Appendix: Putting it All Together-A Sample Research Problem and Memorandum of Law

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 360-394

360

APPEN DIX

PUTTING IT ALL

TOGETHER  A SAMPLE

RESEARCH PROBLEM

AND MEMORANDUM

OF L AW

A. I NTRODUC TION

This chapter sets out a hypothetical legal problem and then seek s to

answer it using the Legal Re search Checklist in Chapter 11, Section E,

and the other resources and techniques described in this book. This

research culminates in a sample law off‌ice memo set out in Section D,

below in this appendix.

B. HYPOTHETICA L PROBLEM1

You work as a student at the law f‌irm of Berger and Khan in Toronto. A

client of the f‌irm is purchasi ng the ESL 123 Learning Centre chain of

private school s (the “new business”). The new business has developed

a good reputation for teaching English as a Second Language due to the

innovative teaching programs and material s developed by its founder,

Monica Lee. As part of t he purchase, the client wishes to restr ict Monica

1 The law f‌irm, compa ny, a nd facts are f‌ictitious. Alt hough I have made an effort

to be thorough and accu rate in answering th is hypothetical problem, re aders of

this book should not re ly on this research and s ample memo for any particular

issue on simi lar facts since the law c an change and the resea rch and sample

memo may not apply to part icular fact situation s. Readers needing legal adv ice

should consult thei r own lawyer.

Putting it Al l Together —A Sample R esearch Problem and Memor andum of Law 361

Lee, the vendor, from competing with the new busines s after the sale

has been completed. The partner acting on beh alf of the client has asked

you to research the enforceability of non-compete clauses in t akeovers

and the likely maximum length of time and geographic dist ance a court

would enforce against Monica Lee to prevent her or a new company she

controlled from competing with the business being purcha sed.

C. ANALYSIS AND APPROACH

Since legal research remains an art rather t han a science, there is never

only one correct way to answer a problem. Instead, so long as one take s

a methodical and thorough approach using the major secondar y and

primary legal resources, there is usu ally some assurance of f‌indi ng rel-

evant legal informat ion.

1) Step 1: Facts

Do you have all of the relevant facts? What assumptions are being

made? This is the f‌irst step of the Legal Re search Checklist and al so

corresponds to the f‌ir st step of the “FILAC” legal research process d is-

cussed in more detail in Chapter 1, Section B.

Arguably, the legal researcher can take the position that he need

only research the problem as presented, w ithout having to worry about

other possibly relevant facts. This can be dangerous, however, since a

change in facts can change the issues which need to be res earched. In

many cases, the lawyer representing the client is also the same person

who conducts the legal research, so t here is less chance of miscommuni-

cation or a misunderstanding of relevant facts. Where the rese archer is

not the lawyer dealing directly with the client, however, it is important

for the researcher to anticipate questions that may be relevant to the

legal issues and to communicate any concerns to the lawyer respon-

sible for the client’s f‌ile. In the hy pothetica l scenar io above, the legal

researcher might consider some of the following questions before be-

ginning the re search; alternatively, some of these questions might only

arise after the research has beg un. It would ordinarily be prudent for

the legal researcher to raise these questions or issues with the lawyer

(or the client, if appropriate) as the research progresses:

In what jurisdict ions and specif‌ica lly where do the ESL 123 Learning UÊ

Centres operate? The answer to this question wil l impact how broadly

the geographic scope of the non-competition clause could be.

Legal R esearch and Wr iting362

What is the purchase pr ice for the new business? What comprises UÊ

the goodwill and how much of the purchase price is being allocated

towards goodwill? Will Monica Lee conti nue on as a consultant after

the purchase? What is the ex act nature of the business and the scope

of its contracts, students, copyr ight, technology, or trade secrets?

These questions might not be obvious to the student when start-

ing the research but the i ssue could affect the duration of the non-

competition clause.

Is Monica Lee represented by her own law yer? Are there any family UÊ

members involved in the business aga inst whom non-compete

clauses should also be sought? One can likely sa fely assume that the

vendor will have her own counsel (thereby eliminating the need for

the vendor to receive independent legal advice), but it is worth de-

termining whether there are other relatives or key employees in the

business again st whom restrictive covenant s should be sought.

2) Step 2: Preliminary Questions and Issues

Once you have considered the facts, it is then important to ask yourself

some preliminary questions to help identify the relevant issues. This

corresponds to the second step of the FILAC legal research process

discussed i n more detail in Chapter 1, Section B.

The f‌irst two preliminar y questions in this step of the Legal Re-

search Checklist are ba sic questions that should be asked at the start of

any legal research problem, even if the rese arch has not formally begun

and even if these questions end up being irrelevant:

a) Is there federal, provincial, or municipal legislation that governs

this problem?

At this stage, many researchers may not know the answer to this ques-

tion from f‌irst-hand knowledge. If so, it is worth keeping this que stion

in mind as the research progresses. Since, as it turns out, the enforce-

ability of restrictive covenants is governed la rgely by the common law

(i.e., judicial decisions), t he question of what legislation governs is not

so applicable in this re search problem. However, there would l ikely

be legislation impacting t he transaction, and the lawyer advisi ng your

client would want to check for any applicable legislation governing pri-

vate schools, for example, and whether the new business i s governed by

such legislation.2 In addition, if t he purchase is ta king place in Ontar io

2 Depending on t he particular progra ms offered by the ESL 123 Lear ning Cen-

tres, the Private Caree r Colleges Act, 2005, S.O. 2005, c. 28, Sch. L, for exa mple,