start the paragraph with this sentence, it is not a good topic sentence; but for sure keep it in the introduction.

5. You instructed me not to consider trespass.

   Mentor's Comments

   Good idea to remind the lawyer that she didn't want you to research trespass. Otherwise, she or a future reader would wonder why you left out such an obvious issue. Keep this in.

Second Sentence – Original Version:

The Bird Watchers Society may have an enforceable right with respect to the use of the Garden Grove wetlands because its use has the character and quality of an easement.

Sentences to choose from:

1. The Society can meet the burden of proof that it meets the four criteria of an easement established in the seminal case, Ellenborough Park, to wit (i) there is a dominant and a servient tenement; (ii) the easement must accommodate the dominant tenement; (iii) the dominant and servient tenement are owned by different persons, and (iv) the right over land must be capable of forming the subject matter of a grant.

   Mentor's Comment

   Good try, but not quite right. The first problem is that the statement is too definite on the result. You have practically guaranteed that the Society will meet its burden of proof in the sentence's first few words. Second, although at first read this sentence looks like it identifies the legal criteria for proving an easement, when I thought about it, I realized it is too abstract. You are simply repeating terms of art from the case law – like accommodate and subject matter of grant – without giving the specific criteria. Also, you can leave out the case reference. And drop the phrase, “to wit”. No one uses words like this anymore. See if you can do better.

2. The Society is likely to meet its burden of proof that (1) the right it asserts meets the four easement criteria and (2) its use has been continuous, uninterrupted, open, peaceful, and without permission for a period of 20 years required by statute to establish a prescriptive easement.

   Mentor's Comment

   This is a good start. You have not shied away from predicting bad news for the client. If the Society has a decent case, then the assigning lawyer needs to hear about it up front so she can advise the client and start forming a strategy. You clarified that the Society has the burden of proof and that there are two major issues: whether the Society's use fits the easement definition and whether the Society has met the statutory prescriptive use criteria. I expect to hear more about the four easement criteria in the discussion. So keep this in. Now, can you add a counter argument?

3. The Society clearly satisfies the first and third easement criteria and probably the second one as well, leaving only the fourth criteria as something we might pursue on Mr. Smith’s behalf.

   Mentor's Comment

   Unless you give more facts, this is too abstract for the assigning lawyer to make sense out of. Also, can you be more specific on how likely the argument will succeed? Try again.

4. Mr. Smith can argue that the Society’s claimed right to walk over the wetland paths interferes too substantially with ownership and thus does not meet the fourth easement criteria; however, based on recent cases this argument is not likely to succeed.

   Mentor's Comment

   Good work – The lawyer still needs to hear more about the four easement criteria, but now she knows the criteria for the pivotal issue. She is now primed to think about whether the Society's use substantially interferes with the client's ownership. Also, it is very important that even though you think the client's case is weak, you still worked at finding a potential argument in the client's favour. You have not simply abandoned the client – although you are still not optimistic. This is a good follow-up to your sentence on the client's likelihood of success. Keep it in.

Third Sentence – Original Version:

Unless there is evidence that proves an agreement or consent, either verbal or written, existed between the Society and the previous owner, an easement in favour of the Society based on long-term use will be recognized.

Sentences to choose from:

1. We should look for evidence that Mr. Smith's aunt, Alice Truly, consented to the Society's use.

   Mentor's Comment

   This sentence is out of context. Can you explain why this helps?

2. There is a possibility that Mr. Smith can defeat the Society’s claim that it established the easement through long term use, if he can find evidence that the original owner, Mr. Smith’s aunt, Alice Truly, gave the Society either verbal or written consent to use the property.

   Mentor's Comment

   This is clearer writing than the original sentence. But I still had to read it twice to get the message. It needs a rewrite. Try again.

3. Because a person who uses another person’s property with permission cannot claim a prescriptive easement, it would help Mr. Smith’s case if he can find evidence that his Aunt Truly, the original owner, gave the Society either oral or written consent to use the property.

   Mentor's Comment

   This is clear. And the lawyer will know what to discuss with the client. Keep it in.

4. As the evidence currently stands, Mr. Smith does not have a strong case.

   Mentor's Comment

   This ends the introduction with a clear message. You have not shied away from delivering bad news to the client. Keep it in.

The Revised Introduction: