1L Tip Today: 3 Tips for Objective Memos

1L TIP TODAY

Three Tips for Objective Memos

It was November 1993. I learned that a doctor had autopsied the wrong body. It was a nine year-old girl. The parents had given no consent. The mother was devastated.

Was there a viable claim for intentional infliction of emotional distress?

That was my 1L fall. I am haunted, still.

One reason is obvious. The facts were ghoulish. But the deeper haunting, I confess, stems from the Memo. The number of “relevant” cases was crushing. The courts went every which way. I went every which way, too. In the end, my Memo was mud. I had done a completely wrong analysis.

Why? I fell into a trap. It is called dicta, I learned (too late).

Courts do say an awful lot of things. But many things they say are not holdings, nor reasoning to support a holding. At bottom, most are not the point.

Here are three tips to avoid the dicta trap.

✏️Focus only on FACTS and outcomes (i.e., who won).
✏️Use the cases with FACTS most like yours.
✏️Don’t stray into what the courts “say.”

(The end of my story came in the spring. Fortunately, a 1L friend relayed these tips. I am forever grateful to her. My Prof? Not so much. Still.)

For some Latin background on dicta, see the first comment. Thank you for reading. Would love to hear your thoughts.