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

• Author: Ted Tjaden
• Pages: 417-460

417

APPENDIX

PUTTING IT ALL

TOGETHER — A SAMPLE

RESEARCH PROBLEM

AND MEMORANDUM

OF LAW

A. INTRODUCTION

This Appendix sets out a hypothetical legal problem and the steps to

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

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

legal research culminates in a sample research memo set out in Section D,

below.

B. HYPOTHETICAL PROBLEM*

You work as an articling student at the law f‌irm of Smith & Jones in

Toronto. A client of the f‌irm, Wiggle Widgets Canada (“Widget”), is a

national manufacturer and distributor of high-quality widgets. Widget

was recently sued in Ontario Superior Court in a consumer product

liability class action lawsuit alleging it manufactured and sold defect-

ive widgets. During an internal investigation as part of a product recall,

* The law f‌irm and comp anies are, of course, f‌ictitiou s. This fact pattern, while

also f‌ictitiou s, occurs more often than one mig ht think. Although I have mad e

an effort to be thor ough and accurate in answeri ng this hypothetic al problem,

readers of thi s book should not rely on this legal res earch and sample resear ch

memo for any partic ular issue on simila r facts since the law can ch ange and the

legal resea rch and sample research memo m ay not apply to particular, real-l ife

fact situation s. Readers needing legal adv ice should consult their own law yer.

LEGAL RESEARCH AND W RITING418

Widget discovered that a possible defect in their widgets could be

traced to faulty components supplied by ABC Components (“ABC”), a

New York company that had been supplying Widget with components

for more than ten years.

Widget now wishes to sue ABC for breach of contract and breach of

warranty for supplying faulty widget components. However, in inves-

tigating the paper trail for its purchase orders and the invoices sent by

ABC when the components were shipped, Widget has uncovered what

appears to be a classic “battle of the forms” scenario: the purchase or-

ders sent by Widget to buy the components contained Widget’s terms

and conditions in f‌ine print on the back of the purch ase orders, includ-

ing a choice of law clause exclusively applying the law of Ontario and

a jurisdiction clause stating that the courts of Ontario have exclusive

jurisdiction over any disputes. On the other hand, it turns out that

ABC shipped the components under cover of its invoice that contained

ABC’s terms and conditions in f‌ine print on the reverse that purported

to apply the laws of New York, limit the liability of ABC to the value of

the purchase price, and require all disputes to be determined by arbi-

tration in New York. All transactions between these companies before

the current incident were uneventful, w ith there being occasional price

increases by ABC that were paid by Widget without question.

Lee Jones, a partner at Smith & Jones, is meeting with the client

next week. She hopes to get more details surrounding the purchase

and sale of the defective components to see if the indiv iduals at Widget

who negotiated the original transaction are still available as witnesses

and to more closely review the client’s paper trail. She has asked you

to research the law on the “battle of the forms” to help her advise the

client on which party’s terms and conditions would likely apply to the

transactions re lated to faulty components. She also wants to know what

factors a court would consider most relevant in deciding this issue so

that she can explore those factors w ith Widget when she meets w ith the

client next week.

C. ANALYSIS AND APPROACH

Since legal research remains more art than science, there is usually

more than one way to answer a problem. However, so long as you take

a methodical and standard approach using the major secondary and

primary legal resources, as suggested in the Legal Research Checklist,

you usually have some assurance of f‌inding relevant legal information.

Since many of the resources mentioned in t his section are more formally

Putting It All Together — A Sa mple Research Problem a nd Memorandum of Law 419

cited in footnotes in the sample legal research memo in Section D, they

are not also cited immediately below.

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 Research Checklist, which also

corresponds to the f‌irst step of the “FILAC” legal research process dis-

cussed in more detail in Chapter 1, Section B.

Arguably, legal researchers can take the position that they need

only research the problem as presented, w ithout havi ng to worr y about

other possibly relevant facts. This approach can be dangerous, how-

ever, since a change in facts can change the issues that need to be re-

searched. In many cases, the lawyer representing the client is also the

same person who conducts the legal research, so there is less chance of

miscommunication or a misunderstanding of relevant facts. Where the

legal researcher is not the law yer dealing directly with the client, how-

ever, it is important for the legal researcher to anticipate quest ions that

may be relevant to the legal issue s and to communicate any concerns to

the lawyer responsible for the client’s f‌ile. In the hypothetical problem

set out in Section B, the legal researcher might cons ider some of the fol-

lowing questions before beginning the research; alternatively, some of

these questions might arise only after the research has begun. 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 (especially since the lawyer will be meeting with the client

to review the details surrounding the transactions):

• Who originally negotiated the contract for widget components, and

where was the contract negotiated? Is there a paper trail (such as

faxes or e-mails) that would establish the initial pattern of offer and

acceptance? Were the terms and conditions of either or both parties

included in the original transaction? How were price increases han-

dled, and did any of the tran sactions involving defective components

also involve price increases?

• Did Widget’s terms and conditions expressly include or exclude

operation of the International Sale of Goods Act? As an articling stu-

dent, you might not be aware of this legislation, but by following the

research steps set out below, you would come across reference to it

fairly early on in your research. The application of this legislation

may affect the outcome so it is potentially relevant.