How to write a Legal Memorandum Either before, or after first draft, do an OUTLINE. Make sure that you have a THEME SENTENCE, and that you state your position clearly. The Outline should present, in an orderly way, your arguments. The order should be affected by your knowledge, and that of your legal readers, of the hierarchy of legal authority: Constitution, Statute, Rule. Supreme Court, Appellate Court, lower Trial Court. In direct line or not (e.g. the 9th Circuit Court of Appeals “rules” Oregon, but not Texas, which is “ruled” by the 5th Circuit). In law, there are several types of authority, and you should recognize this in your method of argument. CONTROLLING AUTHORITY. A statute, constitutional provision, or higher court ruling, which in on point and says the court MUST do this. PERSUASIVE AUTHORITY. A ruling, or expert, which is not controlling, but which carries great weight because of the prestige of the Court or author. For example, an argument for which you could summon one of the great justices would carry more weight that your own mere words. Non-legal science or social science, or arguments of philosophers, fall into these categories. They can be highly persuasive, but are not “legally” controlling. BE AWARE OF CONTRADICTORY LEGAL AUTHORITIES. E.g. in the BONG HITS 4 JESUS case, the Court had two lines of cases to choose from. Your argument would then focus on WHICH LINE the Court should follow. Cases at the Supreme Court level often involve new law, or RIGHTS IN CONFLICT. It is not a question of precedent, but rather of WHICH IS THE BETTER ? Your argument should help the Court decide why your recommendation is better. You should persuade them to WANT WHAT YOU WANT, and then HELP THEM FIND A WAY TO GET THERE. Such cases are not settled by proponents who merely argue the law, without also arguing what policy should be. WHY ?
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