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LAW 205 – Instructions for Final Memo of Law
LAW 205 – Instructions for Final Memo of Law
The final paper is due on December 20, 2021 by 11:59pm. It must be submitted to the final assignment drop box in Blackboard by then. Please keep in mind that it must be your own writing and may be submitted to TurnItIn. You should not use any web sites or law firm sites that discuss relocation cases. Students who use/copy from these sites will likely receive a failing grade on the paper.
The paper should be a minimum of 8 pages and a maximum of 12 pages. It must be double-spaced, typed, in 12 point Times New Roman font, with 1 inch margins.
The paper should begin with your conclusion answering the question posed in the accompanying fact pattern and should state what a court would likely do and why. If you make assumptions, you should indicate what those assumptions are. If you believe that it cannot be determined what a court would likely do (in other words it is 50/50) you should say so and state why.
Your paper should examine Tropea and explain what the law was prior to the Tropea case, why it was changed by the Court of Appeals, and what the law is now. You also want to discuss the factors a court considers in determining such a case in addition to the cases you have found and researched. (See Paper Outline Below)
The next section of your paper should be an examination of the factors you consider relevant. It is up to you, based on your reading of the cases, where to put the emphasis. You should end the paper with a paragraph concluding or summing up what you have said and what you believe the result will be.
When analyzing the factors you deem relevant, you should have at least one Appellate Division case discussing that particularly factor. After discussing that appellate case(s), you would then compare (analogize or distinguish) the facts of our case to it showing how the Franks’ situation is similar or dissimilar to the case you are discussing, and whether the ruling in the Appellate Division case is applicable and would or would not be followed in the Frank’s case.
You should refer to and cite a minimum of 10 cases in your paper. In addition to the Tropea case which you will have already briefed, I have provided 2 other cases you can use/read if you like. You do not have to use them. They have been provided to give you a head start on the research.
In finding additional cases, you need to use Lexis and search for NY cases. You do that much like you found the answers to the statute questions. Plug in words into the search box. The words to use will become evident to you after you have read through the case. For example, when referring to children moving away, courts usually discuss it in terms of “relocating” not moving. Suppose you wanted to find cases that involve grandparents and children moving to another state, you might search for “child or children relocation and grandparents” and see what comes up. You can search for derivates of words such as relocate, relocating, relocates, etc. by putting an exclamation at the end of a word….relocat!…..just like we did for statutes.
You may quote from cases, but your paper should primarily be in your own words. You SHOULD NOT copy any sources from the internet. There are plenty of law firm web sites that discuss Tropea. Do not use them and do not quote or paraphrase them. Your paper should be your own thoughts and your own analysis.
A good rule of thumb to use when quoting or discussing cases is that if you do not fully understand what you are copying, do not copy it.
This is an effort based paper meaning I want to see your effort and that you tried to create your first memo of law. Copying from web sites and using other people’s ideas does not show effort. Your paper will, in part, be graded, on format which includes correct grammar, spelling and your attempt to include citations in proper form based on the notes that will be posted. If you are unsure about citation format you can always make an appointment with Rachael in the learning center and get citations there. The same is true if you are struggling on Lexis. But Please, try first and spend a few hours, before you reach out. It will be time consuming and difficult at first, no different than when you researched statutes. However, the more you do and try, the more you will begin to understand and the more you will learn.
Paper Outline – To Be Followed in Drafting your Memorandum of Law
To: me (make sure to address me correctly and look up the spelling of my name if you don’t know it – you can either address the memo to me as a professor or as a lawyer)
From: you (your name)
Re: Phrase the question you are answering, ie: “Will a Court allow Allison Frank to…..”
Date:
—————————————————————
I. Conclusion – The 1st paragraph of your paper is actually your conclusion. You are answering your question (the Re: above) and saying why you have reached that conclusion. There is no right or wrong answer. Regardless of how you come out after reading the cases, you should phrase your answer in a form such as “it is more likely than not that a court will….” Do not say a court will definitely let her move or definitely not let her move. We can’t predict exactly what a court will do. It is okay to say that it is not possible to decide based on the case law (in other words it’s 50/50). Students have come out all different ways on this issue. You do not lose points for reaching any particular conclusion. What you need to do is justify your conclusion it.
In addition to saying what you believe will be the likely result, you must also say why you have reached that conclusion. Think of it this way, if I stopped reading your paper after the 1st paragraph, I would know what the law is (what the standard is), what you believe it is likely a court would do, and why you believe that (what your belief is based on). If you think it is 50/50 and there is something that Allison or Donald can do to sway the court you would need to say that as well. For example, if the case law you read makes you believe there is no way to predict what a court could do because it could go either way, — unless Allison always drove the children for visitation back and forth to NY, and then she could move, you need to say that in the 1st paragraph. On the other hand if you think that if Donald could pay more in child support, a court would not let Allison move, you should say that and the reasons why.
It is important to remember that there is no right or wrong answer. There are many, many cases on this topic and they go both ways (some allow relocation, others don’t). Once you have read enough cases and formed an opinion, you need to justify it based on the law.
Your first opening paragraph is your summary of where you are going in your paper.
II. What the Law Was & What it is Now – In the next 2 to 4 paragraphs you need to explain: 1) what the law was before the Tropea case (the exceptional circumstances test & how it worked); 2) why the Court of Appeals changed it; and finally, 3) what the law is today (what standard do the courts use to decide these cases?).
It’s important for a lawyer to know why the law is what the law is in order to apply it correctly. You’ve read Tropea. You should read it at least 2 or 3 more times in writing this section.
III. Factors the Courts Look At in Determining Relocation Cases – In the next 1 or 2 paragraphs you should articulate what the courts will look to in deciding whether Allison will be able to relocate to South Jersey. In doing so, pay close attention to this paragraph from Tropea:
“Rather, we hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.”
You can include other factors such as child care and/or the relationship the children may or may not have with their maternal grandparents, parental grandparents or extended family. Since the fact pattern does not give you any of that information, you will probably need to take an “If _that_, then __this____” type of approach. The only factor from Tropea you should stay away from is education. I DO NOT expect you to research differences between the educational system in New Jersey and Long Island. That is why the facts say South Jersey without giving a town.
You are not required to discuss all the factors Tropea relies on or others you come across when reading additional cases. You pick and choose what you believe will be the most important considerations to a court’s determination. It may be all of the above, or just a few of the above. Again, no right or wrong answers here.
Until you have found and read through many cases on this topic including the ones I have provided (see below), this section will seem difficult. If you do the research and the reading, this section will not be that hard. You cannot begin to write until you have prepared and know where you want to go with the paper and your analysis.
IV. Case Law After Tropea Relating to the Factors you Chose – The next several pages of your paper should be discussing the cases you have found. There could be as many 300 to 500 cases out there. You want cases that are at least a page or two in length and discuss the facts and situation of the particular case.
In this section, in a paragraph you talk about the case and why the court held/decided as it did providing as much of the facts as you think relevant. In the paragraph that follows, you discuss how the case you just cited is applicable or not applicable to the Frank’s situation. Then you move on to your next case and do the same thing.
V. Conclusion/Summary Paragraph – The last paragraph of you paper should be a paragraph or a few sentences that sum up what you have just said. For example, “In conclusion, a Court would likely/would likely not allow Allison Frank to relocate to South Jersey with the parties’ children because it is/is not in their best interests because……The cases above demonstrate that…..”
Your conclusion does not have to be elaborate, but you have to end somewhere and sum it all up.
This final paper is a lot of work!! As I said in class when we first started, Legal Research is probably the hardest class in our Program because it is very time consuming and requires a memorandum of law (which is basically a substantial term paper). That is why it counts as 40% of your final grade.
Keep in mind that the grading is effort based more than anything else. It is readily apparent who puts in the effort and who starts their paper a day or two before it’s due.
You will learn a lot by doing the research, reading the cases and writing your first memo of law.
Given our current circumstances and that many of you have other classes that may have a lot more work since we have had to move online due to the virus, you may not want to devote the time and energy to this. If that is the case, please reach out to me and we will speak after class or by phone about what you may want to do and what would be best for you.
One Final Important point for the paper – it does not matter why Donald wants a divorce!!! Maybe Allison did something awful, maybe she’s crazy or maybe she’s the best wife and mother there is. It is not relevant. That is why it is not in the facts. Assume both parents are normal, loving, average parents from an average household (no drugs, no alcohol, no abuse of any kind). Maybe after reading the facts, you dislike Donald. Your personal opinion should not get in the way of your legal analysis. Don’t assume facts that aren’t there and don’t make value judgments. You don’t know enough about the parties or their marriage to do that. That’s intentional. Do your best to leave your personal opinions out of the analysis.
Cases You Can Use to Get Started If You Want
Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996)
Martino v. Ramos, 64 A.D.3d 657, 884 N.Y.S.2d 427 (2nd Dep’t 2009)
Schwartz v. Schwartz, 70 A.D.3d 923, 895 N.Y.S.2d 206 (2nd Dep’t 2010)
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