Appendix: Putting It All Together - A Sample Research Problem and Memorandum of Law
| Author | Ted Tjaden |
| Pages | 417-460 |
417
APPEN DIX
PUTTING IT ALL
TOGETHER — A SAMPLE
RESEARCH PROBLEM
AND MEMOR ANDUM
OF L AW
A. INTR ODUCTION
This Appendix sets out a hypothetical legal problem and the steps to
answer it using the Lega l Research Checkli st in Chapter 11, Section E,
and the other resources and tech niques described in this book. This
legal research culm inates in a sample rese arch memo set out in Section D,
be lo w.
B. HY POTHETIC AL PROBLEM*
You work as an articling student at the law firm of Smith & Jones in
Toronto. A client of the firm, Wig gle Widgets Canada (“Widget”), is a
national manufacturer and distributor of high-quality widgets. Widget
was recently sued in Ontar io Superior Court in a consumer product
liability class action lawsuit alleging it manufactured and sold defect-
ive widgets. During an inter nal 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 R ESEARCH AND W RITING418
Widget discovered that a possible defect in their w idgets 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 tr ail for its purchase orders and the invoices sent by
ABC when the components were shipped, Widget has uncovered what
appears to be a clas sic “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 Ont ario and
a jurisdiction clause stating that the court s of Ontario have exclusive
jurisdiction over any disputes. On the other hand, it turn s out that
ABC shipped the components under cover of its invoice that contained
ABC’s terms and conditions in fine pr int 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 requi re all disputes to be determ ined 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 A BC that were paid by Widget without question.
Lee Jones, a partner at Smith & Jones, is meeti ng with the client
next week. She hopes to get more details surrounding t he purchase
and sale of the defective components to see if the indiv iduals at Widget
who negotiated the original t ransaction are stil l available as witnes ses
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 we ek.
C. AN ALYSIS 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 t he 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 Re search Checklist, which also
corresponds to the first step of the “FILAC” legal research process di s-
cussed in more detail in Chapter 1, Section B.
Arguably, legal researchers can ta ke 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 b e dangerous, how-
ever, since a change in facts can change the issues that need to be re-
searched. In many ca ses, the lawyer representing the client is also the
same person who conducts the legal resea rch, so there is less cha nce 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 respon sible 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 begin ning the research; alternatively, some of
these questions might arise only after the research has begun. It would
ordinarily be pr udent for the legal researcher to raise t hese 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 origi nally negotiated the contract for widget components, and
where was the contract negotiated? Is there a paper tra il (such as
faxes or e-mails) that would establish t he initial pattern of offer and
acceptance? Were the terms and conditions of either or both partie s
included in the original transaction? How were price increase s 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 thi s legislation
may affect the outcome so it is potentially relevant.
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