Post on 17-Jan-2015
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Writing for the Legal Reader: Legal Proofs and
Deductive Reasoning
© Prof. Mathis Rutledge
Last week: case comparisons, synthesis This week: IRAC and CREAC (legal proofs) Drafting the discussion
Discussion section where pieces come together
Social Host Liability
A social host is liable when the host serves alcohol to a visibly intoxicated adult, and the person injures a third party in a reasonably foreseeable manner or when the host serves alcohol to a minor with knowledge that the minor will drive.
A tavern owner is liable to an injured third party when he serves alcohol to a visibly intoxicated adult or someone the host knows is a minor.
Consider the Sandwich₁
People know what a sandwich is. People have specific expectations of a
sandwich. When those expectations aren’t met, the
recipient is left confused, or worse, irritated.
Sandwich example and clip art adapted with permission from Professor Tracy McGaugh presentation on Organizing the Analysis, 2002-03.
For example . . .
If someone tells you that he’s going to bring you a sandwich, and he brings you . . .
this . . .
“Hey, I still have to put that together!”
. . . or this . . .
“That’s useless to me.”
. . . or this . . .
“Holy moly! That’s my sandwich?!”
. . . you’re going to be confused and a little irritated because you thought you were getting this:
“Now that’s a sandwich.”
The same is true for legal writing
It’s not enough to have all the parts there Legal writing has a certain structure Legal readers expect to receive information
within a certain order When you fail to meet those expectations, the
reader will be left not only confused, but will doubt your abilities
The Legal Memorandum
Has a standard format
The Memorandum To From Re
Question Presented Brief Answer Statement of Facts
Discussion Conclusion
Sample Memos Notice 6 parts Address Question Presented
Identify specific legal issues Brief Answer
Brief conclusion to the legal issues Statement of Facts Discussion
Analysis, Rules of Law Conclusion
The Discussion
Largest part of the memo Introduce the issue (thesis paragraph) Explain the law (synthesized rule; factors) Apply the law (case comparisons) Conclusion (prediction)
Start from the Beginning
Thesis Paragraph Introduces the subject to the reader Puts things in context for the reader Explains the purpose of the memo or section Introduces the issues and the order States your conclusion and brief reason
Thesis Statements
Every issue should begin with a thesis statement
Statement about the issue & your conclusion Follow the statement by an identification of
the factors
Examples of Thesis sentences
The Stripes’ garage is a living quarters in which Michael Stripe “actually resides.” When determining whether a structure is a living quarters, courts evaluate the type of activities for which the owners use the structure, as well as the frequency of those activities and physical evidence of those activities. Textbook, appendix A pp. 524-25
Example thesis sentences
The circumstances of Ms. Lush’s case prove that she was in physical control of her vehicle after she pulled off the road. The courts determine physical control by factors such as the “actual or constructive possession” of the car keys, and the defendant’s posture in the seat. From sample memo packet, student sample p. 3
Analysis is expected to be in a certain format as well
The Process ofLegal Analysis
Is there a relevant statute? Locate cases that have further defined the
elements in the statute Have the cases created additional sub-issues?
Find the general rule – usually through synthesis (inductive reasoning – looking at specific cases to articulate a general proposition of law)
Identify the Issues based on the determinative facts
Now you’re ready for Legal Analysis
Legal Analysis
Lawyers write in Legal Proofs Based on Deductive Reasoning
Going from the general to the specific
Deductive Analysis
Involves going from the general to the specific General rule of law to specific facts
Begin – rule of law and your conclusion Analysis – discuss the element at issue and
give a detailed evaluation of the law Explain how the law applies to your client
Example
P. 3 sample memo Thesis paragraph (1st full paragraph) – rule of
law & conclusion Analysis (rule explanation)- Transition
sentence that identifies issue - possession; describes precedent;
Analysis (rule application) shows why the case is precedent and how it applies to the client
Deductive Writing Pattern –
Overview Paragraph –CROutline rule of law, identify issue
Thesis paragraph – for each issueSummarize both the issue & analysis CR
Explanation-explain rule of lawFactors, holding, etc.
Analysis/Application – Apply rule to client & evaluate
opposing argumentsConclusion
Legal Proofs
Pattern Justify your conclusion through the organization
of your analysis Based on Deductive Analytical Pattern
Progresses from broad conclusion to specific illustration of why conclusion is sound
What is IRAC? What about CREAC?
Acronym Most common legal proof Gives a pattern for structuring and organizing
legal analysis Helpful in drafting legal memoranda, briefs,
exam answers
IRAC
Don’t think in terms of sentences but Sections in your memo (paragraphs) IRAC each disputed issue
I - IRAC
Issue – identifying the issue Should be narrowly framed Present in a focused precise topic sentence Question how/whether the law applies to your
client Use the elements & facts to define
Issue
Identifies specific problem Sets out the dispute between the parties
Include client facts Written in terms of relevant law and facts of
the situation
Issue must be defined narrowly
If you state the issue as a broad question the corresponding rule will be unfocused, and your analysis will be very general.
Ex: Does Smith have a claim for negligent infliction of emotional distress [too broad]
When an issue is narrowly-framed it results in a more focused analysis.
Narrow Legal Issues
Did Smith have a sensory and contemporaneous observation of the accident
Did Smith suffer emotional distress as a result
R- IRAC
Rule Expressly stated Synthesized from holdings in several cases Write a precise rule statement for every legal
issue
Rule
Give the pertinent facts of the precedent Legal readers need context Shows relevance to the facts for independent
comparison Include the reasoning If statutory rule, use the precise language
A- IRAC
Analysis/Application (2 parts explain & apply)
Support/validate the rule Quote or explain the rule Describe facts/holding/reasoning in the
multiple cases Apply the rule – has it been satisfied
Is it supported by the case comparisons (based on stare decisis)
Part I of Analysis: Explanation/Rule Support
Shows that rule has legal basis Can be simply explaining the rule and giving
a cite If synthesized rule, show correct synthesis
describe holding, reasoning, essential facts identify factors
Explanation or Support for the Rule
Purpose: give the reader information to understand the rule application
To understand how the rule applies to your facts, the reader must understand how the rule has applied to similar facts
Explain rule’s purpose, policies, past application Does not mean everything about the rule, limit
explanation to information pertaining to client
Explain
When describing precedent you must identify 1. the holding 2. all the facts necessary to the court’s
decision in a logical way that tells the story 3. the court’s reasoning A bare bones holding is insufficient because
it lacks the specific essential facts to allow the reader to make her own analysis
Example: barebones rule explanation
The Michigan Court of Appeals held that a surrogate parentage contract is void and unenforceable if the surrogate receives compensation for the termination of parental rights (Doe v. Attorney General). This decision protects the natural rights of the birth mother and protects public policy issues of turning babies into commodities to be bought and sold
Part II of Analysis: Application
Apply each point from the rule explanation Compare cases and explain how similarities or
differences explain your point Explain why the analogies & distinctions are significant
Use descriptive facts, not conclusions when applying the law to facts
Identify unknown facts that would be important to resolution
Include opposing arguments
Analysis/Application
Important considerations Write for the uninformed reader
is the rule met use the language of the rule don’t forget underlying purpose - stare decisis &
precedent are the statements supported by case comparisons
case comparisons must be based on essential facts Is the reasoning behind the rule appropriate for client’s case Compare and contrast the facts of the case to the client’s
case
Application & the syllogism
Syllogism – logical argument where conclusion is inferred from 2 premises
Underlying syllogism pattern Major premise + Minor premise = conclusion Major premise – All men are mortal Minor premise – Socrates is a man Conclusion – Therefore, Socrates is mortal
Compare to IRAC A rule (major premise) is applied to a specific
fact situation (minor premise) to reach a conclusion
Major premise A social host who serves alcohol to a visibly intoxicated
person is liable for the injuries that visible intoxicated person causes.
Minor premise Johnny Mitchell is a social host who served alcohol to a
visibly intoxicated person who later caused injuries to another
Conclusion Johnny Mitchell is liable for the injuries caused by that
visibly intoxicated person.
C- IRAC
Conclusion Beginning & End of the legal proof Predicts the outcome Tie the points together based on law and
facts. Short, but important.
IRAC in exam writing
Issue - identify the issue – issue spotting Rule - state the rule of law Analysis - apply the law to the facts (case
comparisons) Conclusion - state your conclusion, does the
rule apply to your fact situation
IRAC in Legal Writing
State your conclusion Issue – identify the issue to be analyzed Rule – state the applicable rule
Rule Support – Validate the rule by citing and discussing the cases you relied upon
Analysis – apply the rule to the facts of your case Case Comparison – Validate analysis by showing
that your case is analogous to the rule cases or distinguishable
Conclusion – predict how a court will resolve the issue
IRAC Example
Back of Notes Page
CREAC – an improved IRAC
Conclusion – state your conclusion about the issue
Rule – state the applicable rule of law Explanation – Explain the rule Application – Apply the rule to client’s facts Conclusion – Restate your conclusion
IRAC vs. CREAC
Issue Rule
Rule Support
Application/Analysis Case Comparison
Conclusion
Conclusion Rule Explanation Application/Analysis Conclusion
Legal Proof Alphabet
Starting with the end – Conclusion Legal readers are impatient, want the
bottom line Starting with the conclusion puts the
analysis into context You can rephrase the conclusion and use
it as a section heading Will help you draft thesis & overview
paragraph
Conclusion/Issue
Conclusion and issue are combined and found in Overview or thesis paragraphs
To find the issue find cases, group of cases or statutes that sets
forth the elements use elements to identify the issues
Putting it Together Legal Proofs are in the
discussion section of the memo
Conclusion and Rule should be in the thesis and overview (umbrella) paragraphs
Followed by Explanation and Analysis