Draft an office memo that examines the issue of whether or not our client has viable claims. You must use the Mary Hastings facts (client interview notes) and the 3 assigned cases. The office memo must contain the following sections: Facts, Issue, Short Answer, Analysis, Counter-Argument, Rebuttal, and Conclusion.
In the Analysis section, provide an explanation of the law, including the common reasoning and the holdings of each case. There must be an application of the law to support your conclusion. The counter-argument must look at how the law can be used to reach the opposite conclusion from the one that you reached.
Deering Wood Condominium Association, 377 Md. 250
Joseph, 173 Md. App. 305
Maans, 161 Md. App. 620
*Please use the regional citation format project.
CLIENT INTERVIEW: Mary Hastings
You are a paralegal employed by Chong and Associates. The firm handles personal injury cases. The following is a transcription of a client interview that you conducted on June 5, 2008.
Paralegal: Good morning, Ms. Hastings. My name is (insert your name here). I am a paralegal and will be working with Alice Chong on your case. Before we discuss your incident, I would like to ask you some background information. What is your full name and address? Also, what is your work number? What is your home number?
Hastings: Mary Hastings. I live at 4583 Orchard Avenue, Evans, Maryland 21202. My city, Evans, is located within Gilford County. My home number is 410-321-9876. My work number is 410-550-9999.
Paralegal: What is your social security number and date of birth?
Hastings: 123-45-0987 and my date of birth is October 1, 1955.
Paralegal: Are you married? Do you have any children?
Hastings: I am divorced. I do not have any children.
Paralegal: Where do you work?
Hastings: I am a school counselor in BaltimoreCounty.
Paralegal: What is your salary?
Hastings: I make approximately $65,000 a year.
Paralegal: Now that we’ve gotten the background information out of the way, we can discuss your incident. What happened to you?
Hastings: Well, around 7 a.m. on January 2, 2008, I was walking my dog, Harry, at the local county park owned by the Gilford County Recreations and Parks. I walked to the park since it is only a couple of blocks away from my house. Although it had snowed about 3 inches two days before the sidewalks to the park were clear of snow and ice. And, in the park, it appeared that the asphalt sidewalks had been cleared of the snow and sanded. So, I continued walking Harry around the pond. While walking around the pond at the park, I suddenly slipped and fell on black ice.
Paralegal: Were you injured?
Hastings: I broke my right arm.
Paralegal: Did anyone see the fall?
Hastings: No, nobody saw me fall. The park was empty.
Paralegal: How did you get assistance?
Hastings: I was able to slowly walk back to my house and call for an ambulance.
Paralegal: What was the weather like that morning?
Hastings: It was cold, probably 35 degrees.
Paralegal: What hospital were you taken to?
Hastings: I was taken to the local hospital, Gilford County Hospital. They took x-rays of my arm and placed it in a cast. I had the cast on for 8 weeks.
Paralegal: Did you miss any work?
Hastings: I missed 1 week of work.
Paralegal: What doctors did you see for your arm injury?
Hastings: I saw my primary doctor, Dr. Samantha Edwards.
Paralegal: How is your arm now?
Hastings: It’s okay. It hurts when the weather is bad – raining, snowing, or sleeting.
Paralegal: Do you report your incident to the Gilford County Recreations and Parks?
Hastings: Yes, I filled out an incident report.
Paralegal: Thank you for coming in to see me today. I’m going to discuss this with Ms. Chong. If you have any questions regarding your case, please contact me.
PARTS OF MEMO
1. A memorandum heading
2. The Issue (sometimes called Question Presented) states the question(s) that the memorandum resolves. The Issue also itemizes the few facts that you predict to be crucial to the answer. (Such as travel expenses to out-of-state, keeping child out of danger, and commission of crime). The reader should understand the question without having to refer to the facts.
3. Brief Answer (sometimes called Conclusion) states the writer’s prediction and summarizes concisely why it is likely to happen. Some writers begin with a direct response such as “yes” or “probably not.” Our book says that they do not prefer this. Sometimes this is client or partner driven. Also, some questions lend themselves to answers such as “yes” or “no.” Allusion to determinative facts and rules. Do not omit key facts. Begin by just re-stating your issue as a declarative sentence. Do not omit the reasoning. Do not include citation to authority or application of relevant law. Many attorneys only read this part.
4. Facts set out the facts on which the prediction is based.
5. Discussion is the largest and most complex part of memo. It proves the conclusion set out in brief answer. If the discussion is highly detailed or analyzes several issues, it should be broken down into subheadings.
TO: Senior Partner [Please block-indent so that the information lines up, as demonstrated]
FROM: Your Name
DATE: (date assignment is submitted)
RE: (A concise label for the issue considered: mention the parties; your firm will file your Memo by names and cause of action–and, perhaps, by jurisdiction)
The proper format is always double-spaced. Do not double-double space between sections. Plain old, regular double-space is sufficient.
Here, recite all material facts, usually in chronological order. A “material” fact is a “dispositive” fact, or one upon which the outcome will depend. It is a fact that will affect the outcome in one way or another. Please include all material procedural facts as well as all material substantive facts. This means that it is essential to include all relevant times, dates, and places. You should begin with an “overview” sentence that sets the full context and begins to describe the problem presented. Please review your reading and as many samples as possible to understand both the range and scope of what is acceptable as professional practice.
Remember your role
Watch for the tendency to try to “prove” something by the way you tell the story. NO LEGAL ANALYSIS!
1) USE NEUTRAL LANGUAGE AND OBJECTIVE CHARACTERIZATIONS. Rather than writing “the D was speeding through the school zone,” write “the D was traveling 50 MPH through the school zone.” Rather than writing “The D brutally beat the victim,” write “The D struck the P on the head, resulting in a cut over his left eye.”
2) Include unfavorable and favorable facts.
Phrased as a question and ending with a question mark, state the specific issue or issues you will address. One method is to use the technique: under? (describe the law); does? (state the issue); what? (give the legally relevant or “dispositive” facts).
Some memoranda use the commonly seen style of: “Whether . . . .”
As always, discuss with your professor to see which he or she prefers.
But whatever the method, the following advice applies:
• Should be concise single sentences that include relevant facts and general propositions of law.
• Don’t say, “Whether a niece can recover for negligent infliction of emotional distress,” when you can say, “Whether, under Iowa law, a niece who witnesses the aftermath of an automobile accident involving her uncle from a block away can recover for negligent infliction of emotional distress when she observes his severe injuries upon arrival at the scene.”
You phrased (or asked) a question in the section above. Answer it here: “Yes.” “No.” “Probably not.” Use a period. Your Brief Answer follows the same formula and sequence as your Question Presented. It answers the questions “under? does? what?” except, the Brief Answer should include a brief statement of your reasons beginning with the word “because.”
The heart of a Memorandum, this section asks you to explain the law and explain the facts. Getting it “right” will take time. Be patient. Your goal is to “synthesize” the cases and extract a common rule of law. To do this, you will need to identify the common elements that allow you to analyze and discuss several cases at once. A common mistake, legal writers frequently engage in “listing behavior.” They treat each case independently and sequentially, beginning each paragraph with “In”–for example, “In Callow v. Thomas” or “In Brown v. Brown.” Looking down a written page, the lawyer will see a ladder-like effect, the “in-ladder,” where each succeeding paragraph begins with the word “in” followed by a case title. Often “listing behavior” culminates in “dump-trucking” when the lawyer saves up and “dumps” all the legal analysis into the last paragraph. In addition, lawyers will frequently “front-load,” squeezing all the legal rules of law into the very first paragraph.
To avoid these pitfalls, begin your discussion with a general overview in a thesis or “roadmap” paragraph. Your thesis paragraph is the first paragraph in the Memorandum – and the first paragraph in a Discussion section. Always begin your thesis paragraph with a sentence to anticipate–and announce–your ultimate conclusion. Tell the reader where you are headed and be a tour-guide to your argument or analysis.
Then, taking one point at a time, write a thesis sentence that answers the questions of “what-is-your-point?” of this particular paragraph. Next, set forth the legal Rule that applies. Include the proper citation. Next, Analyze (explain) what the law or legal rule means. Next, Analyze (explain) how the relevant facts fit (or do not fit) the legal or factual standard. Finally, Conclude each paragraph with a summarizing statement and each sub-issue with a specific sub-issue summary.
Sometimes, this method is referred to as a variation of the acronym: IRAC. Other legal writing professors have some other acronym such as REAAC or FIRAC. Still, others simply refer to it as the 5-step process. Keep in mind that these are all “formulas” that legal writing professionals are using to introduce you to presenting a legal argument. Ultimately, you will use a style or formula that works best for your particular argument. But virtually every aspect of every legal argument must contain a 1) Statement of Rule or Applicable Law; 2) Analysis of the law and how it Applies to your relevant facts; and 3) a Conclusion on each of these sub-issues. Similarly, when a discussion requires several paragraphs, the writer may not reproduce the exact IRAC structure within each and every paragraph, but may require several paragraphs to develop fully the full set.
As always, know your audience and talk about the method of legal analysis that your professor, or in the future, your employer, prefers. And remember that learning how to synthesize statutes, cases, and secondary sources and then presenting them in a clear, concise, and logical manner takes time and practice.
(The following describes the maximum points for the column) Adequate
(The following describes the maximum points for the column) Fails To Meet Expectations
(The following describes the maximum points for the column) Points Earned
audience Management: Header, Statement of Assignment, and Statement of Issues
(10%) (8-10 points)
There is a clear purpose and sense of audience and the paper successfully accommodates the audience. The header is complete with no inaccuracies. The statement of assignment is present, is correct, and is accurate. The statement of issues is present and accurate. (5-7 points)
The paper fulfills the assignment. There is an attempt at audience accommodation (in at least three places in text). The header has inaccuracies. The statement of assignment has some problems either with form or with content. The statement of issues has some problems either with form or with accuracy (1-4 points)
The paper does not fulfill the assignment. There is no sense of audience. The header is absent or contains wrong content. The statement of assignment is absent or has wrong content. The statement of issues is absent or has wrong content.
Organization and Structure
(15%) (11-15 points)
The paper utilizes the appropriate or prescribed format in a manner that effectively supports the conclusion. There is clear organization at both the macro (overall paper) and micro (within paragraphs) levels. The writer has planned out the order and method of providing information to the reader. (6-10 points)
The paper utilizes the appropriate or prescribed format. There is a slight problem in organization at either the macro or micro level; however, the reader can still follow the argument, and paragraphs are unified around a central idea. At times, the argument does not appear to have a clear path. (1-5 points)
The paper does not utilize the appropriate or prescribed format. The paper lacks organizational structure. Paragraphs do not always center on one controlling idea. The order of evidence appears random, and evidence is not presented to the reader in a logical fashion. It is difficult to follow the argument.
Summary of Applicable Law (complete analysis should generally include procedural posture, key facts, holding, and rationale) (20%) (16-20 points)
The summary is complete and accurate. The relevant case law and enacted law are discussed thoroughly, completely, logically and accurately. (11-15 points)
The summary has minor inaccuracies or incompleteness. Problems exist with the discussion of the relevant enacted law and case law regarding thoroughness, completeness, logic or accuracy. (1-10 points)
The summary has substantial inaccuracies, substantial incompleteness, content is absent or inaccurate. The discussion of the relevant enacted law and case law is absent or is inaccurate.
Legal Analysis and Critical Thinking
(40%) (31-40 points)
All issues are objectively covered, including all relevant sub-issues. There is a high degree of accuracy and logic in all parts of the legal analysis. Case law and enacted law are harmonized into a logical, coherent whole. The paper includes more than one alternative to the primary legally plausible outcome. The paper includes in depth explanations why the alternative does not lead to the primary legally plausible outcome. The paper includes a legally plausible outcome that directly answers the question presented in statement form along with the main reason and logical next step for client. (21-30 points)
A few issues or relevant sub-issues were not covered or are covered with slight bias. There were some minor inaccuracies or lapses in logic. Case law and enacted law are harmonized into a logical, coherent whole which lacks depth or breadth in places. The paper includes an alternative to the primary legally plausible outcome. The paper includes an explanation why the alternative does not lead to the primary legally plausible outcome. The paper includes a legally plausible outcome that directly answers the question presented in statement form. (1-20 points)
A major issue or sub-issue was not covered or, substantially erroneous issues covered. There were substantial inaccuracies or lapses in logic. Case law and enacted law are poorly harmonized into a logical, coherent whole, or harmonization is missing. The content is highly biased, argumentative, or judgmental. The paper fails to include an alternative to the primary legally plausible outcome. The paper fails to include an explanation why the alternative does not lead to the primary legally plausible outcome. The paper fails to include a legally plausible outcome that directly answers the question presented in statement form.
Readability, Style, Mechanics
(15%) (11-15 points)
The paper is written in a professional tone and style. There are no proofreading or grammatical errors. Sentence structure and diction are effective and diverse. (6-10 points)
The paper is written in a professional tone and style with some lapses in formality. There are proofreading and/or grammatical errors; however, the errors do not detract from the readability of the paper. Sentence structure may be rigid and unvarying. (1-5 points)
The paper is not written in a professional tone or style. Proofreading, grammatical errors or both detract from the readability of the paper. There are major problems in sentence structure (run-ons, fragments).
Date: March 29, 2010
RE: Office Memo re Teresa Foster’s third party custody case
In January 1991, the wife of Luke Warm and mother of Paul and Rachel Warm died of cancer. After his wife’s death, Mr. Warm became despondent and his employment was terminated since he was intoxicated on the job.
On February 15, 1993, the Circuit Court of Maryland for Frederick County reviewed the petition filed by Child Protective Services and removed Paul and Rachel Warm from their father since he was not providing a stable home environment. Specifically, the children were living in a dilapidated trailer that had no indoor plumbing and little food. Further, the children were consistently tardy from school and were receiving failing grades. Although the school encouraged Mr. Warm to monitor his children’s school performance, he failed to do so.
On February 16, 1993, the Circuit Court of Maryland for Frederick County placed the children in foster care with Teresa Foster. In July 1993, the court awarded temporary custody to Ms. Foster with Mr. Warm’s consent. However, the court left open the option of Mr. Warm petitioning for custody.
Initially, the children missed their father. However, as the months progressed, they became attached to Ms. Foster and adjusted to their new school. They developed numerous friendships at school. Further, they did extremely well academically. Paul made the honor roll. Rachel was on the baseball team at school. Ms. Foster was an active foster parent. She attended all the PTA meetings and Rachel’s little league games.
Although Mr. Warm was given liberal visitation with the children while they were in foster care, he did not see them often. He saw them once a month in 1993. In 1994, he saw the children even less frequently. By 1995, the children may have seen him once every three to four months. Mr. Warm was given a copy of Rachel’s game schedule. However, he attended one out of 14 games. It should be noted that Mr. Warm got married in the fall of 1997 and moved to Cumberland, Maryland. Thus, the children saw their father even less frequently. When the children did see him, the stepmother and her children came with him. The children do not like their stepmother or her children.
Mr. Warm has notified Ms. Foster and his children that he wants custody. However, he has not filed a petition with the court for custody. The children do not want to live with their father and his new family. After hearing Mr. Warm’s announcement regarding custody, the children’s performance in school dramatically decreased. Paul now has frequent nightmares.
Ms. Foster is a teacher at Frederick Middle School, Frederick, Maryland. She earns $43,000 annually from her teaching position. Additionally, she earns $7,000 annually as an Avon Sales Representative. Mr. Warm is currently employed in the maintenance department of Frostburg State University and earns $14,000 annually.
Ms. Foster is seeking permanent custody of the children. She is amendable to granting Mr. Warm visitation rights. She does not intend to request child support.
In this custody case between Ms. Foster, a third party, and Mr. Warm, the children’s biological parent, can the presumption that it is in the best interest of the children to be placed with Mr. Warm be overcome by a finding of unfitness or exceptional circumstances?
III. BRIEF ANSWER
The best interest of the child standard controls in determining child custody cases between third parties and biological parents. In Maryland, there is a prima facie presumption that the child’s best interest will be served in the custody of the biological parent. However, the biological parent’s right to have custody of the child is not absolute. In fact, a parent’s right to have “such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child.” Ross v. Hoffman, 372 A.2d 582, 587 (Md. 1977). Further, the court may consider material and environmental opportunities offered by the biological parent and the third party. Pastore v. Sharp, 567 A.2d 509, 514 (Md. Ct. Spec. App. 1989). “The factors used in assessing fitness for having custody of a child include such parental characteristics as age, stability, and the capacity and interest of a parent to provide for the emotional, social, moral, material, and educational needs of the child. . . .” Id. at 512 (citations omitted). The following factors have emerged from the court’s prior decisions in determining whether exceptional circumstances exist:
The length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of ties between the child and the third party custodian, the intensity and genuineness of the parent’s desire to have the child, the stability and certainty as to the child’s future in the custody of the parent.
Ross, 372 A.2d at 593.
In this case, the court may find that exceptional circumstances exist that would make custody with Mr. Warm detrimental to the best interest of the children. The children have been residing with Ms. Foster since February 16, 1993 and have become emotionally attached to her. Ms. Foster has taken an active role in the children’s lives. She participates in their school and extracurricular activities. Mr. Warm has had limited interaction with his children. Furthermore, Ms. Foster is employed as a teacher and Avon Sales Representative earning $50,000 annually. Whereas, Mr. Warm is employed in the maintenance department of Frostburg State University and earns $14,000 annually. Mr. Warm now resides with his new wife and two stepchildren.
In Ross v. Hoffman, 372 A.2d 582 (Md. 1977), the court determined that exceptional circumstances existed that would make custody of Melinda Dawn Sterquel with her biological mother, Karen Ross, detrimental to her best interest. The exceptional circumstances in this case included the long separation between Mrs. Ross and Melinda, Melinda’s strong attachment to Mrs. Hoffman, the possible emotional effect on Melinda if custody was changed, as well as the genuineness of Mrs. Ross’ desire to have custody of Melinda. When Melinda was three and a half months old, Ms. Ross retained Mrs. Hoffman as a babysitter. Initially, Melinda stayed with Mrs. Hoffman at nights since Mrs. Ross worked the night shift. Due to Mrs. Ross’ work schedule, Melinda started staying with the Hoffmans during the work week. Mrs. Ross took Melinda back on the weekends for a month. Thereafter, Mrs. Ross stopped taking Melinda and she began to live with the Hoffmans full-time. During the time that Melinda stayed with the Hoffmans, Mrs. Ross had a life style that was not compatible to raising a child. She became involved with drugs and had several abortions. Melinda lived with the Hoffmans for over eight years. During that time, Mrs. Ross visited Melinda sporadically. In 1975, Mrs. Ross got married. Fitness of the parties was not an issue in the case.
In Pastore v. Sharp, 567 A.2d 509 (Md. Ct. Spec. App. 1989), the court affirmed the custody of Nicholas to his paternal aunt and uncle instead of his biological mother as she was deemed unfit and exceptional circumstances existed. The mother who had a prior drug problem had originally asked her husband’s sisters to take care of her two sons, Nicholas and Vincent. When she requested that her sons be returned, the aunt who had custody of Vincent complied. In this case, the court deemed the mother to be unfit because she was always in need of some kind of support. Further, the court determined that the responsibility of Nicholas in addition to her other son, Vincent, was more than she could handle. While Nicholas was in her care, she taught him an obscene gesture and taught him to lie about his day care center which did not assist in providing for his social, moral, and educational needs. Additionally, the mother was not financially stable. She was on partial welfare and was renting a room barely fit for her and her other son, Vincent. Exceptional circumstances also existed in this case. The mother had not visited her son for several years. The Sharps had taken great care of Nicholas and had grown attached to him.
The present case is analogous to the Ross case as the both the child in the Ross case and the Warm children have been separated from their biological parent for a long time. Based upon the facts of the Foster case, the court may find exceptional circumstances in the nature of the extended separation between Mr. Warm and the children. Furthermore, he has not taken the initiative to visit his children.
Another exceptional circumstance may be the emotional ties between the children and Ms. Foster. Just like the children in the Ross and Pastore cases, the Warm children have become emotionally attached to Ms. Foster. She has taken an active role in their lives. To remove the Warm children from their stable environment to an unknown and unwanted one may be an exceptional circumstance. In fact, upon hearing of Mr. Warm’s desire for custody, the children’s performance in school dramatically decreased. Paul now has frequent nightmares. Also, it should be noted that the children are not fond of Mr. Warm’s new wife and stepchildren.
Moreover, in this case, Mr. Warm may also be deemed unfit. He has been unable to provide for the educational needs of his children. In the past, the children’s school requested that he take an active role in their education. However, he failed to take on that responsibility. Additionally, financial stability was a factor used by the court in the Pastore case. Presently, Mr. Warm is not as financially secure as Ms. Foster. Ms. Foster earns $50,000 annually whereas he earns $14,000 annually. Ms. Foster does not have any dependents while Mr. Warm has a wife and two stepchildren.
In Maryland, there is a prima facie presumption that the child’s best interest will be served in the custody of the biological parent. Thus, Mr. Warm will assert that he is not unfit and that there are no exceptional circumstances that exist in this case to make custody with him detrimental to children’s welfare.
He will argue that he is able to provide for his children’s emotional, social, moral, material, education needs. As for his past behavior, he will assert that he was grieving for his wife and could not take care of his children. Additionally, he will most like state that he did not visit frequently because he was trying to re-establish himself and improve his situation. Presently, he is stable, emotionally and financially, and can take care of his children. He has a stable job earning $14,000 annually. He also has a stable home environment with a new wife and two stepchildren.
Mr. Warm’s counterargument is weak. While the children were in Ms. Foster’s custody, Mr. Warm was given liberal visitation and a schedule of Rachel’s baseball games. However, he rarely visited his children and did not participate in their activities. The children have become emotionally attached to Ms. Foster. She has been an active parental figure in their lives. The children do not want to live with their father and his wife and stepchildren. Upon hearing the news that he wanted custody of them, the children’s performance in school dramatically decreased. Paul now has frequent nightmares. Additionally, Mr. Warm’s salary of $14,000 may not be sufficient to support everyone.
In this case, the court may find that exceptional circumstances exist that would make custody with Mr. Warm detrimental to the best interest of the children. The court may find the exceptional circumstances based upon the extended length of time the Warm children have been away from their father, the emotional ties between the children and Ms. Foster, and the stability with Ms. Foster versus Mr. Warm. In this case, the children have been residing with Ms. Foster since February 16, 1993 and have become emotionally attached to her. Ms. Foster has taken an active role in the children’s lives. Moreover, the court may find that Mr. Warm is unfit to take care of his children. He was unable to take care of the educational needs of his children. Also, Ms. Foster is in a better financial situation than Mr. Warm.