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A. Introduction
1. Orientation
2. CoverageB. Forget Everything You Know About Writing
1. Teach the Mind and Touch the Soul
2. Start With Technical DevelopmentC. The Tricky Concept of “Audience”
1. The Paradox
2. Detailed Logical ApproachD. How to Avoid Common Mistakes
1. Always Start With Your Conclusion
a. Begin at End
b. Importance
2. Avoid Affectations of Language
3. Strive for Clarity Above All
a. Sparse Style is Effective
b. Short, Active Voice Sentences
4. Attention to DetailE. IRAC: The Basic Structure for Legal Arguments
1. Issue
2. Rule
3. Analysis/Application
4. Conclusion
5. IRAC Works on Many Levels
6. Repetition is the KeyLEGAL WRITING COURSE A. Introduction
1. Orientation: The next three chapters are inter-related. Legal writing (this chapter) usually involves research (Chapter 6) and often the course final project is an appellate brief (Chapter 7). There is considerable overlap between these chapters and the exact approach likely depends upon the content of your legal writing course. The information in this chapter is generalized in nature. Every law school legal writing course is a little different and any contradiction in this book to your professor’s instructions should be discarded.
2. Coverage: Although the suggestions that follow will not replace the detail of your first-year legal writing program, it will help you get a head start on the process. There are many kinds of legal writing: briefs written to a court on behalf of a client; memos written to inform a colleague about a topic; letters to clients; contracts; research papers; handbooks; articles; etc. Each of these requires a different writing skill set, and not all lawyers will use all of those skills in their professional careers.
B. Forget Everything You Know About Writing
Whether you got your undergraduate degree in Physics or English Literature, no one knows how to be a legal writer before he or she enters law school. In fact, more accomplished writers sometimes have trouble adjusting, because they must re-educate themselves to write in a different style.
1. Teach the Mind and Touch the Soul: Keep in mind that legal writing is an art as well as a science. It must be technically accurate without being boring; it must be persuasive without being flowery. It must take the reader step-by-step through a maze of legal arguments with clarity and precision, without losing sight of themes and messages the author wants to convey. The conclusion should flow logically from the arguments.
2. Start With Technical Development: The best strategy for starting your legal writing is to forget (for the moment) about persuasiveness and concentrate on acquiring the technical skills first. Later, when the technical part comes easier, your persuasive voice can shine through.
.C. The Tricky Concept of “Audience”
1. The Paradox: The audience for legal writing is a bit paradoxical. On the one hand, your audience will almost always be highly educated, familiar with the legal subject matter, and fairly sophisticated. On the other hand, good legal writing is simple, clear, and takes the reader through the author’s thought process in very small steps as if the audience were totally clueless. You must balance the pedantic explanations with eloquent (but not flowery or excessive) language that is suited to your sophisticated audience. Avoid patronizing your reader.
2. Detailed Logical Approach: At first, it may seem like you are wasting the reader’s time with things he or she already knows. But you will soon see that an effective legal argument walks the reader effortlessly through the structure of the author’s position. So forget you are writing to a professor/judge/colleague and just imagine you are talking to someone without the faintest clue. Who knows? Maybe you are.
D. How to Avoid Common Mistakes
1. Always Start With Your Conclusion: This is developed in more depth later in the appellate brief writing section, but it is true for all legal writing.
a. Begin at End: Until this point, you have probably been used to putting your conclusion at the end of your argument. Hence the word “conclusion.” However, in legal writing, your conclusion should come first and permeate your argument.
b. Importance: Your reader should always know your ultimate position and nothing after the first paragraph should be a mystery or a surprise. This way means that every one of your arguments is focused on the same result. The whole may thus become greater than the sum of the parts.
2. Avoid Affectations of Language: Many 1Ls make the mistake of trying to “write like a lawyer”, using strange language that they have picked up from reading old cases or from pop culture. Some of the more popular ones are “heretofore”, “aforementioned”, and “hereinafter.” These kinds of affectations are confusing and unnecessary. Write in your own voice, using formal but sensible language.
3. Strive for Clarity Above All: No matter how impassioned or analytically deft your argument, it will never be persuasive if it is unintelligible.
a. Sparse Style is Effective: If you have ever read Hemingway, think about his style. His writing is deeply moving not because of the flowery vocabulary or complex sentence structure, but because of the power of his imagery and message.
b. Short Active Voice Sentences: Try to keep your sentence to subject-verb-object format. Be concerned if you think you need long, complex sentences to explain a concept. Either you don’t understand the concept well enough to explain it simply, or you don’t have anything interesting to say.
4. Attention to Detail: In your first year class, you will learn a great deal of detail on the proper form of legal citations. These are very important and must be thoroughly mastered. Still, the above overview will focus you on a reader-friendly approach to legal writing. This same style will also assist you in mastering law school exams in which you are under much more time pressure.
E. IRAC: The Basic Structure of a Legal Argument
Early in your legal writing course you will become very familiar with IRAC, which stands for Issue, Rule, Analysis (or Application), Conclusion. This is the basic structure of a solid legal argument.
1. Issue: A legal argument is simply a position statement on the proper application of a legal rule to a particular factual situation. This question of law and fact to be resolved is called the “issue.” The first step in any legal argument is to state the issue you are addressing. The issue statement should provide enough information to allow the reader to answer the legal question right then and there. The more precise the statement, the better. Compare the following two issue statements. As explained below, Statement 2 is preferable for a number of reasons.
Statement 1 (incorrect): Does the First Amendment apply to flag burning?
Statement 2 (correct): Is the act of burning of a flag as a symbolic gesture a war protest “political speech” and therefore protected under the Freedom of Speech clause of the First Amendment of the federal Constitution?
a. Factual Context: First, it more precisely defines the factual situation. In Statement 1, the reader does not know the context of the facts, and therefore cannot safely draw a proper legal resolution. If the underlying facts of the case involved a flag manufacturer that was trying to dispose of overstock, and the chemicals from the burned flags seeped into the groundwater causing contamination, Issue Statement 1 would apply to those facts, but it would not inform the reader as to the proper resolution.
b. Precise Legal Rule: Issue Statement 2 provides a more precise description of the legal rule involved. “The First Amendment” contains protections for freedom of speech, religion, the press, and other activities and entities. It is important not to be sloppy when referring to the applicable legal rule, even if it is a rule with which every lawyer is familiar. Legal imprecision can come back and bite you.
c. Conclusion Up Front: A proper issue statement leaves nothing to the imagination. You are not writing a mystery novel, holding the reader in suspense until the final chapter. The ultimate conclusion of your argument should be revealed in the issue statement.
2. Rule: The next step is to fully explain the legal rule that applies. Unlike the brief, generalized rule statement contained in your issue statement, this is a complete explication of the statutes, rules, case law, and other applicable legal foundation for your argument. “Mandatory authority” refers to prior statements of law from sources that the current court must follow. “Persuasive authority” refers to prior statements of law that the current court may consider, but is not bound by.
a. Applicable Law and Mandatory Authority: Using the example of Issue Statement 2 above, your rule statement would include a direct quotation of the Freedom of Speech clause of the First Amendment. You would also quote any federal statutes that related to the case. Next, discuss Supreme Court or other mandatory case law defining “political” speech and explaining the factual circumstances in which an act is considered speech (e.g. Tinker v. Des Moines where the act of wearing a black armband was deemed “speech” protected by the First Amendment Freedom of Speech clause).
b. Distinguishable Mandatory Authority: You might also discuss those cases that are mandatory, but which can be distinguished from the facts of your case. Continuing with the above example, cases describing non-political speech and non-speech actions will further enlighten your reader on the subtleties of the rule, as well as pre-empting arguments that your facts fall outside the rule that you wish to enunciate.
c. Policy Statements and Persuasive Precedent: These are statements from other courts and sources of law that are not binding on the current court, but inform the legal argument at hand.
3. Analysis/Application: This is the creative heart of your argument, where you explain how the current factual situation should be resolved based on the applicable legal rules. You must analogize the facts at hand to legal rules that support your argument, and distinguish your case from unfavorable precedent. This is where the rubber meets the road. There is usually a great deal of room for argument in the assignments you will receive in law school. They are designed to test your ability for innovate legal thought.
4. Conclusion: This is essentially a repetition of your issue statement with your proposed resolution of the issue rolled in. Nothing in this section should be a surprise to the reader: this is a wrap up.
5. IRAC Applies at Many Levels: The IRAC format works on both a micro and a macro level. You can write one paragraph with the entire Issue, Rule, Analysis, and Conclusion covered. The IRAC structure can be used to frame paragraphs, subsections, your entire paper, or all three.
6. Repetition is the Key: How many teachers in how many writing courses use the line “tell the reader what you are going to say, say it, and then tell the reader what you just said.” Legal writing uses this principle to the nth degree. By the time your reader gets to the conclusion, he/she should be able to predict it with perfect clarity.
