Legal Writing Examples: Memo, Brief, Letter, Essay

I. Davis is Likely Liable for Negligence.

A court will likely conclude that Davis was negligent because his speed-limit violation establishes breach under the negligence per se doctrine.

Negligence requires (1) duty, (2) breach, (3) causation, and (4) damages. Restatement (Third) of Torts § 6. Drivers owe a duty of reasonable care to all foreseeable road users including pedestrians. Id. § 7. Where a defendant violates a statute designed to protect the class of plaintiff from the type of harm involved, breach is established as a matter of law. Id. § 14.

Here, Davis owed Pena a duty as a foreseeable pedestrian. His speed-limit violation likely establishes breach via negligence per se. Causation is satisfied: but for the excessive speed, Davis's braking distance would have been shorter and the collision could have been avoided. The opposing party may argue the five-mph violation was de minimis on a wet road; however, the per se doctrine does not require gross violation — any violation of a protective statute suffices.

Accordingly, the analysis favors a finding of negligence against Davis.

I. Defendant's Speed-Limit Violation Establishes Breach as a Matter of Law.

There is no genuine dispute of material fact that Defendant violated the posted speed limit on a wet road while a pedestrian was crossing. Under the negligence per se doctrine, that violation establishes breach without further proof. Summary judgment on the breach element should be granted to Plaintiff.

The negligence per se doctrine is well settled in this jurisdiction: violation of a statute designed to protect the class of plaintiff from the type of harm involved establishes breach as a matter of law. Restatement (Third) of Torts § 14. Speed-limit statutes are paradigmatic protective statutes. They exist to protect road users — including pedestrians — from collision injuries. The doctrine's application here is straightforward and unambiguous.

Defendant's anticipated argument that a five-mph violation is de minimis must be rejected. No court in this jurisdiction has read a magnitude threshold into the per se doctrine, and the doctrine's purpose — relieving plaintiffs of the burden of proving breach through general negligence principles — is inconsistent with such a requirement. Whether the violation was substantial in magnitude goes to damages or comparative fault, not to breach itself.

For these reasons, this Court should grant Plaintiff's motion for summary judgment on the breach element of her negligence claim.

Dear Ms. Pena,

Thank you for meeting with us last week. I've had a chance to review the facts you provided and the law that applies. The short version: we believe you have a strong claim against Mr. Davis, and you can likely recover most of your medical bills, though not all.

Here's why. Mr. Davis was driving above the speed limit on a wet road when he hit you. The law in this state treats driving over the speed limit as legal fault, almost automatically, when someone gets hurt as a result. That significantly strengthens your case.

On the other hand, the fact that you stepped off the curb mid-block while looking at your phone will count against you. Our state allows a person who is partly at fault to still recover damages, but the recovery is reduced based on how responsible they were for the accident. Based on similar cases, we estimate the court would assign about 30-40% of the fault to you, meaning you would recover about 60-70% of your medical expenses — somewhere in the range of $24,000 to $28,000.

What we recommend: File the lawsuit. The math works strongly enough in your favor that proceeding makes sense, even after accounting for legal fees. We should also ask the court for a deposition of Mr. Davis to learn whether he was distracted at the time — for instance, whether he was using his phone or had been cited for speeding before. If we learn those things, the estimate could rise.

I'm happy to discuss this further. Please call or email with any questions.

The first issue is whether Davis owed Pena a duty of care. A driver owes a duty of reasonable care to all persons foreseeably affected by his driving, including pedestrians in or near a crosswalk. Pena was walking near a crosswalk on a public road during a rainstorm — a foreseeable context in which a driver's conduct can cause injury. Davis therefore owed Pena a duty of reasonable care.

The second issue is whether Davis breached that duty. Breach is determined by comparing the defendant's conduct to that of a reasonable person under the circumstances. Driving five miles per hour over the posted speed limit on a wet road is some evidence of breach but not dispositive on its own. However, exceeding a posted speed limit is negligence per se in most jurisdictions if the statute's purpose is to protect the class of plaintiff from the type of harm involved. Speed limits are designed to protect road users (including pedestrians) from collisions of this kind, so the per se doctrine likely applies. Davis breached.

[Remaining issues — causation and comparative fault — would each receive their own IRAC paragraph here.]