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The Corporate Lawyer
The newsletter of the ISBA’s Corporate Law Departments Section

October 2012, vol. 50, no. 2

Writing briefs judges want to read

Recently, I wrote a response to a motion for an in-house attorney. Using my carefully crafted IRAC formula the bolded point headings sat poised in the middle of the pages like sultry steaks. One whiff and you are bound for the first sentence then rushed down by the white spaces into a block quote of the rule. The unsuspecting reader now moves as if unconsciously to the beginning of the next paragraph.

Lying in wait at the indentation is a quote from the poetic annoyance of appellate writing seeping reality into the rule. The application of the facts now beats with a command of authority concluding with a pointed, decisive answer to the issue.

These are the pearls of legal research. This is the art of legal writing.

I. When Writing A Brief, Know The Judge’s Docket

Writing well for litigation is two-fold. First, you want to get the judge actually to read what you write. Second, you want the judge to agree with what you write.

Primarily, writers must understand the nature of a judge’s docket and the actual time a judge has to read anything submitted. This is important especially for in-house counsel unfamiliar with the day-to-day nuances of courtroom work. In state court, for example, a judge can have a hundred cases on the morning docket alone daily. Judges, therefore, often do not have time to read lengthy or poorly written documents. Writing well for this atmosphere requires calculated strategies.

II. IRAC Is Expert Legal Analysis

Surprisingly, many lawyers are unfamiliar with or have forgotten IRAC – the method of legal analysis employed in the attention-getter of this article. Indeed, the in-house lawyer for whom I wrote the referenced response asked me once he received it, “What is IRAC?” Younger lawyers learn this method in droves. But even learning it is a far cry from understanding its practical application.

IRAC stands for “Issue; Rule; Application; Conclusion.” The Issue (“I”) explains in one sentence the question the IRAC analysis will resolve. The Rule (“R”) establishes the controlling authority. But since the Rule sits on the coattails of the Issue it is wedged in with blunt force to choke out any objection that another Rule may apply. This permits the Application (“A”) to cherry-pick the necessary facts for a fine-point conclusion. The Conclusion (“C”) you need the judge to understand now spins with the force of a tornado poised for anything in its path – the contrary arguments set forth by your opponent.

Strategically, your document needs to be front-loaded with the favorable IRAC analysis at the beginning for two reasons. First, it drives the judge immediately to the correct conclusion which, naturally, is yours. Second, it makes your opponent’s arguments easier to attack. Incidentally, each of your opponent’s arguments should receive its own IRAC analysis in your brief so that you have the ability to construct your opponent’s tornados to be as strong or as weak as you need them.

Now your tornado is ready to drive against your opponent warping the very facts their analysis breathes into the power that drives yours. In other words, IRAC is focused, powerful, and cuts like a knife.

III. Each IRAC Analysis Needs A Calculated Point Heading

Using IRAC effectively in a brief requires well-crafted point headings. Therefore, each IRAC analysis should get its own point heading. Point headings catch a judge’s eyes and burn into his mind the one thought you need him to remember. Most importantly, they set clear parameters for each analysis which also works to road-map a document. This is a great control mechanism for the babbler unfamiliar that the rush in courtrooms needs focused people.

Expertly crafted point headings are about two full lines. Anything more is too much for someone’s eyes on a quick read. Compelling point headings are declarative statements – always favorable to your conclusion – of the IRAC analysis that it introduces. It is the one thought that you need the judge to remember. For example, when I draft my briefs if my one thought is “I am right, and you are wrong,” I literally use that as my point heading to drive the focus of that IRAC analysis. Once the analysis is complete I rewrite the point heading so that it is expertly crafted.

Strategically, if the judge does not have the time to read your brief then he can scan the point headings for an expert summation of your position (always first) and then your opponent’s (limping along in second). If he did read your brief but is caught among the hundred cases that morning then when you are before him he has the ability to scan your brief catching only your expertly-crafted point headings. If the section it represents is short enough you give the judge the ability read it while on the bench.

IRAC analysis coupled with point headings is one of the best calculated strategies to write well for litigation.

IV. Visual Beauty Of Each IRAC Analysis Is A Two-Step Process

Once the parameters of each IRAC analysis are set off by point headings the visual beauty of the section is easier to manipulate since the hard work is largely conquered. Therefore, the face of the paper, the position of paragraphs, bolded sentences, and even a hyphen can give a document anything from antique appeal to guerrilla warfare.

The first step to visual beauty is to use the white spaces effectively. The white spaces are like the walls of a canyon holding deep within it the refreshing waters of expert legal writing. For example, if the rule in your IRAC analysis is unfavorable to you use a block-quote of it so that the reader naturally does not want to read it. Instead, the white spaces gently guide the reader to the next paragraph beginning with a quote explaining the rule in the way you want it interpreted.

The second step to visual beauty is well-used punctuation marks. Like the cook that spoils dinner with too many hot peppers is the writer who saturates his work with too many commas and semi-colons. This just leaves the reader choking through the document. The inexpert hand is obvious when the comma signals the breath the writer took when writing and not the grammar rule pursuant to which the comma is employed. Simple sentences create simple beauty. Punctuation marks, much like hot peppers, heat up important points that the judge’s eyes must see and remember.

Visual beauty that uses the white spaces of a document and properly employed punctuation marks are the finishing touches on a brief.

V. The Result Is Iron-Clad Legal Analysis

Legal writing is the backbone of courtroom work. Writing in a fashion that gets a judge to read your brief incorporates more than creating iron-clad legal analysis. Legal analysis is the fabric of the document. The author’s use of the English language and his ability to use the contours of the page give beauty to the brief.

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Christine is a solo practitioner in Aurora, IL. She focuses her practice on person and small business legal needs and legal writing for other lawyers.