Memorandum of Law.doc

Chapter 9 Memorandum of Law 法律意见书 According to the objects to whom the memo is issued, it is divided into two categories: “internal or office memorandum”(hereinafter referred to as “office memo”), and “external memo”第一节对内法律意见书 Office MemoThe structure of an office memo1 Heading (抬头)2 Statement of Facts (事实陈述)3 Statement of Issues (案件焦点陈述)4 Short Answer (简要回答)5 Applicable Statutes or Cases (适用的法律)6 Discussion （案件分析讨论）7 Conclusion and Recommendation (结论和建议)1 Heading Office Memorandum of LawTo: Mao Hua, PartnerFrom: Gao Yueqiang, Junior AssociateAssignment Date: June 1, 2003Submission Date: July 1, 2003Case: China Veture Tech, Inc. v. Banco Pupula, N.A.Docket Number: 03-C00178NYSOffice File Number: 03-L016GYRe: Whether substitute service is allowed under the Civil Procedure Law of the Peoples Republic of China2 Statement of Assignment Statement of AssignmentYou have asked me to prepare a memorandum of law limited to the question of whether our client, Mr. Defendant, has breached the contract between him and Ms. Plaintiff by directing his sales agent to withhold payment until SARA has been effectively controlled in China. Specifically, you asked me to discuss the applicability of the United Nations Convention on Contracts for the International Sale of Goods (简称 CISG, 联合国国际货物销售合同公约)3 Statement of Factsa. 列举式 Statement of FactsYear 2000On December 7: Tianjin Co. (hereafter: Claimant) emailed Shanghai Co. (hereafter: Respondent), confirming the agreement reached through tele-conference earlier in the morning. Claimant assured that Respondent would always receive the “best price” and identified this price as 8% lower than the ordinary price quoted to Claimants other clients.On December 15: Respondent faxed Claimant a purchase order, which was quickly acknowledged by Claimant. No shipping and payment procedures were specified.On December 27: Claimant express-mailed Respondent a standard contract in which an arbitration agreement designating a non-existing arbitration institution and a choice-of-law clause was incorporated. However, said contract did not contain the 8% discount as earlier agreed upon.b. 陈述式 Statement of FactsOn December 7, 2000, Tianjin Co., hereafter Claimant, reached an agreement with Shanghai Co., hereafter Respondent, through tele-conferencing. Claimant assured that Respondent would always receive the “best price” and identified this price as 8% lower than the ordinary price quoted to Claimants other clients. Immediately thereafter, Respondent faxed Claimant a confirmation letter. Eight days later, Respondent faxed Claimant a bare purchase order containing no shipping or payment procedures, which order was quickly acknowledged by Claimant. Claimant, in addition, express-mailed Respondent a standard contract in which an arbitration agreement designating a non-existing arbitration institution and a choice-of-law clause was incorporated. However, said contract did not contain the 8% discount as earlier agreed upon.E.g.The Initial Agreement: On December 7, 2001, Tianjin Co., hereafter CLIMANT, reached an agreement with Shanghai Co., hereafter RESPONDENT, through tele-conferencing. CLIMANT assured that RESPODENT would always receive the “best price” and identified this price as 8% lower than the ordinary price quoted to CLIMANTs other clients. Immediately thereafter, RESPONDENT faxed CLIMANT a confirmation letter.The Subsequent Order: Eight days later, RESPONDENT faxed CLIMANT a bare purchase order containing no shipping or payment procedures, which order was quickly acknowledged by CLIMANT. CLIMANT, in addition, express-mailed RESPODENT a standard contract in which an arbitration agreement designating a non-existing arbitration institution and a choice-of-law clause was incorporated. However, said contract did not contain the 8% discount as earlier agreed upon.4 Statement of Issues5 Short Answer or Brief AnswerStatement of Issue: Under California law that may hold a bartender liable for negligently selling alcohol to a driver, is Ms. Bartender Zhang liable for injuries caused by her customer in an automobile accident after she served him two drinks even though he was visibly intoxicated already?Short Answer: Yes. Ms. Bartender Zhang is liable for the victims injuries because she negligently served two drinks to the driver customer who was already visibly intoxicated.6 Applicable Law许多律师事务所要求在office memo 中列明所适用的成文法规定所列法律条文应加双引号，并用单倍行距7 Discussion or AnalysisIRAC= Issue, Rules, Application, and Conclusion The issue here is whether the bankruptcy code exempted from discharging( 不能通过破产免除债务) a judgment obtained a doctor who had deliberately chosen a less effective course of treatment in order to save the client money R 11 U. S. C. 523 (a) (6) makes non-dischargeable (使不能免除债务) any debt “ for willful or malicious injury by the debtor to another” A The plaintiff argued that the doctors willful decision to use a cheaper method of treating plaintiffs injury qualified as deliberate under the statute. However, the court said that the section 523(a) (6) should be read as essentially identical to the category of intentional torts. In an intentional tort, the actor intends to cause the injury. Here, the doctor did an intentional act which injured the plaintiff, but the doctor did not intend to injure her. C Thus, the plaitiffs judgment against the doctor was dischargeable through bankruptcy proceeding分解方法The first issue to be discussed in this memo is the applicability of CISG Article 14 (1), which provides that “ a proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offer to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provisions for determining the quantity and the price.” Here, four requirements must be established before a proposal can constitute an offer:1. The proposal must be addressed to one or more specific persons;2. The proposal must indicate the intention of the offer to be bound in the case of acceptance;3. The proposal must indicate the goods;4. The proposal must expressly or implicitly fix or provide for determining the quantity and the price.I will discuss each of these requirement separately. Regarding the first requirement8 General Conclusion & RecommendationConclusionA motion to disqualify counsel under the advocate-witness rule(代理人和证人不得为同一人原则) is dependent on the facts, and thus Carters probable testimony must be flushed out(被排除). Based on current information, it is unlikely that the court would find that Carter ought to testify. Our ability to successfully move to disqualify appears significantly greater under the prejudice test(证据偏见衡量标准). If Carter ought to testify on behalf of his clients or might testify prejudicially to his clients ( 对其当事人不利的作证), it might still be possible to move to limit his participation to pro se representation (自我代理). Moreover, it is possible that even his pro se representation could be barred, if not totally, them at least from trial advocacy(庭内辩护).建议部分：Generally speaking, you are to give recommendations concerning the following aspects:1. What do you recommend as a result of the analysis and conclusion you have presented?2. What do you think are the next steps?3. Should a suit be filed?4. Should further investigation be undertaken?5. Should further research be taken?第二节 对外法律意见书 External MemoThe Format and Contents of External Memo: Cover Page (Caption) (封面) Table of Contents (目录) Table of Authorities ( 引用表) Statement of Jurisdiction ( 法院管辖依据) Statement of Issue (s) (焦点陈述) Statement of Facts (事实陈述) Summary of Argument (Short Answer) ( 论点总结) Introduction (引言) Argument (分析) Conclusion (结论) Signature Section (签字) Certificate of Service (证明书) Addendum (附件)1 封面2 目录和引文表3 法院管辖权依据 Statement of Jurisdiction Statement of Jurisdiction The Court of Appeals for the State of Minnesota has jurisdiction to hear this appeal because an order denying a motion to dismiss for lack of personal jurisdiction is appealable as a matter of right (上诉法院必须接受的上诉，即法定上诉权) Domtar, Inc. v. Niagara Fire Ins. Co., 518 N. W. 2d 58, 60 (Minn. App. 1994).4 焦点问题陈述 Statement of Issue5 事实陈述 Statement of Factse.g. (1) In order to attend a party that evening, Ms. Liu locked her two infants in her apartment. A fire broke out early in the morning and quickly engulfed the two helpless kids.(2) In the case at bar (在本案中), the defendant mother was preoccupied with her own plans to attend a party that evening. She left her two infants, aged five and three, alone in her apartment, locked in the bedroom, until morning. No one else was in the apartment when the fire broke out. None of the neighbors could reach the children because their mother had bolted the front door. The children could not get out of the bedroom because their mother had wedged a chair under the outside of the bedroom door to keep the children from leaving.（3）It is difficult to conceive a more graphic example of the term “ abandon” than that which is presented here, where mere infants were rendered pitifully vulnerable to the dangers of the night as a result of the preoccupation of a mother with her personal pleasures.6 论点总结 Summary of Argument Summary of Argument Plaintiff should be entitled to an equitable increase (合理增加) in its fixed fee based on the costs of the eight-month extension of management and support services that it provides as a result of the governments change orders. In addition, the costs that Plaintiff incurred for 22 months of extended management and support services as a result of the governments delay provide a basis for an increase in fee. This increase is warranted because the contract establishes time of performance as a crucial element in defining the scope of work. In view of the above reason, Defendants motion to dismiss should be denied.7 分析和辩论 ArgumentI. THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE IT AWARDED CUSTODY TO AN ALCOHOLIC MOTHERA. The Trial Court Did Not Consider the Best Interests of the Child Because It Ignored the Fathers Good Character and Financial Strength(1) The child has manifested his willingness to live with his father. IRAC rules may also be used in this part, or CRAC rules may be used according to the circumstances. 请对比下列和本章前节IRAC 例子在语言效果上的差别：CARC C The tort judgment against the debtor should be discharged. R Plaintiff argue that the debt is non-dischargeable under Section 523 (a) (6) of the bankruptcy, which exempts from discharge any debt” for willful or malicious injury by the debtor to another. “However, this case is controlled by Kawaauhau v. United States, 3001 U. S. 7418 (1998), in which the Supreme Court held that the exemption of Section 523(a) (6) limited to intentional torts. A In Kawaauhau, the debtor was a doctor who had knowingly prescribed a less effective course of treatment to the plaintiff in order to save money. The plaintiffs argued that the doctors decision was “willful” for the purpose of Section 523(a) （6）. However, the court said that the exemption was limited to intentional torts. Even though the doctor knowingly rendered less effective treat