This assignment requires you to conduct research, evaluate your client’s case in light of your research, and write a legal memorandum to your supervising attorney summarizing your findings.
Below are your notes from your initial meeting with the client, Ellen Gallagher, which you attended with your supervising attorney, as well as a note from your supervising attorney.
Your Notes from the Initial Client Meeting
Ellen Gallagher has come to our law firm for advice. After having exhausted all administrative remedies, she wants to file a complaint against her employer for discrimination in the workplace. Ms. Gallagher is employed as an account executive with ACE Advertising (hereinafter ACE).
ACE is a national marketing and advertising firm that specializes in domestic and international advertising. ACE has its corporate headquarters in your state and represents many major public and private corporations throughout the United States. Ms. Gallagher began working with ACE as a summer intern during her senior year in business school and was hired as a full-time employee after receiving her MBA, with honors, from the University of Michigan in 1989.
Ms. Gallagher has been employed with ACE at its office in the state capital since 1989. During her employment, she has won three national awards for her work. Ms. Gallagher is not married, but she lives with a female domestic partner. In 1998, Ms. Gallagher legally adopted a disabled child who suffers from severe medical and emotional problems. Due to her adopted child’s medical condition, Ms. Gallagher is reluctant to travel overnight. On several occasions, she has been called away from the office to deal with unexpected medical emergencies.
Ms. Gallagher believes that ACE has illegally discriminated against her and now wants to sue the company. She says that the company’s practice has been to promote employees from within. Ms. Gallagher states that, despite receiving "outstanding" performance evaluation ratings each year she has worked at ACE, she has never been promoted and has been repeatedly passed over for promotion.
Ms. Gallagher claims that all of the male employees who were hired between 1989 and 1999 in the same classification as hers have been promoted from one to four times and earn a significantly higher salary than she does. None of these employees have won any national awards, and a few of these individuals are marginal employees. Ms. Gallagher notes that three women have been promoted since she was hired, but points out that men greatly outnumber women in all positions at ACE.
ACE responded to a preliminary inquiry by asserting that Ms. Gallagher was not promoted because she doesn’t "fit the image" that is right for the higher positions. ACE claims that the higher positions have high visibility, require extensive travel, and have greatly increased client contact, involving presentations before corporate and professional groups. ACE argues that Ms. Gallagher is a very plain woman who refuses to dress fashionably. She has consistently declined to take part in a company-provided "dress for success" seminar offered to all employees annually and required for account executives and company officers.
ACE further states that, due to Ms. Gallagher’s parental responsibilities, she has declined to participate in certain after-hours fraternizing opportunities, such as company-sponsored cocktail parties and client appreciation events at which ACE executives and their spouses socialize with clients and prospective clients.
ACE officials state that, although Ms. Gallagher is a good employee, she is not qualified to represent ACE in certain capacities. ACE argues that, in the advertising field, it is essential that higher-level employees maintain a polished appearance and engage in social and fraternal activities in order to obtain and conduct business.
Ms. Gallagher states that ACE has discriminated against her because she is a woman. She argues that the factors cited by ACE are not relevant to her ability to perform in any of the higher positions of the company and that ACE is simply using rationales to justify discriminating against her. She argues that she should not be required to keep up with fashion trends; her choice of clothing has no relation to her ability to perform her job. She further states that, when ACE hired her, she was advised that if she did a good job, she could expect to be promoted to the position of account vice-president within two years.
Ms. Gallagher seeks damages for lost wages and benefits. She also wants a court order directing ACE to promote her to a higher position.
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Note from Supervising Attorney
We have another client meeting with Ms. Gallagher scheduled for June 1 at 5 p.m. In preparation for this meeting, please do the necessary research and provide me with an explanatory legal memorandum covering current trends and cases to determine the viability of Ms. Gallagher’s claim. Please address all substantive and procedural issues that may be relevant.
Parts of the Assignment – You are required to clearly identify two separate and distinct issues.
Part A: Research Strategy 25%
Please state the issues (and sub-issues, where applicable) identified in the Gallagher fact pattern. Outline your research strategy for each issue identified; be sure to include which databases or sources you used, in what order, and why you used them, as well as what search terms you used. Give examples of the search statements you constructed using advanced search techniques (Boolean operators, truncation syntax, proximity/nesting, database limiters, segment fields, etc.).
You may wish to highlight which searches were problematic and which approaches worked well. Please indicate where your initial research on an issue or contentious point of law needs to be supplemented.
Your research strategy should not exceed 2 double-spaced pages in 12-point Times New Roman font. It should touch on all the main aspects of the research table and memo you will create.
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Part B: Research Table 25%
Prepare a research table organizing your materials in an efficient manner (by issue, by type of source, etc.). The materials listed in your table should reflect/address all the issues and contentious points of law you identified for discussion in the memo.
Your research table should not exceed 2 double-spaced pages in 12-point Times New Roman font. Each citation in your table should be formatted in accordance with the Bluebook.
Your table should include the following:
? at least 2 law review articles providing relevant background information for each issue identified
? at least 2 cases that address each issue identified
? at least 1 relevant statute that addresses each issue identified
? at least 1 relevant regulation that addresses each issue identified
Part C: Legal Memorandum 50%
Referencing only the most relevant materials from your research, prepare a succinct memorandum addressed to your supervising attorney. The memo should touch on all the relevant issues of the case, point to contentious areas of law, and reference any materials that would aid you in addressing points and issues.
The aim is not for you to provide actual advice to a client, but to clearly outline the client’s position in regard to the law with appropriate references to relevant material for the supervising attorney. Good legal researchers dissect a problem into issues, and issues into contentious points of law, with the use of appropriate references.
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SAMPLE OF THIS PROJECT
NOTE: This is only a sample. You may use any table style that makes sense to you and supports your research. The purpose of the table is to organize and illustrate your research.
Resource Type
Bluebook Citation
Issues Summary ? How does it relate to/support the research task?
Law Review 1
Law Review 2
Case 1
Case 2
Statutory Provision(s)
Regulatory Provision(s)
SAMPLE
Essential Parts of the Legal Memorandum
I. Heading ? Identifies the author, recipient, date, and subject matter
II. Issue/Question(s) Presented ? Identifies the subject(s) to be addressed or the problem to be resolved in the memo.
III. Answer ? a few sentences to briefly summarize the answer to the question(s) presented.
IV. Statement of the Facts ? this section should summarize the relevant facts you considered in conducting your research and drawing your conclusions.
V. Discussion ? This section summarizes the relevant law and applies the law to fact.
VI. Conclusion ? You should use this section to summarize your findings and advise the client or the managing partner about: 1) suggested courses of action; 2) potential risks associated with the courses of action. This advice should be based on your research findings.
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Sample Memorandum
Reference:
SAMPLE MEMORANDUM
TO: Chief Prosecuting Attorney
FROM: Anne Onimus
DATE: August 21, 2007
RE: Charging Joseph Haney with Commission of Armed Robbery
Question Presented
Did Joseph Haney effectively simulate a deadly weapon and create a life-threatening environment, sufficient to satisfy the Arizona armed robbery statute, by thrusting his hand into a pocket and telling the store clerk that it was a "holdup" and to "[l]ie still if you want to live," when the victim was unsure whether Haney had such a weapon, when Haney used both hands to grab money from the cash register, and when the only objects found in Haney’s possession were the stolen cash and a package of mints?
Brief Answer
No. Mere words and threats to use a deadly weapon are insufficient to support such a charge, because under Arizona law, the victim must reasonably perceive that the robber is armed with a deadly weapon, even if the robber is merely simulating the presence of the weapon. The ambiguity of Haney’s actions and the fact that Haney’s victim did not perceive that he was armed do not satisfy the requirements of the Arizona armed robbery statute.
Statement of Facts
This office is considering whether to prosecute Joseph Haney for armed robbery. Haney was arrested on August 12, 2007, for robbing Albert’s Quik-Stop, a convenience store in Tempe. According to the store clerk, Richard Lopez, Haney entered the store at approximately 10:30 p.m. No other customers were in the store. Haney, who was visibly nervous, approached Lopez, thrust his right hand into the pocket of his windbreaker, and shouted, "Can’t you tell this is a holdup? Give me the money in the register, man! Don’t make me hurt you!"
Lopez stated he was unsure whether Haney had a weapon in the pocket. He described Haney as being large and muscular, and he said that Haney’s physical size persuaded him to cooperate by opening the register. When Lopez did so, Haney jumped over the counter and knocked Lopez to the ground, saying, "Lie still if you want to live." Haney grabbed money from the register with both his hands and placed the bills in the pockets of his jeans and windbreaker. Haney then leaped back over the counter and fled from the store. A patrol car had just pulled up to the Quik-Stop’s gas pumps, and the officer driving it observed Haney running from the store. The officer pursued and captured Haney and, upon a search of the suspect’s pockets, discovered the stolen money and a cylindrical package of mints in the windbreaker pocket. He did not find any type of weapon.
Discussion
It is unlikely that Joseph Haney will be convicted of armed robbery because the State will not be able to establish that the victim of the robbery perceived Haney to be armed with a deadly weapon.
In order to successfully prosecute Joseph Haney for armed robbery, the State must prove that he was armed with or that he used or threatened to use a deadly or a simulated deadly weapon. Ariz. Rev. Stat. Ann. ? 13-1904(A) (West 1984). Because Haney did not have an actual weapon when he committed the robbery, the issue here is whether Haney’s victim reasonably perceived Haney to be armed with a deadly weapon.
Mere words indicating the presence of a deadly weapon are not enough to satisfy the statute. In one case, the court found that a robber’s verbal threats to use a deadly weapon were not enough to support the perception that she was armed. State v. Rodriguez, 791 P.2d 633, 638 (Ariz. 1990). In the Rodriguez robbery, the defendant kept her right hand out of sight and threatened to "shoot the smile off" the victim’s face if he did not cooperate with her. Id. at 634. In concluding that the robber did not simulate a deadly weapon, the Rodriguez court found it significant that her hand was not visible and that she did not make any physical movement to indicate that she had a deadly weapon.
Any object may suffice as a simulated deadly weapon, provided that the victim reasonably perceives it to be an actual weapon. State v. Felix, 737 P.2d 393, 394 (Ariz. App. 1986). The defendant in Felix pressed a nasal inhaler against his victim’s back, declaring that he had a gun. Based on what he felt, the victim perceived that a gun was pressed against his back. Id. On these facts, the court had no difficulty in finding that the defendant had simulated a deadly weapon. Id.
In another decision focusing on the victim’s perception, the court upheld the armed robbery conviction of a man who used his hand under his clothing to simulate a gun during a robbery. State v. Ellison, 819 P.2d 1010, 1013 (Ariz. App. 1991). The court found it significant that the defendant simulated a weapon with his hand, observing that "[t]he victim’s perception is the same whether the weapon appears to be or is in fact real." Id. at 1012. In the court’s view, the defendant’s act posed the same potential for harm to or reaction from the victim and any bystanders. Id. at 1013. Because the victims in Ellison could reasonably have believed that the shape they saw under the defendant’s clothing was a gun, rather than his hand, the defendant created the life-threatening environment which the armed robbery statute seeks to punish. The court distinguished this case from Rodriguez by noting that in Rodriguez, "the victim never saw anything resembling a weapon; the defendant only implied that she had a gun when she threatened to ‘shoot the smile off’ the victim’s face." Id. at 1012 (citing Rodriguez, 791 P.2d at 633).
While these distinctions are small, they are supported by the policy behind the armed robbery statute. In passing the armed robbery statute, the Arizona legislature meant to punish more severely those who used deadly or simulated deadly weapons in the course of a robbery and who thus created "[t]he potential for increased danger to, or sudden and violent reaction by, the victim or bystanders." Rodriguez, 791 P.2d at 637. Indeed, the Rodriguez court observed that if the penalty were the same for those who possessed a weapon and those who were unarmed, there would be no deterrent to the use of weapons. Id. Taken together, these cases suggest that, in ambiguous circumstances, it is important to determine whether the victim could have reasonably believed that the robber had a deadly weapon.
In the present case, the question is whether the store clerk could reasonably have perceived that Haney was armed. Haney’s words were not enough. Like the robber in the Rodriguez case, Haney verbally threatened his victim with harm, shouting, "Don’t make me hurt you!" and instructing him to "[l]ie still if you want to live." Unlike that robber, however, Haney accompanied his words with action, thrusting his hand into his pocket.
Although the arresting officer found a cylindrical package of mints in Haney’s pocket, nothing in Lopez’s account suggests that Haney used the package to simulate a weapon in the way the defendant in Felix used the nasal inhaler to approximate the barrel of a gun. And although the Ellison case established that a person’s hands could be perceived to be a deadly weapon, this analysis does not fit the facts of the Haney case. Haney simply thrust his hand into his pocket. Had he simultaneously claimed that he had a gun, or had he used more definitive gestures to suggest a gun, such as poking his finger into the fabric of his windbreaker pocket or simulating the barrel of a gun with the package of mints, there might be a basis for prosecution.
Nothing in the victim’s statement, however, indicates such a perception. For one thing, Lopez admitted not knowing whether Haney had a weapon. Lopez said he opened the cash register because he felt physically intimidated by Haney’s size, not because he feared Haney was armed. Haney’s words, while threatening, did not expressly suggest that he had a deadly weapon. Moreover, Lopez stated that he watched Haney use both hands to scoop the cash into his pockets, including the windbreaker pocket. Had Haney been holding a weapon, it is unlikely he would have let it go; the hand holding the weapon would have remained in his pocket and he would not have put cash there. These facts show that Lopez never perceived the presence of a weapon, and therefore, Haney did not create the life-threatening environment which is necessary to support a prosecution under the armed robbery statute.
? Yes Partially No
Sub-issue 1 correctly and narrowly identified ? ? ?
Research strategy for sub-issue 1 details specific methods that will be used and prioritizes those methods ? ? ?
Sub-issue 2 correctly and narrowly identified ? ? ?
Research strategy for sub-issue 2 details specific methods that will be used and prioritizes those methods ? ? ?
? Yes Partially No
Sub-Issue 1 ? ? ?
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Case 1 Reasons ? legal principles/standards/rules for the holding accurately presented in a focused manner ? ? ?
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