Stock Memorandum Format



Stock Memorandum Format

Discussion Portion

Introductory Paragraph(s) (one or two):

General Rule (If a statute, quote the statute in pertinent part then paraphrase)

Elaborations or Exceptions

Application of Rule to Facts (may be in a second paragraph)

Conclusion/Prediction for Litigation

[General Rule] The general rule in Maryland is that intentional infliction of emotional distress occurs when three factors are met. First the conduct must be “intentional and reckless.” Second, the conduct must be “extreme and outrageous.” Third, the conduct must cause emotional distress that is severe. [Elaboration] Conduct is considered “extreme and outrageous” when the reasonable person would regard it as a “complete denial of the dignity of a person.” [Elaboration] “Rude, discourteous, and uncivil” behavior is not ordinarily considered grounds for a finding that there has been intentional infliction of emotional distress.

[Application] In the current case, it appears that Professor Joiner’s allegations may meet the standard for proving intentional infliction of emotional distress. The actions of the law school appear to have risen beyond simply “rude, discourteous, and uncivil” behavior. This is indicated by evidence of a course of conduct that seemed purposely designed to humiliate the professor into resigning. [Conclusion/Prediction] As a consequence, it is likely that the professor would have a successful cause of action should he go forward.

Transition into main discussion:

Example: There are several cases that demonstrate what courts consider “extreme and outrageous” behavior in Maryland.

Case Paragraphs:

Holding

Facts

Rationale

Example: [Holding] “In Williams, the court held….”

[Facts] “Williams involved a situation in which….”

[Rationale] “In finding for the defendant, the court reasoned….”

“The court further noted/commented/determined….”

Each case should ordinarily be in a single paragraph. If the paragraph is to be split it is ordinarily split at the rationale.

Full paragraph example:

[Holding] In Dick v. Mercantile-Safe Deposit and Trust Co., the court held that the conduct was not “extreme and outrageous.” [Facts] In Dick, the plaintiffs were debtors who had been harassed by a representative of a collection agency. The plaintiffs alleged that the representative continually threatened them by calling frequently yelling and insulting them. The plaintiffs alleged these actions reduced Mrs. Dick to tears on at least one occasion. [Rationale] In finding that the conduct did not amount to being “extreme and outrageous,” the court reasoned that there was not a complete denial of the dignity of the plaintiffs. The court further noted that while the conduct of the defendant was rude and discourteous, it was not severe enough to constitute intentional infliction of emotional distress.

Transition into Analysis:

Example: “Based on the cases decided, it is likely that the court will find in favor of the defendant.”

Then:

Repetition of the General Rule and pertinent Elaborations or Exceptions.

Example:

The general rule is that intentional infliction of emotional distress requires that there be extreme and outrageous conduct; however, the conduct must be more than merely rude.

Then:

Specific premise from case to be analogized, separated from any analogy, i.e., the “Rule” in IRAC or CREAC separated from the “A.”

Example:

In Dick, the court determined that yelling and insulting behavior did not amount to the type of behavior that would be considered extreme and outrageous. Here, however, a good argument can be made that Professor Joiner was subjected to behavior beyond what was not considered actionable in Dick.

Then:

Any elaboration of the factual analogy being made.

Example:

For instance, the facts indicate that the dean of the law school placed Professor Joiner in a situation where he was sure to receive bad teaching reviews. In addition, the facts indicate that Professor Joiner was removed as advisor to the periodical he began with his wife which, he stated, caused him great emotional hardship. The facts arguably amount to a “complete denial of his dignity.” The facts also may be argued to constitute “extreme and outrageous” behavior beyond that in Dick. In Professor Joiner’s situation, the dean was well aware of his pre-existing health problems and emotional trauma related to the death of his wife.

Other paragraphs would follow the same format in terms of topic sentence, separated from case premise to be analogized, separated from analogy that is being made. The topic sentence may be combined with the holding in some instances as long as there is a transition.

Examples:

Topic sentence separated from legal premise. “An additional case that may be analogized is Smith. In Smith the court determined….”

Topic sentence combined into holding with transition. “Additionally, in Smith the court determined….”

Then counterarguments following a similar format: topic sentence articulating that a counterargument is being made/legal premise upon which the counterargument is being made/the counterargument.

Example:

[Topic Sentence] The opposition, however, may pose at least one major counterargument. [Legal Premise] In Dick, the court concluded that the tort of intentional infliction of emotional distress necessitates that there be a connection between the conduct and the distress. [Counterargument] Here, the facts indicate that Professor Joiner was already ill and distraught before this academic year. The opposition may therefore argue that it cannot be proved that anything the dean did actually caused distress that would not have occurred anyway. The opposition may also allege that nothing was done outside the scope of authority of the dean, and that there were not even any “rude or discourteous” statements made.

Then any responses to the counterargument, following a similar format.

Example:

[Topic Sentence] We may, however, counter this argument by pointing to the factual distinctions in Dick. [Legal Premise] In Dick, the court was not faced with a situation that was tantamount to a systematic persecution of an individual. [Response to Counterargument] Here, the facts indicate that Professor Joiner was asked to retire earlier than the current school year but found his purpose in teaching. Because of this, we may argue that the court would have no choice but to conclude that it was not until the behavior of the dean that Professor Joiner began experiencing the adverse health and emotional consequences. We may also point out that the effect on Professor Joiner was far more severe than the effect on the plaintiff in Dick.

Then the conclusion

Repetition of the General Rule and elaborations

Articulation of the “best” of both sides and pertinent responses.

Prediction for litigation (ideally, “it is likely that we will win!”)

Example:

[General Rule and Elaborations] The general rule of law in Maryland is that intentional infliction of emotional distress requires conduct that is “intentional and reckless” as well as “extreme and outrageous.” In order for the conduct to be considered “extreme and outrageous,” the conduct must exceed all decency and be unacceptable in a civilized society. Furthermore, conduct which is not normally extreme and outrageous may be considered so when the actor performing it is aware that the individual who is enduring the conduct is especially sensitive to emotional distress. [Articulation of the best of both sides] Here, the dean was aware of Professor Joiner’s previous emotional trauma, yet still went ahead with the conduct, which in light of the circumstances could be considered “extreme and outrageous.” Although the University may assert that the Professor was ill and “traumatized” before the school year began, the facts indicate that it was not until he was pushed toward the brink of exhaustion by the actions of the dean that Joiner decided to leave his employment. [Prediction for Litigation] It is therefore likely that Professor Joiner will succeed in his cause of action against Dimmsdale Law School.

Put all together (and using only one case):

The general rule in Maryland is that intentional infliction of emotional distress occurs when three factors are met. First the conduct must be “intentional and reckless.” Second, the conduct must be “extreme and outrageous.” Third, the conduct must cause emotional distress that is severe. Conduct is considered “extreme and outrageous” when the reasonable person would regard it as a “complete denial of the dignity of a person.” “Rude, discourteous, and uncivil” behavior is not ordinarily considered grounds for a finding that there has been intentional infliction of emotional distress.

In the current case, it appears that Professor Joiner’s allegations may meet the standard for proving intentional infliction of emotional distress. The actions of the law school appear to have risen beyond simply “rude, discourteous, and uncivil” behavior. This is indicated by evidence of a course of conduct that seemed purposely designed to humiliate the professor into resigning. As a consequence, it is likely that the professor would have a successful cause of action should he go forward.

There are several cases that demonstrate what courts consider “extreme and outrageous” behavior in Maryland. Illustrative is the case of Dick v. Mercantile-Safe Deposit and Trust Co. In this case, the court held that the conduct there was not “extreme and outrageous.” In Dick, the plaintiffs were debtors who had been harassed by a representative of a collection agency. The plaintiffs alleged that the representative continually threatened them by calling frequently yelling and insulting them. The plaintiffs alleged these actions reduced Mrs. Dick to tears on at least one occasion. In finding that the conduct did not amount to being “extreme and outrageous,” the court reasoned that there was not a complete denial of the dignity of the plaintiffs. The court further noted that while the conduct of the defendant was rude and discourteous, it was not severe enough to constitute intentional infliction of emotional distress.

Based on the law concerning intentional infliction of emotional distress in the state of Maryland, it is likely that Professor Joiner would succeed in a lawsuit. The general rule is that intentional infliction of emotional distress requires that there be extreme and outrageous conduct; however, the conduct must be more than merely rude.

In Dick, the court determined that yelling and insulting behavior did not amount to the type of behavior that would be considered extreme and outrageous. Here, however, a good argument can be made that Professor Joiner was subjected to behavior beyond what was not considered actionable in Dick.

For instance, the facts indicate that the dean of the law school placed Professor Joiner in a situation where he was sure to receive bad teaching reviews. In addition, the facts indicate that Professor Joiner was removed as advisor to the periodical he began with his wife which, he stated, caused him great emotional hardship. The facts arguably amount to a “complete denial of his dignity.” The facts also may be argued to constitute “extreme and outrageous” behavior beyond that in Dick. In Professor Joiner’s situation, the dean was well aware of his pre-existing health problems and emotional trauma related to the death of his wife.

The opposition, however, may pose at least one major counterargument. In Dick, the court concluded that the tort of intentional infliction of emotional distress necessitates that there be a connection between the conduct and the distress. Here, the facts indicate that Professor Joiner was already ill and distraught before this academic year. The opposition may therefore argue that it cannot be proved that anything the dean did actually caused distress that would not have occurred anyway. The opposition may also allege that nothing was done outside the scope of authority of the dean, and that there were not even any “rude or discourteous” statements made.

We may, however, counter this argument by pointing to the factual distinctions in Dick. In Dick, the court was not faced with a situation that was tantamount to a systematic persecution of an individual. Here, the facts indicate that Professor Joiner was asked to retire earlier than the current school year but found his purpose in teaching. Because of this, we may argue that the court would have no choice but to conclude that it was not until the behavior of the dean that Professor Joiner began experiencing the adverse health and emotional consequences. We may also point out that the effect on Professor Joiner was far more severe than the effect on the plaintiff in Dick.

The general rule of law in Maryland is that intentional infliction of emotional distress requires conduct that is “intentional and reckless” as well as “extreme and outrageous.” In order for the conduct to be considered “extreme and outrageous,” the conduct must exceed all decency and be unacceptable in a civilized society. Furthermore, conduct which is not normally extreme and outrageous may be considered so when the actor performing it is aware that the individual who is enduring the conduct is especially sensitive to emotional distress. Here, the dean was aware of Professor Joiner’s previous emotional trauma, yet still went ahead with the conduct, which in light of the circumstances could be considered “extreme and outrageous.” Although the University may assert that the Professor was ill and “traumatized” before the school year began, the facts indicate that it was not until he was pushed toward the brink of exhaustion by the actions of the dean that Joiner decided to leave his employment. It is therefore likely that Professor Joiner will succeed in his cause of action against Dimmsdale Law School.

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