Legal reasoning and legal methodology
Table of Contents
QUESTION PRESENTED
1. Question
Presented
1.1
Introduction
The most important part of any
written legal analysis is the statement and framing of the issues to be
addressed. In legal memoranda, trial motions, and appellate briefs, this role
is filled by the question presented. In this document, we will show you how to
make an objective and persuasive question presented in a memorandum.
1.2 Question
Presented in general
The question presented states the
question the memo is to address: how does the relevant law apply to the key
facts of the research problem? So that, it should encompass both the legal and
factual elements that must be analyzed, for example, “Is the owner of an
automobile liable if someone borrows the automobile and subsequently causes an
accident?”
1.3 Placement
and goals of Question Presented
In most legal memoranda, the Question Presented
will appear at the beginning of the document. Because of its placement,
question presented will informs the reader or the hearer of the issues before
he or she begins reading or hearing your analysis or argument. Especially,
question presented concentrates on the main ideas of the issue which the lawyer
want the court to consider, to notice and when the issue is clearly, concise,
it can persuade the court and hearers and a well-written set of questions
presented will focus the judges’ attention on your view of the case. Moreover,
Question Presented makes busy legal reader quickly identify claim, crime,
defense, elements ...of the issue.
Due to its importance, the question
presented is often one of the most difficult sections to write.
1.4 Type of
Question Presented
The Question Presented has two
types: purely legal and prediction based on client facts:
- The purely legal is a simple
legal question that given problem to research the state of the governing law,
without referencing a client. For example : “What are the parameters of
activity after expiration of prison sentence that has been permitted by
disciplinary committees or courts considering the practice of the Criminal law
or other jurisdictions?”
- The prediction based on client facts
should be asked to apply a rule of law to a set of facts and predict a result.
So, it always contains question with the most important facts and sometimes the
rule within. For example: “Whether Mr. A can sue Mr. B for his damages from Mr.
B acts?”
2. Question
Presented formula
Because an effective Question Presented is crucial to a good piece of
legal writing, there are several easy and common formulas you can use to ensure
your Question Presented includes the required elements. These three common
models will help to ensure that you identify the relevant law, as well as state
the legally significant facts when you draft a Question Presented:
2.1. Legal question + concise statement relevant
fact:
* Can/ Did/ Was/ May/ Is . . . [legal question] .
. . when / where [state major facts]? In this format, there is no rule of law applied.
Ex: - Can the Copyright Office of Vietnam
enforce Son Tung M-TP stop the circulation of his song when someone accused Tung’s song was almost 80% the same as
“Because I miss you” from the melody to the beat of Korea song writer?
- Do the
Civil law rules concerning advertising by lawyers apply to all of our lawyers
in all of our offices when
advertising on the Internet?
2.2 Legal
question + concise statement in “whether” format:
* Whether... [insert question]... + When...
[insert legally significant facts]...
Ex: Whether
the Mr. A have a cause of action for either public or private nuisance when EVN power company had
authorization to build the high voltage lines, the high voltage lines obstruct
the Mr. A’s view, the Mr. A has no longer use their backyard because of their
fear that the EMFs from the high voltage lines may cause cancer, and the Mr. A’s
family have been unable to sell their home?
2.3 “Under”
+ legal question + concise statement
* Under... [insert law]...+ Can/Does/Is/Did...
[insert question]...+ When ...[insert legally significant facts]...
Ex: - Under
the Criminal Code, can Miss A be convicted of theft when she took the book of the store without allowance?
- Under copyright
law, did Son Tung M-TP infringe the author’s copyright of the song “Chac ai do
se ve” when Tung asserted that he
himself had created the song’s melody and lyrics except the beat done by
producers?
3. How to
make a persuasive Question Presented:
3.1 Contents
of the Question Presented
s When defend for
defendant, Question Presented need avoid binding crime, avoid elements which
contain conclusion and is not favorable for defendant, need to emphasize
unclear evidence. Question Presented need to mention to elements is favorable
for client.
s When defend for
claimant, Question Presented need bind defendant for responsibility, Question
Presented need to mention to that claimant sue the defendant has basis.
Ø
For example:
Statement of facts :
Mr. A intended to go into Mr. B’s
house to steal some properties. Mr. A prepared some necessary tools for
stealing. At midnight on July 1st , when Mr. A went to Mr. B’s
house, see electricity was still on and some people stayed up. Mr. A is afraid
and do not want to steal. Therefore, he intended to go out. But because of
being careless, Mr. A made a vase broken. After that, Mr. A was seen and he was
arrested by Mr. B. The vase was precious with Mr. B but in actual, it was a
normal vase which valued at one million dong.
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Your client are:
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Claimant (Mr. B)
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Defendant ( Mr. A)
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Issue
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When Mr. B was chatting with his son, he heard a
strange sound came from his backyard. After he had ran out the backyard, he saw
Mr. A and quickly arrested him and brought him to police. The broken vase was
precious with Mr. B Therefore, Mr. B sue Mr. A for damages.
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Mr. A intended to go into Mr. B’s house to steal some properties
When Mr. A went to Mr. B’s house, see electricity was still on and some
people stayed up. Mr. A is afraid and do not want to steal. Therefore, he
intended to go out but because of being careless, Mr. A was seen and he was
arrested.
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Rule (In Penal Code)
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“Article
124- Infringement upon citizens places of residence
1. Those who conduct illegal searches of other
persons places of residence, illegally expel other persons from their
residence places or commit other illegal acts infringing upon citizens
inviolable rights relating to places of residence shall be subject to
warning, non-custodial reform for up to one year or a prison term of between
three months and one year.”
“Article
143.- Destroying or deliberately damaging property
1. Those who destroy or deliberately damage other
persons property, causing damage of between five hundred thousand dong and
under fifty million dong, or under five hundred thousand dong but causing
serious consequences, or who have already been administratively sanctioned
for such act or sentenced for such offense and not yet entitled to criminal
record remission but repeat their violations shall be subject to
non-custodial reform for up to three years or to a prison term of between six
months and three years.
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“Article
19-Voluntary termination of unfinished crimes
To voluntarily terminate the commission of a crime
is to refuse at one’s own will
to carry out a crime to the end though nothing stands in the way.
A person who voluntarily terminates the commission
of a crime shall be exempt from penal liability for the attempted crime; if
the act actually committed fully consists of elements of another crime, such
person shall bear penal liability for such crime.
“Article
143.- Destroying or deliberately damaging property
1. Those who destroy or deliberately damage other
persons property, causing damage of between five hundred thousand dong and
under fifty million dong, or under five hundred thousand dong but causing
serious consequences, or who have already been administratively sanctioned
for such act or sentenced for such offense and not yet entitled to criminal
record remission but repeat their violations shall be subject to
non-custodial reform for up to three years or to a prison term of between six
months and three years.
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Analysis
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- Mr. A had prepared necessary things for breaking
into Mr. B’ house and went to Mr. B’s house to carry out his intention in
actual.
- Mr. A was arrested by Mr. B in Mr. B’s house and
of course, the infringement of Mr. A was illegal.
- The vase was a gift from grandfather of Mr. B
and there was only one version of its in the world. The grandfather had gone
and the vase became a precious things of Mr. B.
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- Mr. A has not do not want to steal Mr. B’ s
properties, he has broken into Mr. B’s house but has
not got any Mr. B’s properties.
Mr. A had intended to go out and voluntarily terminate
the commission of the crime.
- To have broken the vase was out of his
intension. And in actual, the vase was valued at one million dong so it is
not satisfied all circumstance which is prescribed at article 143 of Criminal
law.
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Question Resented
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Under Article 124 & 143 of Penal Code, Can Mr.
A be convicted of crime and forced him to took responsibility when he had
illegal infringement to Mr. B house and damages his precious vase?
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Under, Article 19 & 143, Can Mr. A be convicted
of infringement upon citizens places of residence when he voluntarily
terminate the commission of the crime and the damage he caused was not satisfied
all circumstance which is prescribed at article 143 of Penal Code ?
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Conclusion
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The infringement of Mr. A was illegal and he had
to commit the crime for this guilty. Moreover, Mr. A had to took responsibility
and required to indemnify Mr. B for the damage he caused.
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Mr. A is not convicted of crime because all the
things he had done was not satisfied all circumstance which is prescribed at
article 143 & 124 of Penal Code .
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3.2 Some notices
for a persuasive Question Presented
- The issue presented should be
stated in terms specific to the case, including both the legal and factual
elements at issue.
- The Question Presented section
should contain one or more questions which ask the broad legal question or
questions addressed in the memorandum. A typical question presented begins by
stating the legal question and ends by describing the factual situation. For
example: “Is the owner of an automobile liable if someone borrows the
automobile and subsequently causes an accident?”
- Your Question Presented must be
eliminate all unnecessary detail. A Question Presented is rarely possible to
include all of the relevant facts in the question presented, though you should
try to include the most important ones. Thus, for example, one might add “and
the owner knew that the driver was intoxicated” at the end of the previous
example.
- Since the Question Presented section appears at the
very beginning of the memorandum, it should makes sense to someone who knows
nothing about the facts of your case. So that, when drafting a Question Presented,
it would be more effective if you write it in subtly persuasive way. Notice
that: a short Question Presented is easier for the reader to comprehend,
however, do not be afraid to lengthen your Question Presented when necessary.
For example: Don’t say, “Whether a niece can
recover for negligent infliction of emotional distress,” when you can say,
“Whether, under Criminal law, a niece who witnesses the aftermath of an
automobile accident involving her uncle from a block away can recover for
negligent infliction of emotional distress when she observes his severe
injuries upon arrival at the scene.”
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A persuasive Question Presented should be so
stated that the opponent has no choice but to accept it as an accurate
statement of the question.
For example: Is Mr. A convicted of theft when
he prepared for stealing but he has not broken into Mr. B’s house yet and do
not steal anymore?
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