Putting It All Together - A Sample Research Problem and Memorandum of Law
| Author | Ted Tjaden |
| Profession | Faculty of Law and Faculty of Information Sciences University of Toronto |
| Pages | 283-321 |
CHAPTER
12
PUTTING
IT ALL
TOGETHER
—A
SAMPLE
RESEARCH
PROBLEM
AND
MEMORANDUM
OF LAW
A.
INTRODUCTION
This chapter sets
out a
hypothetical legal problem
and
then seeks
to
answer
it
using
the
Legal
Research Checklist
in
Chapter
10,
section
E and
the
other resources
and
techniques described
in
this book. This research
culminates
in a
sample
law
office
memo
set out
below
in
section
D.
B.
HYPOTHETICAL
PROBLEM1
You
work
as a
student
at the law
firm
of
Smith
and
Jones.
A
client
of
the
firm
wishes
to
operate
a
bungee-jumping company
in
Flavelle,
Ontario
in
which customers would
pay
$80.00
per
person
to
jump
off
the
Flavelle
Ravine
Bridge with
a
bungee cord wrapped around their
legs.
The
company
is
worried about
its
liability
if any of its
customers
were
injured while bungee jumping
and
whether
it can
protect itself
by
having
its
customers sign "liability waivers" (also known
as
"limita-
The law
firm,
company,
and
city
are
fictitious.
I
have used
this
hypothetical
problem
for a
number
of
years
in my
legal research courses
for law
students
and
library science students.
I am
therefore indebted
to the
numerous
students
who,
through their
efforts,
have provided
me
with
insight
into
this
problem.
The
research
and
resulting
law
office
memo
in
this chapter are, however, based
on
my
own
work.
283
1
284
LEGAL
RESEARCH
AND
WRITING
tions
of
liability"
or
"disclaimers").
A
lawyer
at the
firm
has
asked
you
to
(1)
research
the law in
Canada regarding
the
enforceability
of
liabil-
ity
waivers
at
sporting
and
recreational events;
(2)
report
on the
results
of
your research;
and (3) set out
steps
the
company might want
to
take
to
help ensure
the
enforceability
of any
liability waivers
it
might
use in
its
business.
C.
ANALYSIS
AND
APPROACH
Since legal research remains
an art
rather than
a
science, there
is
never
only
one
correct
way to
answer
a
problem. Instead,
so
long
as one
takes
a
methodical
and
thorough approach using
the
major
secondary
and
primary
legal resources, there
is
usually some assurance
of
finding
rel-
evant
legal information.
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
and
also
corresponds
to the
first
step
of the
"FILAC"
legal research process dis-
cussed
in
more detail
in
Chapter
1,
section
B.
Arguably,
the
legal
researcher
can
take
the
position
that
he or she
need only research
the
problem
as
presented, without having
to
worry
about
other possibly relevant
facts.
This
can be
dangerous, however,
since
a
change
in
facts
can
change
the
issues that need
to be
researched.
In
many cases,
the
person
who is the
lawyer
for the
client
is
also
the
same
person
who
conducts
the
legal research,
so
there
is
less chance
for
miscommunication
or a
misunderstanding
of
relevant
facts.
Where
the
researcher
is
different
than
the
client's lawyer, 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 responsi-
ble for the
client's
file.
In the
hypothetical scenario above,
the
legal
researcher
might consider some
of the
following
questions
before
beginning
the
research; alternatively,
some
of
these
questions
might
only arise
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:
• Is the
client
in
fact
a
company?
If so, is it a
private
or
public compa-
ny?
In
what jurisdiction
is it
incorporated?
How
heavily capitalized
is it?
Does
it
follow
corporate
formalities?
Putting
It All
Together
— A
Sample
Research
Problem
and
Memorandum
of Law 285
•
What
is the
physical layout
of the
Flavelle Ravine
Bridge?
What
arrangements,
if
any, does
the
client have
to
occupy
the
bridge
to
operate
its
business? Does
the
client
own the
bridge
or
lease
it? If the
client does
not own the
bridge
or the
land surrounding
it, who
does?
• Is
bungee jumping
a
regulated industry?
Are
there standards govern-
ing the
quality
of the
bungee-jumping cords? Does
the
government
mandate
any
training
for
those operating
a
bungee-jumping busi-
ness?
The
issue
of the
capitalization
of the
company,
for
example, relates
to the
risk
of a
court piercing
the
corporate veil
and
finding
the
indi-
vidual directors
and
operators
of the
company personally liable
if
there
ever
were
an
accident (i.e.,
the
client might need
to be
told
to
ensure
that
it is
properly capitalized
and
that
it
follow
all
corporate formalities
if
it
wishes
to
minimize
the
risk
of
directors
and
officers
being held per-
sonally liable).
2)
Step
2:
Preliminary Questions
and
Issues
Once
you
have considered
the
facts,
it is
then important
to ask
your-
self
some preliminary questions
to
help
identify
the
relevant issues.
This corresponds
to the
second step
of the
"FILAC"
legal research
process discussed
in
more detail
in
Chapter
1,
section
B.
The
first
two
preliminary questions
in
this step
of the
Legal
Research
Checklist
are
basic questions that should
be
asked
at the
start
of
any
legal research problem, even
if the
research
has not
formally
begun:
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 question
in
mind
as the
research progresses.
If you
were
not
already aware
from
personal knowledge
of the
concept
of
"occupiers' liability,"
you
would
have
no
choice
but to
stumble across this concept
after
consulting sec-
ondary resources such
as
books
or
journal articles. This would there-
fore
lead
to the
discovery
of
Ontario's
Occupiers'
Liability
Act,2
any
relevant commentary
on it, and
cases interpreting
its
provisions (see
the
research below under Step
4 of the
Legal
Research Checklist
for
2
R.S.O.
1990,
c.
O-2.
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