TRIAL MEMORANDUM WRITING

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Notes compiled by Atty. Jerome J. Jarales

Introduction

Memorandum is the litigants written statement of legal arguments presented to the court,
usually in the form of a brief. The trial memorandum refers to that document submitted after
the court has held trial and the parties to the case already heard. Brief is the written statement
setting out the legal contentions of a party in litigation. It is the document prepared by counsel
as the basis for arguing a case, consisting of legal and factual arguments and the authorities in
support of them. This contains information on the facts of the case, legal issues to be decided,
laws the court ought to apply, and decision the party desires the Court to reach.

Purpose

In general, the purpose of the trial memorandum is to assist the court in deciding the case, the
lawyer being an officer of the court. In aiding the court, the lawyer actually persuades or
convinces it to rule in its favor.

The immediate goal of every litigant is to write an effective memorandum, and each
memorandum is different. Many ineffective memorandum, however, contain almost the same
mistakes, irrespective of subject matter. In the US, for instance, a survey revealed that more than
93% of the lawyers and judges believed that the memoranda they saw were marred by basic
writing problems, including a lack of focus (76.1%), failure to develop an overall theme or
theory of the case (71.4%), and failure to be persuasive (66.4%). Another recent survey shows
that judges are critical of lawyers inability to use relevant, controlling authority to their
advantage.

It helps the writer to imagine how the court would likely to react to the legal and factual
information set out in the memorandum. Just like in any other document, the trial
memorandum writer sees to it that the reader is holding in his hands an interesting, concise,
well-organized, and well-written manuscript, one that that is likely to hold the judge's attention
from beginning to end.

Functions

The trial memorandum serves several functions. It is, first and foremost, the vehicle for
transmitting to the judges the necessary information about your case and the arguments in
support of your position. But even the non-argumentative portions of the memorandum - the
table of contents, the statement of issues, and the table of cases - can serve a persuasive
purpose. While they are not arguments in themselves (as they usually non-argumentatively),
they make the judges' task easier and less time-consuming, for they serve not only as an
introduction to the case but also as the judges' guide - a roadmap providing ongoing assistance
throughout the deliberative, decisional, and opinion-writing stages of the appeal. As such, they
are a part of the persuasive process.

The memorandum is essentially a document from which busy judges need to be able to quickly
extract the gist of the case. Without exception, a persuasive memorandum must be both concise
and readable, written in a manner and style conducive to gaining and holding the reader's
interest. The winning party will usually be the one whose brief best presented the underlying
information about the case and was the most carefully and effectively organized and drafted -
and thus the most readily understandable.

Interest of the bar examinee

In the bar examination, the lawyers-to-be are given a set of facts (usually hypothetical) involving
a case heard by a trial court. The facts however need to be extracted from the transcribed
stenographic notes taken during trial. As examinee, your task is to assume that you are the

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citation of authorities omitted

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lawyer either for plaintiff of for defendant and to write a trial memorandum for the side you
have chosen to represent. In writing your trial memorandum, you keep in mind that you would
want to convince the trial court to decide the case in your clients favor. For the students
convenience the legal research is presumed to have been done such that the questionnaire
already includes citation of authorities that may be of help to you in drafting your
memorandum.

Before writing the memorandum

It is always a good idea to read and understand fully the facts of the given case. Having a full
understanding of the facts makes it relatively easy to understand what issues need to be
resolved. Only when all the facts are completely understood and the issues clearly identified and
defined should the examinee decide which side to represent.

In deciding which side of the controversy to take, it is advisable to choose that which you
believe should prevail in the case if you were the judge. After all, it is a lot easier to argue on the
side you believe in rather than on the side you are hardly convinced of.

But this is not always easy to do, especially when both claims of the controversy appear to be
defensible and convincing. When this happens, bear in mind the ultimate goal of the
memorandum to persuade the court to rule on your side, on the presumption it is more
consistent with justice and equity. And you cannot convince the court or anybody else unless
you first convince yourself. Elsewise stated, if you cannot even convince your own self of the
merits of the side you have taken, you cannot expect to have a convincing trial memorandum
either. In order to convince yourself, you may have to go back again to the importance of
obtaining a clear understanding of the facts and the issues involved. This means that you must
not only understand fully the side you are taking but also the opposing partys side. Knowing
both sides of the case is important to effectively present and defend your case. It also helps a lot
to appreciate the facts and issues in the light of laws and jurisprudence applicable to the case.

One way of helping you decide is to formulate a theory of the case that particular line of
reasoning aimed at bringing together the material facts in a logical sequence and correlating
them in such a manner as to produce in the mind of the court a definite result or conclusion
that the party is entitled to the remedies prayed for and that the court is capable of granting the
same. The theory of the case serves as the theme of the trial memorandum and permeates every
part of the document.

Every part of the memorandum should support that theory: the facts section, the headings, the
introductory paragraph summarizing the argument, the explanation of the governing law, the
key facts selected to support the legal argument, the issues presented, etc.

Fundamental parts of a trial memorandum

1. Introduction -- It is always a good idea to start with an introductory paragraph so that the
court is instantly attuned to what issue the memorandum addresses.

2. Statement of the Case This immediately apprises the court of the nature of the case such
that in resolving the issues involved the courts attention is substantially narrowed down to a
specific set of relevant and applicable factual and legal matters that need to considered.

3. Statement of Facts This part presents the facts relevant to the issues along with those
background facts necessary to establish context (such as names, dates, and places). It should be
organized logically, and should not include irrelevant information. However, it must include all
of the facts that you use in the discussion of the issues and arguments.

It is very important to remember to include those facts that you will later mention in your
argument. Corollary, do not include facts that are unnecessary for your argument. Weave the
facts with a view to making them fit into the applicable law and jurisprudence that will support
your theory of the case.


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Always assume that the reader is learning about the case for the first time. The statement of the
facts should not be convoluted it should offer a clear, concise description of the circumstances
giving rise to and surrounding the case. If the issue in the case involves questions on the rules
of procedure, within the statement of the facts should be a few sentences concerning the
procedural history of the case.

NOTE: It is a mortal sin to make unsupported factual assertions.

The tendency for a litigant is to state the facts in an argumentative manner. It is equally
important to remember that no matter which side you're on, make it a point to state the facts in
a neutral and objective manner. You must be subtle in your presentation, putting the facts that
favor the trial judge's action in the best possible light. You can accomplish this goal by (1)
providing greater detail in your descriptions of crucial facts, or (2) providing additional context
for the judge's actions and rulings.

Don't recite facts for recitation's sake. It may feel good to do it, but it is distracting to the judge
and often tests their patience with you and your arguments. Hence, keep your facts as relevant
only as possible.

4. Statement of the issues -- This is the sine qua non portion of the memorandum, or that
without which there would be no practical purpose of a trial memorandum. Here the
memorandum identifies and defines clearly the issues to be resolved in view of the facts
presented. Where some factual allegations are disputed, the trial memorandum includes therein
questions of fact or those that require the appreciation of evidence to resolve the controversy.
When the factual issue is already resolved, or otherwise undisputed, the memorandum may
include only legal the issues or those which call for the application of or interpretation of the
law in a given factual circumstance.

5. Arguments and discussion -- This is the core of the trial memorandum. This part discusses
all the facts and laws relevant and necessary for the resolution of the identified issues.

6. Prayer This is where the pleader categorically declares to the court the relief or remedies
sought to be granted in his favor. Aside from the specific relief prayed for, the litigant usually
includes therein a catch-all prayer: All other relief and remedies as may be consistent with
justice and equity are also respectfully prayed for.

Writing the arguments and discussion

Arguments and discussion must be well-organized and convincing. More often than not, the
party will win or lose his case based on the quality and substance of what is stated in the
memorandum. Some tips are as follows:

i. Use argumentative headings based on the issue presented.
If your discussion includes more than one major issue, consider placing a subheading above
each issue. Your discussion would start with an overall thesis paragraph identifying all of the
issues, which would be followed by two or more sections with subheadings. (Note, however,
that although subheadings help the reader figure out when you are addressing a new issue,
they are not a replacement for topic sentences.)

ii. Prefer statutes or rules to cases. If there is a statue or rule on point, discuss it before
discussing any applicable case law.

iii. Make analogies between your clients facts and the facts of decided cases explicit and
easy for the court to grasp.


Example:
Like the unattached garage in Picaroni, which was separated from the house by a
walkway, in this case the trailer was separate from Ms. Pelusos main house.



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iv. Make distinctions between your clients facts and the facts of decided cases explicit
and easy for the court to grasp.
Example:
Unlike the attached garage and enclosed patio in Cook, which qualified as
integral parts of the main house because they were akin to additional rooms,
here Ms. Murrays trailer does not share any door with the main residence.

v. Make it easy for the court to see that the result your memorandum advocates is
consistent with the policies underlying the results in binding precedent.
Example:
The public policy served by considering the attached garage and patio in Cook to
be part of the inhabited dwelling house imposing a more serious sanction for
the crime of burglarizing a place likely to be populatedwould not be similarly
served by expanding the definition to include the trailer here.

The flow of the arguments and discussion

i. Use topic sentences
Start each paragraph with a topic sentence to introduce the subject you intend to discuss. End
each paragraph with a transition bridge to the next paragraph. Words such as however,
moreover, and in addition can help create a seamless transition between independent, but
related, thoughts. Using transition language as you move from one point to the next contributes
to the overall cohesiveness of your writing.

ii. Use Transitions
Try to make the logical relationships between ideas even easier to grasp by using transitions,
such as in addition, by contrast, or in the alternative. If you are arguing in the alternative,
use transitions in the headings to make it easy for the court to grasp that you recognize that
two arguments are not consistent with each other.

For example, if the memorandum argues the
court lacks jurisdiction and then argues the merits, use a transition to signify that the arguments
are in the alternative, such as Even if this Court Has Jurisdiction or Regardless.

iii. Be simple
Simplicity is the mark of good writing. Complex sentence structure and organization is a sure
sign of confusion or hidden agendas. A well-written memo will be so simple and straightforward
in language and structure that it will leap off the page.

iv. Be clear
Clarity in word choice marks good writing. Clarity means three things: (a) choosing the right
word; (b) preferring simple words or combinations to complex ones; and (c) avoiding technical
jargon, except when essential.
Choosing the right word is more difficult than it appears. When you begin writing something,
certain stock phrases and terms roll out of your head onto the paper. These phrases and terms
are cues to what you want to say, but often they do not convey what you actually mean. To
communicate clearly, sort through alternative ways of saying what you mean. Get something on
paper. Then, use your vocabulary, the dictionary, or a thesaurus, and deliberately substitute
simpler words for complicated and ambiguous ones. Give special attention to verbs and active
voice.

Avoid falling into the pits of unintelligible and improper usage of the language. Lawyers like to
discuss, argue, define, and twist and turn definitions of terms until the most obvious meaning
becomes preposterous and the most absurd meaning suddenly seems reasonable.

Other matters to be considered are:

a. Avoid semantic ambiguity semantic ambiguity refers to the use of indistinct or obscure
expressions or use of words that can have more than one meaning in the relevant context. For
instance, "day" in the sentence:


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"The package must be delivered on the day of April 17" could mean (i) after daybreak and
before nightfall, (ii) during the working hours or (iii) within the 24-hour period from midnight of
April 16 to midnight of April 17.

b. Avoid syntactic ambiguity syntactic ambiguity refers to ambiguity at the sentence level.
Sometimes the writer misplaces words or fails to indicate what a word or phrase refers to, so
that the reader becomes confused or the sentence can logically have more than one meaning.
Sometimes subordinate clauses are misplaced so that it is not clear which words the clause is
supposed to modify. Conditionals can be ambiguous if they contain both "AND's" and "OR's."
Legal drafters can make use of several techniques to overcome syntactic ambiguity. The
technique of using "the said," "aforesaid," etc. is no longer considered to be good legal style
and should be avoided. It is better to use "this," "that," "it," "she" always with a clear, single-
phrase antecedent. Also, the drafters should write short sentences and arrange clauses in an
appropriate order to make the sentence clear.

c. Avoid quoting a foreign language without providing a translation.

d. Make your memorandum reader-friendly, that is, easy to read.

e. Write with style -- According to E.B. White, "A sentence should contain no unnecessary
words, and a paragraph no unnecessary sentences, for the same reason that a drawing should
have no unnecessary lines and a machine no unnecessary parts"

f. Be courteous -- Trashing anyone - an opponent, the trial court, the prosecutor - may relieve
the writer's tensions, but it is very counterproductive.

Courtesy is an often-overlooked element of an effective memorandum. Improper tone is a self-
created impediment to communicating your position to the court. Casting aspersions on your
adversary throws a shadow on your own standards and on the strength of your argument.
Trashing your opponent or, perhaps worse yet - from the judges' standpoint, at least - trashing
the trial court, will, at best, distract the judges from your arguments. At worst, it will irritate
them.

According to the U.S. Fourth Circuit when lawyers do themselves a disservice when their briefs
contain disrespectful or uncivil language directed against the district court, the reviewing court,
opposing counsel, parties, or witnesses....

g. Be candid -- Also remember that a good memorandum takes into account the weaknesses,
as well as the strengths, of the argument. It's not just a matter of candor, which is
unquestionably important to any legal document, but of effectiveness. Attempting to hide or
circumvent weaknesses in your position is counterproductive. It will be seen as a transparent
effort to distract the judges and will serve only to emphasize the weakness. How much better to
face it head-on and attempt to show the court why your position should prevail despite the
occasional uncertainties - which are, after all, present in even the best of cases. The judges will
respect your candor and quite possibly cut you a little slack.

Overall considerations

i. Hold the readers interest
Good writing captures the readers interest at the beginning, builds upon that interest
throughout the middle, and satiates that interest at the end. Effective trial memorandum writing
is no different. As you construct your document, remove all barriers and roadblocks to holding
your readers attention. It is advisable to include a built-in navigation device. At the beginning
of your document, give your reader a roadmap of where you are going and explain how you
intend to get there. Throughout your document, insert mile markers to orient your reader as to
how the section he or she is reading fits within the bigger picture.

Prevent reading-induced hypnosis by varying the length of your sentences and paragraphs. Use
headings and subheadings as appropriate to break up huge blocks of text on the page.
Incorporate sufficient white space to give your readers a visual (and mental) resting place.

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Emphasize key points or phrases with special formatting such as italics and bold, but be careful
not to overdo a good thing. Use bulleted lists as appropriate. Strategically placed graphs, charts,
and tables add substantive value to your writing and also help further engage your reader.

ii. Write in active and positive voice
It is always a good rule of thumb to use active voice in any kind of writing. To do this, arrange
your sentence so that the subject performs the action expressed by the verb. In the majority of
instances, a sentence written using active voice is more clear and direct than one written using
passive voice. Notwithstanding this general principle, there may be times when the facts in your
case dictate the use of passive voice. For example, in a criminal case where your attorney
represents the accused, you certainly would not want to write, The defendant assaulted the
victim. Instead, you would write, The victim was assaulted.

Finally, edit your writing for the 7 Cs.

1. Clarity Aim for specificity. Add information if needed to clarify your point. Remove
information that makes your point muddy. Rephrase or re-work passages to ensure your point is
conveyed clearly and meaningfully.

2. Completeness Review your document to see if you included the required elements and
necessary information.

3. Conciseness Eliminate unnecessary words and fillers. Remove redundancies. Remember to
keep your sentences and paragraphs simple, short, and to the point.

4. Concreteness Eliminate lengthy legal phrases and substitute shorter concrete words and
phrases. Apprehended the suspect becomes arrested Mrs. Johnson.

5. Consistency Read through your writing to ensure your use of tenses and pronouns is
consistent from beginning to end. Check to see that you used the same word or phrase each
time you referred to the same concept. For example, if you use the word terminated to
characterize what happened to your client in the first section of your writing, youll want to
change any references to your client being dismissed or fired that appear later in your
document.

6. Continuity Review your work for organizational continuity. Sentences and paragraphs
should flow logically from one to the next. Read the first and last sentences of each paragraph.
If you are able to glean the major points by reading these sentences alone, your writing has
excellent continuity.

7. Correctness Verify the legal authority you cited is still valid. Double-check your citation
format. Review your work to see that you have accurately stated the facts. Finally, carefully
proofread your work for spelling, grammar, typographical and other kinds of errors that will
detract from your message.

Final note: At the end of every written trial memorandum, it pays to check the document for
TYPOGRAPHICAL ERRORS, GRAMMATICAL ERRORS, and more importantly CITATION OF
AUTHORITIES ERRORS.

GOOD LUCK to all my future COMPAEROS and COMPAERAS!