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SOURCE: http://www.law.cuny.edu/legal-writing/students/client-letter.html

Drafting a Client Letter

Suwyn, Siska & King

Attorneys at Law
65-21 Main Street
Flushing, New York 11367
(718) 340-4200

October 23, 2006

Willi Loman
Loman's Fashions
885 Seventh Avenue
New York, New York 10017

Dear Ms. Loman:

I hope you've been well. Recently you wrote to us that Loman's Fashions had been sued by a shopper in Small
Claims Court for a breach of contract. As you've described it, the shopper claims that she responded to an ad
for a "manufacturer's closeout" of designer leather coats; the ad stated that the "early" shopper would "catch
the savings." The shopper complains that Loman's failed to have the merchandise to sell at the advertised
price. Specifically, you have asked for advice on the question whether Loman's breached a contract with the
shopper under the circumstances. After researching the issue, and based on the facts set out below, I believe
that a court would likely conclude that Loman's did not enter into a contract with this shopper because the
advertisement was not an offer to sell the coats; thus, there was no contract that Loman's could breach. I will
explain this conclusion more fully below after first setting out the facts as I understand them. 1

Loman's Fashions, a retailer of women's and men's outerwear, distributed a circular last July advertising a
manufacturer's closeout of designer women's leather coats for $59.99, coats that regularly sold for $300.00.
The ad announced that the store would open at 7 a.m. on Friday, July 21, and stated that the "early bird
catches the savings!" After about fifteen minutes, all the advertised coats had been sold. At 7:30 a.m., a
shopper inquired about the coats and was told that there was none left. She then complained that Loman's was
obligated to sell her a comparably valued designer leather coat at the advertised price. The store manager
declined, and the shopper filed a complaint in Small Claims Court, claiming that Loman's had breached a
contract by failing to sell the advertised leather coats at the advertised price.

You mentioned to me that the store occasionally gives rain checks when it is possible to replenish supplies of
an item that Loman's can purchase at a discount. In this case, the manufacturer had discontinued the line of
coats and Loman's was not willing to sell other, designer leather coats at such a drastic markdown. You are
concerned that, if the shopper's interpretation were to be honored, Loman's would have to reconsider its
marketing strategies. Although you had assumed that the advertised terms applied only while supplies lasted,
your ad had not included language to that effect. 2 You have asked for this law firm's opinion whether this
shopper could succeed on her breach of contract claim.

Under these facts, a court would likely apply the well-settled law that a general advertisement that merely lists
items for sale is at best an invitation to negotiate, not an offer to form a contract. 3 The courts that have
considered this question focus on two related considerations. 4 The first is whether the advertisement is
complete and definite in its terms. For example, where an advertisement containing terms for sale was missing
the amount of goods available for sale, a court held that the seller had not made an offer that was complete
and definite in all material terms. Thus, no contract was ever made between the seller and a person who
submitted a purchase order. 5

The second consideration is whether an advertisement promises to sell an item in return for something
requested, for example, if a storeowner promised to sell an item for a specified price to anyone who came to
the store ready to pay that amount. 6 Where such a promise was lacking, a court held that an advertisement by
a department store was not an offer but an invitation to all persons that the advertiser was ready to receive
offers for the goods upon the stated terms. 7 Even if a person's willingness to purchase the advertised item
could be thought to turn the offer into a contract, that court ruled that a purchaser did not have the right to
select the item that a seller did not have in stock or was not willing to sell at a reduced price. 8

Applying these legal rules to Loman's advertisement supports the conclusion that the ad was not an offer to
enter into a contract of sale and created no contractual duty in Loman's. 9 Here, the advertisement did not
specify the amount of coats to sell, but rather described the leather coats as a "manufacturer's closeout" selling
at a substantially reduced price. 10 In addition, the advertisement did not contain a promise to sell the leather
coats in exchange for some requested act or promise. 11 Furthermore, the ad did not give the public the right to
choose any comparably priced leather coat if the advertised coats were no longer available. 12 Although the
shopper here might argue that the advertisement did not contain limiting language, for example, that the coats
were for sale while supplies lasted, 13 the ad did state that the store, opening for business on the day of the sale
at 7 a.m., was catering to early morning shoppers. By announcing that "the early bird catches the savings," the
ad implied that the supplies would run out. 14

To sum up, based on the facts as I have recited them in this letter, I believe that a court would conclude that
Loman's ad did not make an offer to sell leather coats that a purchaser could accept, but that it was at best an
invitation to negotiate. Thus, no contract came into existence from this transaction. 15 To avoid the possibility
that Loman's will face future claims on this same point, I would recommend that, going forward, Loman's ads
include language such as "while supplies last," "first come, first served," or "quantities limited--no substitutes
permitted." In this way, Loman's would communicate to shoppers that there were no guarantees that they could
purchase an advertised item, or a substitute. Although the additional text might increase the cost of advertising,
in the long run inserting this additional language in the ads could save you time and the costs involved in
defending claims such as this one. 16

I hope this is helpful, and would be happy to discuss this matter with you further. Please feel free to call my
office at (718) 340-4200 if you have questions, or would like to set up a time to meet. 17

Very truly yours,

Madala Suwyn, Esq.

1) Opening paragraph states the client's problem, specifies the legal issue on which the client seeks
advice, and states the writer's conclusion.

2) This paragraph and the preceding paragraph set out legally significant facts--facts upon which the
writer will base her analysis. The factual criteria of the rule for offers under contract law, discussed in
the following paragraph of the letter, are the source of the legally significant facts.

3) The writer here restates her conclusion.

4) The writer begins translating the law into relatively straightforward language, without naming
specific cases.

5) The writer here offers an example of how the rule would operate and then explains the implication of
this analysis: that no contract was formed.

6) The writer explains part of the rule by providing an example.

7) The writer illustrates the point of law by discussing the facts and ruling in a similar case.

8) The writer refers to an alternative holding in the case.

9) The writer restates her conclusion as she moves to an analysis of her client's facts.

10) The writer applies the first part of the rule--relating to definiteness and completeness of material
terms--to Loman's facts.

11) The writer now turns to the second part of the rule, requiring a promise in exchange for a requested
act or promise, and applies it to Loman's facts.

12) The writer points to facts (specifically, the absence of facts) in Loman's that provide an alternative
basis for the writer's conclusion.

13) The writer introduces a possible counterargument.

14) The writer resolves the counterargument in favor of her original conclusion.

15) The writer summarizes and restates her conclusion.

16) The writer offers some preventive advice that addresses the possibility of future legal claims and
also addresses extra-legal factors--cost and time.

17) The writer invites a follow-up conversation with the client

LEGAL MEMORANDUM

IRACC/CRRACC FORMAT
 IRAC and CRRACC
 Issue/Conclusion
 Rule statement and rule synthesis
 Rule Proof
 Sample rule proof
 Application, Counterarguments, Conclusion

Attorneys work to further their clients' interests by identifying a problem that the legal system can address,
understanding the legal rules and remedies relevant to a client's situation, and using the relevant law to resolve
the client's question or problem. When attorneys understand the law, they can help ensure that their clients
comply with the law, act in a manner that is protected by law, attain legal remedies, or can be protected from
the legal claims of others. Many legal writing tasks — e.g., drafting memoranda, briefs or motions to a court,
agreements, or wills — require an attorney to examine whether the client has any legal claims or is vulnerable
to legal claims of others. In accomplishing these tasks, the attorney must either predict what a court will do or
argue what a court ought to do, given a particular set of facts. Such predictions and arguments reflect the
attorney's understanding of the way courts make new legal decisions based on existing legal authority.
Typically, lawyers render legal predictions in a law office memorandum. Lawyers argue for a particular
outcome, i.e., write with the purpose of persuasion, when their audience is a decision maker having authority
over the client's situation.

When, as a lawyer (or a law student), you are asked to write an office memo, a brief, or an exam answer, you
will be expected to apply legal rules to a specific set of facts to reach a conclusion, to identify the important
legal questions, to answer them, and to explain how you arrived at your answers. It is generally accepted that a
discussion of the existing law precedes its application to the facts at hand. This may seem counterintuitive to
some; after all, a legal thinker must first obtain and process the facts before the relevant legal doctrine can be
identified and applied. Nonetheless, from a legally trained reader's standpoint, a written legal analysis is most
useful when it is organized around a statement of the law and when the existing legal landscape is fully
explicated before the writer applies the law to the client's situation. To put it more succinctly, first you discuss
the relevant law, and then you apply the law to your facts.

This section provides more detailed discussions of the paradigm of legal analysis most commonly used in law
office memoranda and briefs to a court:

Issue/Conclusion

In your legal writing, it will be up to you to define the issue in a way that is clear to the reader, identifies relevant
legal rules and legally significant facts, and gives you a manageable question to analyze. Depending on your
assignment, it makes sense to phrase the issue statement in a way that parallels the structure and key facts in
the conclusion. The following is a short statement of the particular legal issue to be disposed of in one IRAC
unit involving "direct contact," an element of the special relationship rule1 in tort. (A fuller explanation of direct
contact is given in the rule synthesis section.)
Issue: Will the court find "direct contact" between Officer Krupke and the Plaintiff even though Plaintiff was not
present when Plaintiff's husband reported to the officer a threatening situation that applied to his entire household,
and when it was evident that he sought protection on behalf of plaintiff as a member of his household and intended to
communicate police assurances of assistance to her?
Note: Note that the phrase “even though” tells the reader that the issue of what constitutes “direct contact” is raised
by plaintiff’s absence when her husband communicated with the police officer. Note also how the question includes
other facts that flesh out the circumstances of the contact. The drafter of the question included these facts because
they are legally significant, as will be evident from reading the cases from which the “direct contact” element has
developed.

Conclusion: Although Plaintiff was not present when her husband spoke with Officer Krupke, it is very likely the court
will find "direct contact" between her and the officer because Plaintiff's husband reported to the officer a threatening
situation that applied to his entire household, and it was evident that he sought protection on behalf of Plaintiff as a
member of his household and intended to communicate police assurances of assistance to her.

Note: Note how the introductory clause of the sentence echoes the key factual circumstance raised in the issue
statement—lack of actual presence when plaintiff’s husband spoke to the police officer—and incorporates it into the
answer.

1
As a general rule, a municipality may not be held liable in tort for injuries resulting from a failure to provide
police protection to an individual citizen. However, such liability can be found if a promise of protection was
made to a particular citizen and, as a consequence, a "special relationship" with that citizen arose. The
elements of this "special relationship" are: (1) an assumption by the municipality, through promises or actions,
of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the
municipality's agents that inaction could lead to harm; (3) some form of direct contact between the
municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's
affirmative undertaking. Cuffy v. City of New York, 69 N.Y.2d 255 (1987).

Rule statement and rule synthesis

The rule statement synthesizes key elements of the cases relevant to the issue in your case into a general
statement of the rule. In order to produce an accurate and well-crafted rule statement, you must have a good
understanding of the existing legal authority on which your rule statement is based.

Existing legal authority consists of constitutions, statutes, regulations, and decisional law, as well as past
judicial decisions that have interpreted other sources of legal authority such as constitutions and statutes. The
ostensible job of the court is to give effect to the intent of past lawmakers, e.g., legislators and regulators, in the
context of a novel set of facts. Nonetheless, judges can sometimes make or change law themselves, acting on
the same motives that legislators and regulators have: they want to address social problems, clarify, modify, or
set aside lawmaking efforts of the past, or establish fair and efficient rules to help resolve novel disputes.
However, all judicial decisions must rest upon and incorporate some preexisting legal rules and the rationale or
policy behind those rules.

When the source of a rule is decisional law, keep in mind that a rule might not be stated explicitly or completely
in a single case or group of cases; rather, it must be drawn out from the factual context in which the holdings in
these cases have arisen. The writer of a rule statement engages in rule synthesis, pulling together common
threads from multiple cases and reconciling discrepancies among them. A complete articulation of a
synthesized rule accounts for all these threads and discrepancies. Accurate rule synthesis certainly requires
the writer to consider the hierarchy of authorities, including the primary or secondary 3 nature of the authority,
the mandatory or persuasive 4 nature of the authority, and the recency 5 of the authority.

It is considered good form in memo writing to make a clear statement about the synthesized rule before you
provide the rule proof, i.e., before you discuss the cases from which you have distilled your rule statement. This
format may seem counterintuitive to some. After all, you first have to read the cases and identify the guidelines
and reasoning applied by those courts before you can distill from all those opinions the components of the
synthesized rule. Nonetheless, from the reader's standpoint, your discussion is most understandable when you
first state the main, organizing idea (extracted from the supporting cases) and then follow that statement with a
discussion of the case law that supports and elaborates upon the main idea.

What does a good rule statement sound like? The answer depends in part on the purpose for which you are
writing. When you write predictively, as in a law office memorandum that addresses an issue of common law,
your rule statement should summarize the recurring elements (common threads) in judicial decisions involving
that issue. It works best as a general statement of law that is phrased as a definition rather than as a question
or a remark about what the court might consider or do.

3
Primary authority comprises constitutions, statutes, administrative regulations, and court decisions.
Secondary authority refers to treatises, law review articles, and other published commentaries.

4
Mandatory authority is law (i.e., primary authority) that is binding on the court deciding the case. For
example, decisions made by the New York Court of Appeals are binding on all lower courts in New York.
Persuasive authority is law that is not binding on the court, although the court may, in its discretion, look to
that law for guidance. For example, a Connecticut court is not bound by New York decisions; however, due the
to the larger volume of New York cases, New York decisions may provide a richer exploration of the varying
factual contexts or the policy analysis behind a particular legal rule than can be found in Connecticut case law.
As a result, a Connecticut court may choose to look to New York case law for guidance. For the same reasons,
a federal court in one circuit may choose to attach importance to the decisions of another circuit even though it
is not bound by those decisions. Out of respect for the legal analysis of particular judges or particular decisions,
a court may also attach importance to dicta in relevant cases.

5
A court is never bound by its own prior decisions. If two cases would be considered mandatory authority in a
given jurisdiction, but the cases are inconsistent, the more recent case is binding. For cases that are merely
persuasive authority, more recent opinions carry more persuasive value, all other things being equal.
Rule Proof
If the rule statement serves as the thesis sentence for a longer discussion about a legal rule that has developed
over time in a series of cases, the rule proof serves as your explanation and elaboration of that thesis
sentence. In the rule proof you can support the rule statement by reference to a statute or to judicial holdings
and opinions, further explain key terms or phrases you have used in the rule statement, or define the scope of
the rule by more detailed reference to judicial opinions, including the holdings and the factual contexts in which
they arise. In this section, you discuss case facts, holdings, and reasoning only to support and explicate the
rule statement.

As you are writing the rule proof section, remember the reader is best served (i) when you emphasize those
case facts or extracts of the opinions that support or explain your rule statement; and (ii) when you make an
explicit statement about the relationship of the case to your rule; in fact, this is an excellent way to introduce a
case because it tells the reader right at the outset why you are bringing up that case at all.

In other words, you do not want your readers to be thinking, "Why am I reading this?" as they read about the
cases. Do not make them wonder about the relevance of what they are reading, even for a short time, or make
them do the work of inferring the relevance themselves. And, as you move from paragraph to paragraph in a
longer rule proof, use thesis sentences to connect important ideas in the rule statement with an elaboration of
these ideas in the rule proof. Each paragraph should develop a single concept (thesis); successive paragraphs
should have a demonstrable relationship to that concept - providing an additional illustration of it, extending it,
contrasting it, or moving to a related but different category of idea.

Sample rule proof

The direct contact element of the special relationship doctrine arises from the notion that a municipality owes a
special duty of protection to those individuals to whom it has promised protection rather than to society at large. The
direct contact requirement serves to reinforce the policy goal of limiting the class of persons with whom a municipality
will be determined to have a special relationship and to whom it may be held financially liable. Direct contact is met
when the plaintiff has actual contact with a municipal agent. 1 However, 2 courts have treated the element with
flexibility based on the "peculiar circumstances of each case, all of which must be considered in light of the policies
underlying the narrow special duty doctrine." Cuffy v. City of New York, 69 N.Y.2d 255, 262 (1987). Thus, 3 courts
have found direct contact satisfied by various third parties acting on behalf of a victim. For instance, 4 the direct
contact requirement has been met by spouses and parents making contact on behalf of a related victim and by
unrelated third parties who share a common interest in protection under circumstances in which the third party
communicates assurances of protection to the victim.

Contact made by adults on behalf of their spouses or minor children satisfies the direct contact requirement. 5 See,
e.g., Cuffy, 69 N.Y.2d at 261-262 (finding direct contact when one member of a household reported to the police a
threat by his neighbors that extended to all of his family members living with him in the household, although these
other family members did not have actual contact with the police); Sorichetti v. City of New York, 65 N.Y.2d 461
(1985) (finding direct contact when mother who had obtained an order of protection against her estranged husband
reported to police that her husband had issued threats and had failed to return their six-year-old daughter after a
visitation period); Stata v. Village of Waterford, 225 A.D.2d 163 (1996) (finding direct contact when husband reported
to firefighters that his wife was trapped in burning building). 6 The relaxation of the direct contact requirement for
children and members of the same household is a logical result of the equitable goals of the doctrine. 7 Implicit in this
extension of the exception for third-party contact is the determination that related adults and minor children share the
same interests, and therefore a promise of protection elicited by one party satisfies the direct contact element for the
other party. 8

The requisite contact is also satisfied when non-familial parties make actual contact with the police and elicit a
promise of protection on behalf of a group of similarly situated individuals. 9 See, e.g., Thomas v. City of Auburn, 217
A.D.2d 934 (1995) (holding that two bar patrons who, along with the bartender at the establishment, had been
threatened by another patron, had satisfied direct contact when the bartender alone elicited a promise of protection
from police officers that, in the context of the situation, covered the two bar patrons). Direct contact was found under
these circumstances on the theory that the victims were in the zone of danger along with the party who made contact
with police. Id. 10

The sufficiency of third party contact has also depended on whether the third party, serving as the victim's agent,
communicated the promise of police protection to the victim. 11 See, e.g., S.C. Freidfertig Builder Ltd. v. Spano, 173
A.D.2d 454 (1991) (holding that a contractor's employee who communicated to the plaintiff property owner a
firefighter's assurances that a fire on the property had been extinguished established the requisite contact by acting
on behalf of the plaintiff). 12

A weak rule proof is one that contains irrelevant information, delays or omits relevant information, or omits a
statement about the relevance of the case to the rule. Sometimes new legal writers have trouble judging which
case facts are relevant; such writers often over-elaborate, and thus distract the reader with details. Sometimes
the writer will have a sense that a case is relevant but is not completely sure how, and so cannot do a good job
of explaining the relevance. In any case, without explaining the relationship of the case to the rule (via thesis
sentences), the rule proof will read like a series of disparate case synopses and not as clear support of your
rule statement. It is not a virtue to recount cases just because you know them well; you discuss case material in
the rule proof only to the extent that you need to support your rule statement.

1) Note the repetition of "direct contact" at the beginning of each of the first three sentences of the paragraph,
reinforcing the centrality of this element to the paragraph, and the logical development of the idea from one
sentence to the next.
2) Note transitional expression that signals a shift in direction of the discussion.
3) Note use of transitional expression that signals writer's amplification of the idea in the preceding sentence.
4) Note transitional expression that signals writer's illustration of the idea in the preceding sentence.
5) Note thesis sentence that carries forward the idea in the first half of the sentence concluding the preceding
paragraph.
6) Note use of parentheticals to communicate key facts and holdings of cases that illustrate the portion of the
rule stated in the opening sentence of the paragraph.
7) Note restatement and reinforcement of the idea contained in the preceding sentences—relaxation of
requirement for children and members of the same household.
8) Note how writer develops link between family members and shared interests, two aspects of the exception to
actual contact.
9) Note how writer returns with greater specificity to the idea introduced more generally in the second half of
the sentence that concludes the first paragraph.
10) Note use of parenthetical and following sentence that elaborates on the facts and holding.
11) Note thesis sentence that picks up idea introduced in the second half of sentence concluding the first
paragraph—third party acts on behalf of victim and communicates assurances of protection to victim.
12) Note use of parenthetical summarizing facts and holding of case.

Application, Counterarguments, Conclusion

Once you have completed your discussion of all legal authority relevant to your issue statement, you then must
explain how your facts fit in with the existing law. Your goal here is to return to and resolve the issue you raised
in the issue statement. In this section, you predict (in a law office memo), or argue for (in a brief to court), a
particular resolution of your facts by the court. Here you recount those facts that are relevant to the issue
statement and the subsequent rule/rule proof section.

A good application section weaves the cases into your facts. Language from the cases should be prominent
and woven into your discussion of these facts. In the rule proof you discuss cases to support the rule
statement. In the application section you might draw analogies or contrasts between the existing cases and
your facts as a way to reach your conclusion. (NOTE: if you mention the holding, reasoning, or facts of a case
in the application, you should first introduce these aspects of the case in the rule proof; do not use the
application section to introduce new case discussion.)

Counterarguments

The use of a counterargument is a good way to convey that the existing legal authority is not clear,
unequivocal, or unified when applied to facts like yours. It may be the case that you cannot predict with
certainty the outcome of your case, given your facts. There may be competing lines of authority, competing
policy rationales, and/or a dearth of cases on point in your jurisdiction. Use of counterarguments is also an
effective way to address, and then dispose of, the perspectives of those with whom you differ.
Counterarguments function differently in predictive and persuasive writing. In a law office memorandum,
identifying counterarguments helps your client assess the strength of a legal position, the availability of
defenses to a claim, and alternative ways of analyzing a situation. In persuasive writing such as a brief to a
court, counterarguments address and dispose of likely arguments that the opposing side will advance. In
advocacy, treatment of counterarguments typically is briefer and more conclusory than in a law office
memorandum because the purpose of including them is to limit, distinguish, or neutralize arguments that your
opponent has marshaled.

Conclusion

The conclusion is a short statement of your position on the question or issue explored in a given
IRAC/CRRACC. Your application section should be written in a way that leads the reader inexorably to your
conclusion. Likewise, the conclusion statement at the end of the discussion should contain language that refers
to the application section. It should read as the natural concluding statement of your application section.

In your application section you may have struggled with areas of uncertainty in the legal doctrine and/or
competing policy rationales. You may have also grappled with a seemingly contradictory assortment of facts:
some seem to fit into the requirements of the rule; others suggest that the rule is not satisfied. You may have
weighed arguments against counterarguments. After you have done all this, you must take a position and make
a statement about how the court will/should apply the law.

As a legal writer, it helps to have an assortment of qualifiers to acknowledge how certain or uncertain you are
of the actual judicial outcome. Your conclusion can convey that your argument in that IRAC/CRRACC is a
slam-dunk — you are completely confident the court will rule the same way — or that the outcome is really a
toss-up and could go either way. Or you can convey any level of confidence in between. Keep in mind that the
reader will be judging your credibility as a legal thinker based on (among other things) the congruity of your
tone with the data at hand.