Below is a list of common mistakes that students and attorneys make when writing formal memoranda.

If you make any of these mistakes consistently, your supervisors will lose a significant amount of respect for your work. While there is obviously much more to effective written analysis than avoiding these mistakes, these mistakes are particularly glaring errors that will undermine your credibility as a lawyer. Capitalization Capitalize proper nouns

The Fourth Amendment of the U.S. Constitution states . . . Not: The fourth amendment of the U.S. constitution states . . .

Use correct capitalization for the word court.

Capitalize the word court if it is part of a proper noun, o E.g., In Correa, the California Court of Appeal held . . . Capitalize the word court if you are referring to the highest court in any jurisdiction, once you have identified the court by its full name. o E.g., In Spahn, the California Supreme Court held that a plaintiff can receive punitive damages for products liability claims. The Court reasoned . . . Capitalize the word court if you are referring to the court your memorandum is addressing. o E.g., For the foregoing reasons, Tran respectively requests that this Court grant its motion for summary judgment. The word court is not capitalized when you are referring to a court by a partial name, or referring to lower courts in general. o E.g., In Warren, the court reasoned . . . o E.g., In most situations, federal courts encourage the parties to reach a settlement rather than proceed to trial. When referring to parties in cases, do not capitalize plaintiff and defendant. o Only capitalize plaintiff and defendant when referring to the parties before the court. You will do this infrequently, as typically you should refer to the parties before the court by their proper names. In Song, the court denied the defendants demurrer motion. Not: In Song, the court denied the Defendants demurrer motion.

Punctuation You should rely on Chapter 9 of Plain English for Lawyers. Punctuation errors suggest that you were careless or that you do not know how to punctuate correctly. Either inference undermines trust in your analysis. You should pay particular attention to the correct usage of commas and semicolons.

When you are quoting text from authority, use quotation marks. Failure to use quotation marks around quoted text suggests you are willing to mislead your reader. Periods and commas go inside quotation marks. Semicolons and colons go outside quotation marks. o I know how to use punctuation in a quote. o Not: I do not know how to use punctuation in a quote. Question marks go inside quotation marks when they are part of the quote. Question marks go outside quotation marks when they are not part of the quotation, but are part of the larger sentence. o The defendant said, Are you really that stupid? o Can a plaintiff recover damages when the defendant says you really are that stupid? Use a colon to introduce a series. The material preceding the colon must be grammatically complete. Each item in the series should fit consistently with the material preceding the colon. o To determine whether to exclude a person from the deponents deposition, a court will consider the following three factors: 1) whether the presence of the person will intimidate the deponent; 2) whether the presence of the person might allow the person to alter his own later deposition testimony; and 3) whether the presence of the person is helpful to the deposing partys counsel.

Grammar

Refer to single entities (i.e., collective nouns) as an it, not a they. A court is a single entity, as is a corporation. o Acme Corporation sued the defendant for breach of contract and fraud. It alleged that the defendant intentionally sold it defective microchips. o Not: Acme Corporation sued the defendant for breach of contract and fraud. They alleged that the defendant intentionally sold them defective microchips. The possessive form for it is its, not its. o Acme Corporation held its shareholder meeting on July 15. o Not: Acme Corporation held its shareholder meeting on July 15. Ensure pronoun/antecedent agreement. Singular antecedents require singular pronouns.

o o o o

The court [antecedent] held the defendant was liable. It [pronoun] reasoned . . . Not: The court [antecedent] held the defendant was liable. They [pronoun] reasoned . . . The plaintiff argued that she should recover one million dollars in damages. Not: The plaintiff argued that they should recover one million dollars.

Ensure pronoun/antecedent agreement. When the noun refers to a single person, you must use a singular pronoun. o A defendant may waive her attorney-client privilege. o Not: A defendant may waive their attorney-client privilege. Ensure pronoun/antecedent agreement. Use a singular pronoun if an indefinite pronoun is the antecedent. o Anyone would have noticed that he had lost his identification. o Not: Anyone would have noticed that they had lost their identification. Ensure that each pronoun has a clear antecedent. o Dr. Ben Pierce, the physician who examined Edward Jones, stated that Jones had impaired vision. o Not: Dr. Ben Pierce, the physician who examined Edward Jones, stated that he had impaired vision. (he could refer to Dr. Pierce or Edward Jones) Use an article before the words plaintiff and defendant. o A plaintiff may argue that a waiver is invalid if she did not knowingly sign a waiver. o Not: Plaintiff may argue that a waiver is invalid if she did not knowingly sign a waiver. o In Maltby, the defendant punched the plaintiff in his face. o Not: In Maltby, defendant punched plaintiff in his face. Do not begin sentences with Arabic numbers or ordinals. Similarly, do not use Arabic numbers for small numbers contained in the middle of a sentence. o Nine people watched the demonstration. o Not: 9 people watched the demonstration. o The plaintiff alleged the six defendants attacked him. o Not: The plaintiff alleged the 6 defendants attacked him. For names ending with s, use apostrophes to form possessives consistently and correctly. Attorneys disagree over the correct form for possessives with names ending in s. Pick one of the following forms and use it consistently. o Chalmers stock options increased in value. OR o Chalmerss stock options increased in value. o Not: Chalmers stock options increased in value. Put modifying words close to the terms they modify. o The judge imposed sanctions on the defendant, who had acted in bad faith. o Not: Acting in bad faith, the judge imposed sanctions on the defendant. (acting in bad faith modifies judge, not defendant.) Do not use the specific article the to introduce something that hasnt yet been introduced to the reader. Use the indefinite article a or an to introduce something to the reader. o For example, you will typically need to refer to an event before you refer to the event. In Abbott, a fire occurred in a hospital. The fire killed ten people. Not: In Abbott, the fire that occurred in the hospital killed ten people.

Custom

Do not put a heading at the bottom of a page without text underneath it. All headings should be followed by at least two lines of text on the same page of the heading. Analogize to case names. Do not analogize to the names of parties in cases. o Similar to the defendant in Frelich who warned the plaintiff about the flaw in his houses foundation, Lopez warned Donat about the flaw in her apartment complexs foundation. o Not: Similar to Frelich who warned the plaintiff about the flaw in his houses foundation, Lopez warned Donat about the flaw in her apartment complexs foundation. Do not use contractions in formal memoranda. o The defendant did not touch the plaintiff. o Not: The defendant didnt touch the plaintiff. Do not use the first person in formal memoranda. o This memorandum concludes the plaintiff will prevail on her claim. o Not: I believe the plaintiff will prevail on her claim. Do not use said in lieu of an article. o In Maltby, the defendant punched the plaintiff in his face. The defendant never apologized. o Not: In Maltby, the defendant punched the plaintiff in his face. Said defendant never apologized.

Comments (0) PARENTHETICALS

Parentheticals are essentially mini-rule proofs, where you provide important information about a case in parentheses after you cite to the case. Parentheticals must at minimum provide the facts and holding of a case. Depending on the nature of your written analysis and the precedent case, your parenthetical may also need to briefly address the courts reasoning. Your parentheticals should contain this information so your reader can understand why the case is relevant to the issue you are addressing. Parentheticals are useful in at least the following four situations. 1. 2. 3. You can use a parenthetical to establish additional authority for a point you have already illustrated with a complete rule proof. In connection with this, you can use a parenthetical to demonstrate that the authority you are relying on is not anomalous. Usually, one or two parentheticals are all you need for this purpose. You can use a parenthetical to briefly illustrate an aspect of the overall rule. You can use a parenthetical to serve as a replacement for a rule proof. You should do this sparingly and only under the following two circumstances: 1) you can adequately explain the facts, reasoning and holding of the case in a parenthetical; and 2) you have a very simple issue where the facts you are going to rely on clearly establish (or dont establish) your test. You can use a parenthetical to briefly illustrate a minor point that is not central to your analysis.

4.

In your first year, as well as in the bulk of your practice, you should primarily rely on parentheticals for the first two situations addressed above. You should offer parentheticals within your rule or test paragraph(s) or within your arguments. A parenthetical is not effective if it is offered after a rule proof. Below are some examples from some problems you may have worked with this year. Parentheticals to help illustrate a test (Molina memo: Susceptible of Being Proven True or False Factor) [Conclusion] A court will likely conclude that Molina's statement is not susceptible of being proven true or false. [Test] A statement is susceptible of being proven true or false if the truth of the statement can be determined using objective criteria. Unelko Corp. v. Rooney, 912 F.2d 1049, 1055 (9th Cir. 1990); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1441 (9th Cir. 1995) (holding that an allegation that a judge was drunk on the bench was susceptible to objective verification because the statement could reasonably be int erpreted as suggesting that the judge had taken the bench while intoxicated on at least one occasion). However, if a term used in the statement lacks a single, concrete meaning, the statement is not susceptible of being proven true or false. Underwager v. Channel 9 Austl., 69 F.3d 361, 367 (9th Cir. 1995). Where the question of truth or falsity is a close one, a court should err on the side of nonactionability. Steam Press Holdings, Inc. v. Haw. Teamsters & Allied Workers Union, Local 996, 302 F.3d 998, 1008-09 (9th Cir. 2002) (holding that the statement that a business owner was making money did not possess a concrete and readily verifiable meaning because the statement lacked temp oral scope and it was unclear whether making money meant earnings or profits). [Underwager and Unelko rule proofs would follow after the test] Parenthetical to add emphasis to an argument (Clover memo: Soul counterargument) Soul may contend that he, unlike the defendant in Neighbarger, did pay for Clovers services. The sick days Clover used while he was recuperating were funded by taxes. Soul may also argue that Clovers use of taxpayer-funded clothing, equipment, and training to fight the fire show that he did make use of public funding. Further, Clover called the fire station on a phone line reserved for the exclusive use of public firefighters. Because the public compensated Clover for his injuries and paid for the equipment and training he used in fighting the fire, Soul will contend that the public contracted for Clovers firefighting services and therefore the firefighters rule applies. See Baker v. Superior Ct., 129 Cal. App. 3d 710, 721 (Ct. App. 1982) (holding that the firefighters rule applied to defendants even though defendants were volunteer firefighters who received only five dollars per fire because defendant s were entitled to workers compensation benefits, disability benefits, and all necessary medical treatment). Parenthetical to add emphasis to an argument (Molina memo: Molina Argument Regarding Broad Context - Tenor and Setting Arguments) Similar to the column in Cochran, the informal tenor of Molinas blog negates any inference that it would contain assertions of fact. Molinas blog posts are lighthearted and humorous. The titles of Molinas posts tend to be humorous or to consist of plays on words, like, Is Samuel L. Jackson steppin into the Twilight Zone? The pictures have witty captions rather than purely factual descriptions. For example, a picture stating 3 IS A MAGIC NUMBER in relation to the spec script The Three is captioned, Not in this script, its not. These elements combine to create an informal, humorous tenor. Given this general tenor, a reasonable reader would not conclude that Molinas statements on The Movie Mole imply assertions of fact. See Knievel, 393 F.3d at 1077 (holding that a reasonable person would not expect a photograph of Evel Knievel with a caption calling Knievel a pimp appearing on the lighthearted, jocular EXPN.com website to be an asser tion of fact). Further, the setting of Molinas statement within a blog website, like the setting of the column in Cochran in the opinion portion of the newspaper, negates an impression that her statement asserts objective fact. Molinas blog posts provide her candid opinions regarding movie and script ideas. Moreover, her posts provide speculative Hollywood gossip in a sarcastic and humorous manner. Given the setting of Molinas post about Dimmick in a gossip blog, a reader would be unlikely to expect it to contain assertions of fact. See Obsidian, 2011 WL 3734457, at *11-12 (holding that the broad context of critical, stream of consciousness statements made on a blog called obsidianfinancesucks.com would negate an impression that the statements were provable facts and instead would suggest that the statements were personal, one-sided viewpoints).