In this chapter, we are going to explore what goes into writing the Questions Presented section of your legal research memo. Similar to the Questions Presented section of a case brief, the Questions Presented section in a legal memo contains the legal questions related to the client’s legal matter (the reason the client retained our law office). The purpose of the Questions Presented section of your legal memo is to identify each legal question we are analyzing for our client.
A client’s legal questions usually fall into one of the following categories (of course, there are others, but these are the most common):
These broad legal questions led us to the specific legal standards we identified while researching and synthesizing statutes and case law. Each Question Presented will specify a narrow legal standard (such as the elements of a crime, a claim, or a defense) that needs to be analyzed in order to answer the client’s broad legal question.
Components of the Questions Presented
Each Question Presented has two components that must be included. The first component is the legal standard. The second component consists of the legally significant client facts or circumstances related to the legal standard.
The Legal Standard
The first component of the Question Presented is the legal standard. The legal standard comes from the statutory language, precedent or other legal authority we identified as potentially applying to our client as a result of our micro- and macro-synthesis. Legal standards in Questions Presented often involve questions such as:
- Did someone breach a legal duty? (element of a negligence cause of action)
- Did someone comply with/violate a statutory requirement?
- Does someone meet the definition of a legal standard? (For example, is the defendant an “employer” within the meaning of the statute? Did the defendant “use” his vehicle within the meaning of the insurance policy?)
It’s important to continue writing your legal standards narrowly in your Questions Presented. Narrowly written Questions Presented, even if they seem repetitive, will lead to deeper and more focused analysis of the legal authorities and your client’s facts in the Discussion sections of your legal memo. Resist the temptation to write a Question Presented based on the client’s broad legal question. Following are some examples of poorly written legal standards:
☹ Was someone negligent?
☹ Is someone liable for xxx (negligence, breach of contract, etc.)?
☹ Is someone guilty of xxx (arson, homicide, etc.)?
☹ Did someone violate xxx statute?
All of these legal standards are too broad because answering each one requires analysis of two or more elements that must be proven/disproven or requirements that must be met to completely answer the question.
Remember our arson statute? This is how we synthesized it:
COMPLETE CITATION OF STATUTE: Pen. Code, § 451
COMPLETE CITATION OF RELATED STATUTES: Pen. Code, § 450
| QUESTION |
STATUTORY REQUIREMENTS |
CLIENT’S (Willy Wonka’s) FACTS |
|
WHO:
|
a person
|
Wonka is a person
|
|
WHAT:
|
sets fire to any structure, forest land, or property
OR burns any structure, forest land, or property
OR causes to be burned any structure, forest land, or property
OR aids the burning of any structure, forest land, or property
OR counsels the burning of any structure, forest land, or property
OR procures the burning of any structure, forest land, or property
|
A fire was set and the Chocolate Factory was damaged ($1 million);
The Chocolate Factory is a structure
Wonka may be suspected of burning or causing to burn the structure
Wonka may be suspected of procuring, counseling, or aiding in the burning of the factory
|
|
WHEN:
|
any time
|
January 30, 1 a.m.
|
|
WHERE:
|
in California
|
Fire occurred in Santa Ana, California
|
|
WHY:
|
because the statute says so
|
n/a
|
|
HOW:
|
the action must be willful
AND
malicious, meaning "imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law"
|
Wonka dancing in the street in front of the house
Wonka wearing camouflage clothing
Wonka repeatedly shouting, “Burn baby burn!”
|
|
EXCEPTIONS?
|
There are no “unless” or “except” statements in the statute
|
n/a
|
There is no question that “fire” was used to damage the Chocolate Factory, which is a “structure” under the statute. Because "forest land" is not presented in our facts, we do not need to address it in the Questions Presented.
However, to secure an arson conviction the People will also need to prove beyond a reasonable doubt that the fire was “willful” set and was "malicious.” As such, they are elements that the People must prove beyond a reasonable doubt.
Based on the above, we have a legal standard to analyze:
- Will the People be able to prove beyond a reasonable doubt that Wonka “willfully” and "maliciously" set fire to the Chocolate Factory?
There are a few important things to notice about these legal standards. First, each one specifies the level of the burden of proof (beyond a reasonable doubt, because this is a criminal matter) as well as the person having the burden of proof (the People, because this is a criminal matter). This information about the burden of proof is critical to a complete analysis of any litigation matter, whether it is criminal or civil. Second, each one separately identifies a narrow legal standard relating to one of the elements the People must prove to secure an arson conviction.
The Legally Significant Facts
In considering the Questions Presented, brainstorm on what facts are significant in answering the Questions Presented. The legally significant facts tell us what the client’s case is really about, and may be informed by the case law you identify as relevant to the Questions Presented. When you are deciding which legally significant facts to add to your notes for each Question Presented, think of it asking, “Why are we here?” It can be helpful to think of the following questions:
- What happened that is raising the legal question for the client?
- What did the parties do (or not do) that is making us question whether the legal standard has been met (or has been violated, or should be applied to the parties)
- What conduct or facts are the parties arguing about?
Previously, we wrote the Facts section of our legal memo, which contains all of the legally significant and contextual facts for the entirety of the client’s legal matter. For each Question Presented, we want to pull out for our notes only the legally significant facts. Legally significant facts directly impact whether the Question Presented will be answered “yes” or “no.” In other words, legally significant facts are those facts which, if they were changed, the outcome for the client would likely change as well. The statutory synthesis and the fact analysis we previously completed help us determine which facts to consider with each Question Presented.
1. Will the People be able to prove beyond a reasonable doubt that Wonka “willfully” and "maliciously" set fire to the Chocolate Factory when the facts show:
- A fire occurred at the Chocolate Factory several hours after the Factory had closed for the day; (legally significant fact)
- Accelerants were used at several locations around the Factory; (legally significant fact)
- Wonka was identified as the person dancing across the street from the fire shouting “Burn, baby, burn;" (legally significant fact)
- The Factory’s records are being audited for financial irregularities; and (legally significant fact)
- Wonka owns a $1,000,000 Preferred Player’s Card from LaCasino? (legally significant fact)
Remember, we need to describe completely and in detail all facts, circumstances, and conduct that makes us wonder whether each legal standard has been met.
Additional Tips for Writing the Question Presented Section.
- Choose a structure that you will consistently use in the memo. There are a few different ways to structure your Questions Presented. Some people like to use Roman numerals (I, II, III) for the legal standard and capital letters (A, B, C) when listing the legally significant facts relevant to each legal standard. Other people like to use Arabic numerals (1, 2, 3) for the legal standard and lowercased letters (a, b, c) or bullets when listing the legally significant facts relevant to each legal standard. Still other people like to write the Question Presented in one sentence (this works best with short legal standards and only a few facts). Regardless of the structure you use, be sure to phrase each Question Presented as a question.
- Use a formula when writing your Questions Presented. I suggest using something similar to what you see below, to make sure you include both the legal standard and the legally significant facts:
Is [legal standard, specifically described] met when the facts show: [legally significant facts relevant to the legal standard]?
- Use your own words. Don’t simply regurgitate (or copy) legal standards you find in statutes or court decisions. Write them in your own words, so that you are certain you understand them.
- Watch out for sentence fragments. You should almost never start a sentence with the word “whether.” Consider starting your question with "Is," "Will, or "Does."
Review and revise your Questions Presented
Once you’ve got a good first draft of your Questions Presented, make sure to review and revise them. Things to consider when revising:
- Proofread carefully for grammar, punctuation, spelling, capitalization, and other writing mechanics
- Check for accuracy, especially when writing about dates, times, numbers, weights, or measurements
- Make sure your Questions Presented are internally consistent in terms of names (including acronyms and “short forms” of names) and verb tenses (past or present tense)
- Cross-check your Questions Presented against your Facts section. All facts listed in each Question Presented must also be contained in the Facts section of your legal memo.
On the next page is an example of what our legal research memo looks like at this point. The components we’ve drafted so far have been put in the correct order. An appropriate memo heading has also been added to the top.
WORK PRODUCT – PRIVILEGED AND CONFIDENTIAL LEGAL RESEARCH MEMORANDUM
TO: Supervising Attorney [insert the person’s name]
FROM: Conscientious Legal Practitioner [insert your name]
DATE: April 1, 20xx [insert the date you are providing the final draft to your supervisor)
RE: Analysis of Likelihood of Arson Conviction
People v. Willy Wonka; Case No. 20xx-CF-1234
Our File: CF-Wonka-20xx-983
FACTS
Sometime after 1 a.m. on January 30, 20xx, a fire occurred at the Chocolate Factory (Police Report). The factory had closed at 5 p.m. the evening prior to the fire, and no one occupied the factory at the time of the fire (Client interview, Bucket statement to police). The fire caused $1 million worth of damage (Insurance claim filed by Bucket).
The fire inspector’s report revealed the use of accelerants at several sites around the factory (Fire Inspector Report). A witness came forward (Mary Worth) and stated that at approximately 2 a.m., she was awakened by the sirens from fire trucks responding to the fire (Police Report). She went outside her home, which is across the street from the Chocolate Factory, to watch the firefighters put out the fire (Police Report). At that time, she noticed a man dressed in camouflage clothing dancing near the curb, about 25 yards from where she was standing (Police Report). She could hear the man shouting, “Burn, baby, burn!” (Police Report) From a police photo lineup, Ms. Worth identified Mr. Wonka as the man she saw dancing across the street from the fire (Police investigation file, lineup report).
The Chocolate Factory is jointly owned by our client, Willy Wonka, and Charlie Bucket (Client interview, Bucket statement to police, Incorporation records, Real estate records). Bucket claimed in his statement to police he was surprised and upset by the fire and did not consent to someone setting a fire (Police Report, Bucket statement to police). Further investigation of Bucket and the Chocolate Factory reveals that Bucket is currently being audited by Weegocha Auditing Company for alleged improper business practices (Client interview, records from auditing company). Weegocha states that $1 million is unaccounted for in corporate record books (Audit report). Corporate record books also reflect that the factory has been operating at a financial loss for the last three years (Chocolate Factory financial records).
Both Willy Wonka and Bucket have Preferred Player’s Cards at LaCasino (Client interview; LaCasino Preferred Players roster). LaCasino policy is to issue Preferred Player’s Cards only to regular customers gambling at least $1 million (interview of LaCasino manager; LaCasino pamphlets). Both Wonka and Bucket admit that they have lost a substantial, though unknown, amount of money gambling at LaCasino over the last five years (Client interview, Audit report). However, Wonka and Bucket deny using corporate monies to gamble (Client interview, Audit report).
Willy Wonka has been charged in Brown County Circuit Court with arson. An arraignment is scheduled on [date], at which time Wonka must enter a plea to the charge. A request for a copy of the investigative file has been sent to the Brown County District Attorney and a response is pending.
QUESTION PRESENTED
Will the People be able to prove beyond a reasonable doubt that Wonka “willfully” and "maliciously" set fire to the Chocolate Factory?
The next several chapters will focus on the most important section of the legal research memo – the Discussion section.
Contributors
11: Legal Memos - Questions Presented is shared under a CC BY-SA 4.0 license and was authored, remixed, and/or curated by Beth R. Pless, J.D. (Northeast Wisconsin Technical College) & edited and curated by James C. Harman, Assistant Professor, Santa Ana College.
