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Senior Management Advisory Memorandum - Fact Based Arguments

Senior Management Advisory Memorandum - Fact Based Arguments.JPG
Senior Management Advisory Memorandum - Fact Based Arguments.JPG

Senior Management Advisory Memorandum - Fact Based Arguments

You will make two fact based arguments.  The elements you need to argue are underlined in the case law document.  There are five steps to developing great arguments: 1)  Create a theory of the case, 2) Know the facts, 3) Interpret the facts, 4) Synthesize perspectives, and 5) Develop strategic foresight.

The Theory of the Case provides the story or lens you are interpreting the facts through.  This is a must step to create a seamless memo because it ties everything to one message.  For students that struggle with this type of argumentation, it is usually the theory of the case that is the missing piece.

Knowing the facts means all the facts, not just what is beneficial to your case.  There are bad facts in each case for either side that must be dealt with.  Dealing with them does not mean ignoring those bad facts, it means controlling the narrative of what those bad facts actually say.

Interpreting the facts is standing in the shoes of your client.  Was his or her decision reasonable under the circumstances?  Answering questions like this requires you to use your knowledge of the facts and weave those facts into an explanation of why your client did what they did.

Synthesizing perspectives is understanding the strategy of the opposing counsel and developing your arguments to reflect an equally reasonable interpretation of the facts.  It is a mistake to short change or disrespect what the opposing counsel has to argue and only serves to create blindspots for you own case.  This forces you to develop your arguments.

Strategic foresight closes the loop by bringing you back to where the case started by seeing it as the obvious outcome based on the preceding four steps.  "Of course that happened...."  or  "Now, I get it..."  or  "This is where it all went wrong...".

Public Policy Argument

The public policy argument is a soft argument and builds off the work you did with the fact based arguments.  Not soft in the sense of weak, but in that there are no hard facts to tie it to.  This argument focuses on the broader implications for society if the judge / jury decides for or against your client.  Stare Decisis is the doctrine of precedent - "to stand by that which is decided".  A public policy argument is a powerful argument, especially when a case is strong for both sides.

A decision for or against your client means what for society?  You can argue negative or positive effects, which ever is the most compelling case.  The argument ties back to the fact based arguments in a general big picture way.  Example:  MnDOT becomes a goverment agency.  A welfare mother becomes an unsophisticated consumer.  A car dealer becomes a small business owner.

Case Weakness and Strategy to Overcome

Identifying your case weakness is meant to push you into the overall case strategy.  Where in your case does opposing counsel have an equally powerful and/or reasonable argument?  Can the case turn on that one argument?  It, also, serves to check the development of your arguments.  Once you have identified a significant case weakness, you are required to prepare a strategy to overcome the risk of that weakness.  You can mitigate, navigate, or dismiss.  Risk mitigation is directly adapting your strategy.  Risk navigation is avoiding it by redirecting.  Risk dismissal is not changing anything related to the case strategy.

A paragraph by paragraph discussion of how to write the memo is attached.

 

Senior Management Advisory Memorandum - Fact Based Arguments

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