06 · The Classroom

Legal Writing

Every document you will be asked to produce, whether it is an office memo, a trial brief, an appellate brief, or a two-line email, rests on the same thing: a sound analysis, organized so the reader can follow it without working for it. Get the analysis right and the formats stop feeling like a pile of unrelated forms. They start to look like one idea wearing different clothes. For the citation rules these documents lean on, the companion Bluebook guide handles the details.

Before you pick a format, it helps to know what every legal document is actually trying to do. The format is just the container. The analysis is what goes inside it. Once you see that a memo, a brief, and an email are all built from the same underlying analysis, the whole subject gets a lot smaller.

The architecture of legal analysis

Legal writing communicates an analysis. It states a legal question, gives the governing rule, explains what that rule means, applies it to a specific set of facts, and reaches a conclusion. An office memo and an appellate brief look nothing alike on the page, but both are built from that same sequence. Learn the sequence first and the formats get easier, because each one is just a different way of presenting it.

Predicting versus persuading

Legal documents mostly differ in their posture. In predictive (or objective) writing, you predict how a court will resolve a question and report that prediction honestly, weaknesses included. Your reader is usually a supervising attorney or the file itself, and the office memo is the classic example.

In persuasive writing, you argue for the outcome your client wants and present the law and facts in the best honest light, while staying candid with the tribunal. Your reader is a court, and the trial brief and appellate brief are the classic examples. The analysis underneath is identical. Only the posture changes. A memo that honestly predicts a loss and a brief that argues for a win can rely on the very same cases.

How sound analysis is built

Good analysis usually blends three kinds of reasoning, held together by reasonable factual inferences.

Rule-based reasoning applies the elements or factors of a rule directly to the facts. If the rule requires three things, you show whether each one is there.
Analogical reasoningcompares your client's facts to the facts of decided cases, drawing analogies to helpful precedent and distinctions from the cases that hurt you.
Policy-based reasoning explains why the result you are urging serves the purpose the rule was built to advance.

CREAC, the organizing paradigm

Almost every legal writing program teaches one template for analyzing a single issue, and the many named variants all reduce to the same idea. I use CREAC here: Conclusion, Rule, Explanation, Application, Conclusion. It is deductive reasoning, moving from the general (the rule) to the specific (the rule applied to these facts). Used well, it makes an argument easy to follow, because the reader always knows where in the analysis you are.

Conclusion. State, up front, the point the section will prove. This is the topic sentence that orients the reader and previews the block.

Rule. State the governing rule, quoted or paraphrased from mandatory authority and synthesized where several cases combine into one standard.

Explanation. Show what the rule means by illustrating how courts have applied it, using the facts, holdings, and reasoning of the precedents that give it content.

Application. Apply the rule to your client's facts, drawing analogies and distinctions to the cases you just explained. This is where "Here," does its work.

Conclusion. Restate the conclusion, now earned. "Therefore," closes the loop that the opening conclusion opened.

Two discipline points

First, finish the explanation before you start the application. Resist the urge to interleave a little rule, then a little application, then a little more rule. Let the reader understand the rule completely before they watch it operate on the facts.

Second, use one CREAC block for each part of the rule. A rule with three elements usually calls for three blocks, ordered the way the rule is ordered, or, where strategy favors it, with the most contested element first. This structure shows up in everything that follows. In a memo it predicts, in a brief it persuades, in an email it compresses to a few sentences. The skeleton does not change.