Tackling the most important topics of law school, Part 4b: Making your case with IRAC and legal writing
August 22, 2013
(Editor’s note: Over the next ten weeks, we’ll be covering some of the most prominent legal concepts taught in law school to help students faced with these topics, whether for the first time or as part of a review, better comprehend them.)
Part 1 of this topic dealt with the statements of facts and issues as part of an effective legal writing. These sections help lay the groundwork for executing your argument to its fullest efficacy.
In this part, we’ll be covering the actual execution of your argument: the “Rule,” “Application,” and “Conclusion” – the respective “R,” “A,” and “C,” of “IRAC.”
“Rule” is where you state the pertinent holdings of law. These holdings can be statutes, specific court rulings, or common law (which can draw upon court rulings, statutes, and secondary sources like Restatements).
There are two ways of approaching the “rule:” the advocate and the scholar.
If you are simply answering an essay question on a law school exam, you will be writing from the perspective of the scholar, in that you will be exploring the issue in detail to impartially find a conclusion.
When writing the “rule” from this perspective, you should bring as many rules of law in as is relevant for the purpose of exploring the maximum number of potential outcomes. For the “scholar” perspective, the journey is more important than the destination.
Conversely, you are the advocate if you already have a specific position which you are backing. This is not an exploration as much as it is guiding the reader down the road to your desired conclusion. As such, your job is not to map the area, but to lay as clear and easy a path for the reader to follow as possible.
For the advocate, simply reciting a litany of laws and court cases is not enough. In much the same way that the advocate would approach the “facts” section, the advocate constructs the “rule” by emphasizing certain rules of law (namely, those beneficial to his or her position) over others (those detrimental).
Again, just as with the facts, you are only hurting yourself by omitting details detrimental to your argument by allowing your opposition an easy rebuttal or an uncontested assertion. Instead, include the court rulings detrimental to your position, but phrase the legal holdings contained therein in such a way that distinguishes the cited case from your own.
The aptly named “application” section applies the “rule” to the “facts” to resolve the “issue.”
Depending on whether you are writing from the “scholar” or the “advocate” perspective, the “A” can also stand for “analysis” or “argument” respectively.
For the scholar, the “application” section is best thought of as an analysis – one in which every possibility must be explored.
There’s an especially important point to note if you happen to be writing a law school essay exam (which comprise the vast majority of IRACs written from the “scholar” perspective): don’t assume anything is too obvious to explain.
For example, when writing a law school essay exam answer, don’t assume the reader already knows the elements of a specific tort. Explain what the elements are. Don’t assume that a particular element was present and move on to the next point. Explain why the element is present.
You are not being tested on whether you can reach the correct conclusion, but whether you are able to effectively evaluate the facts, the applicable law, and create a coherent analysis putting it all together.
In contrast with writing your “application” section as an “advocate,” your goal shouldn’t be to direct the reader to a single conclusion, but to explore all of the possibilities on a given legal question. In effect, you are providing both sides of a legal argument from the “scholar” perspective.
Actually, this is somewhat true when writing from the “advocate” perspective as well, but you are only exploring the opposition’s legal argument for the purpose of disqualifying it.
In many ways, this is more difficult than the scholar approach; first, because you are tasked with anticipating and refuting your opponent’s argument, and second, because you may be faced with disqualifying the better legal argument.
Still, the “scholar” approach is a good place to start, since you will need to explore every possible angle of the legal question that you’re facing. The “advocate” approach just requires the additional step of exploring why arguments opposed to yours are legally flawed.
Obviously, even if your research tells you that your opponent has the superior legal ground, you should never admit it in your writing; instead, find any possible points of fact or law that may make any legal authority relied upon by your opposition appear less relevant to your case (e.g. “this case is different from Case X because of Fact Y”).
Finally, in addition to arguments of law and fact, you can argue policy reasons why the reader should side with you or against your opponent.
“Policy” arguments can be looking at what the legislature intended when passing a certain statute, or examining potential effects of resolving a question of law one way or another. Some of the less imaginative manifestations of the latter argument are alarmist in nature (e.g. “ruling for my opponent will open the courtroom doors to a flood of frivolous litigation), but they work more often than they should – so be aware.
After you feel that you’ve covered all of the possible ground on the legal issue, you move toward wrapping it up in the conclusion.
Your conclusion shouldn’t state any new arguments or rules of law. It’s only serves as an end point that summarizes the journey that you took the reader on through your “application” section.
Despite the seemingly simple nature of this section, it serves an important purpose: helping to determine if your “application” section makes sense.
If your conclusion reaches a destination, but a reader is unsure of how he or she got there from your “application,” you need to go back to your “application” and lay out your analysis or argument (as the case may be) more clearly.
If your conclusion makes sense, then the rest of your argument should also makes sense.
These are just the basics of effective legal writing. There is so much more to it than described in either of these posts, and it is something that many attorneys never master.
Nevertheless, being able to construct effective written legal arguments is an invaluable skill, both in law school and in practice.