MemorandumofLaw法律意见书

1、Memora ndum of Law 法律意见书Accord ing to the objects to whom the memo is issued, it is divided into two categories:internalor office memora ndum （here in after referred to as office memo ”，and exter nal 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 S

2、tatement 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 Head ingOffice Memora ndum of LawTo:From:Assig nment Date:Submissi on Date:Case:Docket Number:Office File Number:Re:2 Stateme nt of Assig nmentStateme n

3、t of Assig nmentMao Hua, Part nerGao Yueqia ng. Junior AssociateJune 1,2003July 1,2003China Veture Tech, Inc. v. Banco Pupula, N.A.03-C00178NYS03-L016GYWhether substitute service is allowed under the Civil Procedure Law of the Peoples Republic of ChinaYou have asked me to prepare a memorandum of law

4、 limited to the question of whether our client, Mr. Defendant, has breached the con tract betwee n him and Ms. Plain tiff by direct ing his sales age nt to withhold payme nt un til SARA has bee n effectively con trolled in China. Specifically, you asked me to discuss the applicability of the United

5、Nati ons Conven ti on on Con tracts for the International Sale of Goods （简称 CISG, 联合国国际货物销售合同公约）3 Stateme nt of Factsa.列举式Stateme nt of FactsYear 2000On December 7 : Tianjin Co. (hereafter: Claimant) emailed Shanghai Co. (hereafter: Respondent), con firm ing the agreeme nt reached through tele-c onf

6、erence earlier in the morni ng. Claima nt assured that Respondent would always receive the best price ” and identified this price as 8% lower than the ordinary price quoted to Claimant other clients.On December 15: Respondent faxed Claimant a purchase order, which was quickly ack no wledged by Claim

7、a nt. No shipp ing and payme nt procedures were specified.On December 27: Claima nt express-mailed Resp ondent a sta ndard con tract in which an arbitrati on agreeme nt desig nat ing a non-exist ing arbitrati on in stitutio n and a choice-of-law clause was in corporated. However, said con tract did

8、not contain the 8% disco unt as earlier agreed upon.b.陈述式Stateme nt of FactsOn December 7, 2000, Tianj in Co., hereafter Claima nt, reached an agreeme nt with Shan ghai Co., hereafter Respondent, through tele-conferencing. Claimant assured that Respondent would always receive the best price ” and id

9、entified this price as 8% lower than the ordinary price quoted to Claimant other clients. Immediately thereafter, Respondent faxed Claimant a confirmation letter.Eight days later, Resp ondent faxed Claima nt a bare purchase order containing no shipp ing or payme nt procedures, which order was quickl

10、y ack no wledged by Claima nt. Claima nt, i n additi on, express-mailed Resp ondent a sta ndard con tract in which an arbitrati on agreeme nt desig nat ing a non-existing arbitration institution and a choice-of-law clause was incorporated. However, said con tract did not contain the 8% disco unt as

11、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

12、 the ordinary price quoted to CLIMANT other clients. Immediately thereafter, RESPONDENT faxed CLIMANT a con firmation letter.The Subsequent Order : Eight days later, RESPONDENT faxed CLIMANT a bare purchase order containing no shipp ing or payme nt procedures, which order was quickly ack no wledged

13、by CLIMANT. CLIMANT, i n additio n, express-mailed RESPODENT a sta ndard con tract in which an arbitrati on agreeme nt desig nat ing a non-exist ing arbitrati on in stitutio n and a choice-of-law clause was in corporated. However, said con tract did not contain the 8% disco unt as earlier agreed upo

14、n.4 Stateme nt of Issues5 Short An swer or Brief An swerStatement 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 e

15、ven though he was visibly intoxicated already?Short Answer: Yes. Ms. Bartender Zhang is liable for the victim injuries because she negligently served two drinks to the driver customer who was already visibly in toxicated.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 Discussi o

16、n or An alysisIRAC= Issue, Rules, Applicati on, and Con clusi onThe issue here is whether the ban kruptcy code exempted from discharg ing(不能通过破产免除债务)a judgme nt obta ined a doctor who had deliberately chose n a less effective course oftreatment in order to save the client money R 11 U. S. C. 523 (a)

17、 (6) makes non-dischargeable (使不能免除 债务)any debt “or willful or malicious injury by the debtor to another” AThe plaintiff argued that the doctor willfuldecision to use a cheaper method of treatingpla in tiff injury qualified as deliberate un der the statute. However, the court said that the sect ion

18、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 pla in tiff, but the doctor did not intend to injure her. C Thus, the plaitiff judgme nt a

19、ga inst the doctor was dischargeable through ban kruptcy proceed ing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 con cludi ng a contract addressed to one or more specific pers ons constitutes an offer if it is suffi

20、ciently definite and indicates the intention of the offer to be bound in case of acceptanee. 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 requireme nts must be established

21、before a proposal can con stitute an offer:1. The proposal must be addressed to one or more specific pers ons;2. The proposal must in dicate the inten ti on of the offer to be bound in the case of accepta nee;3. The proposal must in dicate the goods;4. The proposal must expressly or implicitly fix o

22、r provide for determining the quantity and the price.I will discuss each of these requirement separately. Regarding the first requirement 8 Gen eral Con clusi on & Recomme ndatio nCon clusi onA moti on to disqualify coun sel un der the advocate-wit ness rule(代理人和证人不得为同一人原则)is dependent on the facts,

23、 and thus Carter 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 testif

24、y on behalf of his clients or might testifyprejudicially to his clie nts (对其当事人不禾 U的作证 ),it might still be possible to move to limithis 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 tri

25、al advocacy( 庭内辩护 ).建议部分：Gen erally speak ing, you are to give recomme ndati ons concerning the followi ng aspects:1. What do you recomme nd as a result of the an alysis and con clusi on you have prese nted?2. What do you think are the next steps?3. Should a suit be filed?4. Should further in vestig

26、ati on be un dertake n?5. Should further research be take n?第二节对外法律意见书Exter nal Memo（封面）（目录）（引用表）（法院管辖依据）（焦点陈述）（事实陈述） 论点总结）The Format and Contents of Exter nal Memo:* Cover Page (Caption)* Table of Contents衣 Table of Authorities* Statement of Jurisdiction* Statement of Issue (s)* Statement of Facts（

27、引言）（分析）（结论）（签字）（证明书）（附件）* Summary of Argume nt (Short An swer)(* In troducti on* Argume nt* Con clusi on* Sig nature Section* Certificate of Service* Addendum1封面2目录和引文表3 法院管辖权依据Stateme nt of JurisdictionStateme nt of Jurisdict ionThe Court of Appeals for the State of Minn esota has jurisdicti on to

28、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Stateme nt of Issue5 事实陈述 Stateme nt of Factse.g. (1) In order to

29、atte nd a party that evening, Ms. Liu locked her two infants in her apartme nt. 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 infa

30、nts, 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 n eighbors could reach the childre n because their mother had bolted the front door. The children could not get out of the bedroom because the

31、ir 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 prese nted here, where mere infants were ren dered pitifully vuln erable to the dan gers of the ni ght a

32、s a result of the preoccupati on of a mother with her pers onal pleasures.6 论点总结 Summary of Argume ntSummary of Argume ntPlain tiff should be en titled to an equitable in crease (合理增力口 ) in its fixed fee based on thecosts of the eight-m onth exte nsion of man ageme nt and support services that it pr

33、ovides as a result of the gover nment cha nge orders .In additi on, the costs that Plain tiff in curred for 22 mon ths of extended management and support services as a result of the government delay provide a basis for an in crease in fee. This in crease is warra nted because the con tract establish

34、es time of performanee as a crucial element in defining the scope of work. In view of the above reason, Defendant moti on to dismiss should be deni ed.7分析和辩论 Argume ntI. THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE IT AWARDEDCUSTODY TO AN ALCOHOLIC MOTHERA. The Trial Court Did Not Co nsider the Bes

35、t In terests of the Child Because It Ign ored the Father Good Character and Finan cial Stre ngth (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 accord ing tothe circumstances.请对比下列和本章前节IRAC例子在语言效果上的差别：CARCC Th

36、e tort judgme nt aga inst the debtor should be discharged. R Plain tiff 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 ano ther.However, this case is con trolled byKawaauhau

37、 v. Uni ted States, 3001 U. S. 7418 (1998), in which the Supreme Court held that the exempti on of Sectio n 523(a) (6) limited to inten ti onal torts. A In Kawaauhau, the debtor was a doctor who had knowin gly prescribed a less effective course of treatme nt to the plai ntiff in orderto save money. The plaintiffs argued that the doctorsdecision was Willful ” for the purpose ofSection 523(a)(6) . However, the court said that the exemption was limited to intentional torts.Even though the doctor knowin gly ren dered less effective treatm