Finding Consensus in Legal Writing Discourse Regarding Organizational Structure: A Review and Analysis of the Use of IRAC and Its Progenies
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One of the great challenges of writing in any subject area is deciding how to organize the information the writer wants to convey. This is no less true in legal writing. Effective organization is simultaneously one of the most elusive skills for legal writers and one of the skills judges most wish lawyers would master.1 Scholars have struggled to identify the perfect acronym for the organization of a written legal analysis.2 Many have questioned whether the struggle is even worth the effort.3 This article will not weigh in on that debate. Instead, based on a review of legal writing textbooks and journal articles that have addressed how to organize a written legal analysis,4 it will isolate core principles of effective organization. The four core principles include rule-centered analysis, separation of discrete issues, synthesis of the law, and unity. Recognizing these core principles can help legal writers escape the confusion that might otherwise result from the various acronyms and terminology used in legal writing scholarship5 by creating more-flexible guidelines for effective organization.
I. The Debate Over Paradigms
Many legal writing scholars believe that novice legal writers need a paradigm structure like IRAC6 to get them started on mastering the skill of effective organization and analysis.7 As legal writing scholarship proliferates alternative acronyms, however, lawyers may find themselves debating whether IRAC or CRuPAC or CREAC represents the ideal structure.8 Currently, most textbooks teach a set structure, whether or not they label it with an acronym.9 On the other hand, some scholars believe that novice legal writers should be encouraged to develop their own organizational structures based on considerations such as audience, context, desired outcomes, strategy, story-telling, and problem-solving.10 And, of course, many scholars urge a balance between the use of paradigms and creative thinking.11 Mindful of the debate over the usefulness of paradigms, I aim here to liberate the core principles of effective organization12 from acronyms so that lawyers can talk to one another about organization without debating the merits of a particular method they learned in law school or from their first mentors in the profession.
II. Research Methodology
My research assistants and I reviewed the most recent version of every textbook on legal writing published or republished in the past ten years available in our school’s law library or on my bookshelves. For each textbook, we answered the following set of questions:
- If the text uses an acronym (e.g., IRAC, CRAC, CREAC, etc.), what is it and how does the author describe each component? If not, summarize the lessons the text offers regarding organization.
- How does the author justify the acronym or organization the book discusses?
- Does the author address single v. multiple IRACS? Summarize the lessons offered.
- Does the text discuss topic sentences? Summarize the lessons offered. (E.g.,What should they look like? What is their purpose?)
- Does the text discuss a need to complete discussion of the law before applying the law to the facts? (In other words, does the author advise completion of all rule sections before application sections?)
We reviewed a total of thirty textbooks and prepared written answers to the above questions for twenty-five of the textbooks. The remaining five textbooks did not address these questions.
In addition, we conducted a comprehensive review of published articles addressing IRAC or other acronyms. Specifically, we used the following search mechanisms to ensure completeness of the research:
- A search in the Lexis Nexis law review database using the search term “IRAC”;
- A review of an index of Perspectives articles covering 1992–2009 supplemented by a review of the 2009–2010 issues;
- A review of the “Recent Publications” information published inPerspectives issues from 1999 through the Fall of 2009;
- A review of the Annotated Bibliography on Law Teaching published in 18Perspectives 34 (Fall 2009);
- A review of all issues of The Second Draft from its inception through May 1, 2010;
- A review of all issues of the Journal of the Association of Legal Writing Directors, now the Legal Communication & Rhetoric: J. ALWD, from its inception through May 1, 2010 ; and
- A review of all issues of Scribes from 1990 through 2007.
Using these methods, we found and read the forty-seven articles addressing IRAC and other acronyms cited throughout this article. In reviewing the articles, we focused on justifications for IRAC, proposals for alternative paradigms and the reasoning behind them, and criticisms of IRAC and alternative acronyms.
III. Widely Accepted Core Principles of Effective Organization
Our review of textbooks and articles on organizational structure found a broad consensus on four core principles: rule-centered analysis, separation of analysis by issue, synthesis of case law, and unity.
A. THE FIRST CORE PRINCIPLE: RULE-CENTERED ANALYSIS
The centering of a legal analysis around principles of law is the core of IRAC. The paradigm is based on an adaptation of deductive syllogism to legal reasoning:
|Major Premise: All men are mortal||(The corollary in IRAC is the discussion of the
All men are mortal. applicable law—the “R” in IRAC.)
|Minor Premise: Socrates is a man.||(The corollary in IRAC is the discussion of how
Socrates is a man. the law applies to the case at hand—the “A” in
IRAC. This typically involves case comparisons
and common-sense reasoning regarding how the
language of the applicable legal rules plays out in
the case at hand.)
|Conclusion:||Therefore, Socrates is mortal.13|
The main message IRAC conveys is that the first step in analyzing a legal issue is to establish the relevant legal principles. Of course, legal reasoning is rarely as simple as the syllogism above. Except in the rare case of a controlling statute that leaves no room for interpretation, the major premise (the applicable law) lacks certainty.14 Indeed, legal disputes often arise out of uncertainty regarding the selection and interpretation of the applicable law.15 Moreover, rarely does a legal analysis revolve around a single major premise. Rather, an effective legal analysis usually requires synthesis of a complex web of pronouncements about the law.16 As a result of these complications, IRAC has been heavily criticized as incapable of capturing the nuances of legal analysis.17 The quest to capture some of the complexity of legal analysis has led to an explosion of alternative acronyms.18 In the process of creating acronyms, however, we may have obscured the main point of IRAC: legal analysis must begin with the law as its starting point. The Acronym Chart below reveals various attempts to capture some of the other nuances of legal reasoning, but it also reveals that none of the acronyms depart from IRAC’s main message. All of the alternative acronyms contemplate discussion of legal principles before their application to the case at hand.
Aside from some disagreement regarding whether an objective analysis should start with the issue or with the conclusion or thesis36 and, to a much lesser extent, where to discuss policy considerations,37 the variations in the acronyms relate more to substance than to organization. They emphasize the need to explain and illustrate the rules through discussion of case examples, the need to base conclusions on comparisons between the case at hand and the precedent cases, and the need to address counterarguments. In this respect, they may be more detailed than IRAC, but they are not inconsistent with IRAC.
The discussion of rules before their application is also a recurring theme in the legal writing textbooks. Out of the 25 textbooks reviewed, 14 use IRAC, CRAC, or one of the alternatives listed in the Acronym Table.38 Another 9 textbooks decline to adopt any one acronym, but nonetheless instruct writers to discuss rules before they are applied.39 Also, in discussing the specifics of the “R” component, many textbooks recommend an initial sentence or paragraph to lay out general principles of law before exploring more-specific and disputed legal principles.40
Future scholarship may offer more alternatives to the rule-based organization that is at the heart of IRAC and its progenies. The Oates–Enquist textbooks suggest that factual points may precede or be integrated into discussion of the relevant legal principles.41 Similarly, two articles have called into question the rules-first emphasis of IRAC.42 A third article urges a narrative approach to large-scale organization while endorsing IRAC for small-scale organization.43 However, until scholars examine the structure of an integrated organization in more detail, the rule-based organization is a dependable method on which legal writers can find a wealth of instructive materials in both textbooks and published articles.
B. THE SECOND CORE PRINCIPLE: SEPARATING THE ANALYSES OF DISCRETE ISSUES
Scholars have commented that readers cannot absorb lengthy discourses on the law and, therefore, that discussion of the law needs to be broken up into smaller components.44 In particular, it is widely recognized that an analysis addressing multiple issues or elements requires multiple IRAC45 sequences, one for each separate issue or element.46
Less certain is whether a single issue or element should be further subdivided into multiple sequences when it requires resolution of multiple sub-issues. Most of the textbooks stop at addressing subdivision by issue, leaving the question of further subdivisions unresolved. Scholars who have addressed the question, however, endorse multiple sequences within a single issue or element.47
A related question is whether each sequence should have its own heading. The textbooks are vague on this question, but a close examination reveals a strong tendency toward using a heading for each sequence. Some textbooks expressly recommend a heading for each sequence.48 Several others do not expressly address headings, but their samples use a heading for each sequence.49 Only two textbooks endorsed or used samples that incorporated multiple IRAC sequences under a single heading.50 An alternative to the IRAC-by-subissue approach endorsed by a few textbooks is to permit the writer to alternate between rule discussion and application within a single section of the piece (i.e., IRARARARAC) rather than require the writer to place all discussion of the rules on an issue before any application of the law (i.e., IRRRAAAC).51
In sum, although this is an underdeveloped area of discussion in textbooks and scholarly articles, the weight of authority seems to be in favor of multiple IRAC sequences not only for discrete issues but also for separable subissues, with headings for each sequence. A less prevalent alternative is the IRARARAC approach.
C. THE THIRD CORE PRINCIPLE: SYNTHESIS OF THE LAW
With a possible exception for unusually simple legal analyses, textbooks agree that writers should synthesize legal principles pulled from multiple sources of law rather than bombard the reader with a list of case summaries.52 Correspondingly, a large number of textbooks suggest that discussions of the law should be organized into paragraphs that begin with a topic or thesis sentence that states a contention about the law rather than with a sentence that starts, “In Case A, . . . .”53
The following is an example of a paragraph with a topic sentence that states a contention about the law followed by proof:
The Due Process Clause limits the extent to which the government can involve itself in criminal activity. In Greene, for example, the court dismissed an indictment on bootlegging charges largely because of the government agent’s role in setting up, supplying and continuing the bootlegging operation. Greene, 454 F.2d at 786–87. Specifically, the agent had offered to find a still site, still equipment, and an operator. Id. at 786. In addition, the agent had actually provided two thousand pounds of sugar to ensure the continued operation of the still. Id. at 786. And the government agent was the only customer of the operation he had helped to create. Id. at 787. The court concluded that this conduct rose to a level of “creative activity” “substantially more intense and aggressive than the level of such activity charged against the government in prior entrapment cases.” Id. at 787. It found that “when the government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections that render entrapment repugnant to American criminal justice are operative.” Id.; see also Twigg, 588 F.2d at 380 (basing dismissal of indictment in part on government’s role in providing a location, supplies, and necessary expertise to enable the defendants’ production of narcotics and on the court’s conclusion that although defendants raised capital for the operation, the agent was “completely in charge” of the drug laboratory).
In this example, the topic sentence of the paragraph identifies a lesson regarding the law before going into the details of case examples that prove the statement. Under this approach, the details of the case example are focused on the point of the topic sentence. Other aspects of the same cases might be discussed in a later paragraph on a different point of law. By identifying key legal principles in the topic sentences and then focusing the discussion of case examples on illustrating these principles, the writer synthesizes the case law for the reader rather than present a list of case summaries that the reader must cull on her own.
D. THE FOURTH CORE PRINCIPLE: UNITY
The need to construct a unified document is another prevalent theme in the texts. Authors explain that the legal writer needs to include transitions in each paragraph to tie the components of the analysis together.54 In addition, roadmap paragraphs at the beginning of an analysis55 and even at the beginning of each subdivision of an analysis56 help unify the piece. Less widely discussed but also not disputed as a sound organizational tool is the use of signposts to help the reader make connections between the writer’s points.57
Good legal writing does not require a dogmatic adherence to a particular acronym. Acronyms can be useful but are merely tools to help the legal writer remember the core principles of effective organization: rule-centered analysis, separation of discrete issues, synthesis of case law, and unity. These core principles enjoy wide consensus among legal writing scholars and can serve as more flexible guidelines for mastering the elusive skill of organizing a legal analysis.
* ©Tracy Turner is the Director of Legal Analysis, Writing, and Skills at Southwestern Law School.
1 See Amy Vorenberg & Margaret Sova McCabe, Practice Writing: Responding to the Needs of the Bench and Bar in First-Year Writing Programs, 2 Phoenix L. Rev. 1, 9 (2009) (identifying organization as the one of the three problems in legal writing most commonly identified in the author’s survey of law firms, judges, and judicial clerks).
2 Mary Garvey Algero, IRAC—A Desirable Tool if Used with Care, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 3 (Nov. 1995); Mary Beth Beazley, Desirable! Fire, Flood,Famine & IRAC? 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 1 (Nov. 1995); Marion W. Benfield, Jr., IRAC—An Undesirable Formula, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 16–17 ( Nov. 1995); Barbara Blumenfeld, Why IRAC Should be IGPAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 3 ( Nov. 1995); Charles Calleros, IRAC: Tentative and Flexible and Therefore Reliable, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 4 (Nov. 1995); Kim Cauthorn, Keep on “TRRACing,” 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 4 (Nov. 1995); Kenneth D. Chestek, The Plot Thickens: The Appellate Brief as Story, 14 Leg. Writing 127 (2008); Lurene Contento, Demystifying IRAC and Its Kin: Giving Students the Basics to Write “Like a Lawyer,” 21 The Second Draft (newsltr. of the Leg. Writing Inst.) 8 (Dec. 2006); H. Russell Cort, A Nest of IRACs, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 5 (Nov. 1995); Richard W. Creswell, Putting the Monolithic Template in Context, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 17 (Nov. 1995); Cara Cunningham & Michelle Streicher, The Methodology of Persuasion: A Process-Based Approach to Persuasive Writing, 13 Leg. Writing 159 (2007); Jo Anne Durako, Evolution of IRAC: A Useful First Step, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 6 (Nov. 1995); Linda H. Edwards, IRAC Format Accomplishes the Limited Purpose It Is Designed to Achieve, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 7 (Nov. 1995); Toni M. Fine, Comments on IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 7 (Nov. 1995); Jane Kent Gionfriddo, Dangerous! Our Focus Should Be Analysis, Not Formulas like IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 2 (Nov. 1995); Dennis R. Honabach, “IRAC” or “(QFRFR) + IRAC”, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 8 (Nov. 1995); Chris Iijima & Beth Cohen, Reflections of IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 9 (Nov. 1995); M. H. Sam Jacobson, Learning Styles and Lawyering: Using Learning Theory to Organize Thinking and Writing, 2 J. ALWD 27, 65–68 (2004) [hereinafter Jacobson, Learning Styles and Lawyering]; Sam Jacobson, RAFADC, Not IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 9 (Nov. 1995) [hereinafter Jacobson, RAFADC, Not IRAC]; David J. Jung, I ? IRAC? 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 10 (Nov. 1995); Soma R. Kedia, Redirecting the Scope of First-Year Writing Courses: Toward a New Paradigm of Teaching Legal Writing, 87 U. Det. Mercy L. Rev. 147, 162–77 (2010); Joseph Kimble, In Defense of IRAC (as Far as it Goes), 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 10 (Nov. 1995); Joyce Deatrick Klouda, Whether or Not to Use IRAC: Can We Drive Without the Rules of the Road? 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 11 (Nov. 1995); Karen L. Koch, A Multidisciplinary Comparison of Rules-Driven Writing: Similarities in Legal Writing, Biology Research Articles, and Computer Programming, 55 J. Leg. Educ. 234 (2005); Allen Mendenhall, The Importance of Being Earnest: A Serious Proposal to Modify Legal Research and Writing Departments, 2007 W. Va. L. Rev. 32; Christina Kunz & Deborah Schmedemann, Our Perspective on IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 11 (Nov. 1995); Gerald Lebovits, Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to Combinations in Between, 82 N.Y. St. B.J. 64 (2010); Jeffrey Malkan, IRAC: A True Story, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 18 (Nov. 1995); Jeffrey Metzler, The Importance of IRAC and Legal Writing, 80 U. Det. Mercy L. Rev. 501 (2003); Nelson P. Miller & Bradley J. Charles, Meeting the Carnegie Report’s Challenge to Make Legal Analysis Explicit— Subsidiary Skills to the IRAC Framework, 59 J. Leg. Educ. 192 (2009); Michael D. Murray, Communicating Explanatory Synthesis, 14 Persps. 136 (2006); Kathleen Dillon Narko, TREAC, the New IRAC—Or Why Organization Matters, 18 CBA Rec. 47 (2004); Sally Ann Perring, In Defense of [F]IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 12 (Nov. 1995); Diana Pratt, IRAC: A Useful Beginning, but Hardly a Panacea, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 12 (Nov. 1995); Ellen Lewis Rice et al., IRAC, the Law Student’s Friend or Foe: An Informal Perspective, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 13 (Nov. 1995); Jacquelyn H. Slotkin, IRAC Response, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 14 (Nov. 1995); Nancy Soonpaa, The Continued Vitality of IRAC, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 15 (Nov. 1995); Nancy P. Spyke, Thoughts on the Use of IRAC in Teaching Analysis, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 15 (Nov. 1995); Hollee S. Temple, Using Formulas to Help Students Master the “R” and “A” of IRAC, 14 Persps. 129 (2006); Christine M. Venter, Analyze This: Using Taxonomies to “Scaffold” Students’ Legal Thinking and Writing Skills, 57 Mercer L. Rev. 621, 624–26 (2006); Vorenberg & McCabe, supra n. 1; Manning Warren, IRAC Response, 10 The Second Draft (newsltr. of the Leg. Writing Inst.) 19 (Nov. 1995); Mark E. Wojcik, The Death of IRAC, The Second Draft (newsltr. of the Leg. Writing Inst.) 16 (Nov. 1995).
3 Fine, supra n. 2, at 7–8 (proposing that educators should help students through the process of developing their own framework for analysis); Gionfriddo, supra n. 2, at 2 (proposing a focus away from paradigms and toward “demystifying [the] inherently challenging process of legal analysis and its communication”); Venter, supra n. 2, at 624–26 (arguing that paradigms are too limited to allow analytical skills to develop; faculty need to focus more on creative thinking skills including consideration of audience, context, constraints, and the interests of the parties); Vorenberg & McCabe, supra n. 1, at 17; Warren, supra n. 2, at 19 (stating that IRAC erroneously requires students “to mold printed facts into [a] form-fitted legal construct” rather than to think about what is really going on in the case).
4 The methodology of the review is detailed in sec. II, infra.
5 See Terrill Pollman, Building a Tower of Babel or Building a Discipline? Talking about Legal Writing, 85 Marq. L. Rev. 887, 887–88 (2002) (discussing the confusion created by inconsistent terminology in legal writing discourse and how it inhibits our ability to gain a greater understanding of the writing process).
6 IRAC is an acronym that stands for Issue, Rule, Application, Conclusion. IRAC is discussed further in sec. III(A) of this article.
7 Algero, supra n. 2, at 3 (“IRAC is a valuable tool to use when teaching legal analysis to first year law students”); Beazley, supra n. 2, at 1 (“IRAC is almost always a valid way—although not necessarily the only way—to organize legal analysis” as it “encourag[es] writers to discuss important elements in the order that is usually most helpful to the reader”); Blumenfeld, supra n. 2, at 3–4 (stating that IRAC is a “good organizational tool” but proposing a modification to the paradigm); Calleros, supra n. 2, at 4 (“IRAC provides an analytic framework that is illuminating or persuasive in most legal analyses or arguments”); Cauthorn, supra n. 2, at 4–5 (proposing an alternative paradigm and arguing that when taught properly, the paradigm can be a useful teaching tool); Contento, supra n. 2, at 8 (posing as a rhetorical question, “[W]hat better way to prepare students for the practice of law than to give them a solid understanding of IRAC: the classic small-scale organization form”); Cort, supra n. 2, at 5 (IRAC is “a useful framework for organizing a legal analysis” and “provides a model for understanding how to apply the facts to a rule and for seeing what proof can mean in a legal dispute.”); Durako, supra n. 2, at 6 (“[S]tudents benefit from having some organizing principle to help decode legal problems and to help them begin the complex process of learning legal analysis.”); Edwards, supra n. 2, at 7 (IRAC “offers a technique for meeting one of the biggest pedagogical challenges in teaching legal analysis.”); Iijima & Cohen, supra n. 2, at 9 (“IRAC provide[s] a good starting point” because “[i]t require[s] students to present a good, clear statement of law, a clear and affirmative statement of the issue, an articulation of applicable rules, an analysis and an application of facts to rules of law, and a statement of the ultimate conclusion or prediction.”); Jacobson, Learning Styles and Lawyering, supra n. 2, at 66–68 (proposing an alternative paradigm as a teaching tool); Jacobson, RAFADC, Not IRAC, supra n. 2, at 9 (arguing that his alternative paradigm is a good tool to help guide students through analogistic reasoning); Jung, supra n. 2, at 10 (“What could be more important than teaching law students, as soon as possible, that there is a basic unit of legal argument?”); Kimble, supra n. 2, at 11 (“[D]oing [IRAC] well can produce an A answer.”); Klouda, supra n. 2, at 11 (IRAC “provide[s] students with an introductory system, [sic] to identify, isolate, and describe the law, whatever the topic, in a coherent and logical manner.”); Koch, supra n. 2, at 234–36 (arguing that IRAC can be very useful to novice writers especially if it can be compared to similar structures in types of writing with which they are already familiar); Kunz & Schmedemann, supra n. 2, at 11 (stating that IRAC is useful because it emphasizes deductive reasoning, translates “a classic writing principle”—topic, elaboration, conclusion, and “is a strong mnemonic” to help students retain these basic lessons); Lebovits, supra n. 2, at 64 (explaining that paradigms ensure that no important steps in analysis are omitted); Malkan, supra n. 2, at 18 (relating how the author began telling students to separate the explanation of the law from its application when a tearful student begged for guidance); Metzler, supra n. 2, at 501–03 (emphasizing the importance of IRAC as a basic structure); Murray, supra n. 2, at 136 (proposing an alternative paradigm); Narko, supra n. 2, at 47 (arguing that attorneys need an organizational tool that clearly communicates their analyses); Perring, supra n. 2, at 12 (proposing that a paradigm helps students focus their efforts at improving their prose); Rice et al., supra n. 2, at 13 (IRAC is helpful to “break down and simplify the explanation of the process of legal analysis” and “helps students visualize the process”); Slotkin, supra n. 2, at 14 (IRAC is “a helpful tool for teaching basic analysis skills”); Soonpaa, supra n. 2, at 15 (concluding that IRAC is a useful tool for teaching analysis); Temple, supra n. 2, at 129 (students “need a template to help them transition into the legal setting, where supervisors and judges expect practitioners to adhere to the IRAC . . . format”); Wojcik, supra n. 2, at 16 (concluding that IRAC is generally helpful as a model for efficiently communicating legal analysis).
8 These and other acronyms are described in sec. III(A) of this article.
9 See infra nn. 37–39. The Oates–Enquist textbooks are notable exceptions. In The Legal Writing Handbook, the authors present multiple models and templates including a “script format” model (essentially IRAC), an integrated model (free mixing of law and fact), and varying templates for factor-based analyses, balancing analyses, and analyses aimed at addressing questions of first impression. Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook: Analysis, Research, and Writing 136–69, 201–15, 223–40 (5th ed., Aspen Publ’rs 2010). In Just Briefs, the authors present three different types of reasoning that can be used in crafting an effective argument: deductive (essentially IRAC), inductive (integrated approach) and “facts first” (an approach that emphasizes favorable facts over less favorable law). Laurel Currie Oates, Anne Enquist & Connie Krontz, Just Briefs 35–36 (2d ed., Aspen Publ’rs 2008).
10 Benfield, Jr., supra n.2, at 17 (criticizing IRAC for “encourage[ing] awkward, simplistic writing”); Creswell, supra n. 2, at 17 (IRAC detracts attention from the key process of rule selection when used as a “structure for exam essays”); Fine, supra n. 2, at 7–8 (proposing that IRAC should be regarded as a useful starting point and educators should focus instead on helping students through the process of developing their own framework for analysis); Gionfriddo, supra n. 2, at 2 (proposing a focus away from paradigms and toward “demystifying [the] inherently challenging process of legal analysis and its communication”); Kedia, supra n. 2, at 170–75 (arguing that IRAC fails to teach flexibility and creativity; a better approach would be to focus instruction on analysis of facts, issues, research results, sources of law, analysis and problem solving skills); Mendenhall, supra n. 2, at 32–33 (concluding that the use of a structure like IRAC inhibits writers who feel they need to “fit” their thoughts into the formula); Spyke, supra n. 2, at 16 (arguing that IRAC should not be taught as a method of organizing legal writing because it lacks sophistication); Venter, supra n. 2, at 624–26 (arguing that paradigms are too limited to allow analytical skills to develop); Vorenberg, supra n. 1, at 25–27 (urging de-emphasis of paradigms and more discussions with students about “what analytical content the legal reader needs and the best way to provide it”); Warren, supra n. 2, at 19 (concluding that IRAC erroneously encourages students “to [fit] printed facts into [a] form-fitted legal construct” rather than to “think about what is really going on” in the case).
11 Chestek, supra n. 2, at 130–32 (accepting that IRAC is a good tool for logical reasoning and small-scale organization, but proposing that we should also teach students how to tell a compelling story); Cunningham & Streicher, supra n. 2, at 159–64 (2007) (proposing a combination “learn-by-example” and “step-by-step” approach to teaching persuasive writing based on IRAC); Honabach, supra n. 2, at 8 (urging a focus on helping students sift through facts and law before formulating the “I” in IRAC but otherwise viewing “IRAC [as] a powerful tool for analyzing case materials, and for that matter, most every other legal problem”); Miller & Charles, supra n. 2, at 192–94 (accepting IRAC as a useful tool but urging a focus on the analytical tools that students must master to use it effectively); Pratt, supra n. 2, at 12–13 (arguing that IRAC “is only useful if our students understand what each of the components includes . . . and how to select the options necessary to presenting the analysis of the particular problem to their intended audience”).
12 See infra sec. III.
13 See e.g. Charles R. Calleros, Legal Method and Legal Writing 68 (5th ed., Aspen Publ’rs 2006); Teresa J. Reid Rambo & Leanne J. Pflaum, Legal Writing by Design 23–25 (Carolina Academic Press 2001).
14 See Michael B. W. Sinclair, What is the “R” in “IRAC”? 22 N.Y. L. Sch. J. Intl. & Comp. L. 87, 89–125 (2003) (arguing that what we conceive of as the “R” in IRAC—rules derived from precedent—lack authoritative backing because courts do not have the power to create law).
15 See Creswell, supra n. 2, at 17 (stating, in the context of exam structure, that IRAC falsely suggests there is only one applicable set of rules when in fact the rules are often uncertain).
16 See, e.g., Rice et al., supra n. 2, at 13 (listing the omission of rule synthesis as one reason why IRAC is overly simplistic and incomplete).
17 See Honabach, supra n. 2, at 8 (stating that IRAC fails to emphasize that students must sort through facts and legal rules before they can “formulate the I of IRAC”); Kedia, supra n. 2, at 150 (criticizing IRAC for not assigning “appropriate weight to the different parts of its structure” or providing “explanation of the content of each of its sections”); Pratt, supra n. 2, at 12–13 (asserting IRAC “is useful only if our students understand what each of the components includes . . . and how to select the options necessary to presenting the analysis . . . to their intended audience”); Rice et al., supra n. 2, at 13 (arguing that IRAC is “overly simplistic” and “incomplete” because it omits policy considerations, rule synthesis, and consideration of contrary arguments); Wojcik, supra n.2, at 16 (noting that students may fail to include “adequate explanation” of the rules in the “R” component of IRAC).
18 See infra notes 20–35 and accompanying text.
19 A questionnaire-based survey conducted by Terrill Pollman and Judith Stinson revealed additional acronyms. Terrill Pollman and Judith M. Stinson, IRLAFARC! Surveying the Language of Legal Writing, 56 Me. L. Rev. 239, 261–62 (2004). However, the current article focuses only on acronyms that have been proposed in textbooks and scholarly articles.
20 Rambo & Pflaum, supra n. 13, at 26.
21 Calleros, supra n. 13, at 331; Michael R. Fontham, Michael Vitello, & David W. Miller, Persuasive Written and Oral Advocacy in Trial and Appellate Courts 11–12 (2d ed., Aspen Publ’rs 2007); Nadia E. Nedzel, Legal Reasoning, Research, and Writing for International Graduate Students 290 (2d ed., Aspen Publ’rs 2008); Diana V. Pratt, Legal Writing: A Systematic Approach 265 (4th ed., West 2004). The replacement of issue with conclusion (and, in other acronyms below, thesis) is an area of some disagreement, at least in the context of predictive writing, and will be explored later in this article. See infra n. 35.
22 Lebovits, supra n. 2, at 64.
23 Mary Beth Beazley, A Practical Guide to Appellate Advocacy 62 (2d ed., Aspen Publ’rs 2006).
24 Richard K. Neumann, Jr., Legal Reasoning and LegalWriting 93–95 (6th ed., Wulters Kluwer 2009).
25 Blumenfeld, supra n. 2, at 3–4.
26 Slotkin, supra n. 2, at 14.
27 Rice, et al., supra n. 2, at 13.
28 Contento, supra n. 2, at 8–9.
29 Temple, supra n. 2, at 131–34.
30 Beazley, supra n. 2, at 2.
31Wojcik, supra n. 2, at 16.
32 Jacobson, RAFADC, Not IRAC, supra n. 2, at 9.
33 Narko, supra n. 2, at 47–48.
34 Murray, supra n. 2, at 136; see also Michael D. Murray & Christy Hallam DeSanctis, Advanced Legal Writing and Oral Advocacy: Trials, Appeals, and Moot Court 507 (Found. Press 2009).
35 Cauthorn, supra n. 2, at 4–5.
36 While textbook authors seem to agree that persuasive analyses should always state the conclusion at the beginning, they differ on whether the same is true in predictive analyses. Nine of the twenty-five textbooks reviewed in this study clearly addressed whether the discussion section of a predictive memorandum should begin with the issue or the conclusion. Of these nine, four expressly differentiated between persuasive writing, which they stated should begin with the conclusion, and predictive writing, which, due to its neutrality, they stated should begin with identification of the issue. Calleros, supra n. 13, at 331; Linda H. Edwards, Legal Writing: Process, Analysis, and Organization 305 (5th ed., Aspen Publ’rs 2010); Nedzel, supra n. 21, at 290; Pratt, supra n. 21, at 88, 265. The other four, however, stated that legal analyses of all kinds should state the conclusion up front. Bradley G. Clary & Pamela Lysaght, Successful Legal Analysis and Writing: The Fundamentals 84 (3d ed., West 2010); John C. Dernbach, et al., A Practical Guide to Legal Writing & Legal Method 265 (4th ed., Aspen Publ’rs 2010); Neumann, supra n. 24, at 95; Rambo & Pflaum, supra n. 13, at 26; Nancy L. Schultz & Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills 42–44 (5th ed., Aspen Publ’rs 2010). One rationale for stating the conclusion up front is that legal readers do not want to be kept in suspense regarding the author’s conclusion. Schultz & Sirico, Jr., at 42–44. Another rationale is that since the purpose of predictive writing is to predict outcomes, the predicted outcome should be stated up front. Dernbach, at 265. The articles did not speak much to the issue-versus-conclusion question. However, four articles indirectly addressed the question: two seemed to suggest that all forms of writing, including predictive writing, should begin with the conclusion or thesis, Cauthorn, supra n. 2, at 4–5; Durako, supra n. 2, at 6; see also Lebovitz, supra n. 2, at 64 (proposing a paradigm that starts with the conclusion for persuasive writing, but not specifically stating that it should be used in predictive writing); Narko, supra n. 2, at 47 (proposing a paradigm that starts with the thesis but providing only one example, which happens to be a brief). The other two articles adhered to some version of IRAC for predictive writing and some version of CRAC for persuasive writing. Calleros, supra n. 2, at 4; Rice et al., supra n. 2, at 13.
37 Compare Slotkin, supra n. 2, at 14, and Rice et al., supra n. 2, at 13 (placing policy at the end of the paradigm), with Neumann, supra n. 24, at 94 (placing policy within the “R” section).
38 Linda Bahrych & Marjorie Dick Rombauer, Legal Writing In a Nutshell 33–34 (3d ed., West 2003); Beazley, supra n. 23, at 61–76; John Bronsteen, Writing a Legal Memo 59–64 (Found. Press 2006); Calleros, supra n. 13, at 331; Veda R. Charrow, Myra K. Erhardt, & Robert P. Charrow, Clear and Effective Legal Writing 147–54 (4th ed., Aspen Publ’rs 2007); Clary & Lysaght, supra n. 36, at 81–91; Edwards, supra n. 36, at 83; Michael R. Fontham, et al., supra n. 21, at 11–12; Murray & DeSanctis, supra n. 34, at 503–46; Nedzel, supra n. 21, at 290; Neumann, supra n. 24, at 93–95; Pratt, supra n. 21, at 88, 265; Rambo & Pflaum, supra n. 13, at 26; Deborah A. Schmedemann & Christina L. Kunz, Synthesis: Legal Reading, Reasoning, and Writing 101–09 (3d ed., Aspen Publ’rs 2007).
39 Dernbach, supra n. 36, at 151–53; Kristen Konrad Robbins-Tiscione, Rhetoric for Legal Writers: The Theory and Practice of Analysis and Persuasion 244 (Thomson Reuters 2009) (noting that “small scale organization” of each legal discussion should include the issue, rule, explanation of the rule, application of the rule, and conclusion); Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 140–44, 201–03; Austen L. Parrish & Dennis T. Yokoyama, Effective Lawyering: A Checklist Approach to Legal Writing & Oral Argument 77–78 (Carolina Acad. Press 2007); Mary Barnard Ray, The Basics of Legal Writing 65–66 (rev’d 1st ed., Thomson/West 2008); Schultz & Sirico, Jr., supra n. 36, at 41–44, 140–41; Helene S. Shapo, Marilyn R. Walter & Elizabeth Fajans, Writing and Analysis in the Law 143–52 (5th ed., Found. Press 2008); Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 112–13 (2d ed., Matthew Bender & Co. 2006) (noting that although “the deductive pattern of analysis” advocated in the book “follows a pattern similar to IRAC[,] . . . the organizational structure of a legal discussion is somewhat more complicated, and fluid, than a literal adherence to IRAC might otherwise suggest.”); Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 32, 76–77 (Aspen Publ’rs 2008) (Smith calls rule explanation an “illustrative narrative,” but the organization he proposes is otherwise identical to IRAC).
40 Beazley, supra n. 23, at 66; Calleros, supra n. 13, at 220–29; Dernbach, supra n. 36, at 173; Edwards, supra n. 36, at 134–36; Murray & DeSanctis, supra n. 34, at 70, 511–17; Nedzel, supra n. 21, at 200–03, 285–86; Neumann, supra n. 24, at 114; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 140–44; Ray, supra n. 39, at 65–66; Schmedemann & Kunz, supra n. 38, at 362 (offering a sample that includes a “procedural rules” paragraph); Shapo, et al., supra n. 39 at 145–46; Michael R. Smith, supra n. 39, at 76; see also Rambo & Pflaum, supra n. 13, at 34 (step number six seems to describe an initial paragraph on the law that precedes specific points).
41 Oates, et al., Just Briefs, supra n. 9, at 34–37; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 136–69, 201–15, 223–39; see also Rambo & Pflaum, supra n. 13, at 26, 34, 560–654 (describing a CRAC-like paradigm but offering examples that use statements about the case at hand as topic sentences to introduce new “R” paragraphs); Robert Barr Smith, The Literate Lawyer: Legal Writing and Oral Advocacy 91–98 (Vandeplas Publ’g, 4th rev’d ed. 2009) (offering a sample legal research memorandum that vacillates between paragraphs regarding the law and paragraphs applying the law to the case at hand).
42 Benfield, Jr., supra n. 2, at 17 (noting two Cardozo opinions that both mix facts, ideas, conclusions, and common sense with discussion of the law); Vorenberg, supra n. 1, at 17–19 (reporting that of three briefs the authors asked seven judges to rate, an integrated brief received a higher average score and that “several judges” commented in interviews that “where a particular legal issue is settled and is frequently before the court[,]” there is no need for a separate explanation of the law before the analysis of the facts of the particular case).
43 Chestek, supra n. 2, at 132.
44 Nedzel, supra n. 21, at 294 (noting that when more than two factors are involved, if the writer explains all factors before applying any of them, “the reader may quickly lose sight of the factors, what they mean, and which are in your client’s favor”); Ray, supra n. 39, at 79 (Applying each component of a legal test right after explaining it offers the advantage of “keeping the application close to the law, so the reader has the law fresh in his or her mind while reading the application” but “[i]t has the disadvantage . . . of making it harder to see how the law fits together as a whole.”); Schmedemann & Kunz, supra n. 38, at 107 (proposing that because a reader’s ability to absorb legal material is limited, in complicated legal analyses the writer is better off vacillating between rules and applications rather than presenting all rules up front).
45 For ease of reference, this article refers to the sequences as “IRAC” sequences. However, as discussed in note 35, many scholars advise starting with the conclusion or thesis rather than a statement of an issue.
46 Beazley, supra n. 23, at 63; Calleros, supra n. 13, at 228; Clary & Lysaght, supra n. 36, at 93–94; Contento, supra n. 2, at 8–9; Edwards, supra n. 36, at 136; Kunz & Schmedemann, supra n. 2, at 11–12; Murray & DeSanctis, supra n. 34, at 507, 546; Neumann, supra n. 24, at 113; Pratt, supra n. 19, at 265; Rambo & Pflaum, supra n. 13, at 34; Ray, supra n. 39, at 77, 80; Schmedemann & Kunz, supra n. 38, at 107; Shapo, et al., supra n. 39 at 118–19, 143–52; Slocum, supra n. 39, at 115; see also Fontham, et al., supra n. 21, at 46 (suggesting separation of the analysis by argument); Robbins-Tiscione, supra n. 39, at 244 (not adopting a paradigm, but stating that a legal analysis should be separated by issue and that analysis of each issue should be organized around the applicable rules).
47 Beazley, supra n. 23, at 63; Calleros, supra n. 13, at 228 (endorsing separate IRACs by subissue unless a subissue does not require great depth of discussion); Clary & Lysaght, supra n. 36, at 93–94; Contento, supra n. 2, at 8–9; Dernbach, supra n. 36, at 148; Murray & DeSanctis, supra n. 34, at 507, 546 (endorsing separate sequences for a rule that presents multiple questions to answer); Neumann, supra n. 24, at 113; Pratt, supra n. 21, at 169; Schultz & Sirico, Jr., supra n. 36, at 140; see also Edwards, supra n. 36, at 133–40 (endorsing separate sequences for subissues unless the courts tend to take a more “unified view” on the issue); Fontham, et al., supra n. 21, at 46 (advising separate sequences by argument). But see Clary & Lysaght, supra n. 36, at 94 (cautioning that too many IRACs may lose the big picture and suggesting that the writer vary the sequence to occasionally omit the issue or conclusion to avoid monotony).
48 Calleros, supra n. 13, at 332 (calling for headings for each issue); Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 138 (suggesting headings for each sequence); Ray, supra n. 39, at 110–13 (including a sample memo that uses headings for each sequence and an annotation stating that subheadings “can be helpful” when the discussion is divided by subissue); Slocum, supra n. 39, at 115–16 (requiring headings); see also Parrish, supra n. 38, at 31 (stating that the argument section of a brief should be divided into headings, which each give an “independent reason” for the author’s conclusion).
49 Dernbach, supra n. 36, at 421–28 (including a sample memorandum that uses separate sections for each sequence); Edwards, supra n. 36, at 380–84 (incorporating headings into the sample memorandum with multiple sequences); Neumann, supra n. 24, at 452–56 (offering a sample memorandum that uses headings for each sequence); Schultz & Sirico, Jr., supra n. 36, at 141–43 (providing a sample of sequences divided by headings).
50 Clary & Lysaght, supra n. 36, at 94–95 (endorsing multiple sequences within a single heading but advising that writers include transitional language to link multiple sequences); Shapo, et al., supra n. 39, at 152–57 (endorsing multiple sequences by issue without requiring headings for each sequence), 565–72 (offering samples that include multiple sequences that are not separated with headings).
51 Schmedemann & Kunz, supra n. 38, at 107; Ray, supra n. 39, at 79–80; see also Rambo & Pflaum, supra n. 13, at 569–654 (offering samples that follow, in part, an RARARA organization); Shapo, et al., supra n. 39, at 154–55 (offering a sample analysis that vacillates between rules and application of rules).
52 Calleros, supra n. 13, at 304–09; Dernbach, supra n. 36, at 61–68, 176–82; Edwards, supra n. 35, at 53–55; Fontham, et al., supra n. 20, at 58–61; Murray & DeSanctis, supra n. 34, at 58–60; Nedzel, supra n. 21, at 200–01; Neumann, supra n. 24, at 155–56; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 149–53; Rambo & Pflaum, supra n. 13, at 90–91; Ray, supra n. 39, at 96–97 (discussing synthesis in the annotations to a sample); Robbins-Tiscione, supra n. 39, at 139–150; Schmedemann & Kunz, supra n. 38, at 41–48; Shapo, et al., supra n. 39, at 80–85, 146–47; Slocum, supra n. 39, at 145–65; Michael R. Smith, supra n. 39, at 32–42, 67–73.
53 Beazley, supra n. 23, at 168–69; Calleros, supra n. 13, at 234–35; Dernbach, supra n. 36, at 202–03; Edwards, supra n. 36, at 90–92; Rambo & Pflaum, supra n. 13, at 121; Murray & DeSanctis, supra n. 34, at 522–23; Nedzel, supra n. 21, at 207–08; Neumann, supra n. 24, at 207–11; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 488–89; Ray, supra n. 39, at 96–97 (discussing topic sentences in the annotations to a sample), 186–88 (using, in a sample, topic sentences that state contentions about law); Schmedemann & Kunz, supra n. 38, at 362–68 (using, in a sample, topic sentences that state contentions about the law); Shapo, et al., supra n. 39, at 146–47, 209–15.
54 Bahrych, supra n. 38, at 41–50; Dernbach, supra n. 36, at 203–06; Fontham, et al., supra n. 21, at 124; Neumann, supra n. 24, at 207–11; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 497–512; Schmedemann & kunz, supra n. 38, at 126–27; Shapo, et al., supra n. 39 at 215–19.
55 Beazley, supra n. 23, at 172–73; Edwards, supra n. 36, at 301–04; Fontham, et al., supra n. 21, at 46–47, 72–73; Murray & DeSanctis, supra n. 34, at 70; Nedzel, supra n. 21, at 285–86; Neumann, supra n. 24, at 114, 118; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 477–78; Ray, supra n. 39, at 65–69; Schmedemann & Kunz, supra n. 38, at 126–27; Shapo, et al., supra n. 39, at 164–67.
56 Beazley, supra n. 23, at 172–73; Fontham, et al., supra n. 21, at 47; Schmedemann & Kunz, supra n. 38, at 363 (annotation identifies a mini-roadmap for a subdivision of the analysis); Shapo, et al., supra n. 39, at 164–67.
57 Dernbach, supra n. 36, at 227–34; Oates & Enquist, The Legal Writing Handbook, supra n. 9, at 478–79; Ray, supra n. 39, at 140–42; Michael R. Smith, supra n. 39, at 77 (presenting a sample that uses a signpost).