How to Write a Law Firm Memo

Summary: This article details everything new lawyers need to know to write a successful law firm memo.
 

A memorandum of law is a written explanation, based on research and analysis, of the drafter's opinion regarding a legal problem. There are two kinds of legal memoranda: external memoranda and internal memoranda (usually called "inter-office memos").
 
With regard to the second kind of memorandum, the inter-office memo, in law practice you will usually be commissioned by a senior member of your law firm to draft an inter-office memo, which the senior member intends to use to advise a client about whether to bring suit or to decide how to proceed in a client's case once suit is brought. Usually you will be asked to consider only one or two issues when you prepare the memo.
 
Because it will be used to determine what course to take in a legal dispute involving a client, your inter-office memo should be thorough and unbiased. Both the strengths and weaknesses of the client's case must be explored objectively so that you can make an informed prediction as to the success of the case.
 
By contrast, an external memorandum of law is usually written to influence the decision of someone outside your firm so as to benefit your client. In the external memorandum of law you will stress the strengths of your client's case and attempt to minimize its weaknesses. External memoranda of law are, in that respect, similar to appellate briefs. They are advocative, attempting to persuade the reader to adopt the viewpoint and conclusions of the drafter. Law schools teach students, in their legal writing classes, the techniques necessary to write both kinds of memos and appellate briefs.

In this article, the research component necessary in drafting a legal memo will be omitted. You will learn how to find the law as part of your legal writing courses. Here you can concentrate on the legal analysis in the drafting of the memo, without the need of doing the preliminary research. You will be given a fact situation, provided with a few authorities (case law and statutes), and will write a short (3 to 5 page) memo on one or two issues. Having successfully accomplished this assignment, you will need only to leam how to find the law in order to write a competent full-scale inter-office memorandum.
 
II. The Heading of the Inter-office Memorandum
 
The particular form of your inter-office memo, commissioned by your senior colleague, will, of course, be decided by your law firm. But in the heading, the following parts are usual: (1) the title, (2) the name of the person to whom the memo is addressed, (3) your name, (4) a brief statement of the subject-matter of the memo, (5) the client's name, (6) the office file-number, and (7) the date. In writing your short memo, you should follow this form, to familiarize yourself with it.
 
III. Format of the Body of the Inter office Memo
 
Like the heading, the body of the inter-office memo will vary according to the custom of your law firm. However, the following parts are almost always included:
 
BRIEF STATEMENT OF FACTS QUESTIONS PRESENTED
ISSUE I;
ISSUE II:
ISSUE III:
SHORT ANSWERS:
ISSUE I:
ISSUE II:
ISSUE III:
DISCUSSION CONCLUSION
 
IV. How to Handle the Short-Memo Assignment
 
A. Brief Statement of Facts
 
In this section you will briefly state the key facts of the case your supervisor has assigned, excluding facts that are not relevant to the issues you are to analyze.
 
B. Questions Presented
 
These are the issues raised in the case (or assigned to you to analyze). If your senior in the law firm has asked you to draft the memo, that person has probably also formulated for you the issues you are to consider. In the memo assignment provided below as an exercise, you should attempt to formulate the issues for yourself before checking to see whether they are essentially the same as those stated. (Issue-finding is challenging and extremely important to legal analysis, so you should practice framing issues as often as possible.)
 
C. Discussion
 
The below outline helps to insure that you will include in your discussion all the necessary points and exclude irrelevant points. Be sure, however, to write the discussion in essay form; do not merely submit a fleshed-out outline as your discussion. In your discussion each issue should be analyzed separately, and the cases/statutes, etc., used to decide each issue should also be considered separately. Another important point: be sure to come to some tentative conclusion regarding each issue before moving to the next issue. It is also helpful, when there are several cases involved in your discussion, to come to some preliminary conclusion after discussing each case. Your final conclusion is, of course, the subject of the last section of the memo.
 
Suggested Outline for Drafting the Memo Discussion Section:
 
I. First issue
A. First Case
1. Brief facts, holding, reasoning, rule
2. Apply to your case.
a. Analogize.
b. Distinguish.
c. Conclude tentatively re first issue, first case.
B. Second Case
1. Brief facts, holding, reasoning, rule
2. Apply to your case.
a. Analogize.
b. Distinguish.
c. Conclude tentatively re first and second cases, this issue.
II. Second (third and subsequent) issue; follow format of first issue.
A. First case: repeat as in I.A. above, but do not repeat precedent case facts that have already been stated.
B. Second case: repeat as in I.B. above, but do not repeat prece dent case facts that have already been stated.
 
D. Conclusion
This represents your best judgment based upon all your legal analysis. It includes a prediction as to the outcome of the case and your recommendation to your senior partner about how it should be handled, if this is pertinent. What you should not do in the conclusion is re-hash any of the analysis that resulted in your final conclusion. That should be provided only in the discussion section.
 
D. Preparing Your First Memo
 
Your legal writing professor has given you the following hypothetical fact situation to use in preparing your first memo assignment:
 
Joe Poor was a freshman at Prestige Law School. At the beginning of Joe's first semester, the dean told the assembled freshmen, "Look at the person on your right and the person on your left. Next semester, one of you will be missing.
 
These words terrified Joe. At Prestige Law School, students paid for a whole year in advance and received no refund if they left after one semester. Joe had worked for two years to earn the money to attend law school, and he was determined to succeed there. During the semester he studied hard, briefed all of the cases in his casebooks, volunteered in class, joined a study group, and prepared course outlines.
 
Two weeks before finals Joe received a letter from his uncle, Phil Rich. The letter said, in part:
 
I hear that you are attending Prestige Law School. I want you to be a credit to me and to the family name; if you make the Dean's List I will give you a new sports car.
 
During the two weeks preceding final exams, Joe and all the other freshmen studied extra-hard. Joe barely ate or slept, spending all his time studying. When his grades arrived, he found he had made the Dean's List, and he went to visit Uncle Phil to tell him the good news and to remind him of his promise. At dinner, however, Joe could not resist disagreeing with Uncle Phil about politics, and his uncle flew into a rage and now wants to avoid giving Joe the car.
 
Phil Rich has consulted your law firm to find out whether he can legally refuse to give Joe the car. Your senior partner has asked you to research two court opinions and to write a memo to help him in answering Rich's question. The two cases are Dorman v. PublbcSaengerSparks Theatres, Inc., and Chester v. State.
 
A. Dorman v. Publix-Saenger-Sparks Theatres, Inc.
 
DORMAN et al. v. PUBLIX-SAENGER-SPARKS THEATRES, Inc.
Supreme Court of Florida, Division A.
Dec. 7, 1938.
Error to Circuit Court, Alachua County; H,L. Sebring, Judge.
 
Suit by Mrs. R.E. Dorman, joined by Robert E. Dorman, her husband and next friend, against the Publix-Saenger-Sparks Theatres, Inc., to recover "bank night" prize. To review a judgment for defendant after demurrer was sus tained to the declaration, plaintiff brings writ of error.
Reversed and remanded with directions.
 
BUFORD, Justice.
 
In this case plaintiff in error sued defendant in error filing a declaration in three counts. The first count of the declaration alleged:
 
"That the defendant, at the time of the institution of this suit and at the times hereinafter referred to, conducted and operated in the City of Gaines ville, Florida, among others, two certain motion picture theatres commonly known respectively as the Florida Theatre and the Lyric Theatre; that at the times hereinafter referred to and for upwards of ten months next prior to the institution of this suit, the defendant, in connection with said motion picture theatres, conducted a scheme or plan of advertisement therefor commonly known as Bank Night; that by said scheme or plan the defendant proposed and advertised to the public in said City of Gainesville that on Tuesday night of each week the defendant would pay a certain sum of money on the succeeding Tuesday night to that person who attended said Florida Theatre or Lyric Theatre, or who was sufficiently near either of said theatres on the outside thereof to claim the said sum, by making the presence of such person known to the officers or agents of either said Florida Theatre or Lyric Theatre from within either of said theatres, from the lobby of either of said theatres, or from a point on the outside of either of said theatres, within a reasonable time on the night of the drawing after the name of the person entitled thereto was announced by or oii behalf of the defendant from the stage of either of said theatres, the lobby of either of said theatres, or in front of each of said theatres, and that the name of the person to whom the said sum of money would be paid would be determined by having some blindfolded person chosen by or on behalf of the defendant draw from a cylinder on the stage of the Florida Theatre one of the numbers designated on the pieces of paper contained in said cylinder, and that the pieces of paper contained in said cylinder would disclose the respective numbers assigned by or on behalf of the defendant at the time of registering to such persons as had registered their names in books provided by the defendant for that purpose, and for the permission to make which registration the defendant made no charge whatso ever; that the sum which the defendant proposed and advertised as aforesaid the defendant would pay under the scheme or plan aforesaid on Tuesday, September 28, 1937, was the sum of $500.00; that on Tuesday, September 28, 1937, the plaintiff, pursuant to and in reliance upon the defendant's aforesaid plan or scheme, was present outside said Lyric Theatre and nearby thereto at the time the defendant caused to be determined under the plan or scheme aforesaid the name of the person entitled to receive said sum of $500.00, and at that time the plaintiff weis one of those who had prior thereto, in conformity with the defendants said plan or scheme, registered in one of the defendcint's registration books provided for the purpose aforesaid. That on Tuesday night, September 28, 1937, pursuant to and in conformity with defendant's said plan or scheme aforesaid, the defendant caused to be drawn on the stage of the Rorida Theatre from the cylinder aforesaid, one of the pieces of paper containing the numbers of the registrants aforesaid, and that the number so drawn was the number which the defendant had assigned to the plaintiff at the time of the plaintiffs registration, and that the defendant then and there caused to be announced from the stage of said Florida Theatre that the plaintiff was entitled to the said sum of $500.00; that the plaintiff, at the time and place last referred to, within a reasonable time from plaintiffs name being announced by or on behalf of the defendant from the stage of the said Florida Theatre as the name of the person entitled to said sum of $500.00, did from the nearby proximity of said Lyric Theatre and from the lobby thereof make the presence of the plaintiff known and claim said sum of $500.00, to the employees of the defendant at the box office of said Lyric Theatre and the lobby of said Lyric Theatre, and did keep and perform each and every act and thing required of the plaintiff by the terms of the defendants aforesaid plan or scheme, to entitle the plaintiff to receive from the defendant the said sum of $500.00, nevertheless, the defendant, in violation of its said proposal and undertaking, did then and there refuse, and at all times thereafter has continued to refuse, to pay to the plaintiff said sum of $500.00, or any portion thereof."
 
There are no material differences between the first count and the second and third counts. The same cause of action is alleged in slightly different language, but the basic facts are alleged alike in all counts.
 
Demurrer was filed stating a number of grounds and the demurrer was sustained without indication by the court upon what ground or grounds it was sustained.
 
The plaintiff refusing to plead further, judgment was had on demurrer sustained to the declaration and writ of error was sued out.
The first three questions submitted by defendant in error in its brief are as follows:
 
"Did the published proposal or advertisement to give away a sum of money under the plan of bank night alleged in the declaration constitute or result in em offer to enter into a binding legal contract which could become effective by one merely attending the drawing and not purchasing a ticket of admission?
 
"Did not the proposal and advertisement to give away a sum of money under the plan of bank night alleged in the declaration constitute a mere published notice of voluntary intention to make a gift as distinguished from an offer to contract?
 
"Does presence at or near a place in anticipation of receiving a gift or gratuity constitute a consideration or convert a mere published intention to make a gift at such place into a contract or create legal responsibility for refusal to make a gift?"
 
Aside from the questions above stated, the demurrer presented the question of whether or not the allegations of the declaration on the face thereof showed that the transaction described in the declaration and constituting the cause of action constituted a lottery. It, therefore, becomes necessary for us in determining the merits of the demurrer to determine whether or not the plaintiff is barred from recovery because the transaction constituting the basis of the cause of action was a lottery.
 
The first question to be determined is whether the offer of the Theatre Company is one to make a gift upon condition or one for a binding contract upon acceptance and performance of the terms of the offer.
 
In Williston on Contracts, Vol. 1, Sec. 112, p. 232 (1920 Ed) it is said:
 
"If a benevolent man says to a tramp,-Mf you go around the comer to the clothing shop there, you may purchase an overcoat on my credit', no reasonable person would understand that the short walk was requested as the consideration for the promise, but that in the event of the tramp going to the shop the promisor would make him a gift. Yet the walk to the shop is in its nature capable of being consideration. It is a legal detriment to the tramp to make the walk, and the only reason why the walk is not consideration is because on a reasonable construction, it must be held that the walk was not requested as the price of the promise, but was merely a condition of a gratuitous promise. It is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratutious promise. An aid, though not a conclusive test in determining which construction of the promise is more reasonable is an inquiry whether the happening of the condition will be a benefit to the promisor. If so, it is a fair inference that the happening was requested as a consideration. On the other hand, if, as in the case of the tramp stated above, the happening of the condition will be not only of no benefit to the promisor but is obviously merely for the purpose of enabling the promisee to receive a gift, the happening of the event on which the promise is conditional though brought about by the promisee in reliance on the promise will not properly be construed as consideration."
 
Applying the test set out by Williston we find that if the attendance by the public (of which plaintiff in error was one) or the registration of the public was a benefit to the promisor, it is a fair inference that the attendance and registration were requested as a consideration. And it is axiomatic in the law of contracts that a benefit flowing to the Theatre Company from a third party is sufficient consideration inrespective of whetiier there is a benefit flowing from the promisee. Page on Contracts, Vol. 1, Section 531 (1919 Ed.). It is not necessary that the registration or presence of plaintiff in error alone should supply this benefit.
 
In 13 CJ., Contracts, Section 150, p. 318, it is said:
 
"In the matter of a benefit, a mere expectation or hope, or a contingent benefit, is sufficient, as, for example, the expectation of advantage or profit from the thing promised."
 
Thus, it is immaterial whether or not the presence of the participants in "bank night" actually increased defendant in error's box office receipts. The hope or expectation that it would was sufficient. Under this rule we are of the opinion that the registration and attendance of the public were a benefit to the Theatre Company.
 
Since the requested acts (registration and attendance at the theatre) resulted in a benefit to the Theatre Company, and were done on the faith of the promise to pay, such acts must be regarded as having been requested as the consideration for a valid and binding contract rather than as mere conditions to a promise to make a gift.
 
The next question presented is whether or not the registration and attendance of the plaintiff in error is sufficient consideration to support a contract, a breach of which would subject the promisor to liability for damages.
 
The consideration required to support a simple contract need not be money or anything having monetary value, but may consist of either a benefit to the promisor or a detriment to the promisee. Williston on Contracts, Vol. 1, Sec. 102 (1921 Ed.); [et al.]
 
"It is not necessary that a benefit should accrue to the person making the promise; it is sufficient that something valuable flows from the person to whom it is made, or that he suffers some prejudice or inconvenience, and that the promise is the inducement to the transaction. Indeed, there is a considera tion if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not." 13 CJ., Contracts, Sec. 150, pp. 315, 316. [et al.]
 
It stands admitted on the record that at the time of this particular drawing, Mrs. Dorman, the plaintiff in error, "pursuant to and in reliance upon the defendant's aforesaid plan and scheme, was present outside said Lyric Theatre and near thereto" and that plaintiff in error "was one of those who had prior thereto, in conformity with the defendant's said plan or scheme, registered in one of the defendant's registration books, provided for the purpose aforesaid." Both of these acts involved the doing by Mrs. Dorman at defendant's request of something which she not only was under no obligation to do, but had a right not to do. Therefore, such acts come well within the accepted definition of "legal detriment" and were in themselves ample consid eration for defendant's agreement to pay, regardless of whether they were of any pecuniary value. See Earle v. Angell, 157 Mass. 294, 32 N.E. 164, which held that attendance at the funeral of promisor pursuant to the latter?s request and agreement to pay the promisee $500 if he would do so was sufficient consideration to support the agreement, and that having performed, the promisee could recover the $500 in an action against the promisor's estate.
 
In its brief the defendant in error has cited a number of cases involving the elements of consideration holding that mere attendance at the theatre would not be a sufficient consideration to constitute a lottery. Then defendant in error contends that these elements do not fumish a consideration in any case, whether a penalty is involved or whether civil rights are involved. This contention is not well founded.
 
In Simmons v. Rcindforce Amusement Corporation, 162 Misc. 491, 293 N.Y.S. 745, decided by the Municipal Court of the City of New York, the plaintiff sought to recover $250 by reason of being the holder of the winning number drawn by defendant on one of its "bank nights". It was held that the act of a person in signing his name in a book and attending the night of the draw, at the request of the theatre, was "adequate consideration" for promise of a prize by the theatre to its patrons and others. The plaintiff was allowed to recover from the theatre on its refusal to pay for breach of contract.
 
In Commonwealth v. James Wall, Mass., 3 N.E.2d 28, it is said [page 29]:
 
"One may give away his money by chance, and if the winner pays no price, there is no lottery. Price' in this connection means something of value and not the formal or technical consideration which would be sufficient to support a contract. Yellow-Stone Kit v. State, 88 Ala. 196, 7 So. 338, 7 L.R.A. 599, 16 Am.St.Rep. 38; Hull v. Ruggles, 56 N.Y. 424, 427; Chancy Park Land Co. v. Hart, 104 Iowa 592, 595, 73 N.W. 1059.
 
"There was error, however, in instructing the jury in substance that any technical and non-valuable consideration 'whether registration of the name or emything else' would be a sufficient price."
 
In Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 101 A.L.R. 1115, this Court, in a majority opinion, held:
 
1. At common law, lotteries were illegal only when they became public nuisances.
 
'Lottery' is a scheme for distribution of prizes by lot or chance. It is game of hazard in which small sums are ventured for chance of obtaining larger value either in money or other articles. 'Lottery' exists where pecuniary consideration is paid and it is determined by lot or chance, according to some scheme held out to public, what and how much he who pays money is to have for it. 'Lottery' is scheme by which result is reached by some action or means taken, and in which result man's choice or will has no part, and in which human reason, foresight, sagacity, or design do not enable man to know or determine result until same has been accomplished.
 
2. Constitutional prohibition against lotteries was intended to suppress schemes for distribution of prizes by lot or chance which infected entire community or country and not merely individuals therein, and any gambling device reaching such proportions is lottery' within constitutional prohibition (Const, art. 3, § 23).
 
3. While Legislature cannot legalize gambling device which amounts to lottery, it can regulate and prohibit any and all other forms of gambling (Const, art. 3, § 23),
 
4. Statute licensing and regulating coin-operated devices, including automatic coin-operating vending and amusement machines with premium features, coin-operated skill machines and premium trade machines, held not violative of constitutional prohibition against lotteries, since machines enumer ated in statute were not lotteries' per se (Acts 1935, c. 17257; Const, art. 3, § 23)."
 
The writer did not concur in that opinion, but running through all the definitions which were applied to "lottery", either in the majority opinion or in the dissenting opinion, there was to be found the requirement that to constitute a lottery there must be a hazard of something tangible of value paid or agreed to be paid by the player in consideration for the privilege of participating in the game or scheme in which there was a chance to win a much larger amount. A lottery has been defined as a sort of gaming contract by which for a valuable consideration one may by favor of the lot obtain a prize of value superior to the amount or value of that which he risks. See American Encyclopedia. In Commonwealth v. Wall, Mass., 3 N.E.2d 28, the Supreme Judicial Court of Massachusetts had under consideration judgment of conviction of one charged with the offense of being concerned in setting up a lottery for money, and it was shown that the alleged lottery complained of was the operation by a moving picture theatre of what is known as "Bank Night". There the Court said [page 29]:
 
"We agree with the defendant that the essence of a lottery is a chance for a prize for a price. ?? "One may give away his money by chance, and if the winner pays no price, there is no lottery. 'Price' in this connection means something of value and not the formal or technical consideration which would be sufficient to support a contract. " On the other hand, a game does not cease to be a lottery because some, or even many of the players are admitted to play free, so long as others continue to pay for their chances. "? So here the test is not whether it was possible to win without paying for admission to the theatre. The test is whether that group who did pay for admission were paying in part for the chance of a prize. The jury could disregard all evidence introduced by the defendant favorable to him. They could take a realistic view of the situation. They were not obliged to believe that all the ingenious devices designed to legalize this particular game of chance were fully effective in practical operation. An important feature of the plan was the necessity that the person whose number was drawn should appear at once and claim the deposit. The time allowed for appearance was entirely within the control of the defendant. No definite time seems to have been fixed. A participant inside the theatre would have the advantage of immediate presence in a place of comfort. He could hear the number and the name read. He could identify himself at once. A participant outside the theatre must wait in discomfort in the hope that if his name should be drawn within he would be notified and would hear the call soon enough to crowd through toward the front of the theatre within such time as might be allowed. The object of the defendant was to fill the theatre, not the lobby or the sidewalk. We think the jury could find that the unusual crowds which completely filled the theatre on 'Bank Nighf paid to come in partly because they had, or reasonably believed they had, a better chance to win the prize than if they had stayed outside, that they paid their money in part for that better chance, and that the scheme in actual operation was a lottery. There was no error in denying the defendant's motion for a directed verdict.
 
"Our conclusions of law as to 'Bank Nighf are not in conflict with those reached by the Supreme Court of New Hampshire in State v. Eames [87 N.H. 477], 183 A. 590. The difference between the cases is that the New Hampshire court on agreed facts held that 'free participation is a reality.* We think the jury in this case could find that it was not a full and complete reality on as favorable a basis as paid participation.
 
In State v. Eames, 87 N.H. 477, 183 A. 590, much the same question was presented. In that case, however, the statute defining lottery was the control ling factor. The enunciation by the court, however, is persuasive. There the court said [page 592]:
 
"The problem presented by 'Bank Night' and similar schemes is to determine whether it is an evasion of the statute or an avoidance of it, and this question is essentially one of fact. In answering this question, we do not propose to close our eyes to reality. The test by which to determine the answer to this question is not to inquire into the theoretical possibilities of the scheme, but to examine it in actual practical operation. If, as the state contends in its brief, although this contention does not appear to be bome out by the agreed facts, 'the great majority of people pay for such privilege,' then it is an evasion and as such is not to be countenanced. As we understand the actual situation of this case, however, free participation is a reality. If this is so, then, regardless of the motive which induced the defendant to give such free participation, the scheme is not within the ban of the statute. Violation is shown only when, regardless of the subtlety of the device employed, the state can prove that, as a matter of fact, the scheme in actual operation results in the payment, in the great majority of cases, of something of value for the opportunity to participate."
 
In Central States Theatre Corporation v. Patz et al., D.C., 11 F.Supp. 566, District Judge Dewey said [page 568]:
 
"It seems to me that under this situation the plaintiff corporation is conducting a lottery. The elements necessary to constitute a lottery are: First, a prize; second, a chance; and third, a consideration. The plaintiff corpora tion admits the first two elements are present, but denies that there is any consideration paid by any one on the prize itself. I am unable to agree with this. While the registration book may be open to the public generally, it is within the foyer of the theater, and very few people would be presumptuous enough to enter the theater, register and not buy a ticket for the entertainment. The very purpose of the registration book being within the foyer of the theater is to induce people to enter the theater. Also that part of a scheme which permits a person to participate in the result of the drawing, if any, by not being inside of the theater, but on the outside, is a subterfuge, as the drawing is at 9 o'clock at night and the percentage of people who would stand outside and wait for the drawing at that time must be comparatively few. The question whether or not there is a paid consideration for the opportunity to win a prize necessary to constitute a lottery is a question of fact which must be determined from the facts and reasonable deductions and inferences to be drawn there from in each case. There can be no question that if a person wants to give a prize in appreciation of patronage, he should have the right to do so.
 
"In this case there was an admission charge to the theater, and the question of fact, it seems to me, is whether or not from this admission charge the scheme and plan was to deduct a certain percentage and use this fractional fee to pay or offset the loss which might be occasioned by the $150 prize. If that was the intention, I can see no reason why it would not be a lottery. Here there was a carefully planned scheme to appeal to the cupidity of the public and the spirit of gambling and speculation, carrying with it the attendant detrimental results which were intended to be prohibited by the statutes making gambling and lottery offenses, and at least the scheme is unfair and contrary to public policy.
 
"Taking it by its four comers, which the plaintiff insists the court should do in determining the issues of the case, it is very apparent that the increase in the attendance is from those persons who are interested in the drawing and not in the picture, and that they have paid their entrance fee primarily in the hope of being successful on the wheel of fortune. It may be that this number is small in comparison to the whole, but, if it is a lottery as to a few, or a lottery comparatively small in its consideration, it is a lottery nevertheless."
 
So it appears by the weight of authority in this country that the scheme known as "Bank Night" may be conducted as a lottery or it may be conducted in such manner that it is not a lottery.
 
On the face of the declaration it is not made to appear that it is a lottery because allegations necessary to show that the plan or scheme referred to when put into operation constituted a lottery are lacking. See State v. Eames, supra.
 
It will be observed that the statement has often been made that whether or not the plan or scheme as carried out by those operating Bank Night constitutes a lottery is a jury question. This is true in the sense in which the statement is applied. But whether or not the operation of such a scheme or plan constitutes a lottery under a given state of facts is a question of law. Stated in another way, we may say that whether or not the perpetration of certain stated acts under certain stated conditions constitutes the conducting of a lottery is a question of law for the courts to determine, while whether or not the alleged acts were perpetrated under the alleged conditions is a matter of fact which may be determined by a jury or in chancery by the chancellor.
 
When this cause goes back to the lower court and additional pleadings are filed, the question of whether or not the transaction complained of constitutes a lottery may be further presented or, upon the trial, if there should be a trial, it may develop that the transactions constituted a lottery and that the plaintiff is thereby barred from recovery.
 
We only hold here that the declaration on its face states a cause of action and does not allege sufficient facts to affirmatively show that the involved transaction constituted a lottery.
 
For the reasons stated, the judgment is reversed and the cause remanded with directions that it be returned to the rolls and further proceedings be had in accordance with law and practice.
 
So ordered.
 
B. Chester v. State
William K. CHESTER, Appellant, v. The STATE of Florida et al.. Appellees.
District Court of Appeal of Florida.
First District.
June 17, 1965.
 
Interpleader action by state to procure an adjudication as to the person or persons entitled to a reward which had been offered by the state for information relating to a crime. The Circuit Court, Leon County, W. May Walker, J., held that an attomey was not entitled to any part of the reward, and the attomey appealed. The District Court of Appeal, Wigginton, J., held that where all information revealed to the state by the attomey for an accused client was already known to the state and the attomey merely performed his duty for his accused client in arranging for the client to testify for the state in prosecution of the client's confederates for murder, the attomey was not entitled to the reward.
 
Decree affirmed.
WIGGINTON, Judge.
 
Appellant has appealed a final decree rendered by the Circuit Court of Leon County, In Chancery, which denied him any share of the reward offered by the State of Florida for information leading to the arrest and conviction of the party or parties responsible for the disappearance of Judge C.E. Chilling-worth. It is contended that the chancellor misconceived the legal effect of the evidence and applied thereto an incorrect principle of law in finding and holding that appellant was not entitled to all or a portion of the reward.
 
This interpleader action was instituted by the State of Florida, through its proper officials, for the purpose of seeking an adjudication as to the person or persons entitled to the above-mentioned reward of $100,000.00. All persons, including appellant, who were known to have or assert any claim to the reward, or ciny portion thereof, were joined as defendants in the action. The amount of reward was deposited in the court registry and the State of Florida was discharged from any further obligation or responsibility with respect to the subject matter of the cause. The various claimants filed their claims asserting entitlement to all or such part of the reward fund as the court may deem them entitled. Upon consideration of the evidence adduced during the trial the chancellor entered his decree finding that three of the claimants were entitled to receive the entire reward in the proportions fixed in the decree. It was further decreed that appellant Chester was not entitled to any part of the reward, and his claim was therefore disapproved and rejected.
 
On June 15, 1955, Honorable C.E. Chillingworth, a distinguished jurist of the State of Florida, together with his wife, mysteriously disappeared from their home in Palm Beach County. An extensive investigation surrounding their disappearance was instituted and carried forward by the law enforcement officers of Palm Beach County and the State of Florida. As a result of this investigation it became evident that Judge Chillingworth and his wife had been murdered, and that three men were primarily responsible for the crime, to wit: Joseph A. Peel, Jr., Floyd A. Holzapfel, and George David (Bobby) Lincoln. The evidence reveals that despite the complete information obtained by the law enforcement officials regarding the facts and circumstances surrounding the murder event, and the complicity of the three above-named men in the perpetration of the crime, the State nevertheless continued its investigation without charging or arresting any of the suspects awaiting the time when further evidence might be developed which would assure a successful prosecu tion and conviction.
 
The Florida legislature, in its regular 1957 biennial session, enacted a law which provides in pertinent part as follows:
 
"Section 1. A reward of one hundred thousand dollars ($100,000.00)ishereby established for information leading to the arrest and conviction of the party or parties, or any of them, responsible for the disappearance of Judge C.E. Chillingworth."
 
It was while the investigation of this case was in progress that appellant Chester, a duly licensed and practicing attorney of West Palm Beach, was employed to represent the interest of the above-mentioned Lincoln who was then incarcerated in the Federal Correctional Institution at Tallahassee. Appellant visited Lincoln at the latter's request in reference to the Chillingworth's disappearance and murder. On this occasion Lincoln made a full and complete disclosure to appellant of the facts and circumstances surrounding the murder of Judge and Mrs. Chillingworth, and of his participation in that crime. Lincoln further disclosed to appellant Holzapfel's and PeeFs participa tion in the murder and thereupon requested appellant to take this information and do with it what he could for Lincoln?s best interest. Appellant agreed to the request made of him by his client, and stated that he would contact the state attorney at West Palm Beach regarding the matter. It was agreed at that conference that if it were not inconsistent with his duty as a lawyer, appellant would claim the reward offered by the State in connection with the Chilling-worth murder. Following the conference appellant promptly conferred with the state attorney on two or more occasions on behalf of his client Lincoln with the result that an agreement was reached whereby Lincoln would tum State's evidence and testify fully, fairly and truthfully on behalf of the State in the prosecution of Holzapfel and Peel for the murder of Judge and Mrs. Chillingworth, in exchange for immunity from prosecution for either of said crimes and also for the crime of having murdered a third person. Lincoln was subsequently transferred to Palm Beach County where he made a full and complete written disclosure of the facts surrounding the crime. Lincoln's testimony as an eyewitness was the final link of evidence needed by the State to assure the successful prosecution and conviction of Peel and Holzapfel for the Chillingworth murders. After the latter two suspects were arrested and Holzapfel learned of Lincoln's confession, Holzapfel likewise confessed his complicity in the crime and pleaded guilty to the indictment brought against him charging murder in the first degree. It was upon the testimony of both Lincoln and Holzapfel that Peel was subsequently tried and convicted of murder in the first degree, with the recommendation of mercy.
 
Based upon the foregoing evidence the trial court reached the following finding and conclusions, to wit:
 
"It seems clear that the information furnished by claimant Chester, as reflected in Lincoln's confession and turning of state's evidence, was not furnished in response to the reward offer but furnished in response to his sacred and solemn duty to his client, Bobby Lincoln. Irrespective of the reward, it was the duty of claimant to 'use every endeavor in his power' in behalf of his client. Apparently, the information furnished by Chester was furnished in an effort to save Lincoln from evident doom. As a matter of law, the reward in nowise could have influenced, changed or altered the effort, duty or responsibility of Chester to his client and was, therefore, no inducement and no consideration for the information furnished by him. Moreover, the state has already paid in full and to the utmost extent for such information by granting Lincoln immunity against prosecution in three separate and distinct murder cases.
 
"It follows, therefore, that Chester did nothing beyond the scope of his legal duty in the defense of his client Lincoln and is, therefore, not entitled to participate in the reward offered by the state for which he has made claim in this proceeding."
 
We have carefully considered the evidence and the authorities on which appellant relies to demonstrate reversible error. It is our conclusion that the chancellor neither misconceived the legal effect of the evidence nor applied to it an incorrect principle of law in reaching his conclusion that appellant was not entitled to share in the reward.
 
From our consideration of this case we conclude that it was not the information furnished by appellant to the state attorney regarding Lincoln's participation in and knowledge of the facts surrounding the disappearance of Judge Chillingworth which led to the arrest and conviction of the perpetrators of the crime. All facts related by appellant to the state attorney were already known to the law enforcement officers working on the case, including Lin coln's participation in the crime. It was the willingness of Lincoln to testify on behalf of the State in return for immunity from prosecution which enabled the State to successfully prosecute and convict Holzapfel and Peel. The only services of value rendered by appellant were to his client as a result of which his client received immunity from prosecution in return for his testimony. For these services appellant was or is presumed to have been compensated under his contract of employment with Lincoln. Appellant performed no services nor furnished any information beyond that performed and furnished in representing his client which could be said to have led to the arrest or conviction of those charged with the crime. A different situation would be presented if the evidence revealed that appellant, after gaining information concerning the crime from his client, used that information in discovering and developing other evidence or information which would have been of value to the law enforcement officers in securing the arrest and conviction of the criminals.
 
There is another cogent reason why appellant failed to demonstrate his entitlement to all or a part of the reward. The primary purpose which motivated the State of Florida in offering the reward in question was to induce those having knowledge of the crime to develop and then divulge that knowledge to the law enforcement authorities, thereby making available to them information not otherwise obtainable. As said by the Supreme Court of Alabama in Mosely v. Kennedy:
 
"We think it clear that the reward allowed by the aforesaid section ?? " is a reward to spur individual initiative and diligence, whether the individual acts in an official or private capacity.
 
It is clear from this record that the only knowledge of the Chillingworth crime possessed by appellant was divulged to the law enforcement officers in the discharge of his duty to his client, Lincoln, which duty he was ethically bound to discharge regardless of whether a reward had been offered by the State. It is equally clear that the availability of the reward provided by the statute had no effect on spurring the individual initiative and diligence of appellant in the premises. He owed his client all of the initiative and diligence which he possessed in rendering the legal services he was obligated to perform irrespective of whether the possibility existed for him to share in the reward. We are of the view that the conclusion reached by the chancellor was the correct one, and the decree should not be disturbed.
 
For the reasons above stated the decree appealed is affirmed.
 
C. How to Handle Dorman and Chester
 
As you read Dorman, you will realize that one of the questions (whether the theater was operating a lottery) is not at issue in the hypothetical fact situation. The Dorman case, however, is relevant to your facts. The Dorman court is helpful in that it clearly states how to decide whether a contract exists. The question, said the Dorman court, is whether the theater's offer was only to make a gift upon a condition or to create a "binding Contract" upon acceptance and performance of its terms.
 
Before framing the first issue, however, you will need to consult the second case you were given, Chester v. State. Perhaps, after carefully reading find briefing that case, you will revise your issue statement. In considering Chester, repeat the procedure you used for Dorman, and you will probably conclude that Chester does not deal with the first issue that Dorman and your case consider (whether Rich's promise constituted an offer to contract or a mere gratuitous promise). So you are ready to frame the issue in your case, using only the Dorman opinion.
 
1. How to state the issue
 
There are certain conventions that Issue-statement requires:
 
(1) The complete issue-statement contains a rule of law plus the facts of your case.
(2) The issue must be answerable by "yes" or "no."
(3) The issue can be framed either as a direct question or an indirect question.
(4) The issue must be drafted as one sentence.
 
To explain the above requirements: (1) The reason that the complete issue-statement contains both the law and the facts of a case is obvious if you consider the issue-statement, "Are the accused guilty of burglary for breaking into a drive-in carwash at 9 P.M. on February 9, 1991?" Your immediate response would be, "Under what law?" Unless you are told what the law is in the jurisdiction where the act took place, you cannot answer the question. (2) The reason for this requirement is clarity. If you were able to state an issue as an either/or question, the chance of ambiguity would substantially increase.
 
With regard to the last two requirements, (3) and (4), convention dictates this form. Convention also requires that when you frame the issue as a direct question, you end it with a question mark. On the contrary, it is inappropriate to use a question mark if you frame the issue as an indirect question (beginning with "whether"), although you will find a number of 19th century opinions that did just that. Courts now prefer that plain English rules of grammar be observed in legal writing, and these prohibit the use of question marks to follow indirect questions.
 
With these guidelines, you are ready to frame the first issue of your case. You can do so using either a direct question or an indirect question:
 
Issue I: Under contract law, is Phil Rich's promise to give Joe Poor a car an offer to make a binding contract, upon acceptance and performance of the terms?
 
Issue I: Whether under contract law Phil Rich's promise to give Joe Poor a car is an offer to make a binding contract, upon acceptance and performance of the terms.
 
Note that the first statement of the issue is a direct question, the second statement is an indirect question.
 
In order to frame the second issue, you will need to re-read both the Dorman and the Chester cases, for the question of whether the offeree supplied consideration to the offeror appears in both. In the Dorman case, as in your case, the second issue is reached only if the first issue is answered by "yes." As in Dorman, if your conclusion in the instant case is that Phil Rich made a mere gratuitous promise, based upon a condition, Phil Rich can legally avoid giving Joe Poor the car, and the second issue would be irrelevant. The second issue should therefore be stated as an "if so" issue.
 
Below are two ways you can state the second issue:
 
Issue II: If so, under contract law, did Joe Poor provide consideration for Rich's offer by making the Dean's List?
Issue II: If so, whether under contract law, Joe Poor provided consideration for Rich's offer by making the Dean's List.
 
2. Writing the short answer
 
Leave this section of your memo for last. When you have finished drafting your Discussion and Conclusion sections, you will find it an easy matter to write short answers to the issues, although the answers might be hard to articulate now.
 
3. Writing the discussion section
 
Now draft the discussion section of your memo. After you have finished your rough draft, consult the following memo, which was written by a student like yourself.
 
D. One Student's Answer
 
INTEROFFICE MEMORANDUM OF LAW
 
TO: Senior Colleague
FROM: New Associate
Re: Rich's promise to his nephew
CLIENT: Phil Rich
FILE 891011
DATE: January 1, 2015
 
BRIEF STATEMENT OF FACTS:
 
Joe Poor, Phil Rich's nephew, began law school last semester. Two weeks before his final examinations, Phil Rich promised Poor a new sports car if Poor made the Dean's List. Poor did so, but Rich wants to know whether he can legally refuse to give Poor the car.
 
ISSUE ONE: Whether under contract law Phil Rich's promise to his nephew Joe Poor was an offer for consideration, which upon acceptance and performance of the terms would become a binding contract.
 
ISSUE TWO: If so, whether under contract law Joe Poor provided consideration for Rich's offer when he made the Dean's List.
 
SHORT ANSWERS:
 
ISSUE ONE: Probably. Although the benefit to Rich is intangible, it probably meets the Williston test.
 
ISSUE TWO: Probably not. It fails to meet the test for consideration stated in both Dorman and Chester.
 
DISCUSSION:
 
The issue of whether a promise was merely to give a gift based upon a condition or an offer for consideration was raised in Dorman, et aL, v. Publix-SaengerSparks Theatres, Inc. In Dorman, the defendant-theater advertised a "bank night," in which the theater offered the chance to win a prize of $500 to persons who came to the theater, registered in a book, and received a numbered ticket. Ms. Dorman did so, held the winning ticket, and further complied with the terms of the offer by making her presence known and claiming the prize, but the theater refused to give her the prize.
After the trial court sustained the defendant's demurrer, Ms. Dorman appealed. The appellate court said that the first issue was whether the theater's advertisement of a prize to persons at or near the theater constituted an offer for consideration or a mere gift based upon a condition. The court applied the test in Williston on Contracts: If the theater would receive a benefit from the public's attendcince and registration for the gift, the theater's offer would constitute one for consideration. The court also cited to 13 C.J. Contracts, Section 150, for the rule that even if the theater received no actual benefit, but merely expected to benefit from the conditions of its promise, the promise constituted an offer to contract. Thus the court held that the Publix-Saenger Theater had made Ms. Dorman an offer to contract, not merely an offer of a gift.
 
The instant case resembles Dorman in that both the theater and Phil Rich made a promise they wished to avoid fulfilling. Just as the theater in Dorman expected to benefit from its promise by increased patronage, Rich expected to benefit from his promise to Joe Poor in that the prestige of Joe Poor's making the Dean's List would be "a credit" to Rich and to "the family name."
 
However, the benefit the theater in Dorman expected to receive was a tangible one-financial gain. The "credit" that Rich and the family name would receive from Poor's success was insubstantial, not countable in dollars and cents. Thus a court may consider Rich's offer to be more like the offer it cited as a test in Williston, in which a benevolent man requires a tramp to walk around the comer to a clothing shop in order to get a coat.
 
Rich's promise to Poor seems to be somewhere between the theater's offer and the benevolent man's request to the tramp. Because Rich apparent ly valued the prestige as a benefit to himself and to the family name, the hoped-for benefit, though intangible, is probably substantial enough that his promise will be considered an offer to contract, upon acceptance and perform ance by Poor.
 
The issue of whether there was an offer for consideration does not appear in the second precedent case, Chester v. State, because the offer is a part of the facts of Chester But the second issue, whether the offeree provided consideration, appears in both Dorman and Chester And for a contract to exist, the second issue must be answered affirmatively.
 
In discussing the second issue, the Dorman court defined consideration as something that is either a benefit to the promisor or a detriment to the promisee. Something of value must flow from the promisor to the promisee, or the promisee must suffer some "prejudice or inconvenience" as a result of being induced to fulfill the offer. In Dorman, the court said that the test was whether the theater's offer induced the promisee to do something she was not legally bound to do and had a right not to do, or to refrain from doing something she would otherwise have done.
 
The Dorman court reasoned that in being present outside the theater and complying with the other requirements of Bank Night, Ms. Dorman did something at the theater's request that she was under no legal obligation to do. Her presence at the theater was a legal detriment to her and constituted consideration, completing the contract between the theater and Dorman, (The Dorman court then considered the question of whether the theater was conducting a lottery, an issue that is not relevant here.)
 
Under the Dorman precedent, if Joe Poor, as a result of Rich's promise, did anything he was not legally bound to do and had a right not to do, or refrained from doing something he otherwise might have done, Joe provided consideration, creating a contract the breach of which would be actionable.
 
Joe Poor may have provided sufficient consideration for a contract by studying hard and doing all he could do to succeed in law school. But Joe's incentive for doing so is not as clear as was Ms. Dorman's. He went to law school with the intention of doing well, studied hard, and did all that was necessary to succeed academically even before receiving Rich's letter. True, he redoubled his efforts the last two weeks before examinations, but this is normal for law students, as indicated by the fact that all of his fellow students did likewise.
 
Thus, under the Dorman test, it is likely that a court would reason that Joe Poor had acted in response to his own inducement to succeed in law school rather than as a result of his uncle's promise, and that he had suffered no detriment as a result of being induced by the offer. If his conduct constituted a benefit to Rich, under the Dorman reasoning, there would be a contract. But because the "benefit" Rich received was intangible (in fact, the family "name" to be enhanced was Poor not Rich), the court would probably hold that the benefit was not sufficient to constitute consideration.
The same issue of consideration was examined in Chester v. State. Attorney Chester appealed a Circuit Court holding that he was not entitled to a reward offered by the state for information relating to a crime. Attorney Chester represented a client incarcerated in prison, whom the state knew to be one of three men primarily responsible for the crime. In his role as lawyer, Attorney Chester received from his client a full disclosure of the facts of the crime. Attorney Chester agreed to take the information to the state attorney and use it to his client's best interest and then to claim the reward the State was offering. The State granted the client, in exchange for the information Chester proffered, immunity from prosecution for that crime and for another crime.
 
In the Chester case, the appellate court affirmed the lower court decision, reasoning that, in proffering the information on behalf of his client, Chester did nothing beyond the scope of his legal duty to defend his client, and was therefore not entitled to the reward the State had offered. The only service that Chester rendered, said the court, was to his client, for which the client received immunity from prosecution. The court reasoned that Chester per formed this service to his client under his contract of employment. He was ethically bound to render the best possible legal services to his client, regard less of whether the State offered a reward.
 
The Chester court thus applied the same test for consideration that the Dorman court used: whether as a result of the promise the offeree did something he was not legally bound to do or refrained from something he had a right to do. In deciding that Chester did nothing in response to the State's offer and therefore provided no consideration, the court found that no contract existed between the State and Attorney Chester. The court reasoned that the offer was "no inducement," and no consideration was provided to the State by Chester's actions on behalf of his client.
 
This reasoning seems applicable here. A court may find that in making the Dean's List, Joe Poor was induced by his own interests rather than by his uncle's offer. Joe had begun to study hard well before he received his uncle's offer, and even after the offer did nothing he would not otherwise have done had he not received the offer. If so, Joe Poor provided no consideration, and there was no contract between himself and Rich.
 
However, Rich's case is not as strong as that of the State in Chester. For Joe Poor, unlike Chester, was under no legal obligation to do well. His obligation to himself seems less demonstrable than Chester's to his client. If Joe Poor can prove that he increased his efforts to do well due to Rich's offer, the court may agree that he did something as a result of Rich's offer that he would not otherwise have done.
 
Because Joe probably cannot prove that he expended effort beyond what other freshmen were putting forth, the court will probably conclude that he did nothing beyond what many freshmen law students do. He, like the other freshmen, felt impelled by the Dean's words at orientation (one of three new students will fail), and not by the offer he received two weeks before final exams. Thus there was no contract between Rich and Poor.
 
CONCLUSION
 
Under the Dorman and Chester precedents, it appears that Phil Rich can avoid giving his nephew Joe Poor the car he had promised to give him. Although a court may decide that Rich's offer was for consideration, not for a gift upon a condition, it would probably conclude that Joe acted because of his own wish to succeed in law school not because of Rich's offer and no contract resulted.
 
E. How the Student Organized the Memo Discussion Section
 
(1) The student began by dealing with the first issue. No introduction was necessary because the relevant material was presented in the Brief Statement of Facts and the Issues.
(2) The student first summarized the relevant facts of Dorman, including the way the matter reached the appellate court. Then came the rule that the appellate court used, the reasoning of the court, and its holding.
(3) Next the student compared Dorman to the instant case, first analogiz ing and then distinguishing Dorman.
(4) After this cinalysis, the student came to a conclusion about how the court would probably decide the instant case under Dorman with regard to the first issue. (Note that the conclusion was stated in terms of probability not certainty.)
(5) The memo writer next noted that the Chester case did not involve the first issue of the instant case. She then used transitional language to move to a discussion of the second issue.
(6) Regarding the second issue, the student discussed the Dorman prece dent first. Because she had already provided the Dorman facts, they were omitted, except as needed in the analysis of the second issue. As to Dorman, the discussion of the legal rule the Dorman court applied, its reasoning, and then its conclusion regarding the second issue were presented in that order.
(7) Next came the analysis of the second issue of the instant case under the Dorman precedent. The memo-writer first analogized the Rich case to Dorman and reached a temporary conclusion regarding the instant case. Then she distinguished Joe's actions from those of the plaintiff in Dorman, and concluded, regarding Dorman, that a court would probably come to an opposite holding in the instant case.
(8) Moving to the second issue as it was decided in Chester, the writer included a summary of the relevant facts of Chester, a discussion of how Chester reached the appellate court, the reasoning of the appellate court, the test it applied, and its holding in Chester (This procedure mirrored the procedure followed in the discussion of the first issue.)
(9) Next, as she had done in Dorman, the student analogized the instant case to Chester, then distinguished it from Chester, and concluded that because the similarities outweighed the differences, Joe Poor would probably not be successful in proving that he provided consideration for Rich's promise. (Note again: probability, not certainty, as her conclusion. Remember that, in legal predictions as in life, nothing is certain.)
(10) Now comes the bottom line: no consideration, thus no contract. No contract, thus no liability for its breach. The Conclusion sums up this final prediction.
 
F. One Last Comment
 
As you have seen, memo-writing is neither mysterious nor difficult. To be successful, you need to thoroughly understand your case and the precedential cases, analyze objectively, and organize your analysis logically and methodical ly. No magic, just painstaking work.
 
The inter-office memo you have just learned to write is considered a "simple" memo, because it contains only two issues and is relatively short. In your law practice you will also write "complex" memos, so-called because they have three or more issues and are considerably longer (15 pages or more). The form of the complex memo differs from that of the simple memo only in that it contains more parts, perhaps including a Table of Contents, a Table of Authorities, and an Appendix that includes items like photographs and charts.

See the following articles for more information:

• Writing the Proper Legal Document
• The Art of Drafting a Proper Legal Memo