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Legal Research Briefs, Legal Memoranda and Legal Writing You have learned in previous chapters that part of the legal profession involves a large quantity of writing.
Attorneys took great pains to make language in documents as complicated as possible. One of the reasons legal writing was so complicated was because attorneys wanted to cover their bases and make sure that their documents were as complete as possible. The brief will give the attorney the information he or she requires, to decide whether the case is relevant and worth spending the time to read in depth.
A brief, in this context, is a form of taking notes and includes a variety of sections. When writing a case brief, begin with the name and citation of the case. The first section of the case brief usually contains a description of the facts of the case.
The second section will contain a brief description of the procedural history of the case, that is, a short description of what happened at the trial level and at the appellate level, or what types of motions were filed and when.
The third section usually contains a short statement of the main issue or issues that the case addresses. The fourth section usually contains the holding of the case, i. The name of the judge or other information may be included in a miscellaneous section.
Additionally, any concurrences or dissents should receive some discussion.
Briefs should not be longer than one to two pages long and should be easy to read so that the reader does not have to spend much time understanding the reasoning of the case. The Legal Memorandum You have already learned, in previous chapters, about the use of legal memoranda.
To recap, legal memoranda are used in connection with motions, both pre-trial and post-trial. Occasionally, during trial, the court may ask for a memorandum on a particular legal issue. The courtroom, however, is not the only arena in which legal memoranda can be involved.
Attorneys will often ask clerks or associates to prepare a legal memorandum about a particular legal issue. This memorandum is used within the law firm and serves to inform the attorney about the legal issue, and includes citations to legal authorities.
It will also point out a split of authorities or ambiguities in the law, if applicable. It is important that the attorney to whom the memo is addressed is informed of all aspects that are relevant to the issue, not just information that is favorable to your side of the case.
The Courtroom Legal Memorandum This particular memorandum is a persuasive document. The memorandum must include a legal argument and should contain legal citations that support the legal arguments being put forward in the memorandum. However, it should be noted that attorneys have an ethical duty to disclose any and all binding legal authority that is contrary to their position in their documents.
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Of course, it will often be the task of the drafter of the memorandum to try to convince the court that the contrary case should not be applied to the facts of this case. The top of the first page of a memorandum being submitted to the court should have the proper caption as required by the local rules of the court, followed by the proper title of the memorandum.
It is always a good idea to start the memo with an introductory paragraph so that the court is instantly attuned to what issue the memorandum addresses. Similarly, it is always a good idea to include a brief statement of the facts of the case. The reason why a statement of the facts is essential is because the judge who is familiar with your case may not be the person reading the memo and writing the resulting decision.
Always assume that the reader is learning about the case for the first time. The statement of the facts should not be convoluted — it should offer a clear, concise description of the circumstances giving rise to and surrounding the case.
Within the statement of the facts should be a few sentences concerning the procedural history of the case.
Julie represents the plaintiff in a motor vehicle accident. In support of her motion for summary judgment, Julie includes in her memorandum the following: As a result, the plaintiff sustained serious physical injuries for which she has brought this action to recover damages.
The plaintiff has respectfully moved this court for summary judgment on the ground that there is no genuine issue of material fact and that the plaintiff is entitled to judgment as a matter of law. Following her statement of the facts, Julie includes the following issue: Finally, the last section in the memo is the conclusion, which summarizes the arguments contained within the memo.The defendant's motion to dismiss the complaint for failure to state a cause of action in negligence should be _____, on the ground that the complaint alleges facts that support all of the elements of a negligence claim.
Motion to Dismiss - A motion to dismiss asks a judge to decide whether a claim made in the case is valid. Claims may be dismissed when they have no legal bearing or when failure to comply with procedural requirements, such as the statute of limitations, has made them null and void.
Motion To Dismiss, Presenting Defenses Of Failure To State A Claim, Of Lack Of Service Of Process, Of Improper Venue, And Of Lack Of Jurisdiction Under . ) (denying motion to dismiss and finding defendants’ argument regarding the merits of the plaintiff’s equal protection allegations improper because the defendants were trying to “compel the Court to treat th[e] motion as one for summary judgment”).
motion samples book. All sample documents are available in Microsoft Word, WordPerfect and Adobe Acrobat format unless otherwise tranceformingnlp.com choose which format you would like to download and that file will open in a new window. Motion Sample Form. A Motion to Dismiss may be filed by either party, the plaintiff or defendant, when the party feels as though a lawsuit is not .