STATEMENT OF FACTS

• Start with introductory paragraph identifying client and summarizing client’s problem.

• Follow with legally relevant facts and background facts

• Omit irrelevant facts• Organize chronologically or topically• State facts accurately and objectively• Avoid conclusions and characterizations of facts

STATING THE FACTS OBJECTIVELY: EXAMPLES OF SLANTED FACTS

Beginning in January 2006, Kenwood Corporation began monitoring Baker’s phone calls without even notifying her, in an attempt to find an excuse to fire her. Although the monitoring did not produce any information indicating that Baker was involved in any illegal activities, Kenwood continued monitoring all of her phone calls until finally came up with evidence of a minor infringement of company policy. It then fired her without any adequate justification.

Stating Facts v. Conclusions: Examples

Kenwood fired Baker without any adequate justification.

Based on these facts, Albert’s security guard had reason to believe Gerwin had stolen some merchandise.

Buckley must have seen the statement in the contract that she was eighteen, since it appeared just above the signature line.

QUESTION PRESENTED

Use the Under/is/when format:

Under_____ [specify law], does/is/can ____ [identify legal issue], when ________[insert key facts]?

Where issue analyzed under common law, the “under ___” clause is optional.

Example

Under Pennsylvania law, can a person recover for intentional infliction of emotional distress against a co-worker where the co-worker repeatedly calls the plaintiff names, uses sexual innuendos and publicly displays a lewd caricature at the office, causing the plaintiff to suffer pervasive anxiety and insomnia, but where the plaintiff does not seek medical care?

Identifying parties

Parties can be identified by role or by name

• Example: Can a person recover for intentional infliction of emotional distress against a co-worker where . . .

• Example: Can Peterson recover for intentional infliction of emotional distress against her co-worker, Daniels, where . . .

State Facts, Not Legal Conclusions

Example: Do not do this:

Can Augusta recover for intentional infliction of emotional distress against Olympia where (1) Olympia engaged in extreme and outrageous conduct, (2) Olympia consciously disregarded a high probability that Augusta would suffer severe emotional distress, and (3) Augusta suffered severe emotional distress as a result of Olympia’s conduct?

State Facts, Not Legal Conclusions

Example: Instead, do this:

Can Augusta recover for intentional infliction of emotional distress against Olympia where store representatives repeatedly phoned Augusta and visited her house, threatening to ruin her credit, and where the store president wrote Augusta an additional threatening letter after she had notified him that the store’s conduct was causing her to suffer insomnia, nightmares and weight loss?

Don’t assume the reader is already familiar with the facts

Example: Do not do this:

Can a minor disaffirm a contract to purchase a car when she answered “yes” to the sales agent’s question, mistakenly believing the agent was asking whether she was old enough to drive, and when her uniform showed she was under age?

Don’t assume the reader is already familiar with the facts

Example: Instead, do this:

Can a minor disaffirm a contract to purchase a car when she answered “yes” when a sales agent asked whether she was old enough to buy a car, mistakenly believing the agent was asking whether she was old enough to drive, and when she was wearing a high school uniform when she purchased the car?

What is wrong with these?

Does the cash belong to Walker when it was intentionally placed and then forgotten?

Is a person entitled to found money when it was on the chair, the cash was not coming out of the envelope, and the bank’s security guard was outside the door?

Is Walker entitled to the money she found in the bank vault?

What facts to include?

• Include the most legally significant facts

• Include sufficient facts to answer the question once you know the rule.

• But you need to make it a readable sentence, so include only the most relevant facts.

Question Presented - Writing

• Must be a single sentence, unless you have more than one question presented.

• Must be a readable sentence – reader needs to be able to understand it easily after reading it once.

• Must be objective, not slanted

SHORT ANSWER

Answers the question presented and explains why.

Short Answer - format

• Start with “Yes,” “No,” “Probably,” or “Probably not.”

Explain your answer, using facts and law.– State general rule, but do not give a cite.– Use the facts in your question presented to answer the

question, making sure you relate them back to the rule.

• Be consistent with Question Presented as to whether to identify parties by name or role.

• Make your answer consistent with the analysis in your discussion section

Sample – Question Presented

Under New York Penal Law section 170.05, did O’Neil commit the crime of forgery when (1) in a law school application, she used an assumed name to hide that she had previously been expelled from another school and falsely stated that she had attended no schools other than the one from which she graduated, and (2) in a parental statement accompanying the application, she signed her mother’s name and falsely represented her mother’s financial situation?

Short Answer #1– Does this adequately relate back to the rule?No, as to the application, yes to the financial statement. Under New York Penal Law section 170.05, a person is guilty of forgery if, with intent to defraud, deceive or injure another, he or she falsely makes a written instrument that purports to be an authentic creation by another person. Here, O’Neil misrepresented her qualifications in her application and her mother’s financial situation in her financial statement. However, in the application she merely used an assumed name while in the financial statement she used her mother’s name and disguised her handwriting. Thus, only the financial statement was a forgery.

Short Answer #2 – Relates back to the rule

No, as to the application, yes to the financial statement. Under New York Penal Law section 170.05, a person is guilty of forgery if, with intent to defraud, deceive or injure another, he or she falsely makes a written instrument that purports to be an authentic creation by another person. Here, O’Neil intended to deceive the law school in both the application and financial statement by misrepresenting her qualifications and her mother’s financial situation. Nevertheless, the application was not a forgery because, although it contained false information and used an assumed name, it did not purport to be created by another person. On the other hand, because the financial statement purported to be prepared by the defendant’s mother, it was a forgery.

Question Presented & Short Answer

• Use the same facts in both – the most legally relevant facts

• Do not refer to facts in your short answer that are not included in your question presented.

• Do not include facts in your question presented that are never used in your short answer.

Short Answer - Writing

• Must be one short answer for each question presented.

• Must be clear and concisely written. Reader should be able to understand it after reading it once.

• Must be a short answer. It should be no more than 4-5 sentences long.

• Must be accurate summary of your discussion• Your explanation must be consistent with your

“yes” or “no” answer.