Writing Legal Memorandums

Legal memorandums or memos objectively analyze and explain laws in order to inform and educate readers about specific facts related to an issue. Paralegals write them to attorneys.

Figure 1 provides the general structure of a legal memo.

Figure 1

General Legal Memo Structure

Sections and Information to Include

1. Center the word MEMORANDUM or MEMO at the top of the page.

2. Provide the communication details:

  • To: Lawyer Name, Esq.
  • From: Student Name, Paralegal
  • Re: Memo topic and respective case number
  • Date: Month day, year

3. Use the following headings for the sections of the memo. A description and example of the information to include in each section follows each heading below.

ISSUES

If you have more than one issue, number them. Generally, lawyers want to see the issues first with a brief recap of the facts following the brief answers. Example:

  1. Under the present circumstances, with Sue’s mother in a coma and not likely to recover, is Sue’s father’s Healthcare Power of Attorney valid?
  2. Can Sue’s father, who has a Healthcare Power of Attorney, take control of Sue’s mother’s living will when Sue’s stepfather, as current legal spouse, objects?

BRIEF ANSWERS

Number the answers to match the numbered issues, and cite all case law in its entirety throughout the memo. Example:

  1. 22A Am. Jur. 2d Death § 547 says that with regard to the effect given to living wills, courts have viewed them as constituting persuasive evidence to be given great weight. Living wills are also relevant evidence of a patient’s intent not to have life-sustaining medical intervention. However, while courts have repeatedly done so, they cannot declare living wills valid in the absence of legislative enactment.
  2. In Cruzan v. Director, MDH , 497 U.S. 261 (1998), the U.S. Supreme Court ruled that the court did not have to accept Cruzan’s parents as surrogate decision-makers for their daughter. However, in Florida’s Terri Schiavo case, Florida law has repeatedly recognized the husband, Michael Schiavo, as the appropriate surrogate decision-maker for his wife.

FACTS

Always give a brief recap of the facts. Each piece of legal writing should be able to stand on its own. Example:

Our client, Sue, wants us to research information on living wills. Her parents were divorced several years ago, and her 75-year-old mother has since remarried. Sue’s mother and Sue’s stepfather were involved in an automobile accident, and Sue’s mother is now in a comma with little chance of recovery according to her physicians.

Sue’s mother and stepfather both signed a living will which cannot be located. They think that Sue’s mother would not want extraordinary life support measures. On the other hand, Sue’s father, Alex Smith, has a Health Care Power of Attorney that appoints him as the decision-maker concerning Sue’s mother. The Health Care Power of Attorney document is dated March 5, 1992 which is one year prior to the divorce. These are all the facts we have to date.

DISCUSSION

Use subheadings to organize the discussion according to the IRAC method. For each issue, provide the Issue, Rule, Analysis, and Conclusion. When you cite from case law, cite the exact page on which the borrowed material appears. Use the phrase “in the case at bar” to help readers see that you are referring to the case.

Issue One

Under the present circumstances, with Sue’s mother in a coma and not likely to recover, is Sue’s father’s Healthcare Power of Attorney valid?

Rule

Courts are divided over 22A Am. Jur. 2d Death § 547. While courts have repeatedly done so, they cannot declare living wills valid in the absence of legislative enactment. However, courts have also said that living wills constitute relative evidence even though the state has not recognized the validity of living wills. In general, the courts do, in fact, recognize the validity of living wills.

The standard in Cruzan v. Director, MDH, 497 U.S. 261 (1998) is that no person can assume to make the choice for an incompetent without the formalities of the Living Will Stature or clear and convincing evidence of the patient’s wishes.

Additionally, in John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 (1984 Fla.), the court opined that judicial approval was unnecessary because there was a living will in place. Id. at 922.

Analysis

22A Am. Jur. 2d Death § 547 speaks to the nature, validity, and effect of living wills. Basically, a living will is a document that a person makes while in good health. A living will states what measures a person does not want used to extend that person’s deathbed life. In an article by Richard Kay, “Causing Death for Compassionate Reasons in American Law,” 54 Am. J.Comp. L.693 (Fall 2006), there are two kinds of living wills. One spells out the end of life circumstances and procedures while the other appoints an individual to make those decisions. Therefore, this evidence can be used to uphold the validity of living wills.

In the case at bar, the Health Care Power of Attorney document appoints Sue’s father as the decision-maker. Further, since Kennedy says that we need no judicial approval, the Health Care Power of Attorney is probably valid. Also, Saltz v. Perlmutter, 362 So. 2d 160 (Fla. App. 4th Dist. 1978) ruled that the substituted judgment doctrine allows end-of-life decisions to be made. Our Health Care Power of Attorney stands as such a doctrine. As for legislation, Florida also has the Life Prolonging Act, Fla. Stat. Chap. 84-58, §§ 765.01-.15 (1984).

Conclusion

Generally, courts will hold a living will valid. “Most courts are willing to attribute a desire to terminate to an incompetent patient even without proof of declarations, formal or informal, on his or her view.” 54 Am. J.Comp. L.693, 707 (Fall 2006).

Specifically, in Florida, when there are no clear instructions, Florida law imposes a duty on the surrogate to make only those decisions “which he or she believes the principal would have made under the circumstances.” Id. at 707. In the case at bar, the Health Care Power of Attorney most likely supplies us with clear instructions.

Issue Two

  1. Can Sue’s father, who has a Healthcare Power of Attorney, take control of Sue’s mother’s living will when Sue’s stepfather, as legal spouse, objects?

Rule In Cruzan v. Director, MDH, 497 U.S. 261 (1998), the U.S. Supreme Court ruled that the court did not have to accept Cruzan’s parents as surrogate decision-makers for their daughter. However, in Florida’s Terri Schiavo case, Florida law has repeatedly recognized the husband, Michael Schiavo, as the appropriate surrogate decision maker for his wife.

Analysis Even with a valid Health Care Power of Attorney, courts have ruled both ways concerning who is entitled to make life-sustaining decisions. In Cruzan, the courts did not have to accept the parents as surrogates. In Florida, the courts held that Terri Schiavo’s husband was legally the surrogate. In the case at bar, Sue’s father should probably be allowed to make the decisions because he has a document containing Sue’s mother’s wishes.

Conclusion Generally, Sue’s father will get to make life-sustaining decisions. In the case at bar, he also has a Health Care Power of Attorney that probably expresses Sue’s mother’s intentions concerning her end-of-life health care.

CONCLUSION AND RECOMMENDATIONS

Conclude the memo with recommendations. Example:

Generally, courts will hold a living will valid. “Most courts are willing to attribute a desire to terminate to an incompetent patient even without proof of declarations, formal or informal, on his or her view.” 54 Am. J.Comp. L.693, 707 (Fall 2006).

References

Always include an APA/Bluebook reference page for the attorney to see the case law, statutes, and legal articles referenced. Follow APA format by alphabetizing sources and using hanging indentations (all lines below the first line of each entry are indented one-half inch or one Tab). Please follow The Bluebook for citing legal material. Following Bluebook style, for instance, instead of alphabetizing sources, the list should be a hierarchy based on the mandatory authority, so Statutes are listed alphabetically first, then the highest court opinions (U.S. District, State Supreme, State Appellate, and State District), then treaties (such as AmJur), and finally legal articles.

Example:

Cruzan v. Director, MDH, 497 U.S. 261 (1998).

John F. Kennedy Memorial Hospital, Inc. v Bludworth, 452 So. 2d 921 (1984 Fla.).

Kay, R. (Fall, 2006). Causing Death for Compassionate Reasons in American Law, , 54 Am. J.Comp. L.693.

Life Prolonging Act, Fla. Stat. Chap. 84-58, §§ 765.01-.15 (1984).

Saltz v Perlmutter, 362 So. 2d 160 (Fla. App. 4th Dist. 1978).

22A Am. Jur. 2d Death § 547.

Exit mobile version