CHAPTER 14 (ASE BRIEF AND MEM ORANDUM e! ot og Legal Meraorandum pneetis ofa Legs! Memorandum 4 Bleny of a Legal ‘Memorandum 5 postal and Baternal Memoranda jovermal OP" aistency of Legal Memoranda Paints for Legal Researchers ‘re a Legal Memorandu i as Prepare a Case Brief a Ste rel Form ‘ ‘ample Case Brief pARNING OBJECTIVES jing this chapter, you should understand: erm tance of Legal nS ES Elements of a Legal Memorandum ‘Anatomy of a Legal Memorandum Internal and ‘External Memoranda Taternal Consistency of Legal Memoranda ‘Miditional Points for Legal Researchers How to Prepare a Legal Memorandum How to Prepare a Case Brief vvvvvvvy — FFETE 1. Importance of Legal Memorandum ‘There are three basic reasons why legal memorandum is inportant. Elias and Levinkind (2008) stated the following. The first is that you would not really know whether your research is done until you try to write it up. You have undoubtedly had the experience of thinking you understood something until the moment when you had to pen to paper. The same is arch. You ink you have answered the(CH & BIBLIOGRAPHY ong p, LEGAL RESE 274 become more proficient, yoy perchd ar a informal way of checking AY pene ada important function of Ba eer with an accessible real memorandum ig Prpearch after time has eracce a the fruits of Your mind. It is unfortunately commer, 2 memories from Seas or two of research in the law jj people to put eid neglect to take an extra hour op two | on a particule rater have to spend another day in te | Hany beenuse they are unable to use their nou’ Ff found. ; scone ree reac eT es a je third is to communicate the results of ee eee oe hecessary if you are eae doing research for a supervising lawyer, ort SP eee nere Sees inform the judge oe pete party of what you have found. A Blements ofa Legal Memorandum tog ATA @ legal memorandum is a skill that requires lots Practice, A legal memorandum is a highly structured type of writing in conventions. Judicial opinions usually have fat legal of the issue or issues ing on the issue or issues, and the reasoning underlying the holding. - legal memoranda should include a Statement of the issue or issues, & is (equivalent to the holding) and a d a particular conclusion (Bliss, should identify the author xd nd include the date, clettHR 14- CASE BRIpp one? AND Memo _ acts. The Facts portion shoutg 4, 2 Jou have relied in research’ tie Ifyou have made assumption” .°"4 prey “ the facts objectively and clears’ Micate this ™® the J. Use definitions to standay4 YY, the, josie) things that will be referee”, terming ort is petane tine 4 : sirae ts portion can either pr Mgsions portions of the memorangeqe” {HOW the 1 ws Come il ot make sense withow se Y oath 'y, if the Facts ponte, Faets ats fist Alternative is quite lengthy, your a sear Conclusions first. reader may want to ace psu 38, Issues. The Issues portion of «a You must succinctly identify the commer een marandum ts entext of the facts of your case. Inch ues, within ‘ tude legal elements that are wal to resolution of the issues, 34, Conclusions. When preparing a legal that your reader does not want to be aE ar Gap, dear, responsive answer must be provided as nem the feenning of your memorandum as possible. 35. Discussion. The Discussion section is the heart of the senorandum. It provides the venue for explaining and analyzing law, and applying it to your facts. The Discussion section be broken down into a separate part for each discrete legal ed in the memorandum. The discussion of each issue e an introduction, an explanation of the applicable n application of the rule to the legal problem, and a n respect of that issue. The classic formulation for this first step is to state the legal issue. This can be a couple of ways. You can summarize the issue 1 n of a topic sentence or ee eae le is to use a thesis sentence En t the issue is, but tells the jon i \e. fly what your conclusion is on the issi. so be referred to in the heading for this Pat a0g LEGAL REDene~-- 7 SNES step is to determine the applicable The econ review and analysis of the ree le his fos, and secondary sources. Tt is sometimes yet statutes Mpxplanation. Depending on the nature ig yale, you may need to review the history ofthe S et consider the policy rationale for the rule. Yoq ri find there are different lines of cases, each resulting. iid fifferene formulation of the rule. Try to approach iy8 Stet using rules synthesized from the cases rapt sfc simply listing a series of individual cases. “Aye! Tengthy quotations from eases. This section inc) Analysis of the rule, but does not include application or the rule to your facts. ind step is to apply the legal rule to your sae aaa eee further analysis and weighing of indivigea, cases, distinguishing cases, making counter-arguments, and considering policy issues. ‘The last step is to state your conclusion on the legal issue being discussed. Although you will include an overall conclusion elsewhere in your memorandum, it important to reach a conclusion on each legal issue as it is dealt with in turn, *Adapted and Reprinted with permission from Catherine Best. htttp:/Megalresearch.org/docs/process13.html#Legal’s20memoranda, 2007. 4, Internal and External Memoranda Internal memoranda are intended solely for one’s own useat the use of the law firm. External memoranda, commonly “briefs” or “memoranda of points and authorities,” or "me laws" are documents ordinarily submitted to the court in of lawsuit to advance a particular position with th Briefs differ from letter et Purpose. While letters and primarily to inform and According to Bouchoux (1 briefs are therefore diff crafted with its objective client's favor” The brief submit same with respect to thanJoa veer wenn AND one MEMORAND, * vy «side and attempts to dist i aon (lias, 2003). Tn Addie wh eae RSTO diffe hen is ference of opin: po Tie now much You have to ackag ee. atong y ore ge land authorities that are agar and deal ith Oe thority. i# Obscure and hard et ZOU He the ra your situation marginal at bey M2 OF ity ‘arte able and not mention i hoping gga faage and the judge's clerk will enna, te other in aide it inapplicable. On the other pane’ ind it emiionty that i8 squarely against you, your fyi eet’ jg author ill undermine your credibility, see enti gal memoranda in the sen: ish, tion, Eling CoN"Dlays as and Days a8 det? § der the J $2 we are talki the other hand, are not; talking 2 , in sooth, advancing @ particular position, ‘Weg, ion. Re svgomemged to accurately summarize the fare” ai av intearch regardless of whether they hel, el Ron. Both sides need to be presented, where, memorandum is for your own use or is to be turned th Ma supervisor. Of course, when you get to cou Gt art, you or the attorney you are assisting will want to Wnnasize the arguments and legal authority that best ‘Erance your position. osama siniernal Consistency of Legal Memoranda ‘The structure of the legal memorandum must be internally caxistent. The discussion of the reasoning that one use to arrive at te conclusion has to include cases or statutes that are relevant to ‘te facts that one has listed in the memo. If the law sources and pone match up on some level, the reasoning is faulty (Elias inkind, 2003). _ According to Elias and Levinkind (2003 sasiteney requirement sometimes means that one aud or subtract a fact or two, or sligh Suet ee conclusion or reas a television set or “rbbeadjuated relative to each iy, order that the memora ae the guidelines for Be Objective. The. hm is remaining unbARCH & Bim Baal BES 378 5.2. Be Perce. 8. Be CO esearchers I : points for Legal Ri “rte jjonal Pow y be useful for legal tae al points may Tias and Levinkinge ny, ‘Three Bie memoranda. as the leg te fore the (lIOWINE: sually a g00d idea to lige the inted out first 15: ed, even if some or mang 7 TMpat yOu pemec fp because attorneys like t. fee] i ng not pan out thorough vour legal research, cece, and the mors (esl, For example. in any gives | re aoc might check a local digest or two ge research project YOU THEN’ Go eal encyclopedia, Even | acme sicon ofa ons enarelra Even though 308 only corey will feel better knowing thet encyclopedia. "ed out the other resources. youve a ned point is, Keep your sentences short ang edhe ee caaiLle iv ial all ecoaees Tats a avoid iermnva research project and produce mile lore feranpeeee Do not. Caer thidipaiat a, allistatementa about what the is should be supported by some. primary legal faves are statutes, regulations, cases or Eeraieatonieaberalibee erala generally comprise somebody else's opinion about what the law ie. Tr ie okay and even desirable to include references to these secondary or background sources, but they cannot replace primary authority. 7. How to Prepare a Legal Memorandum Now that one legal memorandum, 1 Fora much more intensive, y fnalyze case law and p, | Case Analysis Thomson, Learning 199, under the subject “Legal waa Me a The following igCHAPTER 14~ CASE BRIEF AND MEMORANDA 979 | pid I put down alll facts that jeue af stated, and to my legal conclanioaat © mY leeal » Did I state the legal issue clearly? | pid [arrive at a definitive conclusion isgue as spot to my fact? about the legal Did I state clearly the reasons for my conclusion pile presenting all sides of the legal pietune? pid I support my conclusions with primary legal authority? ow to Prepare a Case Brief “after searching for case laws or jurisprudence as discussed chapter 13, one can recall that in the Philippine legal system, it in MPC ficient to just merely read the statute, “Reading ating, analysis cases or jurisprudence are of critical interPrree to all involved in the legal profession, Hence, it is inpemant for the legal profession to leam how to prepare ‘a case briet 4 most common elements to be included in a case brief are 3H slowing: tbe ey, Name of the case. 82, Citations. All parallel citations should be included as ells the date of the decision. 3,3, Procedural History. This a brief summary of the holdings of any previous courts and the disposition of the case by this court. It therefore describes how the case got to this court and how the court resolves the case. 8.4, Statements of Facts. It contains the summary of the relevant facts of the case. 8.5, Issue. In most instances, courts will state the issue of the case, but in some instances, court will not, hence, one must formulate the question/s or issue/s being decided by the court. 8.6. Answer. Provide the answer to the question resolved by the court. In addition to the a W complete sentence is used incorporating 8.7. Reasoning. The most i discuss the reasons by which the ¢ 8.8. Holdi Such as, “affirmed” “a9p 14- CADE: ISLE AND MEM pve IORANDA 981 MATIBAG v. BENIPAYO G.R. No. 149036. April 2, 2002 ord HistoFan original Petition for Prohibition with pr on of a wit of preliminary injunction and a Benassy jcosieiimeer under Rule 65 of the 1997 Rules of Givi ‘ar0308 Potitioner Ma. J. Angelina G. Matibag (‘Petitioner” for ec Pigs the constitutionality of the appointment and the fet) eer Gfice of the following: (1) Alfredo L. Benipayo gant 0 Hole’ previty) as Chairman of the Commission on (Ba©°, OMBLEC" for brevity); and 2) Resurreccion Z. Borra ns (Crrevity) and Florentino A. Tuason, Jr. (Tuason’ for On) eCOMELEC Commissioners. nt of Facts President Gloria Macapagal Arroyo appointed, ad interim, ope as COMELEC Chairman, and Borra and Tuason as Sel gC Commissioners, each for a term of seven years and all cgirng on February 2, 2008. Congress adjourned: before the (Eyssion on Appointments could act on their appointments, The Bmintments were renewed. Chairman Benipayo reassigned uimer to the law department. Petitioner's appeal for Fonideration was disapproved. Petitioner filed the instant twitio questioning the appointment and the right to remain i «fie of Benipayo, Borra and Tuason, as Chairman Connissioners of the COMELEC, respectively. Petiti tut the ad interim appointments of Benipayo, Borra vee the constitutional provisions on the i COMELEC, as well as on the prohibiti ‘ointments and reappointments of its Chai sue: a Whether or not the assumption of fe Prt on the basis of the ad inter ident amounts to a tem| 1), Article IX-C of the Cot Seton “sue only for brevity). (ReisGAL RESEARCH & BIBLIOGRAPHY © vy 2s2 7 , Benipayo, Borra Answer tion of office by ae No, the assum?) interim appointments issued by the Bg the basis of i o.a temporary appointment prohibited wy tian due not ameTe-C of the Constitution. Ad interim appt’ cc Article TX oe in character. pose ae im appointment is a permanent ay. Perera aindiatalyiandcen bole bem re the President once the appointee has qualified ines a Peer iaatects confirmation by the Commi Appointments does not alter its permanent ehar sl < it it interim appointment stitution itself makes an ad int 1 t bas : aaa by making it effective until disapproved pet i i il the next adj Commission on Appointments or until tl adjour Congress. The second paragraph of Section 16, Article Vag Constitution provides as follows “The President shall have the power to appointments during the recess of the Congress, what? voluntary or compulsory, but such appointments shall be (fective only until disapproval by the Commis. on Qzpointments ‘or until the next adjournment a the Gonaren {Emphasis supplied) hus, the ad interim appointment remain, eth disepproval or next adjournment, signing thet tan 1 4 longer be withdrawn or revoked by the President.