Writing Legal letters,Memos and Legal Opinions.

LEGAL WRITING

MEMORANDUM

This is an internal document that is used to analyze a legal problem and give a legal objective opinion on that problem.

It is usually addressed to another lawyer within the same organization or legal firm. It is kept as an internal document and should not be seen by judges, clients or the opposition.

For example if you work as a paralegal, law clerk or even an intern in a legal firm, an attorney asks you to provide a realistic analysis of the law as it applies to

the facts of the client’s case.

The purpose is to inform and not to persuade therefore based on facts of research.

FORMAT.

Heading Layout 

                        MEMORANDUM

TO: (To whom it’s addressed)

FROM: (You the writer)

DATE: (Of the day of writing)

RE: [This is the overall summary of the issue being analyzed.]

Body Layout.

                      Question Presented.

This question frames the entire memorandum. It involves both the factual and legal elements at issue.

Example. under the bill of rights, did the attorneys failure to file a timely appeal [facts] constitute ineffective assistance of counsel [legal]

                      Brief Answer

Consists of brief answers to the question presented. Answer should be in the same order as posed in the question.

                     Statement of facts.

This section tells the story that gave rise to the legal question. Include,

a.Include materials fact only.

b. Be careful not to state your legal opposition. Avoid words like ‘negligently’ ’speeding’ -words that show liability.

c. Clearly identify d disputed facts using terms i.e. Alleged, stated, testified & accused.

d. Avoid bias, state facts.

                 Discussion.

This is the heart of a memorandum; it must provide objective an diet convincing support for the conclusion. Synthesize the law with facts.

Site cases and precedents to support your opinion.

Survey all the relevant pertinent statutes.

Conclusion.

This is the possible outcome of your case in regard to your analysis of material facts that were based on the law.

LEGAL LETTER

It mainly depends on the type of letter you are creating. There are two main types of legal letters:

i) To and from your own clients

ii) To and from the opponents, third parties and other lawyers

WHY LEGAL LETTERS ARE WRITTEN

1. To convey legal information

2. To persuade opponents on legal issues comprehensively

3. To obtain information

4. To create a particular impression

5. To make an offer of settlement

6. To confirm or record legal writings

ESSENTIALS OF A LEGAL LETTER

1. Name and address of the intended recipient

2. Date on which it is written

3. Identification of the sender-his/her name, address

4. The matter the letter addresses

All legal matters should be

i) Accurate and complete

ii) Clear and precise

iii) Written in plain English and should also use contemporary vocabulary wherever possible

iv) Short ,simple and direct: use short sentences and the active voice where possible

v) In an appropriate tone

FORMALITIES 

Addressee’s Address

Addressee’s address should be in the upper left hand of the page under the addresser’s letter head. It should also include the fax no. that is if it is being sent via fax.

Date

The date should be inserted under the address

 Salutation

The salutation should have a personal form; their family name or even if you are being encouraged by the client use their front name.

With the letter of demand, use ‘Dear Sir’. If it is a letter to the registrar of a court known to be a lady, use ‘Dear Madam’. Solicitors will use ‘Dear Sirs’ if all are male.

Heading

The heading should be underlined and sometimes ‘RE:’ is used before it. A file reference should also be used if there is any.

Openings

Let the recipient know what you are writing about.

Body

One should keep in mind the audience, the purpose and qualities of a good legal letter.

Conclusion

If the beginning is ‘Dear Sir’ or ‘Dear Madam’, end with ‘Yours Faithfully’. If the beginning is ‘Dear Mr. Wale’, end with ‘Yours Sincerely’.

Attachment should be identified by the abbreviation ‘Encl’ at the bottom of the letter.

LEGAL OPINION

An opinion is a written response to instructions to advice or a written down advice. Instructions are the first contact in the case of dispute. Advising is inextricably linked to the mental attitude with which you approach opinion writing. It is the thinking process that precedes the actual writing of the opinion, and the writing process itself. Thus three aspects of opinion are drawn. They include:

1) Mental attitude

2) Thinking process

3) Writing process

Mental Attitude

It is also referred to as the practical attitude. The practical approach is something to be developed and acquired. There are four fundamental principles to remember:

• You are dealing with a real situation- There is a real client with a real problem who wants your advice.

• The facts are more fundamental than the law- It follows that in dealing with a case, in advising a client. In writing an opinion, your starting point is the facts. Ask yourself the W questions, i.e., what, who, when, where or how while referring to the facts.

• The law is a means to an end- The law is what you consult and use where appropriate to help you produce a solution to the problems.

The golden rule here is: 

• use the law to help you form an opinion on the facts, not the facts as an excuse to form an opinion on the law.
• Answer the question- The principle that applies here is: always seeking to answer every question as clearly and as completely as you can, this also includes those questions whose answers are unclear; not only questions on law but questions of facts as well.

Thinking Process

It is divided into seven stages which are subconscious and several stages can be done at the same time.

1. Read and digest the instructions.

2. Answer the primary questions, which is, what does the client want to know?

3. Absorb and organize the facts.

4. Construct a legal frame work around the facts which consists of a sequence of issues each issue basically encapsulating a single question of law.

5. Look at the case as a whole to see how everything hangs together i.e., where each questions leads.

6. Answer all questions sequentially

7. Consider your advice: you do not just form an opinion on your client’s case or problem but you also advise you client what he or she should do.

Writing Process

The objective of writing an opinion is to lead your client to the clearest possible understanding of his or her position, so that he or she can decide, on your advice, what to do about it.

It is also important to know the person to whom the opinion is written. This question can be answered by considering the question: who is going to act on this advice? If it is a lay client ensure that your opinion is intelligible and helpful to him.

It is helpful to have a skeleton plan on which you can base you written opinion. You are able to formulate the skeleton plan after going through the thinking process. The skeleton plan will, in a logical manner, outline the issues you will be dealing with.

1. The back sheet and heading. The back sheet should have a heading which is the title of the case as used in the instructions sent to you by the instructing solicitor. The heading just above the first paragraph should also bear the heading as on the back sheet. For example,

Mary Smith v. International Pancakes Ltd.

2. The first paragraph should bear the salient facts about the case and what you have been asked to advise about. The main conclusions, advice and the overall opinion should also be outlined. A percentage chance of success can be included in this section if appropriate.

3. The subsequent paragraphs should set down the reasons both of facts and law for your conclusion. On a single head of damage in a case of negligence, consider the liability of every defendant and then consider the damages against every defendant as follows:

a) Liability of the first defendant

b) Liability of the second defendant

c) Damages against the first defendant

d) Damages against the second defendant

Questions of facts should not be answered by giving legal reasons but by giving factual reasons. A reason of fact can be the defendant was negligent because he had read the instructions manual which stated that the machine should never be switched on without the safety guard in place and nevertheless he did so. A reason of law would be negligence arises when the claimant is owed a duty of care by the defendant.

The paragraphs can be numbered.

Avoid irrelevancy which can be avoided by asking the following questions:

A) Is what you are writing on part of the opinion or is it a necessary step along the line of reasoning

B) Is what one is writing on part of the advice?

If the answer to this question is ‘No’, then whatever you are writing on is irrelevant. 

4. Next paragraphs should include the further advice such as the one on evidence or if there is no further evidence give a summary of the main aspects of your opinion.

REFERENCES

• Kenyatta University School of Law. (n.d.). Legal writing 201 Handout .

• Legal writing. (n.d.). Retrieved November 28th, 2011, from sparknotes: www.sparknotes.com

• Walinski, K. (April 28th,2011). How to write a legal office memorandum.

Courtesy of Group Four(4) Memberrs Legal Research Class LPL102.s Legal Research Class LPL102.