Lý thuyết legal reasoning & methodology

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CHAPTER I: LEGAL REASONING

I. Concept

Broad sense: “Legal reasoning refers to the psychological processesundergone by judges in reaching decisions in the cases that are before them”.

Processes are: ideas; beliefs; conjectures; hunches; feelings; emotions.

Narrow sense: “Legal reasoning refers to the arguments that judges give,frequently in written form, in support of the decisions they render” → judges’

decisions on the questions of law. Arguments consist of: reasons for the decisions and justifications for the decisions.

II. Purpose of legal reasoning study

A study of legal reasoning in the broad sense would be a study of judicial psychology and biography, which is important and interesting in its own right.

The study of legal reasoning in the narrow sense is an inquiry into the “logic” of judicial decision making. It concerns the kinds of arguments judges give, the relationship between the reasons and the decisions, and the adequacy of these reasons as support for the decisions.

III. Skills required for legal reasoning study3.1. Critical thinking skills

What is thinking?

● Mental activity that helps formulate/solve the problem, make decisions/fulfill a desire to understand.

● Critical thinking is a high-grade activity of thinking.

● A set of skills and attitudes that are deployed logically and selectively to evaluate arguments.

The ability to be:

● Curious (being interested in learning)

● Flexible (being able to adopt easily to different situation) ● Skeptical (questioning that something is true and useful)

Exercising judgements shall be based upon careful observation / investigation / consideration of the issues relevant to the matter to which a judgment is to be made. Critical thinking skills include:

● Reasoning logically.

● The ability to locate underlying assumptions (searching for hidden assumptions; justifying your own assumptions; judging the rationality of those assumptions; testing the accuracy of those assumptions).

● Analytic and argument skills.

3.2. General and specific language skills

Grammar, spelling, vocabulary, punctuation.

Appreciation of the influence and power of language.

3.3. Intellectual and technical skills

How to locate primary and secondary legal text.

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How to read texts of the law and the texts about law.

How to write (using references, summaries, notes, coursework, exams). Caution: Text of law = legal documents; text about law = school of law = legal system = legal journal = law book

IV. The art of legal reasoning

4.1. The language as a professional tool

4.1.1. The language as a professional tool

How to use words (to cause a result in court, in negotiation (sự đàm phán), in drafting a contract or will, or in writing an appellate brief).

How to interpret words.

4.1.2. The characteristics of legal language

Frequent use of ordinary words with specialized meaning (lawsuit) Frequent use of Latin words and phrases (mens rea – guilty mind) Terms of art in Latin (fee simple, ratio)

Frequent use of Norman French (chose in action) Claims that words can be used with precision

Ritualized word forms (the truth, the whole truth and nothing but the truth) Use of words with flexible meanings (reasonable)

4.2. Predictive writing and Persuasive writing

4.2.1. Predictive writing

The predictive writing is written in a format that predicts the likely outcome of a client's claim or answer based on an analysis of the applicable law and cases.

Predictive judgments are made (by lawyers) for two purposes: to advise clients and to plan litigation.

Functions of predictive writing:

· Predicts the outcome of a legal question by analyzing the authorities governing the question and the relevant facts that gave rise to the legal question.

· Explains and applies the authorities in predicting an outcome and ends with advice and recommendations.

· Serve as a record of the research done for a given legal question.

Note: Predictive writing is sometimes called objective writing, but objectivity only partly defines the genre. Any writing that makes a disinterested report of what

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the law is can be classified as objective. Predictive writing does that and more: it foretells how the law will resolve a particular controversy.

4.2.2. Persuasive writing

The persuasive writing is written to convince the reader that the writer's opinion is correct with regard to an issue.

Persuasive writing is the most rhetorically stylized. So although a brief states the legal issues, describes authorities, and applies authorities to the question – as does a memorandum - the brief's application portion is framed as an argument. The author argues for one approach to resolving the legal matter and does not present a neutral analysis.

Functions of persuasive writing:

· To persuade a deciding authority to favorably decide the dispute for the author’s clients usually submitted to judges (but also to mediators, arbitrators, and others)

· To persuade the dispute’s opposing party.

4.3. Planning, rewriting, and work habits

Accurate and precise...

V. Effective legal writing style5.1. Clarify and vividness

Straightforward English, avoid the word that blurs meaning. For example: by writing “ingested” instead of a word that would tell exactly what happened, such as “ate”, “drank”, or “swallowed”.

Figure out exactly what should be said and then say precisely that (be confident of writing and reduce fear). The insecure writer who is not sure what to say may try to hide that insecurity in a fog of convoluted constructions, writing the above captioned appeal is maintained by the defendant as a direct result of rather than the defendant appeals because to understand the importance of clarify in law, consider two things:

· Prove everything you say;

· No matter how important the issue, your reader will be able to spare only a limited amount of time to ponder what you write.

5.2. Conciseness

Conciseness is an important issue in legal writing for three reasons: ● Concise writing is by nature more clear and often more precise

● The typical reader of legal reasoning has no time to spare and either will resent inflated verbiage or will simply refuse to read it

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● Something about legal work paradoxically creates a temptation to swell a simple expression into something ponderous and pretentious.

5.3. Forcefulness

Forceful writing leads the reader through ideas by specifying their relationships with one another and by identifying the ideas that are most important or completing.

Relationships between ideas can be made clear through transitional words and

phrases and through demonstrative sentence structure. Careful legal writing abounds

with transitional words and phrases such as the following:

· not only ...., but also

Some transitional words and phrases are stronger than others. Be careful to select those that accurately represent the relationship at hand and that claim neither too little nor too much.

Forcefulness in legal writing is to identify the ideas that are most important or compelling, and there are several ways of getting that across.

5.4. Punctuation and other rules of grammarVI. Paragraphing

6.1. Organization and paragraphing

The organization of something is the way in which its different parts are arranged or relate to each other.

A paragraph is a section of a piece of writing. A paragraph always begins on a new line and contains at least one sentence.

Paragraphing has three goals:

· The most obvious is to break your material up into digestible chunks.

· The second is to help you discipline yourself to confront and develop each theme inherent in the material.

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· The third is to tell the reader where he or she is in your logic, how that place was arrived at, and where you are headed (make your organization apparent).

6.2. Thesis sentences, topic sentences, and transition sentences

6.2.1. Thesis sentence

A thesis statement is a sentence (or two) that states what you are going to do in your essay. It is a kind of a signpost – something that tells you where to go- or a map that shows the reader what direction your essay will take. It usually comes at the end of the introduction.

The thesis statement must assert your point, suggest your evidence, and structure your argument, all in one. This is necessary for a good reason. If you can summarize your paper in one sentence, you’re more likely to have a tightly-constructed, concise, and readable essay.

For example:

· This thesis examines whether customary law should more effectively be recognized in Vietnam.

· This essay looks at ideas in favor of and against early marriage.

· Although our society has long regarded heterosexuality as the only natural expression of sexuality, members of the gay rights movement have challenged this view strongly, arguing XYZ.

6.2.2. Topic sentence

A topic sentence is the first sentence in a paragraph. The topic sentence is important as it is the main idea of the story/article.

The topic sentence should identify the main idea and point of the paragraph. To choose an appropriate topic sentence, read the paragraph and think about its main idea and point.

The supporting details in the paragraph (the sentences other than the topic sentence) will develop or explain the topic sentence. Read all the supporting details in the paragraph and think about the ideas they discuss.

The topic sentence should not be too general or too specific. When considering the options, look for a topic sentence that is general enough to show the paragraph’s main idea instead of just one of its details. The answer should be specific enough that the reader understands the main idea of the paragraph.

A good topic sentence is concise and emphatic. It is no longer than the idea requires, and it stresses the important word or phrase.

Generally speaking, topic sentences are: short, simple, clear, give a strong idea, often use phrase such as:

· One of the main reasons for... · One of the major factors in ....is.... · Generally speaking

· One of the strongest arguments against/ in favor of...is...

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· One of the main advantages/disadvantages of...is… For example:

1) There are three reasons why Canada is one of the best countries in the world. First, Canada has an excellent health care system. All Canadians have access to medical services at a reasonable price. Second, Canada has a high standard of education. Students are taught by well-trained teachers and are encouraged to continue studying at university. Finally, Canada's cities are clean and efficiently managed. Canadian cities have many parks and lots of space for people to live. As a result, Canada is a desirable place to live.

2) To be an effective CEO requires certain characteristics.

3) Crime in poverty-stricken areas occurs as a result of a systemic discrimination.

4) Teen pregnancy may be prevented by improved education. 6.2.3. Transition sentence

Transitions are the sentences or words that allow readers to follow the flow of your argument. Transitions help you to achieve these goals by establishing logical connections between sentences, paragraphs, and sections of your papers.

Transitions between sections; Transitions between paragraphs; Transitions within paragraphs.

- Why am I reading this text? - What do I hope to get out of it?

Reader prediction of use and content of text:

- This involves a consideration of what the writer is saying. This can be judged from the subject matter and the title;

- The very act of choosing a text involves prediction; that this text is relevant; that the text will begin to answer some of the questions that you have in your mind.

II. Methods of reading:1. Skimming:

Read very quickly and generally through a text noting:

- Publication date - for the study of law, it is particularly vital to know which edition you are reading; text can go out of date due to the changes in the law in a matter of months;

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- The first sentence or two of paragraphs following introductions;

- Look at concluding paragraphs. This activity assists in deciding the potential relevance of the text

2. Scanning:

Unlike the general skim through, scanning involves quickly looking for specific word, phrases or information

3. In-depth focused reading:

Reading will allow attention to be given to secondary or subsidiary points in the text. Here, the reading is slower and careful. Check unfamiliar vocabulary. Some words and phrases become clear as more text is read.

Note the type of language used:

III. Understanding what is being read:➢ Guessing words that you do not know

○ Do not expect to know all the words read. Even as a more extensive vocabulary is acquired, there will be words that are not known.

➢ Identifying main ideas:

○ Many main ideas will have been discovered on a first skimming. A second reading begins the process of identifying the main points made by the writer. This aids in the acquisition of a deeper understanding of the argument presented

➢ Identifying subsidiary ideas:

○ As the main points are identified, it is possible to organize the information and classify secondary, subsidiary points

➢ Identifying overall text organization:

○ Every writer has a different way of organizing, classifying and structuring their work. This needs to be ascertained by any reader who wishes to break into the text successfully.

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➢ An initial issue is to decide whether the writer is: outlining an area:

○ Discussing a specific problem ○ Proposing a solution to a problem ○ Comparing and contrasting ideas

○ Speaking of the present, future or the past

IV. Evaluating what you are readingAscertaining the purpose of the writer

- This is crucial

- Does the writer want to inform you about something or try to persuade you of the correctness of a particular point of view?

- Often a writer will seek to both inform and persuade

Ascertaining the argument(s) of the writer:

- Some texts are said to be complex not because they use particularly difficult words or arguments but because, in order to understand the full detail of the writer’s position, extensive knowledge of the other areas within or outside the particular discipline will be required.

Ascertaining the attitude of the writer:

- Writers are usually biased towards a certain view in their writing, although on occasion a writer may be neutral.

- You must be able to gain skill in identifying a writer’s attitude to the ideas he or she is discussing.

- You must at least know whether the writer is neutral or biased.

Four stages of reading:

- Preparation prior to reading - Methods of reading

- Understanding what is being read - Evaluating what you are reading

CHAPTER 3. LEGAL ARGUMENT

Legal argument is to prove something or disapprove something to others. Legal argument i· the legal issue

I. DEFINITION OF ARGUMENT

- An argument is a series of statements, some backed by evidence, some not, that are purposely presented in order to prove, or disprove, a given position. An argument has many meanings, but normally it means you want to make something clear or you want to convince someone to trust you.

- Argument consists of two statements, of which one (the premise) is claimed to be a reason for accepting the other (the conclusion). Therefore, the term "argument" is sometimes used to refer to just the reason or set of reasons for a particular statement, as when one challenges someone's assertion by asking him to give his arguments for it.

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→ Example: A told that the History is easy to understand and A gave a lot of reason to prove her argument. Finally, A conclusion: history is easy to understand

II. TYPES OF ARGUMENTS1. Deductive Arguments (diễn dịch)

- There are 2 ways to make a conclusion from deductive reasoning:

+ Deductive reasoning begins with a general proposition and ends with a general proposition (this "general-to-general" reasoning is not used in legal context). → Example: Premise one: All mammals are warm blooded

Premise two: All dogs are mammals

Conclusion: Therefore, all dogs are warm blooded

+ Deductive reasoning begins with a general proposition and ends with a particular proposition ("categorical syllogism")

→ Example: Major Premise: All mammals are warm blooded Minor Premise: Dog Fido is a mammal

Conclusion: Therefore, Fido is warm blooded

2. Inductive Arguments (Quy nạp)

+ Inductive reasoning begins with a particular proposition and ends either a general proposition (reasoning by generalization).

+ Inductive reasoning begins with a particular proposition and ends either a particular proposition (reasoning by analogy) - the way to apply the case law.

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III. LEGAL ARGUMENTS

1. Inductive Generalization (Particular-To-General Reasoning)

- Create appellate case legal principles

+ Review/cassation: tái thẩm/giám đốc thẩm + First instance trial: án sơ thẩm

+ Appeal trial: án phúc thẩm

- The case law principle "all contracts with vague terms are void" will never be certain, but will remain subject to exceptions and modification:

+ Exceptions (trường hợp ngoại lệ) to the principle include equitable doctrines of waiver and estoppel.

+ Modifications to the principle occur whenever a new appellate case (or new statute or constitutional amendment) deals with the enforceability of contracts with vague terms. (có sự thay đổi: có luật mới, hiến pháp được sửa đổi, liên quan hoặc quy định về hiệu lực của hợp đồng với điều khoản mơ hồ)

(cái này sẽ không bao giờ đúng trong mọi trường hợp, bởi sẽ có những trường hợp ngoại lệ hoặc có sự thay đổi. Nhưng trên tất cả thì có thể áp dụng cái này đối với case law)

2. Inductive analogy (particular-to-particular reasoning): in VietNam we don'tapply this one

- Select relevant legal principles to be applied.

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- Consider a more realistic example:

+ Plaintiff cites Appellate Case 1, which favors him because it held void a contract with an arguably vague term;

+ Defendant cites Appellate Case 2, which favors her because it held enforceable a contract with an arguably vague term; and

→ Neither Appellate Case 1 nore Appellate Case 2 is "on all fours" with the present case.

- Nguyên đơn và bị đơn đều muốn chứng minh mình thắng kiện. Nên họ tìm các vụ án có những tình tiết có lợi cho mình để chứng minh rằng mình đúng dựa trên các vụ án phúc thẩm. Giả sử án lệ có điều khoản mơ hồ A với tình tiết B và tình tiết C

+ Sự chứng minh tính tương tự của nguyên đơn - tun HĐ vơ hiệu: ngun đơn tìm được một điều khoản mơ hồ D với tình tiết E và tình tiết F kết luận rằng HĐ sẽ vơ hiệu. Nhiệm vụ của nguyên đơn lúc này là chứng minh điều khoản A - D, tình tiết B - E, C - F tương tự nhau để có thể tuyên bố hợp đồng trên vô hiệu. (hệ thống thông luật: nếu áp dụng án lệ thì phải tuyên giống với kết quả của án lệ)

+ Sự chứng minh của bị đơn: cũng so giống như bị đơn nhưng với điều khoản mơ hồ G với tình tiết H và tình tiết K, tun hợp đồng có hiệu lực

- Nếu là thẩm phán thì phải xem xét xem cái nào có lý hơn để tuyên thằng đó đúng.

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- Tại sao cả hai thằng đều viện dẫn án lệ mà kết quả lại đá nhau dù án lệ không thể thay đổi? Because the court system of UK, there are 4 levels of the court system:

+ the supreme court: have a right to make 75% cases become case law a year (not more than 75) - they case law have the highest legal validity

+ the court of appeal: not more than 50% case + the high court or the magistrate: only 25% case + CÁI CUỐI KHÔNG NGHE ĐC

→ If the high court or the supreme court make a case law, after that, the court of appeal also makes a case law

+ If the case law of the court of appeal is not unlike the supreme court case law, the supreme court case law would not be applied.

+ If the case law of the high court of appeal is not unlike the court of appeal case law, the case law of the high court would not be applied.

(NÓI TÓM LẠI LÀ PHẢI THEO THỨ TỰ LEVEL TỪ TRÊN XUỐNG ĐỂ ÁPDỤNG ÁN LỆ. DO CÓ NHIỀU CẤP ĐỘ BAN HÀNH ÁN LỆ QUÁ NÊN NĨ BỊTRÁI NHAU. NẾU HAI CẤP TRÁI NHAU THÌ CẤP NÀO CAO HƠN CẤP ĐĨWIN - KHÁC VỊ TRÍ PHÁP LÝ CỦA ÁN LỆ)

3. Deduction (General- To-Particular Reasoning)

Applies Legal Principles To A Particular Case

VI. The IRAC Formula

Issue / Question presented: what facts and circumstances brought these parties (các bên) to the court (the syllogism’s subject - thuyết âm mưu) matter)

Rule: what is the governing (tính cai trị) law for the issue (the syllogism’s major

6.1. Issue / Question presented

“The facts of a case suggest an issue”

The key to issue spotting is being able to identify which facts raise which issues. Because of the complexity of the law, the elimination or addition of one fact (such as time of day or whether someone was drinking) can eliminate or add issues to a case thereby raising an entirely different rule of law.

"Sự thật của một trường hợp gợi ý một vấn đề"

Chìa khóa để phát hiện vấn đề là có thể xác định thực tế nào nêu ra vấn đề nào. Do tính phức tạp của luật, việc loại bỏ hoặc bổ sung một dữ kiện (chẳng hạn như thời gian trong ngày hoặc liệu ai đó đã uống rượu hay khơng) có thể loại bỏ hoặc thêm vấn đề vào một vụ án, do đó đưa ra một nguyên tắc luật hoàn toàn khác.

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Issue is the first step of IRAC method

• Issue: what facts and circumstances brought these parties to the court

• The most important element (yếu tố) in the analysis (sự phân tích) and must be stated (trình bày) in the way to show what is in controversy ( = argument)

• To find issues, look for anything in the facts of a case that could raise a question, sometimes called a "question of law":

First state the question or problem that you are trying to answer (what might bring the parties into court). This can be in the form of a question or a statement depending on what your reader prefers.

Buzzwords (từ thông dụng).

• If more than one issue exists, then prepare a separate IRAC analysis for each issue. Do not combine issues in one analysis. A legal issue should be brief (ngắn gọn) and to the point (đi vào trọng tâm).

6.2. Rule

“The issue is covered by a rule of law”

The rule is the law. The rule could be common law (luật chung) that was developed by the courts or a law that was passed by the legislature (cơ quan lập pháp). The overall question regarding the discovery of rules is that what elements of the rule must be proven in order for the rule to hold true.

1. “The issue is covered by a rule of law”.

2. The rule is the law.

3. The rule is the legal authority (quyền lực) to which the facts of the case. 4. Set out the legal principles / rule that will be used to solve the problem. Authority (what authority does it come ?):

1. Could be common law that was developed by the courts:

2. Or law enacted (ban hành) by the legislature. EX: statutes, ordinances, decrees, circulars, precedents,... (luật, pháp lệnh, nghị định, thông tư, tiền lệ, ...)

Forms and function: 3 types:

1. Declarative (khai báo) rules: state something that always be true. EX: in the contract of selling the house, the party A (the seller) must tell the party B (the buyer): the area, how it cost, which floor, the furniture,... and don't hide something about it to make B misunderstand. That makes the contract invalidate (vô hiệu hố) (Article 132, 137 Civil Code).

2. Conditional (có điều kiện) rules: state that a rule applies only when a series of conditions are proven to be true. EX: article 443 (forms of contract on purchase and sale of residential houses). Contracts on purchase (sự mua) and sale of residential houses (nhà dân dụng) must be established (hình thành) in writing and certified by/ verified (xác minh) by…

3. Exception (ngoại lệ) rules: are just the flip side (mặt trái) of condition rules. Instead of listing conditions in order for the rule to apply, you list an exception to

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where a rule doesn't apply. Ex: in business law, priority (quyền ưu tiên) charter company than law.

How to look for the right law?

The overall question regarding the discovery of rules is that what elements of the rule must be proven in order for the rule to hold true. So that, here are some questions to ask when reading a case:

1. What are the elements that prove the rule? (State the rule; cite (trích dẫn) the rule)

2. What are the exceptions to the rule? 3. What is the policy behind the rule?

Ex: Life imprisonment or the death sentence shall not be imposed on juvenile offenders. Dịch: Khơng áp dụng hình phạt tù chung thân hoặc tử hình đối với người chưa thành niên phạm tội

State (trình bày) the rule:

That rule says (paraphrasing): “It is unlawful to treat someone in a manner thatnegatively affects the terms and conditions of employment, if the affected person is ina “protected class” and is treated differently from a “similarly situated person” notin her protected class”. Dịch: Quy tắc đó nói (diễn giải): “Đối xử với ai đó theo cáchảnh hưởng tiêu cực đến các điều khoản và điều kiện việc làm là bất hợp pháp, nếungười bị ảnh hưởng thuộc“ tầng lớp được bảo vệ ”và được đối xử khác với“ người cóđịa vị tương tự ”thì khơng trong lớp được bảo vệ của cô ấy ”.

Each of the logical (logic, hợp lý) pieces composed of the rule is called elements of the rule. So elements of discrimination (sự phân biệt đối xử) are:

· Having the terms and conditions of employment affected. · Being in a protected class.

· Being treated differently from a similarly situated person Each of these pieces contain legal terms that have their own legal rules.

Cite (trích dẫn) the rule: The law is based on existing rules. An argument has no weight unless it says exactly which rule is being relied upon.

6.3. Analysis (sự phân tích)

Analysis that means you make a comparision, you have the fact and you have legal basic already and you combine two things together. You make analysis: the first argument, the second argument,... Actually in your analysis the most important in your memorandum because base on analysis your case maybe more clearly and then you have the chance to persuade the person who read your argument.

“compare the facts to the rule to form the analysis”

There are lots of facts that make up the client’s story. For the purpose of legal analysis, we look for “material” facts. These are facts that fit the elements of the rule. Thus, for every relevant fact, we need to ask whether the fact helps to prove or disprove the rule. If a rule requires that a certain circumstance is present in order for the rule to apply, then the absence of that circumstance helps us reach the conclusion that the rule does not apply. Dịch: Có rất nhiều sự kiện tạo nên câu chuyện của khách hàng. Với mục đích phân tích pháp lý, chúng tơi tìm kiếm các dữ kiện "quan trọng".

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Đây là những dữ kiện phù hợp với các yếu tố của quy tắc. Do đó, đối với mỗi dữ kiện liên quan, chúng ta cần đặt câu hỏi liệu thực tế đó giúp chứng minh hay bác bỏ quy tắc. Nếu một quy tắc yêu cầu phải có một trường hợp nhất định để quy tắc được áp dụng, thì sự vắng mặt của trường hợp đó sẽ giúp chúng tơi đi đến kết luận rằng quy tắc đó khơng được áp dụng.

6.4. Conclusion

The conclusion is the shortest part of the equation. It can be simple “yes” or “no” as to whether the rule applies to a set of facts.

VII. Argument soundness (lập luận hợp lý mạnh mẽ)

A sound argument is a valid (có hiệu lực) argument with true premises.

You make a sound courtroom argument when your syllogism is logically valid and you introduce evidence sufficient to prove its premises. Dịch: Bạn đưa ra một lập luận đúng đắn tại phòng xử án khi luận điểm của bạn có giá trị về mặt logic và bạn đưa ra bằng chứng đủ để chứng minh cơ sở của nó.

An unsound argument is an argument which has one or more false premises, or is invalid, or both. Dịch: Đối số không chắc chắn là đối số có một hoặc nhiều tiền đề sai, hoặc không hợp lệ hoặc cả hai. Example of sound argument:

Major premise: All mammals are warm blooded => true Minor premise: Fido is a mammal => true

Conclusion: Therefore, Fido is warm blooded => true Example of unsound argument:

Major premise: All mammals are warm blooded => true Minor premise: The moon is a mammal => false

Conclusion: Therefore, the moon is warm blooded => false Skills for good argument construction:

Competent identification of nature of the problem. Dịch: Thẩm quyền xác định bản chất của vấn đề

Competent location of potentially relevant: Legal rules, secondary text. Dịch: Vị trí có thẩm quyền của khả năng có liên quan: Quy tắc pháp lý, văn bản phụ

Competent re-evaluation of problems and solutions. Dịch: Người có thẩm quyền đánh giá lại các vấn đề và giải pháp

Reflection as to conclusion. Dịch: Suy ngẫm về kết luận

Competent reading, summarizing and evaluation of relevant texts. Dịch: Có năng lực đọc, tóm tắt và đánh giá các văn bản có liên quan

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The drafting of potential solutions. Dịch: Việc soạn thảo các giải pháp tiềm năng.

CHAPTER IV: MEMORANDA (BẢN GHI ĐIỀU KHOẢN) ANDBRIEFS (HỒ SƠ VỤ KIỆN): BUILDING A COMPLETEDOCUMENTS

I. Definition

A memorandum, in general, is a brief writing, note, summary or outline. It is an informal record or outline of something which may or may not be detailed later.

A "memorandum of law" may be prepared by an attorney to

support a legal argument, which is similar to a brief but with less attention to legal writing formalities (hình thức). It contains legal arguments based upon the lawyer’s understanding of the law applicable (thích hợp) to the issues and is often supported by citations (sự trích dẫn) to legal authority.

??? If you are the lawyer, you write a memorandum and you will send amemorandum for a judge.

II. Writing memoranda

A legal memorandum, or memo, is an essay dealing with a legal issue. The memo is often written by a paralegal (người giúp cho luật sư), a law student, or a lawyer.

The first part of a legal memo is the heading, including: To: (who it is addressed to)

From: (who it is written by)

Date: (date which the memo is written) RE: (what this memo is regarding)

Office File: (the file and file number the memo refers to) Next, include information about your assignment. This section

will explain the reason for the memorandum.

III. Office memorandum format

- A Memorandum heading - A Question presented - A Brief answer - A Statement of facts

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- A Discussion - A Conclusion

- The author's signature

3.1. Memorandum heading

The memorandum heading simply identifies the writer, the immediately intended reader (who is often the writer’s supervisor and is usually the person who requested the memorandum), the date on which the memorandum was completed, and the subject matter (chủ đề).

3.2. Question presented

The question presented defines the issue that the memorandum is intended to resolve.

The question presented states the question(s) the memo is to address: how does the relevant law apply to the key facts (vấn đề chính) of the research problem? The question should be sufficiently (đủ) narrow and should be objective (khách quan).

The Question Presented is usually one sentence. It often begins:

"Whether...." or "Does.... ” . Although questions are usually framed

(trình bày) so that they can be answered yes or no (or probably yes or

probably no), sometimes they cannot (such as "Under New York law,has a retailer made a binding offer when...?").

3.3. Brief answer

The Brief answer summarizes the prediction with at least an allusion (sự ám chỉ) to the determinative (được xác định) facts and rules, both of which are more fully analyzed in the discussion. For the reader in a hurry, the Brief Answer should set out (đặt ra) the bottom-line (quan trọng nhất) response in the most accessible way.

The brief answer contains a clear answer to the question (i.e., a prediction) and an explanation (sự giải thích) of that answer. The balanced description (sự mô tả) of law and fact that you provide in the question presented should be mirrored (đối chiếu) in the short answer. The brief answer serves two functions: (i) it provides hurried

readers with an accessible, bottom-line prediction as well as the core of the relevant law and facts; and (ii) it provides the more thorough readers with an outline or digest of your subsequent discussion section (Dịch: (ii) nó cung cấp cho người đọc kỹ lưỡng hơn một dàn ý hoặc tóm tắt về phần thảo luận tiếp theo của bạn). The short answer should function as a roadmap to help readers feel oriented when they move on to the discussion.

3.4. Statement of facts

The Statement of facts set out the facts on which the prediction is based.

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Lý thuyết legal reasoning & methodology

<b>CHAPTER I: LEGAL REASONING</b>

<b>CHAPTER 3. LEGAL ARGUMENT</b>

<b>VI. The IRAC Formula</b>

<b>CHAPTER IV: MEMORANDA (BẢN GHI ĐIỀU KHOẢN) ANDBRIEFS (HỒ SƠ VỤ KIỆN): BUILDING A COMPLETEDOCUMENTS</b>

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