Subheadings for legal writing

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swtlilsoni

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Subheadings for legal writing

Postby swtlilsoni » Thu Nov 15, 2018 4:04 pm

When writing a memo or brief, there are subheadings under the analysis section. The subheadings generally divide each portion of the analysis based on the different issues you are addressing and/or different elements within an issue.

Is it better to write the subheadings as a title of the section (Jurisdiction), as an issue (Whether This Court has Jurisdiction), or a conclusion (This Court has Jurisdiction) or a supported conclusion (This Court Has Jurisdiction Because elements xyz are met)?

Also, do legal memos require a statement of facts?

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UVA2B

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Re: Subheadings for legal writing

Postby UVA2B » Thu Nov 15, 2018 4:43 pm

What’s the purpose of this memo? That will drive most of the answers to your questions.

nixy

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Re: Subheadings for legal writing

Postby nixy » Thu Nov 15, 2018 4:44 pm

Conclusion (or supported conclusion where it can be stated concisely).

I would put in a section on facts, but it might depend on who you’re writing the memo for.

grandetiempo

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Re: Subheadings for legal writing

Postby grandetiempo » Thu Nov 15, 2018 4:54 pm

Most legal memos do require a statement of facts. You should be writing the memo as if the person who is receiving the memo has no idea what the case is about.

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swtlilsoni

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Re: Subheadings for legal writing

Postby swtlilsoni » Thu Nov 15, 2018 5:19 pm

Regarding purpose, what are the different memo purposes? This one is to convey the findings of legal research. Isn't that what they all are for?

Regarding Statement of Facts, it feels a bit weird to write it in a memo. For example, if a partner asks you to write a memo about whether the client would succeed at some claim, isn't it redundant to write out the facts of the client's situation in the memo? The partner is the one that told you the situation for the purpose of writing the memo. You would just be relaying back to him the same facts he just informed you of.

The only new aspects of the situation that you would be informing the partner of is the legal situation (overview of the recent cases on the issue, where the law stands currently). But do the main cases even go into the facts? Wouldn't they just go into the analysis?

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UVA2B

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Re: Subheadings for legal writing

Postby UVA2B » Thu Nov 15, 2018 5:30 pm

Purpose can vary, but they usually fall somewhere on the persuasive/informative divide. If you're just trying to describe the current legal framework on an issue, you'll want to be much more purely analytical/less conclusory. But if you're trying to apply a certain set of facts to a legal problem, you're likely to be taking a side/making an argument, in which case your subheadings should be more descriptive/conclusive.

Statement of facts is typically the most important part of a memo, again depending on purpose. If a partner is asking you to analyze a situation within a legal framework, it's possible they've never actually confronted the full facts of the situation, so they'll want to understand the facts (as you frame them since you're giving them the framework for understanding the situation) and then understanding it in the legal analysis you provide that will frame their entire persuasive argument.

Legal memos for a hypothetical partner is often geared toward confirming and providing ammunition for the legal arguments they want to make, so your memo (and the headings in that memo) should drive that argument, even if that argument and subheadings are occasionally tenuous (not saying they are here, I just mean you need to lean into the argument and any headings resulting therefrom). So while they want an accurate portrayal of the legal framework under which they should understand the situation, you'll want to offer them every possible argument they could make.

So your subheadings need to be as conclusory as you can reasonably offer, based on your understanding of the law within the facts of this memo.

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Re: Subheadings for legal writing

Postby nixy » Thu Nov 15, 2018 6:01 pm

Re: facts - people leave or get reassigned, and someone might read/use the memo later down the line who isn’t familiar with the facts.

Also, it lets the partner know what you think the (significant) facts are so they can see if you left any out or they failed to tell you something.

My point about purpose/who you’re writing it for is that different people may have different preferences about what you include. Sometimes a partner wants a quick and dirty answer. Sometimes they want a full-fleshed analysis that they can cut/paste into an actual brief. So someone might not want the facts for the former but they probably would for the latter. They should make this clear to you ahead of time, is all I’m saying.

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swtlilsoni

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Re: Subheadings for legal writing

Postby swtlilsoni » Thu Nov 15, 2018 6:11 pm

Ah okay got it. Here, it isn't persuasive - it is informative. The partner just wants to know what the current law is on an issue.



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