Economics 263

Prof. J. Sell

Legal briefs and legal memoranda are documents that are designed to summarize the facts, opinions, and conclusions of legal proceedings in a concise form. They are formal documents which means that the writing style that is employed is different from the style that one might use when discussing the case orally.

Legal briefs and memoranda differ in terms of tone, purpose, and audience. A brief is written to the Court (audience) with the intention of persuading (purpose) the Court to accept a particular argument. The tone is adversarial. The document is intent to convince and does so through careful reasoning based on (selective) facts. A memorandum is an internal document written for clients or legal team members (audience). The tone is objective discussing pros and cons of various alternatives. The purpose of the memorandum is to stimulate discussion which will lead to a choice of action.

A brief often consists of the following sections: a statement of the case which, in turn, consists of a preliminary statement and a statement of the facts; the argument which attempts to sway the reader's judgement in favor of the author's view; and a conclusion which seeks to make the argument appear inevitable.

The "Preliminary Statement" includes information describing how the case arrived at the court, the parties involved, the wrongs alleged, the losses sustained, and the relief requested. The "Statements of the Facts" gives the material (relevant and significant) facts of the case and presents them in a form and order attractive to the brief writer's position.

The "Argument" section of a brief often has four components: (1) Explanation of applicable statute law (if any); (2) Examination of relevant case law; (3) Discussion of how the statute and case law specifically applies to the facts of this case; and (4) Presentation and evaluation of opposing arguments. Especially the discussion portion should be carefully documented with appropriate citations to support the logic of the position.

The "Conclusion" section of the brief summarizes the preceding discussion and argues for the superiority of the position selected. Careful writing is called for in order to make a convincing case that the conclusion follows inevitably from the previous sections.

Legal memoranda are similar to briefs in structure, but are designed for internal use to stimulate discussion and thought. Thus, the preliminary statement is usually eliminated and the memorandum begins with the Statement of Facts. This is followed by a listing of the relevant legal questions (from all sides) and short answers to each of these questions.

The "Discussion" section of the memorandum follows the form of the "Argument" section of the brief, but presents all likely arguments in turn with a discussion of advantages and disadvantages of each.

The "Conclusion" of the memorandum suggests a course of action based on the previous discussion with a rationale for the selection made.