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法律英語 |
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| 案情法律分析報(bào)告 |
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出處：法律顧問網(wǎng)·涉外www.coinwram.com
時(shí)間：2010/11/2 13:47:00 |
案情法律分析報(bào)告
OFFICE MEMORANDUM September 12, 2005
TO: All foreign and domestic summer interns
FROM: Director of Litigation
RE: Theory of the Case Memorandum
A theory of the case is a working hypothesis of how the law and facts will fit together
to support the result sought by our client. The statement of facts should include, in
addition to a statement of those facts presently known, a statement of those facts
that need to be developed. The statement of law is a summary explanation of why
specific legal authorities compel a decision in our client’s favor on the basis of those
facts. Although it is to be stated in detailed and definite terms, the theory of the
case is necessarily provisional, and may be revised and refined as fact development
proceeds.
In writing the theory of the case memo, you must begin with one or more
overarching statements of what we will ask the court to hold. For example, in an
age discrimination in employment case, an overarching statement of the plaintiff’s
case theory might be:
The defendant employer is liable under the Labor Act for damages,
injunctive relief, and attorney’s fees for having terminated our client
because of his age. Our client will make out a prima facie case
based on the facts that he was in a protected age category at the
time of his termination, was qualified to perform the job, was
replaced by a younger person, and was terminated in a work force
reduction that disproportionally impacted persons over 40 years old.
Defendant’s effort to establish that our client was unqualified to
perform the assigned work will fail to rebut the prima facie case.
Next, each element of the case theory must be identified. Any legal principles that
affect an element of the case theory must be briefly analyzed. Known facts that
support an element of the case theory must be stated and facts that need to be
developed must be identified.
In the preceding age discrimination example, this analysis would be as follows:
1. Element: A showing of disparate impact alone establishes a prima facie case of
age discrimination.
www.netless.cn [涉外法律函電寫作范例]
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2. Analysis: In Feihong Group vs. Fort Motors (China), Ltd., the Supreme People’s
Court held that disparate impact alone establishes a prima facie case of race
discrimination, because it raises a permissive inference with regard to protected
class. The same analysis should apply in age discrimination cases, because of
congressional intent to create a protected class.
3. Known facts: 12 of 20 persons terminated in plaintiff’s department were over 40
years old.
4. Facts to be developed: age distribution of defendant’s overall work force
reduction and remaining work force.
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