Chapter 14 - Memorandum of Law

• also referred to as a trial brief, trial level brief , or a memorandum of points and authorities

Purpose and use

• explain a client’s position in a lawsuit and to convince the judge to rule in their favor

• tone is persuasive

Style

• choose words that emphasize the client’s position but are not obviously biased

• will be more persuasive if you include adverse facts and law as well.

• it should look inviting, with enough headings to see the flow of your writing

Organization

• a judge will be more inclined to read a short, straight forward, well organized memorandum

• readers will pay attention to the beginning and the end of a paragraph more than the middle

• only mention adverse facts briefly and downplay them

• put the strongest argument first

Format

• no one right format

• caption

  • name of the court, names of the parties, the case number, and the title of the pleading

  • it is also customary to include a sentence stating who is submitting the memorandum and why it is being submitted

• questions presented

  • several numbered questions for the judge to consider

  • be worded so that the judge can most easily answer in favor of the client

  • there should be enough information in each question that the judge can understand it without having to refer back to other parts of the memorandum

    • contains facts and law as well as the question

  • because the facts section follows the questions section put the most important facts up at the top.

• facts

  • create empathy by painting a picture from the clients perspective

• argument

  • the longest and most complex part of the memorandum

  • divided into subsections by “point headings” that answer questions presented

  • similar to the reasoning section of a law memo

  • you should present one or more thesis paragraphs, show the rule of law, and apply it to the facts of the case

  • your primary audience is the judge, make them your ally

    • don’t be argumentative or demanding

• thesis paragraph

• rule of law

  • a judge would appreciate a clear explanation of the law, but doesn’t appreciate being lectured

• application of facts to the law

• conclusion

  • you should include a summary of your argument in the conclusion section if you have not included it in the argument section

The Chain of Command

• Binding Law: this means the lower court has to follow the case or statute that you cite in your legal writing. (All courts in Florida are bound by the decisions of the Florida Supreme Court).

• Persuasive Law: this means that the lower court may follow the case or statute that you cite in your legal writing. (A Florida court could choose to follow a decision from a Georgia court, or it could ignore it).

The Chain of Command in Florida

• 1. In Florida the lowest tier of Courts is the County Courts. They hear minor criminal matters, traffic infractions, and civil matters with damages less than $30,000.00. UCF is located in Orlando, Florida which is Orange County.

• 2. The second tier is known as Circuits. Circuit Courts hear cases that include major felonies, family matters, and civil cases where damages are over $30,000.00. Orange County, Florida is located in the Ninth Judicial Circuit.

• 3. The third tier is known as District Courts of Appeals or DCA's. They are located throughout the state and hear cases originating from multiple circuits. The Ninth Judicial Circuit is located in the 5th DCA which is located in Daytona Beach, Florida.

• 4. The Final tier is the Florida Supreme Court. It is the Court of Last Resort in the State of Florida and is located in Tallahassee, Florida.