How to write a legal memo and how to plead a case - JP Valdivia Pizarro (26 Sept 2022).pdf

How to write legal memo

1. How to write a legal
memorandum
Juan Pablo Valdivia Pizarro
26 September 2022

2. Outline
i. What have you learned so far?
ii. Written advocacy – how is it different from the academic text?
a. Legum’s Ten Commandments
b. Vis Moot’s Rules’ Book
c. Outline and Structure
d. Responsiveness

3. i. What have you learned so far?

4. Logic and argumentation skills
•Mathematical problems and legal arguments are, in a way, similar:
You go from problem to solution
You identify the different steps to get there often impossible to “solve a
problem” in one step
You assess whether every step is sufficiently supported by case law and doctrine
Your argument is only as strong as the weakest step…

5. Writing skills
•Language
Typeof document: writing a letter to your mother vs. writing a legal text 
language is not the same
Purposeof document: different legal texts also require a different language 
objective report or persuasive text?
•Structureand consistency are key
•K.I.S.S.Keep It Short and Simple
Macro-level (text)
Meso-level (paragraph)
Micro-level (sentence)

6. Macro-level (whole text):
•From introduction, problem to conclusion
•Every step should be discussed and every step should be discussed only once
•By reading the introduction and the conclusion, the reader should be able to understand the
entire story
Meso-level (paragraph)
•From problem to conclusion
•Only oneidea per paragraph
•Support statements that are made are there references in every paragraph?
Micro-level (sentence)
•Maximum25 words
•1 statement per sentence

7. Management skills: time & length
•“You expect so much from us but we only get 1700 words to explain this”
•Part of the job
Easier to write lengthy texts
But you must learn to write short texts, identify key issues and avoid repetition
Your boss/colleagues/client wants to be able to get a quick understanding of your
analysis

8. How to: written assignments
Individual assignments: peer interaction is always useful
1.Read and understand the assignment
2.Discuss the assignment with peers avoid misunderstandings
3.Start doing research/reading to identify the underlying problem(s)
4.Discuss with peers whether they identified the same problems
5.Decide whether you can discuss all problems within the limits of the paper
6.Divide underlying problem(s) in steps
7.Find additional sources to support arguments for all different steps in the process
8.Write a comprehensive text
9.Evaluate your own text: is the text structured properly at the macro/meso/micro level?
10.Ask a peer to comment on your text
11.Submit

9. ii. Written advocacy –how is it different from an
academic essay?

10. (ii.a) Legum’s Ten Commandments
1.“Blessed are those who use few words”
2.“The common tongue is understood by all” (keep it international)
3.“Blessed are the paragraphs that begin with the point they seek to make”
4.“Thou shalt describe the parties by their names and not by their procedural position”
5.“Thou shalt not use ‘you’ and ‘we’ in legal writing”
6.“Thou shalt abbreviate only when essential”
7.“Blessed are those who make only their own arguments, and not those of their adversary”
8.“Blessed are those whose facts lead to the road of righteousness” (“facts show, not tell”)
9.“Thy words shall not try too hard” (avoid superlatives)
10.“They who state their wishes early and clearly shall be heard”

11. (ii.b) Vis Moot’s Rules’ Book
1.“KISS”
2.“What Matters Most – Subject + Verb” (Who does what?)

12. “What Matters Most -Subject + Verb”
“As a preliminary remark, it must be noted that unlike Claimant repeatedly attempted to
make the court believe, Respondend who has more than 20 years of experience in the
construction industry and who carried out foundation works in no less than then similar
projects at not time failed to afford adequate protection to the foundation works
against temperatures lower than 10 degrees Celcius.”
What you want to convey:
Respondenthasmore than 20 years of experience in the construction industry.
Respondentnever failed to protect its foundation work adequately.
Our short-term memory is short!

13. (ii.b) Vis Moot’s Rules’ Book
4.“Choose Wisely Between Active Voice and Passive Voice”

14. “Choose Wisely Between Active Voice and Passive
Voice”
“The huntershot the bear (with a clean shot in the head).”
“The bearwas shot by a hunter.”
“The arbitral tribunal was not convinced by the argument that…”
“Company Xdid not convince the Arbitral Tribunal by arguing…”
“Mistakeswere made…”
“The CEOmade the mistake of…”

15. (ii.b) Vis Moot’s Rules’ Book
6.“Delete Adjectives and Adverbs”

16. “Delete Adjectives and Adverbs”
“Claimant raised the very interesting argument that…”
“Claimant runs a extremely profitable and successful business.”
“Respondent protested vehemently and forcefully.”
How does the adjective/adverb improve my text?
3-second rule: if you don’t find explanation in 3 seconds, delete it

17. (ii.b) Vis Moot’s Rules’ Book
7.“Do Not Overuse Legalese and Lawyerisms”
8.“Use Headings Effectively”
9.“Avoid Spelling Errors”
10.“Always Start by Indicating the Issue” (avoid ‘what is your point?’conclusion first)
Recommendations for advanced writing – see CANVAS (Risse’s guide)
(e.g. enumerations, evidence, quoting)

18. (ii.c) Outline and structure of your RWS Memo
1. Cover page
2. Table of contents
3. List of authorities
4. Summary of facts
5. Summary of issues
6. Arguments
7. Request for relief
Only points 4-7 are taking into account for the word count
Stay focused on the issues you need to discuss – importance of RfA/Response to RfA
and see also PO1

19. Additonal features of your RWS Memo
•Basic structure as always: introductionmain text conclusions
•Try to follow IRAC (Issue-Rule-Analysis-Conclusion)
•(In principle) Avoid emotional/undecisive language (e.g. “Claimant believes / feels /
suggests / prefers”)
•Be sure of the argument you want to make and use strong language, e.g. “Claimant
contends/requests”
•Distinguish between main, subsidiary, alternative arguments
•Be responsive

20. (ii.d) Responsiveness
•Applies to both Claimant (preempting arguments) and Respondent
•Make sure you address all points identified in the assignment (CCL/ITL see PO1)
•Make sure you respond to all (relevant) points raised by the opposing party
•But do so in your own way (do not follow the structure of the opposing party, make
use of main, alternative and subsidiary arguments)

21. (ii.d) Responsiveness (ii)
•If a point falls outside the scope of a party’s request, do not waste time/space
“The Tribunal does not have jurisdiction to decide on point 1.2.1 as raised by
Claimant [Cl.M. p.12] because it falls out of the scope of its initial request [RfA
p.33]. Therefore, it will not be addressed by Respondent at this stage of the
proceedings.” You can address this collectively if suitable
•If Claimant did not raise a point it should have been raised, what should I do?
•Weak and strong memoranda
•Tip: use good memoranda as an example

22. Questions?

23. Howto plead & win a
debate
Juan Pablo Valdivia Pizarro
26 September 2022

24. Outline
i. The Oral Pleadings: advice from the Vis Moot
ii. Practical tips
iii. Oxford-style debate

25. i. The Oral Pleadings: advice from the Vis Moot

26. Right at the beginning
•Make a good first impression
Made within a few seconds from initial contact be likeable
Don’t be late, remember names, be polite, dress appropriately
•Make the arbitrator’s life easy
Introduce yourself (clearly) and your colleague before starting
Mention what you will speak about and on behalf of whom
•Do not have a messy desk in front of you
Looks bad and it won’t help if you need to look something up
Rely on your co-counsel team work

27. During the pleading (i)
•Start strong
Arbitrators will look at your arguments from their own ‘lens’ or perspective
Make sure you engage them from the very beginning most attentive and aim at
getting an impression of the speaker
First sentences will help establish that ‘impression’ or ‘gut feeling’
•Address the tribunal correctly
“Honourable Tribunal”, “Mr/Madam Arbitrator”…
Better option: use the name (but use it well)
Give equal attention to all members of tribunal

28. During the pleading (ii)
•Do not rush
Your audience needs to process what you say
Message is effective only if it is understood
Don’t overwhelm tribunal with facts and details and speak clearly
If you are running out of time, do not cram everything in the last 30 seconds
•K.I.S.S.
Keep It Short and Simplealso applies to oral presentations
You will not be able to present every argument. Be selective (it is more difficult)
Get to the point. Do not wander around

29. During the pleading (iii)
•Structure, structure, structure
Difficult speech, unclear structure worse than an over-simplistic outline
Structure must be logical
Ensure audience knows: (i)main issue(s) and (ii) structure of pleading
State the issue beforemoving to the facts
“The first issue is: Has the tribunal jurisdiction to decide this dispute? This is questionable because
no written arbitration agreement exists…”
“Respondent has not breached the contract because of the following three reasons…”
“To summarize, the following three arguments confirm Claimant's position…”

30. During the pleading (iv)
•Know the facts of the case
You must feel absolutely comfortable and confident with the file
To answer questions and to respond to opposing party
Tribunal cannot know the facts better than you do you guide them (respectfully)
•Your oral pleading is not a repetition of your brief
Use short sentences, even shorter than in the brief
Any lack of clarity will be used against you
Don’t structure/formulate your pleading notes as if they were a brief
Be clear and direct end on a strong note

31. During the pleading (v)
•Tell a good story
Give the pleading your own personal twist (while keeping it serious)
Try to “entertain” while telling your story. If you are boring, the story is lost
Become a story teller make them remember you
Know your audience (e.g., eminent professor, young arbitrator, native English
speaker, common vs civil law)
•React to your opponent
Listen carefully and pick up all the mistakes/inaccuracies address them
Be flexible work in opponent’s points and possible questions

32. ii. Practical tips

33. Say it right
It is not only WHATyou say but HOWyou say it
Be polite and respectful and channel your energy

34. Keep your voice in mind
12
Volume –make sure they hear
you (no mumbling....)
Importance of intonation: do
not use the same tone
throughout
Pace yourself & use pauses

35. The way you present (i)
13
Make eye contact but don’t eyeball
Be aware of your posture & body language
Be aware of what your reactions convey (e.g., when
being asked a question)
Leave the pens alone: no fiddling

36. The way you present (ii)
14
Avoid repetition
Do not read from a script but have structure
Be flexible and get your timing right
Strong opening, precise rebuttal, persuasive closing
Be daring, think outside the box, be ‘memorable’

37. iii. Oxford-style debate

38. Oxford-style debate
Points to keep in mind
•Argue forand againsta given issue
•Different than a discussion not trying to find a solution or middle ground
•Hold your ground & do not yield there are only two choices
•It’s all about how persuasive you are and how you present your arguments
•Audience will be the jury
•Adhere to and take into account the given structure
Introduction Voting Opening Rebuttals Q&A Closing Voting

39. Questions?