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Preparing a legal memorandum

A legal memorandum presents research and analysis and applies the research and analysis to
particular facts. A legal memorandum follows a general structure and follows certain
conventions. The structure and conventions are discussed below, and a sample memorandum is
included.

Because each legal problem is distinct, no two memoranda will be organised in precisely the
same way. Do not slavishly follow the sample memorandum, and do feel free to incorporate
your own style where appropriate. The goal of this page is to help you learn about the general
structure and components of this form of writing, and apply them to your research assignment in
the most effective way for your particular problem.

A legal memorandum is comprised of certain standard elements:

 heading
 succinct identification of the legal issue(s)
 short summary of your conclusion
 review of relevant facts
 discussion of the law relevant to the legal issues, and application of that law to the facts
 ultimate conclusion that is responsive to the legal issues.

Each of these elements is discussed in greater detail below.

The heading
The heading should identify the author and recipient of the memorandum, and include the date,
client identification, and subject matter. See the Sample Memorandum for an example of a
typical heading.

Issues
The Issues portion of the memorandum is crucial. You must succinctly identify the correct legal
issues, within the context of the facts of your case. Include legal elements that are essential to
resolution of the issues.

The more narrow and descriptive your issue statement is, the more effective it will be. Compare
these three issue statements, derived from the sample memorandum research problem:

#1Is the security enforceable?


Will security documents signed and registered using the debtor’s common law name be
#2enforceable against the debtor and the debtor’s creditors if the debtor later changes to using his
legal name?
Will personal property security documents granted in favour of the Bank, signed and
registered in British Columbia using the Debtor’s common law name David Black, be
#3
enforceable against the Debtor and the Debtor’s creditors now that the Debtor has changed to
using his legal name David Brown?

 #1 asks the basic question that needs to be answered. However, when compared to #2
and #3, it is clearly inadequate. It provides no context for anyone who is not immediately
familiar with the case, and does not add value to the memorandum as a precedent for
future cases.
 #2 is a good issue statement. It provides a concise summary of the legal issue, and
includes the essential elements. It is less wordy than #3, making it easier to read and
understand. However, it is less complete than #3, because it does not incorporate the
specific facts of the case.
 #3 is an excellent issue statement. It sets out the precise legal issue to be resolved. Just
as each legal case is decided within the confines of the facts of that case, a legal
memorandum is intended to address the narrow legal issue raised by a particular problem.

If there is more than one issue to be addressed, list the issues in the order in which you will be
discussing them in the memorandum.

See the Sample Memorandum for an example of the Issues portion of a legal memorandum.

Short conclusion
Here, you can provide a brief, up-front statement of your conclusion(s).

Remember that your reader does not want to be kept in suspense. A crisp, clear, responsive
answer must be provided as near the beginning of your memorandum as possible. See
the Sample Memorandum for an example of the Short Conclusion portion of a legal
memorandum.

Facts
The Facts portion should list the relevant facts on which you have relied in researching and
preparing the memorandum. If you have made assumptions, indicate this. If you have relied on
any documentation (e.g. from the client), indicate that too.

State the facts objectively and clearly. Usually, the order is chronological. Use definitions to
standardize terminology for persons and things that will be referred to frequently in the
memorandum. This prevents clutter and inconsistent references to the same thing.

If your matter relates to litigation, make sure to review the key parts of the procedural history,
and note the current stage of proceedings.
The Facts portion can either precede or follow the Issues section of the memorandum.
Various formats are listed below. If the Issues will not make sense without reference to the Facts,
then put the Facts first. Alternatively, if the Facts portion of the memorandum is quite lengthy,
your reader may want to see the Issues first. (You may have cited some facts already, in your
Short Conclusion section.)

See the Sample Memorandum for an example of the Facts portion of a legal memorandum.

Which format?
There are various ways of dealing with conclusions in a legal memorandum:

Format 1 Format 2 Format 3 Format 4


Facts Issues Facts Issues

Issues ConclusionsIssues Brief Answer

ConclusionsFacts Brief AnswerFacts

Discussion Discussion Discussion Discussion

Conclusion Conclusion

If you follow the model of including your Short Conclusion early in the memorandum, keep that
section extremely brief (three-four sentences, maximum). You can then provide a more detailed
Conclusion at the end. If your Short Conclusion and your Conclusion are likely to be identical,
use Format 1.

Equivocation / opinion
One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when
the law is uncertain generally, or as it applies to your facts. Since the purpose of the
memorandum is to answer the legal question posed, you cannot simply say that the law is unclear
and leave it at that. You have to trust that your research and analytical skills enable you to
provide a reasonable answer.

In some circumstances there may be a practical solution that enables you to avoid confronting
the uncertainty in the law. The sample memorandum provides an example of this. However,
usually you have to make a decision about what a court would likely do if faced with your fact
situation.

Don’t hesitate to offer your own opinions, as long as they are well-grounded in the law and facts.
Try to avoid using equivocal language in your memorandum where possible. This is particularly
important in the Conclusion section. Sentences that begin with the phrase “It would appear that”
or “It seems that” should alert you to equivocation.

By all means indicate where the law is unclear, and absolutely state the risks of the client’s
position. But also state what you think is the better view or probable outcome, and the client’s
chances of success if applicable.

Analysis and discussion


The Discussion section is the heart of the memorandum. It provides the venue for explaining and
analysing the law, and applying it to your facts (let the word “synthesis” guide your approach to
this section). The Discussion section should be broken down into a separate part for each discrete
legal issue covered in the memorandum; subheadings are helpful here. The discussion of each
issue should include an introduction, an explanation of the applicable legal rule, an application of
the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation
for this is known as IRAC.

The first step is to state the legal issue. This can be done in a couple of ways. You can
summarize the issue in the form of a topic sentence or question. The most effective style is to
I use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader
briefly what your conclusion is on the issue. The issue can also be referred to in the heading for
this part of the Discussion section.
The second step is to determine the applicable legal rule. This involves a review and analysis
of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule
explanation. Depending on the nature of the legal rule, you may need to review the history of
the rule and consider the policy rationale for the rule. You may find there are different lines of
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cases, each resulting in a different formulation of the rule. Try to approach this section using
rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid
lengthy quotations from cases. This section includes analysis of the rule, but does not include
application of the rule to your facts.
The third step is to apply the legal rule to your facts. This involves further analysis and
weighing of individual cases, distinguishing cases, making counter-arguments, and considering
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policy issues. Don’t be so concerned about advancing a particular position that you forget to
consider and weigh the other side(s) of the argument.
The last step is to state your conclusion on the legal issue being discussed. Although you will
Cinclude overall conclusions elsewhere in your memorandum, it is also important to reach a
conclusion on each legal issue as it is dealt with in turn.

IRAC need not be applied rigidly as long as all the elements are covered. Your decision about
how to divide up the legal issues will influence the way that you apply IRAC.

 For example, if you are dealing with cases from a number of different jurisdictions you
can structure your discussion separately for each jurisdiction, or cover all jurisdictions
when you deal with a particular issue.
 You may want to discuss each sub-issue separately. However, if that would result in
repetitive discussion of the same cases in different sections of the memo, it might be
better to combine your discussion of some of the sub-issues.

See the Sample Memorandum for an example of the Discussion portion of a legal memorandum.

A note on citations
Your memorandum may be used to draft a letter to the client or a brief to the court, so it is
extremely important to cite all of your sources (and pinpoint to paragraph or page numbers as
much as possible). It is better to err on the side of providing too many citations than not
providing enough. Remember that the ultimate goal of legal citations is to ensure your reader can
easily find any of the material you reference.

The Sample Memorandum uses in-text citations. You may choose (or be asked) to use footnotes
or endnotes instead. It is important to adopt a consistent style throughout your memorandum,
rather than switching between in-text citations and footnotes.

You may also wish to include hyperlinks in your citations where appropriate.

Please see also the page dedicated to legal citation.

A note on bibliographies
If your memorandum is especially long or complex, you may wish to provide a bibliography at
the end, listing all of the authorities you have cited. This bibliography can be divided into sub-
sections for legislation; jurisprudence; and secondary materials (like textbooks and journal
articles). The items in each section should be listed in alphabetical order.
SAMPLE LEGAL MEMORANDUM

Republic of the Philippines


Municipal Trial Court
Sixth Region
Branch 7

INJURED PASSENGER
Plaintiff, For Damages

-versus- CIVIL CASE NO. 72-131411

ZOMBIE TRANSPORTATION COMPANY


Defendant,
x-----------------------------------x

DEFENDANT’S MEMORANDUM

The undersigned law firm most respectfully enters its appearance as counsel for the Plaintiff
INJURED PASSENGER in the above-entitled case. Henceforth, it is most respectfully prayed
that all notices and other legal processes be sent to and furnished the undersigned at the address
indicated herein below.

AND BY WAY OF MEMORANDUM-

Plaintiff INJURED PASSENGER, thru the undersigned counsel and unto this Honorable
Court, respectfully submits this MEMORANDUM in compliance with the 27 December 2014
Order of this Honorable Court which was received by defendant on 05 January 2015, requiring the
parties to file their respective Memorandum within thirty (30) days from receipt or until 04
February 2015 as for the plaintiff.

STATEMENT OF THE FACT

In order that this honorable court may be enlightened and guided in the judicious disposition of
the above-entitled case, cited hereunder the material, relevant and pertinent facts of the case to
wit:

1. Plaintiff Injured Passenger is a commuter of a public utility vehicle.

2. The defendant Zombie Transportation Company is the owner of the public utility vehicle.
3. A vehicular accident occurred when the public utility automobile owned by the defendant
collided with another vehicle.

4. Due to this unfortunate event, the plaintiff, Injured Passenger sustained injuries and was brought
to hospital on account of which dealing with incurred expenses.

5. According to the investigation, it was found out that the vehicular accident was due to the
negligence of the driver of the Zombie Transportation Company.

STATEMENT OF THE ISSUES

DEFENDANT IS LIABLE
FOR BREACH OF CONTRACT OF CARRIAGE

II

DEFENDANT DID NOT OBSERVE


EXTRAORDINARY DILIGENCE
REQUIRED BY THE LAW

III

PROXIMATE CAUSE DID NOT BAR


THE ACTION FOR DAMAGES
AGAINST DEFENDANT

IV

DEFENDANT IS LIABLE
FOR THE DAMAGES INCURRED
BY THE INJURIES OF THE
INJURED PASSENGER

ARGUMENTS/DISCUSSONS

DEFENDANT IS LIABLE
FOR BREACH OF CONTRACT OF CARRIAGE

____________________________________
The operator of a public utility vehicle is a common carrier in the eyes of the law. A
common carrier is a person, corporation, firm or association engaged in the business of carrying
or transporting passengers or goods or both, by land, water, or air, for compensation, offering such
services to the public.1
In consideration of the defendant Zombie Transportation Company, diligence of a good
father is not enough. Contracts of common carriage are governed by the provisions on common
carriers of the Civil Code, the Public Service Act, and other special laws relating to transportation.2
A common carrier is required to observe extraordinary diligence, and is presumed to be at fault or
to have acted negligently in case of the loss of the effects of passengers, or the death or injuries to
passengers.3
To overcome the presumption, the Zombie Transportation Company must prove that it
exercised extraordinary diligence. However, it failed to fend off the presumption by which it would
be tantamount to liabilities for the damages of the negligence of the driver.
__________________________________
1
Article 1732, Civil Code of the Philippines
2
Commonwealth Act No. 146, as amended, particularly by PD No. 1, Integrated Reorganization Plan and E.O. 546.
3
Article 1756, Civil Code of the Philippines
II

DEFENDANT DID NOT OBSERVE


EXTRAORDINARY DILIGENCE
REQUIRED BY THE LAW
_________________________________

The Code Commission, in justifying this extraordinary diligence required of a common


carrier, says the following:

A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautions persons, with due regard
for all circumstances. This extraordinary diligence required of common carriers is calculated
to protect the passengers from the tragic mishaps that frequently occur in connection with rapid
modern transportation. This high standard of care is imperatively demanded by the precariousness
of human life and by the consideration that every person must in every way be safeguarded against
all injury.4 (Emphasis supplied)

The principles governing the liability of a common carrier can be summarized as follows:
(1) the liability of a carrier is contractual and arises upon breach of its obligation. There is breach
if it fails to exert extraordinary diligence according to all circumstances of each case; (2) a carrier
is obliged to carry its passenger with the utmost diligence of a very cautious person, having due
regard for all the circumstances; (3) a carrier is presumed to be at fault or to have acted negligently
in case of death of, or injury to, passengers, it being its duty to prove that it exercised extraordinary
diligence; and (4) the carrier is not an insurer against all risks of travel.5

The question now arises whether the defendant Zombie Transportation Company observed
extraordinary diligence required for common carriers. Unfortunately, based on the findings on the
facts of the case, the driver of the PUV caused the vehicular accident. By which this incident
sustained injuries to the plaintiff Injured Passenger.

The presumption of negligence, being a presumption of law, laid the burden of evidence
on their shoulders to establish that they had not been negligent.6 It was the law no less that required
them to prove their observance of extraordinary diligence in seeing to the safe and secure carriage
of the passengers to their destination. Until they did so in a credible manner, they stood to be held
legally responsible for the injuries of the passenger.7
__________________________________
4
Report of the Code Commission, pp. 35-36, Padilla, Civil Code of the Philippines, Vol. IV, 1956 ed., p. 197 .
Article 1755, Civil Code of the Philippines
5
Isaac vs. A.L. Ammen Transportation Co., Inc., G.R. No. L-9671, August 23, 1957, [J., Bautista-Angelo]
6
31A CJS, Evidence §134, citing State Tax Commission v. Phelps Dodge Corporation, 157 P. 2d 693, 62 Ariz. 320; Kott v. Hilton, 114 P. 2d 666, 45 C.A. 2d 548; Lindley v.

Mowell, Civ. Ap. 232 S.W. 2d 256.


7
Sps Pereña vs. Sps Zarate, G.R. No. 157917, August 29, 2012, [Bersamin, J.]

III

PROXIMATE CAUSE DID NOT BAR


THE ACTION FOR DAMAGES
AGAINST DEFENDANT
_________________________________

Proximate cause is defined as an act from which an injury results as a natural, direct,
uninterrupted, consequence and without which the injury would not have occurred.8 The doctrine
of proximate cause is applicable only in actions for quasi-delict, not in actions involving
breach of contract. The doctrine is a device for imputing liability to a person where there is no
relation between him and another party. In such a case, the obligation is created by law itself. But,
where there is a pre-existing contractual relation between the parties, it is the parties themselves
who create the obligation, and the function of the law is merely to regulate the relation thus created.
Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those
respecting the diligence required of common carriers with regard to the safety of passengers as
well as the presumption of negligence in cases of death or injury to passengers.9 It provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,
1735, and 1746, Nos. 5,6, and 7, while the extraordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with due regard for all
the circumstances.
In the case at bar, it is evidently stated in the facts that Zombie Transportation Company is
at fault on the vehicular accident. The collision was due to the negligence of the driver of the PUV
owned by the defendant. Hence, the proximate cause is the laxity of the driver which the
presumption of law is proven.
___________________________
8
www.legal-dictionary.com

9
Calalas v. Sunga and Salva, G.R. No. 122039. May 31, 2000
IV
DEFENDANT IS LIABLE
FOR THE DAMAGES INCURRED
BY THE INJURIES OF THE
INJURED PASSENGER
_________________________________

Failure to prove that Zombie Transportation Company exercised extraordinary diligence


or utmost diligence of every cautious person, having due regard for all circumstances, in avoiding
the collision which resulted in the injury caused to the plaintiff is tantamount to civil damages for
the injured passenger.
Moreover, it was manifestly established that the proximate cause of the accident is the
negligence of the PUV driver owned by the company. Assuming arguendo that the truck was the
legal cause of the collision, still it is not a valid defense for breach of contract in the case of
common carriage. Without proving that it carried the passenger safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons, with due regard for
all the circumstances required by Article 1755. The legal basis for this is:
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
Thus, the defendant Zombie Transportation Company is liable to the civil damages
incurred by the injured passenger.
CONCLUSION

In summary, the defendant Zombie Transportation Company did not observe the
extraordinary diligence required for common carrier. Unable to break the presumption of
negligence prescribed by law give rise to the liabilities incurred and sustained on the injuries on
the passenger.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable


Court that an Order be issued resolving the claims here in Plaintiff Injured Passenger be granted.

Other reliefs deemed just, proper and equitable in the premises are likewise most respectfully
prayed for.

RESPECTFULLY SUBMITTED.

Tigbauan, Iloilo, Philippines, 16 January 2015

PALMA LAW OFFICE


Counsel for Defendant
Rm.72, Santos Bldg.
La Paz, Iloilo City

By:
KYTH L. PALMA
PTR No: 72131413
Roll No. 5272
IBP No. 92356
MCLE No. 1453