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CLE Materials New Jersey & New York Tracks, Day 2

Addendum

BRIDGE THE GAPSatisfy a full year of CLE credits

in one weekend

May 14–15, 2016

Fordham Law SchoolSkadden Conference Center

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Bridge the Gap May 15, 2016 | 9:30 a.m. -‐ 5:30 p.m. Fordham School of Law | Skadden Conference Center New York and New Jersey Tracks Plenary Sessions TABLE OF CONTENTS: Session 3: Employment Law Basics CLE: NY Professional Practice (1); NJ General (1) Addendum

§ PowerPoint Presentation: Employment Law Basics

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FORDHAM BRIDGE THE GAP

EMPLOYMENT LAW BASICS Sunday, May 15, 2016

Walker G. Harman, Jr., Partner

Edgar Rivera, Associate

The Harman Firm, LLP

Introduction

Ø  Pre-employment ¤  At-will doctrine ¤  Arbitration Agreements ¤  HR Policies

Ø  Statutory Rights ¤  Federal, State and City Anti-Discrimination

Law ¤  Wage and Hour Law

Ø  Post-employment ¤  Restricted Covenants ¤  Waivers

The Harman Firm, LLPThe Harman Firm, LLP 2

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Part I

Pre-Employment


1. At-will doctrine

Ø  Termination at any time, without notice. Ø  Presumed for private employers unless there

is a written contract establishing a defined period.

Ø  Not presumed for the union sector or the public sector.

At-will Doctrine


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2. Arbitration agreements

Ø  Arbitration agreements do not change parties’ substantive rights.

Ø  Purpose of the Federal Arbitration Act: ¤ To place arbitration agreements on the same

footing as other contracts.

Ø  Arbitration is better suited for collective claims.

The Harman Firm, LLPThe Harman Firm, LLP

Arbitration Agreements

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Ø  Breach of contract: ¤  If the plaintiff shows that the employer made

employees aware of an express written policy limiting the right of discharge.

Ø  An employer’s disclaimer can maintain at-will status of employment.

The Harman Firm, LLP, LLP

HR Policies and Practices

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Part II - Statutory Rights: Federal, State and City Anti-Discrimination law

The Harman Firm, LLPLLP

Part II

Statutory Rights: Federal, State and City Anti-Discrimination law

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Ø  Disparate treatment: ¤ Presenting evidence of discriminatory

intent (direct evidence). ¤ Meeting the McDonnell Douglas test

requirements (circumstantial evidence). Ø  Disparate impact:

¤ Statistical proof of a pattern and practice of discrimination.

¤ Requires statistical evidence.

The Harman Firm, LLPLP

Proving Discrimination

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1. Proving discrimination (2)

Ø  Harassment: ¤ Unwelcome conduct based on protected

characteristics ¤ Quid pro quo / hostile work environment

Ø  Retaliation: ¤ Participation in protected activity ¤ Adverse employment action ¤ Connection between protected activity and

employment action

The Harman Firm, LLPrm, LLP

Proving Discrimination cont…

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Ø  Disparate treatment

¤  Liability depends on whether the protected trait actually motivated the employer’s decision.

¤  Discriminatory intent can be shown through direct or circumstantial evidence.

¤  The ultimate question in every disparate treatment employment discrimination claim is whether the plaintiff was the victim of intentional discrimination.

The Harman Firm, LLPirm, LLP

Theory of Disparate Treatment

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Ø  Direct evidence

¤ Oral or written policy which is discriminatory on its face.

¤  Statements demonstrating unlawful bias against the plaintiff with respect to the employment decision at issue.

¤ Facially discriminatory job assignments.

The Harman Firm, LLP Harman Firm, LLP

2. Theory of Disparate Treatment

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Ø  McDonnell Douglas Standard of Evidence (prima facie evidence) ¤ Plaintiff must establish a prima facie case of

discrimination by showing: n  Membership in a protected group, n  Qualification for the job, n  Adverse employment action, and n  A casual connection between the adverse action and

protected classification.

The Harman Firm, LLPrm, LLP


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Ø  McDonnell Douglas Standard of Evidence (continued) ¤ Legitimate nondiscrimination reason:

n  The employer carries the burden of production. n  Examples:

n  Misconduct n  Poor work performance n  Insubordination n  Inferior test scores n  Being overqualified for the job n  Greater familiarity with another employee

The Harman Firm, LLPLP


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Ø  McDonnell Douglas Standard of Evidence (continued) ¤ Legitimate non-discriminatory reason

n  In order to prevail, the plaintiff must establish that the employer’s allegedly legitimate, nondiscriminatory reason was a pretext to mask unlawful discrimination.

n The plaintiff always carries the burden of persuasion. n The standard for discrimination claims is a

preponderance of the evidence, like most statutes that seek money damages.


Theory of Disparate Treatment

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Federal Law

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Ø  Who is covered by federal law? ¤ All public and private employees working in the

U.S. ¤ U.S. citizens employed by U.S. or U.S. controlled

companies outside of the U.S.

Ø  Who is not covered by federal law? ¤ Foreign citizens employed by U.S. or U.S.

controlled companies outside of the U.S. ¤ U.S. citizens employed by foreign companies

outside of the U.S.


Coverage

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Ø  Federal Statutes: ¤ Civil Rights Act of 1866, 42 U.S.C. § 1981 ¤ Title VII of Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq. ¤ The Age Discrimination in Employment Act, 42

U.S.C. §§ 621 et seq. ¤ The Americans with Disabilities Act, 42 U.S.C.

§§ 1201 et seq. ¤ Family and Medical Leave Act, 29 U.S.C. §§

260q et seq.


Statutes Creating Substantive Rights

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42 U.S.C. § 1981

Ø  Discrimination based on race and color: ¤ Enacted to prevent discrimination in contracting,

which has been extended to employment. ¤ Race is defined to include ancestry and ethnic

characteristics. ¤ Does not protect against discrimination based on

national origin. ¤ Protects against discrimination based solely on

ancestry or ethnic characteristics.


42 U.S.C. § 1981

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Ø  Provides that it is unlawful for an employer: (1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

The Harman Firm, LLPP

Title VII

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Ø  Prohibits an employer from ¤  Disparate treatment ¤  Disparate impact ¤  Retaliation and interference ¤  Discrimination through contractual or other relationship ¤  Discrimination on the basis of association

Ø  Requires an employer to ¤  Make reasonable accommodation ¤  Make testing accessible ¤  Limit medical inquiries and examination


Americans with Disabilities Act

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Ø  (a) It shall be unlawful for an employer- (1) to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.


Age Discrimination in Employment Act

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Family and Medical Leave Act

Ø  Prohibits an employer from

¤  Interference n Prohibits an employer from denying and interfering

with benefits to which an employee is entitled under the FMLA.

¤ Retaliation n Prohibits retaliation against an individual who

requests or uses FMLA leave.


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23

New York State and Related City Protected Classes

The Harman Firm, LLParman Firm, LLP 23

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Protected Classes Under State and City Law

New York State Human Rights Law New York City Human Rights Law

Age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status

Actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation or alienage or citizenship status

The Harman Firm, LLParman Firm, LLP 24

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Ø  The Restoration Act ¤ Sexual harassment ¤ Retaliation ¤ Disability ¤ Pregnancy ¤ Age ¤ Individual Liability ¤ Remedies


Differences Between Federal, State and City Law

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Ø  Courts must construe the NYCHRL “independently from similar or identical provisions of New York State or federal statutes” and to “[view] similarly worded provisions of [those laws] as a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”

Ø  This applies to the definition of a protected class and to the requirements for showing liability.


The Restoration Act

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Sexual Harassment Ø  Rejected the standard applied to state and

federal sexual harassment claims, which requires the conduct to be “severe or pervasive” to be actionable, in favor of a substantially more lenient standard that asks merely whether the individual “has been treated less well than other employees because of gender.”


The Restoration Act

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Retaliation Ø  Rejected the state and federal retaliation

standard requiring proof that the retaliatory conduct must be materially adverse, and instead found actionable all conduct that was reasonably likely to deter a person from engaging in a protected activity.


The Restoration Act

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Disability Ø  The First Department confirmed that, unlike its

state and federal counterparts, the NYCHRL extends the definition of “disability” to reach “any physical, medical, mental or psychological impairment,” and places the burden on the employer rather than on the employee to demonstrate that the employee could not perform the essential requisites of her job with reasonable accommodation.


The Restoration Act

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Pregnancy Ø  Under the amendment to the NYCHRL, a woman who is

pregnant or has given birth is entitled to reasonable accommodation due to the pregnancy, childbirth, or a related medical condition so that she can perform “the essential requisites of the job.”

Ø  It is unlawful for an employer to refuse to provide such reasonable accommodation when the employee’s pregnancy, childbirth, or related medical condition is known, or should have been known, by the employer, unless the employer can prove that the accommodation would cause an “undue hardship in the conduct of the [employer’s] business.”


The Restoration Act

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Age Ø  No but-for requirement for City age claims Ø  Under State and City law, “reverse” age

discrimination may be actionable.


The Restoration Act

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Remedies Ø  Federal

¤  Economic damages, compensatory damages, punitive damages, and attorneys’ fees (capped).

Ø  State ¤  Economic damages and compensatory damages (no attorneys’

fees). Ø  City

¤  Damages, including punitive damages, such as prevailing party costs and reasonable attorney’s fees.

¤  “Prevailing” includes a plaintiff whose commencement of litigation has acted as a catalyst to effect policy change on the part of the defendant, regardless of whether that change has been implemented voluntarily, as a result of a settlement or as a result of a judgment in such plaintiff’s favor.


The Restoration Act

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The Harman Firm, LLP

Part III

Statutory Rights: Wage and Hour

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Ø  Enacted in the 1930s as part of the New Deal Ø  Major effects include:

¤  Implementation of the eight-hour workday and the forty-hour workweek;

¤ Minimum wages law; and ¤ Time-and-a-half overtime pay.


Brief History of the Fair Labor Standards Act (FLSA)

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Ø  Overtime exemptions under the NYLL explicitly mirror those under the FLSA. 12 N.Y.C.R.R. § 142-3.2.

Ø  There are some differences: ¤ Statute of Limitations:

n FLSA: 3 years maximum n NYLL: 6 years maximum


New York Practice: FLSA vs. New York Labor Law

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Ø  Enterprise coverage: those working for employers with 2+ employees with more than $500,000 in gross sales or business are covered.

Ø  Individual Coverage: those engaged in interstate commerce or production of goods for interstate commerce are covered.

Ø  Domestic service workers are covered so long as they meet an earnings threshold of approximately $1,700/year and an hourly threshold of 8 hours/week.


FLSA Structure: Who is Covered?

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Ø  Employees are covered, not independent contractors Ø  Economic reality test, based on totality of

circumstances: ¤  The degree of control exercised by the employer over the

workers; ¤  The workers’ opportunity for profit or loss and their

investment in the business; ¤  The degree of skill and independent initiative required to

perform the work; ¤  The permanence or duration of the working relationship; and ¤  The extent to which the work is an integral part of the

employer’s business. Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (1988).

The Harman Firm, LLPP

More Structure: Who is Not Covered?

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Ø  Tests to determine whether employees are exempt: ¤ Salary Test ¤ Duties Test


Exemptions

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Ø  Most exemptions only apply to employees who earn at least $455 per week ($23,660 annually).

Ø  Additionally, to meet the salary test, the worker must be paid on a salary basis, on a weekly or less frequent basis.


Salary Test

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Ø  This is the meat of nearly all exemption analyses.

Ø  Each exemption has regulations defining the type of work the exemption is intended to include. ¤ Regulations establish elements that employee

must meet to be exempt. Ø  Job titles are not dispositive. Ø  Regulations use the language “primary duty.” Ø  The elements of the duties test are usually

conjunctive.


Duties Test

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Ø  “The principal, main, major or most important duty that the employee performs.”

Ø  Factors: ¤  Importance of the exempt duties as compared with other types of

duties ¤  Amount of time spent performing exempt work ¤  Employee’s relative freedom from direct supervision ¤  Relationship between the employee’s salary and the wages paid to

other employees for the kind of non-exempt work performed by the employee

Ø  Employees who spend more than 50% of their time on exempt work will generally satisfy the primary duty requirement.

Ø  Spending less than 50% of the time on exempt work does not render an employee non-exempt.


Primary Duty

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Ø  The FLSA contains a number of exemptions: ¤  Executive ¤  Administrative ¤  Professional ¤  Highly compensated employees ¤  Computer workers ¤  Outside sales ¤  “Combination” exemptions ¤  Retail sales ¤  Motor carriers ¤  Agricultural workers ¤  Companionship services ¤  Lesser

The Harman Firm, LLP, LLP

Major Exemptions

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Ø  Salary Test Applies Ø  Duties Test:

¤ The primary duty must be managing the employing enterprise or one of its recognized departments or subdivisions;

¤ The employee must regularly direct the work of two or more employees; and

¤ The employee must have the authority to hire and fire employees.

The Harman Firm, LLPHarman Firm, LLP

Executive Exemption

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Ø  Salary Test Applies Ø  Duties Test:

¤ The employee’s primary duty must be the performance of office or non-manual work directly related to the management policies or general business operations of the employer or its customers.

¤ The employee’s primary duty includes the exercise of discretion and independent judgment with respect to significant matters.

The Harman Firm, LLPrman Firm, LLP

Administrative Exemption

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Ø  There are two subclasses within the professional exemption: ¤ Learned Professionals

n Typically professions that require advanced degrees ¤ Creative Professionals

n  Individuals with unusual creative prowess


Professional Exemption

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Ø  Salary test applies: ¤  An employee must earn a salary of at least $455 per

week ($23,660 annually).

Ø  Duties Test: ¤  Knowledge of an advanced type; ¤  The advanced knowledge must be in a field of science

or learning; and

¤  The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.


Learned Professionals

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Ø  Salary test applies Ø  Duties test:

¤  The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. The exemption does not apply to work which can be produced by a person with general manual or intellectual ability and training.

¤  The work performed must be in a recognized field of artistic or creative endeavor, including fields like music, writing, acting and the graphic arts.


Creative Professionals

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Ø  Exempt if the employee: ¤  Receives a total annual compensation of at least

$100,000; and ¤  Customarily and regularly performs any one or more

of the exempt duties or responsibilities of an executive, administrative or professional employee identified above.


Highly Compensated Employees

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Ø  Salary Test applies only if they are paid hourly and earn at least $27.63 an hour.

Ø  Duties Test: ¤ The employee must be employed as a computer

systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field.


Computer Workers

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Ø  Primary duty is either making sales, obtaining orders, or contracts for services; and

Ø  Employee is customarily and regularly engaged away from the employer’s place or places of business in performing such primary duty. ¤ Work incidental to outside sales (e.g., writing

sales reports, planning itinerary) also counts as exempt.


Outside Sales

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Ø  Employees who perform a combination of exempt duties as established in the regulations for executive, administrative, professional, outside sales and computer employees may qualify for an exemption.

Ø  For example, an employee whose primary duty involves a combination of exempt administrative and exempt executive work may be exempt.

¤  29 CFR 541.708


“Combination” Exemption

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Ø  Retail workers who earn commission may be exempt, if: ¤ They are employed by a retail or service

establishment; ¤ Their regular rate exceeds one and one-half times

the minimum hourly rate applicable; and ¤ More than half of their compensation for a

representative period (not less than one month) represents commissions on goods or services.


Retail Sales

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Ø  Any employee covered by the Motor Carrier Act Ø  Essentially, anyone involved with trucking goods

in vehicles over 10,000 pounds falls under this exemption.

Ø  This includes not only the drivers, but also those involved in loading and servicing the vehicles.

Ø  Mixed fleet: if the operator has a fleet of vehicles, some of which are under 10,000 pounds, the exemption may be lost. This has been a source of litigation.


Motor Carriers

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Agricultural Exemption

Ø  Typically, agricultural employees are not entitled to overtime.

Ø  To the extent that the employees are involved in the buying or selling of livestock or products, they may be entitled to overtime.


Agricultural Workers

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Ø  Any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.

Ø  No salary test. Ø  Under this exemption, many home health aides, home

care workers, and the like were exempt from overtime requirements.

Ø  This issue has been hotly litigated.


Companionship Services

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Ø  Certain public employees: ¤  Fire protection ¤  Law enforcement

Ø  Flexibility for those type of employees Ø  Other examples: aircraft salespeople, airline employees,

boat salespeople, buyers of agricultural products, country elevator workers (rural), farm implement salespeople, federal criminal investigators, fishing, fruit and vegetable transportation employees, homeworkers making wreaths, “house parents” in non-profit educational institutions, livestock auction workers, local delivery drivers and driver's helpers, etc.


Lesser Exemption

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Part IV – Post-employment


Part IV

Post-Employment

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Ø  Must satisfy the requirement of reasonableness Ø  Standard of reasonableness:

¤  Reasonable with respect to time and geographic scope; ¤  Necessary to protect the employer’s legitimate interests; ¤  Not harmful to the general public; and ¤  Not unreasonably burdensome to the employee.

Ø  Cognizable employer interests are limited. Ø  The test of reasonableness focuses on particular

facts and circumstances.


Restrictive Covenants

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Ø  “Waivers” waive the rights of the signatory and release another party

Ø  Some employers offer severance payments to former employees in exchange for waivers of claims and releases.

Ø  Under New York law, a waiver is valid without consideration.

Ø  However, there are specific requirements under Title VII, the ADEA, and the ADA to release claims under these acts.


Waivers and Releases

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Waivers: Specific Requirements Under Title VII and the ADA

Ø  The waiver must be made “knowingly and voluntarily”.

¤  Several factors are relevant : n  Plaintiff's education and business experience; n  The amount of time the plaintiff had possession of or access

to the agreement before signing it; n  The role of plaintiff in deciding the terms of the agreement; n  The clarity of the agreement; n  Whether the plaintiff was represented by or consulted with

an attorney; and n  Whether the consideration given in exchange for the waiver

exceeds the benefits to which the employee was already entitled by contract or law.


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Ø  The waiver is made “knowingly and voluntarily” if: ¤  It is part of a written agreement between the individual and the

employer that is written in a manner calculated to be understood;

¤  It specifically refers to rights/claims arising under this Act; ¤  It does not waive rights/claims that may arise after the date the

waiver is executed; ¤  The individual waives rights/claims only in exchange for

consideration; ¤  The individual is advised in writing to consult with an attorney; ¤  The individual is given a period of time within which to consider

the agreement; ¤  The agreement provides a 7-day period for the individual to

revoke the agreement.


Waivers: Specific Requirements Under the ADEA

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Conclusion

Ø  Review pre-employment documents Ø  Be aware of differences in Federal, State and

City law Ø  Check FLSA classifications Ø  Review post-employment documents

The Harman Firm, LLP 62

Bridge the Gap May 15, 2016 | 9:30 a.m. -‐ 5:30 p.m. Fordham School of Law | Skadden Conference Center New York and New Jersey Tracks Plenary Sessions TABLE OF CONTENTS: Session 4: Legal Writing CLE: NY Skills (1.5); NJ General (1.5)

§ PowerPoint Presentation: Introduction to Legal Writing § Legal-‐Writing Myths § CREAC in the Real World

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INTRODUCTION TO LEGAL WRITING A crash course on the fundamentals of Legal Writing for junior lawyers

Presenter: Temitope K. Yusuf, Esq.

TOPICS FOR TODAY

� The office memo

� Brief craft

� Tips and Tricks

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THE OFFICE MEMO

�  Heading

�  Question Presented or Issue

�  Brief Answer

�  Fact Statement

�  Discussion

�  Conclusion

HEADING

To: [Name of requesting attorney] From: [Your name] Date: [Date] Re: [Client’s name, file number, legal matter and identifying

information regarding the issue]

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QUESTION PRESENTED

Option 1: basic research = state the question Under what circumstances does Tennessee law permit an employee to receive compensation for unused vacation? Option 2: apply rule to facts Can …[state the legal question]...when...[state the major facts]? Can a Tennessee employee receive compensation for unused vacation when the employer has a policy that prevents recovery but the employee was not aware of the policy?

BRIEF ANSWER

Respond to the question! How certain are you?

Certain Almost certain Probable Equally likely to go either way

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STRUCTURE – FACTS SECTION

� Chronological v. Topical

� Subject first

� Setting

� Main characters

� Inciting incident

� Problem of the story

WHAT DOES YOUR READER WANT TO KNOW?

1) Facts relevant to the question presented

a) Legally relevant facts

b) Facts with an emotional impact

2) Background facts necessary to provide context for legally relevant facts

These are intuitive and normally come naturally as you write

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EXAMPLE OF FACTS

The car was driven at a high rate of speed for 20 miles. After an hour, the family was placed at the side of the road with their belongings. The car was then seen driving northbound on the interstate.

EXAMPLE OF FACTS

The car was driven at a high rate of speed for 20 miles. After an hour, the family was placed at the side of the road with their belongings. The car was then seen driving northbound on the interstate.

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BRIEF CRAFT:

CONSTRUCTING A LEGAL ARGUMENT

Conclusion Rule Statement Rule Explanation Rule Application Conclusion

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Student-Athletes may not receive any form of payment, including memorabilia or discounts.

Dr. Tran has not committed any of the three types of medical malpractice.

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Ms. Doyle’s conduct weighs in favor of the third Faison prong because it was knowing and intentional.

The Radvany court reinterpreted the Bloomingdale standard to cover both sexually explicit and sexually neutral material.

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Because few of the plaintiffs in this case knew each other before the beginnings of the proceedings, they don’t meet the requirements of commonality under Idaho Court Rule 39-4(a).

Drone strikes may be legally authorized against American citizens if the citizen is serving in a foreign military.

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Maybel Chemicals violated the Hayes Act by distributing penicillin without a license.

No court has ever held that five effected persons is enough persons to qualify as “widespread impact.”

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A law that causes a racially discriminatory impact against a certain group, does not in itself constitute a violation of Equal Protection, absent odious intent.

To determine whether state law violates section 2, the Court must assess the impact of the contested structure or practice on minority electoral opportunities “on the basis of objective factors.”

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When assessing the intent or interpretation of legislation, the Court looks to the legislative history of the statute for a record of any statements made by the lawmakers from the time it was proposed to its enactment.

TIPS AND TRICKS

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USE ACTIVE VOICE

Example 1: A covenant-not-to-compete was signed by Mr. James. Example 2: It was insisted by Jonathan that Mr. James had breached the covenant.

USE ACTIVE VOICE Example 3: The motion for summary judgment was made by the defendant and was heard by the court on May 15. Example 4: The initial discussions by the Executive Committee of Johnson’s abilities were prompted by Janet’s testimony against Peter.

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AVOID NOMINALIZATIONS Example 1: This letter serves as confirmation of our meeting last week, during which our firm agreed to provide representation to the aquarium. Example 2: The sellers made a decision to accept the buyer’s offer, so they issued an authorization to their broker to make an announcement of their decision.

AVOID NOMINALIZATIONS

Example 3: The mediator made a determination that the matter should proceed to litigation. Example 4: New York law is very protective of medical peer review procedures, so a challenge to the procedures would not be beneficial to our client.

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COMMON NOMINALIZATIONS

Change enter into an agreement contains a provision have a collision file a motion give consideration to had knowledge that effect a termination make an assumption make a decision places emphasis on

To agree provide collide move consider knew terminate assume decide emphasizes

USE PLAIN LANGUAGE

Change a number of afford an opportunity as a means of as prescribed by at the present time by means of comply with due to the fact that in order to is authorized to

To some, many allow, let to in, under now by, with follow because, due to, since to can, may

LEGAL-WRITING MYTHS, 16 Scribes J. Legal Writing 113

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

16 Scribes J. Legal Writing 113

Scribes Journal of Legal Writing

2014-2015

The “Best of” Series

LEGAL-WRITING MYTHS

Gerald Lebovits

Copyright © 2015 by Scribes; Gerald Lebovits

Don't begin a sentence with And or But. Never end a sentence with a preposition. Splitting an infinitive is always bad. Andthose are just some of the grammatical myths that many lawyers still believe in. This article explores some of my favoritefallacies about legal writing.

Myth #1. Literary style isn't important in legal writing.

Reality: You can't be a great lawyer, whatever your other qualities, unless you write well. As Fordham Law School's former Dean

explained, “Without good legal writing, good lawyering is wasted, if not impossible.” 1 Imperfect writing leads to imperfect

results: “[A]bout as many cases are lost because of inadequate writing as from inadequate facts.” 2

Legal educators agree on little. But many agree that legal writing is the most important skill that future lawyers must acquire. 3

Legal ethicists have their debates. But they agree that legal writing must be competent. 4

*114 Style is important. If good legal writing is critical to effective client representation--and it is--then style is critical togood legal writing. A brief that “presents a sound statement of the law will hold its own regardless of its literary style .... But,

the fact that substance comes before style does not warrant the conclusion that literary style is not important.” 5 Good style for

lawyers is that writing “should be constructed with good words, not plastered with them.” 6

Those who assume that style is unimportant see legal writing as complicated dos and don'ts. The rules confound us, althoughthe toughest are rules of legal style and general usage, not rules of grammar. To compose effectively, you don't need to knowevery rule, which can be learned one by one anyway. Nevertheless, the sooner you learn the rules, the better. After legal stylecomes literary style, and “with some talent and practice, it's not hugely difficult for a master of legal style to get comfortable

with literary style.” 7

Myth #2. Creativity is the essence of good legal writing.

Reality: Except in hard cases, the law doesn't reward creativity. It rewards logic and experience. Justice Oliver Wendell Holmes

once wrote that “the law is not the place for the artist or the poet. The law is the calling of thinkers.” 8 Thinkers follow format;they adhere to court rules. They don't invent new methods of legal writing or argue positions that lack support.

Lawyers must rely on precedent. A scientist who invents a novel approach is an innovator. Not so the lawyer. Imagine, *115in response to a judge's question “What's your authority for that?,” you say: “It's my invention. No one ever thought of thatbefore I did.” Your creativity will go unappreciated.



Legal writers gain nothing by reinventing the wheel. The most they can do is to urge a change in the law that only legal authorityitself can justify.

Myth #3. Good legal writers write for themselves.

Reality: Good legal writers write for their readers: “[E]ffective writers do not merely express, but transform their ideas to meet

the needs of their audience.” 9

In a brief, the audience is the judge, not the client or opposing counsel. To write persuasively, a lawyer must grab the judge'sattention quickly, argue concisely, and express clearly the relief sought. Techniques that fail with judges:• throwing in the kitchen sink instead of picking winning arguments and developing them;

• attacking opposing counsel and other judges (even when they deserve it);

• offering up a historical treatise instead of arguing an issue;

• writing facts in a conclusory way;

• using adverbs and adjectives instead of nouns and verbs; 10

• using intensifiers and qualifiers; 11

*116 • shouting at readers with false emphatics like italics, underlining, bold, or capitals; 12

• failing to apply law to facts;

• overstating anything--because understatement is a key to persuasion;

• using long quotations or, worse, misquoting and misciting;

• forgetting to open with an orientation, or road map, to tell readers where they're headed; and

• dwelling on givens.

Dwelling on givens fails with nonjudges as well. An associate writing to a partner specializing in an area of law shouldn't

include every step in the analysis. The partner will understand the writing in its legal context. 13

But if your audience is unknown, “assume that your readers will be generalists unversed in special technicalities.” 14 That wayyou'll address not only lawyers and judges, who are familiar with legal technicalities, but also nonlawyers, who appreciatewriting that they understand.

*117 Myth #4. Writing a lengthy brief is harder and takes more time than writing a short one.

Reality: Writing something short, concise, and pointed is harder than writing something lengthy or rambling. Pascal noted this

phenomenon in the seventeenth century: “I have made this letter longer than usual because I lack the time to make it shorter.” 15



Although it's more difficult to write something short and concise, courts need short and concise writing. 16 A lengthy brief

suggests that a lawyer didn't do “‘enough work on the finished product.”’ 17

Myth #5. Know everything about your case before you begin to write.

Reality: Some argue that “[a]n effective brief is fully thought through before a word is set to paper.” 18 But you'll never startto write, or you'll start to write the night before your brief is due, if you insist on knowing everything before you begin. Thekey is to know everything by the time you're done. You can always change focus in midstream, especially if you compose ona computer. Outlining in advance and constant editing will control your writing.

*118 Myth #6. Outlining increases the workload. It's just one more thing to do.

Reality: Organizing before writing avoids problems. One problem is not including important information: “A gap in your logic

caused by poor organization can give your opponents an opening for attack.” 19 Another is repetition. The key to organizationis to say it once, all in one place. Organizing before writing lets you focus on what to say and how to say it.

One form of organization is a written outline. It “not only provides the organization necessary to complete a complex writing

task, but serves as a perpetual reminder of the ‘big picture.”’ 20 Organizing by outline conserves energy, especially if the caseis complicated.

For lawyers who think visually, a diagram or flowchart will work. And brainstorming works for lawyers who have many ideasbut can't connect them.

These are just a few ways to generate an outline. Experiment until you're comfortable with a way to outline.

Those who hate to outline should be flexible, but outline they should. Not outlining often means spending more time overall.If you outline, even in rough form, you'll have a vision before you start, you'll know what goes where, and you won't forgetor repeat things.

Myth #7. Finish early.

Reality: Start early--and edit late. Your labor will be more efficient if you start writing before facts and argument get cold inyour mind. Starting early lets you start over if you learn new facts, develop a new argument, or realize that you went down*119 the wrong path. Then take the time and make the effort to edit until your work is due. Editing reflects pride of authorship

and an understanding that “something as trivial as a typographical error can detract from the message.” 21 So spell-check everytime you exit your file. Edit carefully on a hard copy as well. “Readers expect a level of competence, care, and sophistication inwriting. When those elements are missing, the writer presumably does not possess the necessary legal skills or fails to display

consideration for his audience.” 22

Myth #8. Legal writing is subjective. Lawyers see so much bad writing, they've little incentive to improve their ownwriting.

Reality: Objective standards determine whether legal writing is good. People disagree mainly about the less-important aspectsof legal writing. Precisely because so much legal writing is poor, lawyers should strive to write well. Poor writing goes unreador is misunderstood. Good writing is appreciated. Great writing is rewarded lavishly.



Perfection in writing is impossible. But perfection should be the goal, so long as perfection doesn't interfere with a deadline.Poor legal writing might result in an injustice for a client: a judge might misunderstand what a lawyer is seeking; an adversarymight seize on an ambiguity. To avoid these problems, strive for perfection.

Myth #9. Good legal writers rarely need time to edit between drafts.

Reality: According to William Zinsser, “A clear sentence is no accident. Very few sentences come out right the first time, or

*120 even the third time.” 23 Put your project aside a few times while you write and edit. You'll catch mistakes that you didn'tsee earlier and make improvements that you might not have thought of earlier. Read aloud: “By relying on your ear--not just on

your mind's ear--for guidance, you will also find more ways to improve your phrasing.” 24 Self-editing requires objectivity. Ifyou have an editor, take advantage. Welcome suggestions gratefully and think about them, even if you ultimately reject them.Editors, unlike some writers, always consider the only one who counts: the reader.

Myth #10. No one cares how you cite, so long as your citations can be found.

Reality: Legal readers can often tell from the quality of your citation whether your writing and analysis will be good. If you'resloppy about citations, you might be sloppy about other, more important things. Readers know that writers who care aboutcitations care even more about getting the law right.

Some judges and law clerks insiste that they don't care how lawyers cite, so long as lawyers give the correct volume and sectionnumbers so that citations can be found. Judges and law clerks who insist that they couldn't care less about lawyers' citationssay so for one or more false reasons: as code to suggest that they're so fair and smart, they can see through the chaff to letonly the merits affect their decision-making; because they themselves don't know the difference between good citing and bad;or to communicate their low expectations of the lawyers who appear before them. Many judges and law clerks do tolerateimproper citation.

*121 But you should make the effort to cite properly, for yourself and your client. Improper citations detract from yourcredibility. And citing improperly won't give you the chance to persuade now and use your citations as future references. Citing

properly “dictates that you include the information your readers need to evaluate your legal argument.” 25 Use citations tostrengthen, not lengthen, your writing, and use pinpoint citations to refer your readers to the exact page at which your pointis made.

Conclusion

Confess: you've fallen for some legal-writing myths. It's not too late to change. Experiment with your writing. Act on realities.Edit your work. And do what good lawyers do: separate fact from fiction.

Footnotes1 John D. Feerick, Writing Like a Lawyer, 21 Fordham Urb. L.J. 381, 381 (1994).

2 Tom Arnold & Jack C. Goldstein, Persuasion in Brief and Oral Argument, 350 Prac. L. Inst./Pat. 921, 925 (1992) (quoting Robert

L. Simmons, Trials to the Court).

3 See, e.g., Task Force on Law Schools and the Profession: Narrowing the Gap, Am. Bar Ass'n, Legal Education and Professional

Development--An Educational Continuum 264 (July 1992), available at http://www.americanbar.org/content/dam/aba/publications/

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=0104657462&pubNum=0001143&originatingDoc=Ibe577285784b11e598dc8b09b4f043e0&refType=LR&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)



misc/legal_education/2013_legal_education_and_professional_development_maccrate_report).authcheckdam.pdf (suggesting that

law schools must make a more “concerted effort” to teach writing at a higher level).

4 See, e.g., Debra R. Cohen, Competent Legal Writing--A Lawyer's Professional Responsibility, 67 U. Cin. L. Rev. 491 (1999).

5 Am. Bar Ass'n, Sect. on Jud. Admin., Comm. Rpt., Internal Operating Procedures of Appellate Courts 31 (1961).

6 Bernard E. Witkin, Manual on Appellate Court Opinions § 103, at 204-05 (1977) (emphasis in original).

7 John Lovell, Literary Lawyers, 17 Me. B.J. 217, 217 (2002).

8 G. Edward White, Justice Oliver Wendell Holmes: Law and the Innser Self 211 (1993).

9 Nancy Soonpaa, Using Composition Theory and Scholarship to Teach Legal Writing More Effectively, 3 J. Legal Writing Inst. 81,

91 (1997).

10 Peter D. Baird, Persuasion 101, 15 Experience 26, 28 (Fall 2004) (“Use nouns and verbs to show rather than adverbs and adjectives

to tell because ‘He raced his Cadillac at 98 miles per hour’ is stronger than ‘He drove his vehicle dangerously and at a reckless

rate of speed.”’).

11 Adverbial intensifiers like certainly, obviously, and undoubtedly weaken writing, and the same is true for adjectives that prop up

nouns or other adjectives. See Brendan T. Beery, Some Particularly Useless Words, 82 Mich. B.J., July 2003, at 56, 57. (quoting

Stephen King, On Writing: A Memoir of the Craft, 125 (2000)) (“‘I believe the road to hell is paved in adverbs, and I will shout it

from the rooftops.”’); id. (quoting William Strunk Jr. & E.B. White, The Elements of Style 73 (4th ed. 2000)) (“‘Rather, very, little,

pretty-- these are the leeches that infest the pond of prose, sucking the blood out of words.”’).

12 Jonathan Byington, How to Make Your Appellate Brief More “Readable,” 48 Advocate (Idaho) 17, 18 (July 2005).

13 Diana V. Pratt, Legal Writing: A Systematic Approach 210 (1989).

14 Bryan A. Garner, The Elements of Legal Style 181 (2d ed. 2002).

15 Hayes v. Solomon, 597 F.2d 958, 986 n.22 (5th Cir. 1979) (quoting Blaise Pascal, Provincial Letters: Letter XVI (Dec. 4, 1656)

(English translation)).

16 See Commonwealth v. Angiulo, 615 N.E.2d 155, 168 n.17 (Mass. 1993) (quoting Joseph R. Nolan, Massachusetts Practice: Appellate

Procedure § 24, at 11 (1991)) (“An attorney should not prejudice his case by being prolix .... Conciseness creates a favorable context

and mood for ... judges.”).

17 Tom Goldstein & Jethro K. Lieberman, The Lawyer's Guide to Writing Well 157 (2d ed. 2002) (quoting Richard Emery).

18 Judith S. Kaye, Effective Brief Writing § 2:27.70, at 109, in 1 John W. Cooley, Callaghan's Appellate Advocacy Manual (Lawyer's

ed. 1992).

19 Veda R. Charrow, Myra K. Erhardt, & Robert P. Charrow, Clear and Effective Legal Writing 141 (4th ed. 2007).

20 Toni M. Fine, Legal Writers Writing: Scholarship and the Demarginalization of Legal Writing Instructors, 5 J. Legal Writing Inst.

225, 236 (1999).

21 Bryan A. Garner, An Approach to Legal Style: Twenty Tips for the Legal Writer, 2 Scribes J. Legal Writing 1, 34 (1991).

22 Martha Faulk, The Matter of Mistakes, 13 Perspectives 28 (Fall 2004).

23 William Zinsser, On Writing Well: The Classic Guide to Writing Nonfiction 9 (7th ed. 2006).

24 Garner, An Approach to Legal Style: Twenty Tips for the Legal Writer at 34.

25 Stacey L. Gordon, Legal Citation in Montana: Teaching Lawyers the Proper Format, 28 Mont. Law. 7, 8 (Sept. 2002).

16 SCRIBE 113



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CREAC IN THE REAL WORLD, 63 Clev. St. L. Rev. 567


63 Clev. St. L. Rev. 567

Cleveland State Law Review

2015

Article

CREAC IN THE REAL WORLD

Diane B. Kraft a1

Copyright (c) 2015 the Cleveland State University; Diane B. Kraft

I. Introduction 567II. The Rhetorical Basis for Organizational Paradigms Like CREAC 568III. Organizational Paradigms and Legal Writing Pedagogy 570IV. Do Attorneys Use CREAC in the Real World? 5751. Including facts before rule or rule explanation 5792. Including the rule in a separate section, and starting subsequent sections with a discussion of

facts585

3. Interspersing rule explanation and rule application 586V. Teaching a Flexible CREAC 592

I. Introduction

When law students are asked to describe how legal arguments are organized, they are likely to say something like “IRAC” or

“CREAC” or “CRuPAC” or “TREAT.” 1 Indeed, the organizational 2 paradigm is a feature of many legal writing textbooks,and is likely to be one of the first ideas a new law student will encounter in the legal writing classroom. While many legalwriting professors find the use of such paradigms to be helpful to students, others find the paradigms simplistic and limiting.

This article will examine the extent to which common legal writing paradigms such as CREAC are used by attorneys in the “realworld” of practice when writing on the kinds of issues law students may encounter in the first-year legal writing classroom. Tothat end, it will focus on the analysis of two factor-based criminal law issues: whether a defendant was in custody and whethera defendant had a reasonable expectation of privacy. In focusing on “first-year” issues, the article seeks not to examine whetherorganizational paradigms are used at all in legal analysis, but to discover whether and how they are used when analyzing the samekinds of issues first-year law students analyze. If experienced attorneys writing on these issues do indeed use organizationalparadigms in the same way many legal writing professors teach first-year law students, it is strong support for the continueduse of organizational paradigms in the classroom. If not, it is perhaps time to reexamine their use.

In section I, the article will briefly review the rhetorical basis for the paradigms. Section II will review the central placeorganizational paradigms hold in legal writing *568 pedagogy, as well as the resistance to those paradigms. Section III willexamine how the organizational paradigms are used in appellate briefs filed in actual cases involving issues that first-year lawstudents at the University of Kentucky College of Law have written about in their spring appellate brief assignments involvingtwo hypothetical cases. Specifically, the article will show that while practicing attorneys writing on these issues do follow thegeneral pattern of organizational paradigms like CREAC, they deviate from the paradigms in ways that suggest an increasedemphasis on narrative as an essential part of persuasion above and beyond the story told in the Statement of the Case sectionof a brief. In section IV, the article will suggest ways that the findings of section III might be incorporated into legal writingpedagogy.

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II. The Rhetorical Basis for Organizational Paradigms Like CREAC

Most legal writing professionals agree that deductive reasoning - reasoning that moves from the general to the specific 3 - is a

crucial part of legal analysis. 4 Organizational paradigms are widely used in legal writing classrooms at least in part because, attheir core, IRAC, CREAC, and the other paradigms are ways of understanding and using deductive reasoning, or syllogisms, in

legal writing. 5 When using deductive reasoning, the writer will “set out [her] assertion and then the support for that assertion.” 6

In terms of a syllogism, the major premise is the “general,” that is, “a broad statement of general applicability.” 7 The syllogism's

minor premise is “a narrower statement of particular applicability that is related in some way to the major premise.” 8 The

syllogism's conclusion is “the logical consequence of the major and *569 minor premise.” 9 So, in the most well-knownexample of the syllogism, “All humans are mortal” is the broad statement of general applicability, “Socrates is a human” isthe narrower statement of particular applicability, and “Therefore, Socrates is mortal” is the logical consequence. In terms ofCREAC, “All humans are mortal” is the R (rule); “Socrates is a human” is the A (application of rule to facts); and “Therefore,

Socrates is mortal” is the C (conclusion). 10 Reasoning by syllogism is widely regarded as a highly effective way to win an

argument because if the judge agrees with the major premise and the minor premise, the conclusion is inevitable. 11 One

scholar argues that “all legal argument should be in the form of syllogisms.” 12 Several first-year legal writing textbooks even

include an explanation of the syllogism upon which organizational paradigms are based. 13 In short, paradigms like CREAC

are “designed . . . to teach students to reason as syllogistically as possible.” 14

Although the number of versions of these paradigms has expanded far beyond the original IRAC, because they are based on

the syllogism, like the syllogism they are all *570 rule-based. 15 Significantly, in all paradigms the rule is stated before it is

applied to the facts. 16 Rule explanation also comes before rule application because rule explanation provides the basis for the

reader to accept the writer's application of the rule to the facts. 17 No paradigm recognizes a place for inclusion of facts withinthe analysis - other than the limited facts that may be part of the initial conclusion - before the rule is stated and explained, much

like no effective syllogism puts the minor premise before the major premise. 18 Moreover, no paradigm allows for a mixing of

the individual parts, for example interspersing rule explanation within rule application. 19 A few paradigms include a specific

place for counter-analysis and policy arguments, but most do not. 20

III. Organizational Paradigms and Legal Writing Pedagogy

Legal writing professors have been using such organizational paradigms like CREAC for at least the past twenty years because

they reflect deductive reasoning: reasoning that goes from general (the rule) to specific (application of the rule to the facts). 21

One scholar found that the majority of textbooks reviewed (fourteen out of *571 twenty-five) used an organizational paradigm

as a way to teach students to state and discuss rules before applying the rules to the facts. 22 For example, in one legal writing

textbook, students are encouraged to use CRAC to organize a deductive argument. 23 In another, CREAC is introduced as “A

Formula for Organizing Analysis.” 24 Another textbook uses BaRAC, which is called “the ultimate formula for logical thinking

and writing.” 25 While the paradigms may vary superficially, they all stand for the same premise: Legal analysis should be

fronted with the rule, and the rule must be applied to the facts of the case at hand. 26 The benefits of using organizational

paradigms to teach this fundamental premise are also touted in articles about legal writing pedagogy 27 as well as in pieces for

practicing attorneys. 28 Even legal writing professors *572 who are merely lukewarm adherents of organizational paradigms

recognize the usefulness of such paradigms to teach the rudiments of legal analysis to novice legal writers. 29 In short,organizational paradigms are an integral part of most first-year legal writing pedagogy because many believe they “capture the

essence of what is involved in legal analysis: applying legal principles to facts (the R and the A parts).” 30



Not all legal writing professionals are fans of organizational paradigms, however. 31 One professor argues that organizational

paradigms like CREAC 32 fail to help students learn to write competent legal analyses because the paradigms' “simplisticnature masks the series of complex, interrelated steps that students need to learn to analyze and write about legal problems in

a sophisticated manner.” 33 Another professor criticizes CREAC for “its failure to place the emphasis on the factual setting, as

*573 opposed to the legal setting, of the matter in controversy.” 34 Still another argues that the paradigms “are both necessary

and dangerous, both supporting and defeating.” 35 Some practicing attorneys and judges who write on effective legal writingin practice appear to agree, or at least do not view an organizational paradigm like CREAC to be essential to good brief writing.

In an article on writing effective briefs, one attorney included IRAC as only one of several ways to organize a brief. 36 In

another piece on brief-writing, no mention at all is made of organizational paradigms. 37 Similarly, a state supreme court justiceadvised brief writers to “[l]et the facts do the talking” and “meld the facts and the law” in the argument, but is silent on using

organizational paradigms. 38

*574 While deductive reasoning has long been the star of legal analysis, more and more frequently legal writing professionalsare calling for increased attention to the role of other types of legal reasoning that are not rule-based. Wilson Huhn, for example,advocates teaching students to argue persuasively by introducing them to a “pluralistic model” that includes five types of legal

argument: textual analysis, intent, precedent, tradition, and policy. 39 Others emphasize the importance of narrative in legal

analysis, reminding us that “[l]aw lives on narrative” 40 and “lawyers persuade by telling stories.” 41 Linda Edwards stressesthat five commonly used forms of reasoning - rule-based, analogical, policy-based, consensual normative, and narrative - all

have narratival roots, and that “seldom does a particular form of reasoning operate alone.” 42 In other words, while logic is still

crucial to legal analysis, “multiple legitimate forms of legal arguments exist.” 43 The problem these scholars have with legalwriting's focus on CREAC is not that legal analysis should never use deductive reasoning, but that effective legal analysis must

often go beyond deductive reasoning. 44 As one scholar argues:[H]aving an organizational paradigm like IRAC that focuses solely on the organization of the analysis of one specific legalquestion misinforms students by putting undue emphasis on deductive analysis, without introducing the complexity of itsdependence on fact, issue framing, and *575 context. The IRAC paradigm does not teach students to be flexible in their

approach to the law and to be creative in their analysis. 45

Another scholar goes a bit further, finding IRAC's usefulness to be “limited to the logical strand of the argument” and advocatingthat narrative be used for the large-scale organization of legal analysis, lest IRAC “lead to formulaic writing devoid of the

personal stories that form the conflict being presented to the court.” 46 Despite the lack of agreement about the benefits andpitfalls of using organizational paradigms like CREAC, however, their use remains a centerpiece of first-year legal writingpedagogy. The question is, should it?

IV. Do Attorneys Use CREAC in the Real World?

Even when legal writing professionals criticize organizational paradigms like CREAC for truncating students' views of whatlegal analysis can encompass, they may find it appropriate for the kinds of issues many legal writing professors use in first-

year legal writing assignments, i.e., issues involving straightforward statutory elements or factors. 47 One could argue that iforganizational paradigms like CREAC *576 are so widely used to teach first-year law students how to organize legal analysisof at least certain kinds of issues, it must be at least in part because practicing attorneys also organize legal analysis accordingto a similar paradigm. The question, in other words, is whether by teaching our students to use organizational paradigms weare helping them to be “practice ready” by giving them a tool that practicing attorneys actually use.



In the spring semesters of 2012 and 2013, the first-year students in the legal writing program at the University of KentuckyCollege of Law wrote appellate briefs involving two different factor-based issues. In 2012, the issue was whether a defendanthad been in custody for Miranda purposes when two police officers came to her workplace to speak to her about the murder

of her ex-husband. 48 Specifically, students had to analyze whether the defendant's freedom of movement had been restrained

to a degree associated with formal arrest. 49 In making this determination, courts weigh factors in deciding whether, under the

totality of the circumstances, a reasonable person would have felt free to terminate the questioning and leave. 50 We chose thisproblem in part because the multiple factors courts use to analyze the issue suggest a clear organizational structure, similar to

elements in a statute. 51 Specifically, we expected students to divide the argument section into subsections mirroring the factorsthat were relevant to the case: for example, whether the encounter took place in public, whether the police told the defendant he

was not under arrest, and whether the defendant had unrestrained freedom of movement. 52 Further, we expected students touse CREAC in organizing the analysis because that is the organizational paradigm *577 used in their legal writing textbook

and the one we teach in the classroom. 53 So a typical argument section for the custody issue might be organized as follows: 54

Subsection 1:

C: Conclusion

R: Rule (Factor 1: whether the encounter was in a public place)

E: Explanation of rule

A: Application of rule to facts of our case

C: Conclusion

Subsection 2:

C: Conclusion

R: Rule (Factor 2: whether the police informed the individual that he was not under arrest and was free to leave)



C: Conclusion

Subsection 3:

C: Conclusion

R: Rule (Factor 3: whether the police displayed weapons or used physical force)



C: Conclusion



Subsection 4:

C: Conclusion

R: Rule (Factor 4: whether individual had unrestrained freedom of movement during the encounter)



C: Conclusion

In 2013, the issue in the first-year appellate brief assignment was whether a defendant had a reasonable expectation of privacyfor Fourth Amendment search and seizure purposes regarding a stolen gun she had hidden in the dormitory suite where she was

visiting. 55 This determination involves a two-part test: (1) whether a person had a subjective expectation of privacy, and (2)

whether that expectation was *578 objectively reasonable. 56 Courts analyze the second part of the test by looking at factorssuch as whether the defendant was legitimately on the premises, whether the defendant had a proprietary interest in the place tobe searched or the item to be seized, whether the defendant had the right to exclude others from the place searched, and whether

the defendant had taken normal precautions to maintain her privacy. 57 We expected that a typical argument section for the

expectation of privacy issue might be organized as follows: 58

Test part 1: Whether the defendant had a subjective expectation of privacy

C: Conclusion

R: Rule



C: Conclusion

Test part 2: Whether the expectation was objectively reasonable

Subsection 1:

C: Conclusion

R: Rule (Factor: whether the defendant was legitimately on the premises)



C: Conclusion



Subsection 2:

C: Conclusion

R: Rule (Factor: whether the defendant had a proprietary interest in the place to be searched or the item to be seized)



C: Conclusion

Subsection 3:

C: Conclusion

R: Rule (Factor: whether the defendant had the right to exclude others from the place searched)



C: Conclusion

Subsection 4:

C: Conclusion

R: Rule (Factor: whether the defendant had taken normal precautions to maintain her privacy)


*579 A: Application of rule to facts of our case

C: Conclusion

To answer the question of whether practicing attorneys use CREAC, I reviewed sections of thirty-seven appellate briefs thatanalyzed the same issues our students wrote about in their briefs: whether a defendant had been in custody for Miranda purposesand whether a person had had a reasonable expectation of privacy for Fourth Amendment search and seizure purposes. Ireviewed briefs filed by appellants and appellees in the U.S. Supreme Court, U.S. Circuit Courts of Appeal, and the Kentucky

Supreme Court between 1989 and 2013. 59 I found that most briefs included the elements of CREAC: conclusion, rule, rule

explanation, 60 rule application, and conclusion. What was surprising, however, was the extent to which attorneys deviatedfrom the strict R-E-A that is common to all the organizational paradigms. So rather than CREAC, for example, I foundCARE, RAREA, REA, CREAE, CARAEA, AREAEC, ARARAREAEA, and numerous other CREAC alternatives. Moreover,it appeared that these deviations frequently involved including the facts of the case in a place other than, or in addition to,a separate rule-application section. This was true of briefs written on both the custody issue and the expectation of privacyissues. Three trends in particular emerged: (1) including facts before rule or rule explanation; (2) including the rule in a separatesection, and starting subsequent sections with a discussion of facts; and (3) interspersing rule explanation and rule application.An examination of each trend follows.



1. Including facts 61 before rule or rule explanation.

Many textbooks that encourage students to use organizational paradigms suggest that a separate paradigm be used for each

section of analysis. 62 In other words, as illustrated above, for an issue like custody where the rule is comprised of a seriesof factors, one or two factors would be discussed in a separate subsection under a separate heading, and each section wouldfollow an organizational paradigm such as CREAC. For example, the section on the first factor would state the rule and ruleexplanation that were relevant to that factor, followed by application of the rule to the facts of the case assigned to the students.The section on the second factor would again state the *580 rule and rule explanation relevant to that second factor, followedby application of the rule to the facts.

In practice, some appellate brief writers adhered to this organization. For example, in the appellant's brief in United Statesv. Romaszko, each subsection analyzing a particular factor in the custody analysis begins with a rule and, usually, a rule

explanation relevant to that factor, which is followed by application of the rule to the facts of that case. 63 However, otherbriefs I reviewed did not consistently follow that paradigm. One fairly common deviation was a variation on CREAC that fewlegal writing textbooks allow for: including a discussion of facts - often the facts brought out during a suppression hearing -very early in the analysis, before the rule explanation and rule application sections, and sometimes even before a complete rule

statement. 64 This may be because the custody issue and expectation of privacy issue are both fact-intensive inquiries. In theappellant's brief for United States v. Panak, for example, the analysis of the custody question begins with the standard of reviewand a short statement of the relevant rule, followed by an enumeration of the relevant facts (in bold):2. THE DISTRICT COURT ERRED IN RULING UNDER A TOTALITY OF THE CIRCUMSTANCES THAT PANAKWAS SUBJECT TO CUSTODIAL INTERROGATION, SO THAT MIRANDA WARNINGS WERE REQUIRED,WHEN INVESTIGATORS QUESTIONED HER IN HER OWN LIVING ROOM ABOUT HER EMPLOYER'S DRUGTRAFFICKING CRIMES.

Again, the standard of review of a suppression order is that factual findings are reviewed for clear error, whereas conclusionsof law are reviewed de novo. The standard of review of a finding that a defendant was ‘in custody’ is also de novo.

The ‘custody’ determination turns on whether an individual was subjected to a ‘restraint on freedom of movement of the degreeassociated with formal arrest.’ In this case, Panak testified that (1) she did not remember ‘inviting’ the investigators into herhome; (2) she initially declined to answer one of their questions and was told it would be to her benefit to cooperate; (3) sheperceived at the time that she was being investigated for something her boss had done; (4) she did not feel free to leave the housebecause she was unwilling to allow the investigators to remain in her home by themselves; (5) she did not feel ‘threatened’ bythe investigators; (6) the investigators told her that *581 Chionchio was going to jail; and (7) she believed the investigators'statement that her name would be cleared if she cooperated. Even if every word of that testimony is accepted as true, it fallswell short of the court's conclusion that Panak was subjected to restraints on her freedom comparable to those associated with

formal arrest. 65

This is followed by a statement of the rule regarding the factors courts apply to custody determinations, explanation of the rule,

and application of the rule to the facts. 66

Similarly, both the appellant's and appellee's briefs in Fugett v. Commonwealth include a lengthy discussion of the facts before

the rule, rule explanation and rule application sections. 67 The appellant's brief goes so far as to include a lengthy discussionof the facts in a separate subsection headed “Background” immediately before a subsection headed “Argument,” all within the

larger Argument section of the brief. 68



Finally, the appellant's brief in United States v. Brooks states the overall rule for custody in a roadmap paragraph, and beginseach subsection (i.e., analysis of each factor) with the relevant facts. For example, the subsection on the “place of questioning”factor begins:

In this case, Ms. Brooks was questioned at the ECC, her place of employment, almost immediately afterreporting to work. She knew nothing about the agents wanting to interview her prior to arriving at the ECC.Agent Collins testified that he spoke with Ms. Brooks' supervisor, Barbara Guerrero, prior to Ms. Brooks

arriving for work, to get someone to cover Ms. Brooks' shift while he and Camper questioned her. 69

The rule and rule explanation for this factor follow this opening paragraph. 70

I found the same pre-rule discussion of facts in briefs that analyzed the expectation of privacy issue. For example, in a brieffiled in the well-known case of Minnesota v. Olson, a subsection on whether the defendant had a reasonable expectation ofprivacy began as follows (facts are in bold):B. Respondent Did not Overcome his Burden of Demonstrating a Legitimate Expectation of Privacy in the Duplex in WhichHe was Arrested.

*582 1. Respondent has no legitimate expectation of privacy under prior decisions of this court.

The record establishes that Respondent did not own or rent the duplex. He was not related to its owners. He did not possessa key. He did not receive mail or visitors there. He had never used the premises before. He kept no possessions there otherthan a change of clothes. He was never left alone in the duplex. His authority to admit or refuse visitors was never discussedor tested. Any right to privacy that Respondent could possess in the duplex could be derived only from his sleeping on thefloor there one night with permission of the owners. Although some lower courts hold, at least implicitly, that a defendant'sstatus as an overnight guest is alone sufficient to demonstrate a privacy interest in a third person's home, prior decisions by

this Court compel a different result. 71

The brief then goes on to explain the rule in Jones v. United States and to apply that rule to the facts. 72

The appellant's brief in Mendoza v. United States begins the expectation of privacy subsection with the facts (in bold):A. There Was No Reasonable Expectation of Privacy in the Common Area.

The record is clear that the residence is a duplex with a main door opening into a common vestibule. The main entrance opensinto a common vestibule which reveals a short hall with the lower apartment door to the left of the common vestibule area anda stairway leading to a [sic] upper unit. The officers who executed the search warrant indicated that the front door opening intothe common vestibule area had a latch, but the evidence is clear that the door was not locked or otherwise barred against the

entry of people attempting to visit the upper or lower apartments and the police did not break down the door. 73

This is followed by rule, rule explanation and rule application. 74

Similarly, in United States v. Maestas, the appellee's analysis of whether the defendant had a reasonable expectation of privacybegins with conclusion and facts (in bold), which are followed by the rule and rule explanation:2. Defendant Had no Reasonable Expectation of Privacy in the Common Garbage Area.



Even if this Court determines that Maestas had a reasonable expectation of privacy inside the Mountain Road apartment, thatexpectation of privacy did not extend to the garbage area in which the drugs and gun were found.

*583 Arguing that he maintained a reasonable expectation of privacy in the garbage area, Maestas relies on the assumptionthat the area constitutes ‘curtilage’ of the apartment and is therefore entitled to the same Fourth Amendment status as the interiorof the apartment itself. Maestas notes that the garbage area is ‘attached to the duplex, hidden from public access, and walledoff by tall coyote fences,’ and that to access the area one would have to ‘either unlatch the gate or scale the coyote fence.’Maestas concludes that because ‘the public could not readily access the garbage cans,’ he maintained a reasonable expectation

of privacy in that area. 75

The Appellees' briefs in Blades v. Commonwealth and United States v. King both include a full paragraph of facts early in

the analyses of the expectation of privacy issue. 76 In the argument section of Blades, only the conclusion and the standard ofreview precede a long quote about the facts of the case (in bold):ARGUMENT

I. THE TRIAL COURT PROPERLY DENIED BLADES' MOTION TO SUPPRESS THE EVIDENCE FOUND AS ARESULT OF THE WARRANTLESS SEARCH OF HIS HOTEL ROOM

Blades argues that the trial court erred when it denied his motion to suppress all evidence found through a warrantless searchof his hotel room. ‘An appellate court's standard of review of the trial court's decision on a motion to suppress requires that [theappellate court] first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, thenthey are conclusive. Based on those findings of fact, [an appellate court] must then conduct a de novo review of the trial court'sapplication of the law to those facts to determine whether its decision is correct as a matter of law.’

There is no dispute as to the facts between Blades and the Commonwealth. Officer Vallelunga testified to the following at thesuppression hearing held the morning of the first day of trial:

He found a key to a Comfort Inn or Comfort Suites in the glove compartment of Tonya Brokaw's car after Deputy Crabtreehad gained permission to search the vehicle. He located the hotel and spoke to the management. The hotel had a guest named‘Tonya’ but with a different last name. The management determined that they had rented a room to a woman and man who fitthe description of Brokaw and Blades. Blades and Brokaw had paid for the room with cash, and it was after their check-out time.Deputy Vallelunga stated he was there after lunch-time, and check-out was between 9:00 and 10:00 AM. Because it was pastcheck-out time, the hotel management decided that they could *584 open the hotel room for Deputy Vallelunga and let himsearch the room. Deputy Vallelunga stated that he did not secure a search warrant because the items in the room were abandoned

property, and he knew that Blades and Brokaw had been arrested and were not coming back ‘to pay cash for the room.’ 77

These facts are followed by the rule, rule explanation, and rule application. 78 In King, the rule statement regarding expectation

of privacy immediately follows the standard of review. 79 However, the rule statement and rule explanation are separated byfacts (in bold):

III. THE DISTRICT COURT PROPERLY FOUND THAT THE DEFENDANT LACKED STANDING TO CHALLENGETHE SEARCH OF THE BASEMENT BASED ON THE DETERMINATION THAT KING HAD NO LEGITIMATEEXPECTATION OF PRIVACY IN THE BASEMENT.

On appeal, a district court's findings of fact will be reversed only upon a finding of clear error whereas its conclusions of laware reviewed de novo.



In order for an individual to challenge a search and seizure of a premises, that person must have a legitimate expectation ofprivacy in the area or items seized. In addition, not only must the individual establish a subjective expectation of privacy in thearea searched, the privacy interest must be of a type that society is willing to recognize as legitimate.

During the April 21, 1998, suppression hearing, the defendant called his mother, Carolyn King, to the stand to establish standing.Ms. King testified that at the time of the search, she had lived at the 1439 East 116th Street location for approximately threeyears. Ms. King described the residence as a two-family dwelling. She also stated that she lived on the second floor with herfour-year old, five-year old, and nine-year old children. Living on the third floor was her fifteen-year old son. Kenny and KewinKing lived on the first floor. Ms. King stated she rented the second and third floor as a unit, paying $375 per month to thelandlord. In addition, she paid $300 per month for the first floor unit which was paid to her by her sons Kenny and Kewin King.Ms. King also stated that the hallway connecting the basement, first, second and third floors was open to the entire house andthat everyone in the house lived there as one family. The house was used as a single living unit for the entire King family witheach family member in joint possession of the premises. Access to the basement was open to every member of the household

with each family member having complete freedom to travel between the basement, first, second and third floors. 80

*585 Rule explanation follows these facts. 81

Finally, the Appellee in Nourse v. Commonwealth begins the argument on the expectation of privacy issue with more than five

pages of facts before turning to the rule, rule explanation, and rule application parts of the argument. 82 What is clear fromthese examples is the central place of facts in the arguments these attorneys made on fact-intensive issues, a centrality that mostorganizational paradigms fail to convey.

2. Including the rule in a separate section, and starting subsequent sections with a discussion of facts.

Another way brief writers put the facts front and center in their arguments is to set forth the rule and rule explanation insubsections separate from rule application. For example, the argument in the appellant's brief in Stansbury v. California hasfive main sections: The first and third sections state and explain the relevant rules regarding custody, including a discussion of

the factors, and the second and fourth apply those rules to the facts of the case: 83

I. THE TEST OF CUSTODY FOR MIRANDA PURPOSES IS AN OBJECTIVE ONE THAT EVALUATES THE TOTALITYOF THE CIRCUMSTANCES FROM THE PERSPECTIVE OF A REASONABLE PERSON IN THE DEFENDANT'SPOSITION.

[This section states and explains rules.]

. . .

II. IN DETERMINING THAT PETITIONER WAS NOT IN CUSTODY, THE COURTS BELOW INCORRECTLYFOCUSED ON THE INTERROGATING OFFICERS' UNDISCLOSED INTENT AND SUBJECTIVE SUSPICIONS.

[This section applies those rules.]

. . .

III. THE PROPER FACTORS TO BE CONSIDERED IN DETERMINING WHETHER INTERROGATION IS CUSTODIAL.

[This section states and explains rules.]



. . .

IV. APPLYING PROPER FACTORS TO THE IN-CUSTODY DETERMINATION, PETITIONER'S INTERROGATIONWAS CUSTODIAL.

[This section applies those rules.]

*586 Section IV is further divided into four subsections, one for each factor, and each subsection begins with facts. 84 Forexample, the second subsection, which is about whether the atmosphere was police-dominated, begins not with the relevantrule and rule explanation, but with facts:Although we submit the petitioner was in custody for Miranda purposes from the moment he was confronted by four armedpolice officers, the restraints on his freedom of action only increased thereafter. He was driven with two police officers not tothe public section of the police station but to the jail proper. Petitioner was escorted by four officers through locked steel doors,and deposited in a small “locked interview room in the secure area of the jail.” This room was normally used for questioning

suspects and persons “who were already in custody” or “were going to be” placed in custody. 85

Similarly, the appellant's brief in another U.S. Supreme Court case, Thompson v. Keohane, states the rule regarding custody as

part of a related but separate issue; 86 the analysis of whether the petitioner was in custody for Miranda purposes is set forth in

a different section and begins and ends with facts, with references to the rules interspersed in the facts. 87

One reason for this focus on facts rather than on the rule may be that the questions at issue both for the custody and expectationof privacy issues are fact-intensive inquiries. Thus, it is not surprising that much of the analysis of this question would be adiscussion of the facts of the case, even to the extent that discussion of the facts both precede and follow the statement of therule. Beyond that, however, it may be that the attorneys who began sections with facts rather than rules did so because the rulesdid not favor their clients. It may also be that the attorneys were responding to judges' advice to “[l]et the facts do the talking.

Make your presentation people-oriented.” 88 By reminding the reader first about the facts, the writer is reminding the readerwhy she is reading the brief in the first place - to resolve a dispute involving real people.

3. Interspersing rule explanation and rule application.

A third common deviation from an organizational paradigm like CREAC was the interspersing of sections of rule explanationand rule application. One of the requirements of most, if not all, organizational paradigms is that the rule and rule explanationshould be stated before the rule is applied to the facts because rule explanation provides the basis for the reader to accept the

writer's application of the *587 rule to the facts. 89 One popular textbook defines rule explanation as “a demonstration that

the main rule on which you rely really is the law in the jurisdiction involved.” 90 This demonstration includes proof “that therule is law in the jurisdiction where the dispute would be or is being litigated”; proof “that you have stated the rule accurately”;explanation of “how the rule operates,” which can include relevant “information about how courts have interpreted the rule;”

and explanation of “the policy behind the rule.” 91 Another popular textbook describes rule explanation as “explaining thesource of the rule and what it means,” which includes:

(1) [D]escribing what the court said about the rule, (2) describing how the court applied the rule, (3) pointingout any relevant information about how the court did not apply the rule, (4) pointing out any relevant facts

the courts emphasized, and (5) describing the policy considerations that support the rule. 92



The legal writer then uses authority from the rule explanation in the rule application, for example to support the rule application

with analogical reasoning. 93 In adherence to all commonly used organizational paradigms, however, any authority that appears

in rule application should first have appeared in rule explanation. 94

In practice, however, attorneys analyzing the issue of custodial interrogation frequently mixed rule explanation and ruleapplication. In the appellant's brief for United States v. Kim, the initial rule explanation of the custody issue comes before

rule application, but the application is followed by additional rule explanation. 95 Specifically, the writer explains the rule by

discussing the relevant facts of six cases. 96 The writer then shifts to rule application by stating, “Here, defendant was not *588summoned, the physical surroundings were familiar to her, she was not confronted with evidence of her guilt, the police did not

apply any pressure to detain her, and the interview lasted approximately an hour and a half.” 97 This is immediately followed

by discussion of two cases that were not included in the initial rule explanation. 98 The writer then returns to rule application,

which is followed a page and a half later by discussion of six more cases that were not included in earlier rule explanation. 99

This is followed by more application, and the conclusion. 100

The appellant's brief in United States v. Bassignani similarly intersperses facts and rule explanation. 101 The overall rule for

custody, including the factors, is included in a separate section with the heading “The Legal Standard for Custody.” 102 The

individual factors are not explained in this separate section. 103 Instead, each factor is analyzed in a subsection headed, “TheDistrict Court Erred in Concluding Defendant Was in Custody by Neglecting to Consider Numerous Relevant Facts, Placing

Undue Weight on the Kim Factors, and Failing to Adequately Consider the Totality of the Circumstances.” 104 The analysisof each factor is dominated by the facts, interspersed with rule explanation. For example, the discussion of one factor begins(rule explanation is underlined; facts/rule application is marked in bold):The district court held the second factor - the extent to which the defendant is confronted with evidence of guilt - also weighedin favor of a finding of custody. It is certainly true that Detective Williams questioned Bassignani about his connection withthe [email protected] email account and about child pornography associated with the account, among other matters.But the district court looked only to the subject matter of the questions, rather than to the coercive nature of the questioning -the proper focus of the inquiry. As the Supreme Court has explained, the purpose of Miranda is “to ensure that the police donot coerce or trick captive suspects into confessing.” Berkemer, 468 U.S. at 433. The point of this factor is not, as the districtcourt seemed to believe, that once the conversation turns to relevant matters, it becomes custodial. In almost all interviews ofsuspects, the officers confront the suspect with evidence of his guilt. After all, if the *589 questions were not reasonably likelyto elicit incriminating answers they would not constitute interrogation, and would not require Miranda warnings even if askedin a custodial setting. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

A review of the recorded demonstrates no coercion or trickery. Other than to ask defendant whether the “big perm” accountwas his and whether others had access to it, Detective Williams did not begin to talk to defendant about his suspected criminalconduct until approximately 45 minutes into the interview. The tone of the interview remained calm and cooperative even afterthe officer began to ask defendant about his email accounts and his view of child pornography. Once Detective Williams beganto ask defendant about his conduct, Bassignani told him, “I'm more than happy to go with you through this process.” He latermade clear the reason why he was willing to participate in the interview, stating: “I'm trying to save my own ass here. I mean

let's be honest. I'm trying to get as minimal impact of this as possible.” 105

This is followed by two pages of rule explanation: a discussion of Ninth Circuit precedent and the facts and reasoning from

a Third Circuit case. 106

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1984132130&pubNum=0000780&originatingDoc=Iea34814d043711e598db8b09b4f043e0&refType=RP&fi=co_pp_sp_780_433&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)#co_pp_sp_780_433




Similarly, a brief filed in the Kentucky Supreme Court includes a short definition of custodial interrogation before turning torule application. That application is interspersed with rule explanation that includes brief discussions of five cases that were

not part of earlier rule explanation. 107

The appellant's brief for United States v. Wallace also mixes rule explanation and application, but in a different way. Here,the rule on custody is stated first, followed by rule explanation that includes citations to numerous cases, including United

States v. Axsom. 108 This discussion of Axsom is interspersed with rule application. In other words, rather than set forth thecomplete rule explanation first, followed by application that includes analogies to the already-stated facts in Axsom, the writerincludes the analogies in the initial discussion of the Axsom facts, as in the following example (rule explanation is underlined;rule application is in bold):The Eighth Circuit Court, however, found in Axsom that the agents employed no strong arm tactics, did not adopt a threateningposture, did not display their weapons, or make any show of force during questioning. Likewise no such factors existed in thepresent case. Also, in Axsom, the Eighth Circuit noted that no deceptive stratagems were employed, and that the agents askedstraightforward questions and got straightforward answers, as did the questioning agent in this case.

Further, although the district court in Axsom found a police dominated atmosphere, the Eighth Circuit noted that whilenine agents participated in *590 the search, only two agents conducted the interview. Here, the defendant interviewed wasinterviewed by a single agent. Further, the Eighth Circuit in Axsom noted that photographs taken at or near the time ofquestioning reflect a more casual scene than a police dominated, coercive atmosphere. In the present case, the court was given

photographs which depict extremely casual and non-threatening scenes at the Defendants' headquarters. 109

Similar examples can be found in appellee's briefs on the custody issue. In the appellee's brief for United States v. Littledale,

the writer begins the section on custody with a statement of the rule, citing but not discussing four cases. 110 Immediately afterstating the rule, the writer turns to application, and essentially includes the rule explanation within the rule application, as inthe following example (rule explanation is underlined; rule application is in bold):The Court also specifically credited the agents [sic] testimony that he was told that he was not under arrest. The district courtfound that defendant was told at the outset of the interview that he was not under arrest and that he wasn't in any trouble [sic]which weighs heavily in finding no custodial interrogation. Yarborough, 541 U.S. at 662. . .(if police tell a reasonable personhe is not under arrest, that person will likely not feel his freedom of movement is restrained to “the degree associated with aformal arrest.”) Although agents did not advise defendant that he was free to leave, they also did not tell him that he could notleave, and defendant did not ask to leave or attempt to leave. The Court correctly concluded that those facts weighed in favorof a determination that defendant was not in custody. United States v. Salyers, 160, F.3d 1152, 1159-60 (7th Cir. 1998) (thefact that the defendant was not told he could not leave, did not ask if he cold [sic] leave, and never attempted to leave supports

a finding that the defendant was not in custody). 111

In two more briefs, the rule is followed by a lengthy discussion of the facts of the case, with explication of the rule (in the formof discussion of relevant cases) interspersed in the latter part of the application section. In the appellee's brief for United States

v. Brooks, the section on custody begins with a statement of the rule, followed immediately by facts. 112 This discussion ofthe facts continues for a little over two pages, and is then interspersed with rule explanation that includes discussion of severalcases not previously cited, as in this paragraph (rule explanation is underlined; facts are in bold):Brooks continues to argue that the place of the questioning, the length of the questioning, and “other indicia of custody” supporther position that Miranda warnings were required. Regarding the place of *591 questioning, Brooks says she was “seatedin a small room at the ECC across from Special Agents Camper and Collins, next to the door, which remained closed duringthe interview.” Although there is no testimony that Brooks felt constrained or intimidated by the room, Brooks now says thatAgent Collins's testimony “indicated it was a small rooms which was capable of constraining or intimidating.” Regardless, it isundisputed that Brooks was at her work place, was unrestrained, and sitting closest to the door that had a window. The agents




did nothing to constrain or intimidate Brooks. See, e.g., United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999); UnitedStates v. Sivils, 960 F.2d 587, 598 (6th Cir. 1992) (person not in custody when free to move about and neither told that hewas under arrest nor threatened with arrest). Mahan is especially similar to Brooks's case. There, FBI agents interviewed theemployee in a conference room, never told the employee that he could not leave, the employee never asked to leave, the doorsto the interview rooms were unlocked, and the employee sat in the chair closest to the door. This Court found that the employee

was not subject to custodial interrogation. 113

Similarly, in the appellee's brief for United States v. Street the application section includes discussion of cases either not

previously cited or cited earlier in the brief in support of other points. 114 For example (rule explanation is underlined; ruleapplication is in bold):

After defendant signed his written confession, the agents left the room so that he could tell his parents inprivacy. Similarly, when defendant was eventually handcuffed, the agents did it out of his parents' sight.These facts support the district court's finding that there were virtually no restrictions place on defendant'smovement until Agent Fitzgeralds verbally advised him of his rights, much less any restrictions that equatedto formal arrest. See McDowell, 250 F.3d at 1362-63 (suspect was not in custody during a four-hour roadsidestop when he was not handcuffed, no guns were drawn, the agents' questions were not accusatory, suspectdid not ask to leave and was not told that he could not leave); United States v. Moya, 74 F.3d 1117, 1119(11th Cir. 1996) (suspect was not in custody when questioned without Miranda warnings, as the officersdid not physically move or restrain him, they did not draw their weapons, he was not charged or told he wasunder arrest, and he did not ask to leave); United States v. Phillips, 812 F.2d 135, 1262 (11th Cir. 1987)(reversing the suppression of defendants' inculpatory, pre-Miranda statements because the defendants wereneither arrested nor *592 restrained, and none of the questioning agents used physical or psychological

force to overwhelm their will to resist). 115

Attorneys also mixed rule explanation and rule application in briefs on the expectation of privacy issue. In the appellant's brief inUnited States v. Correa the rule application includes an almost two-page discussion of a case not included in the lengthy initial

rule explanation. 116 The appellee's brief in the same case also interspersed rule explanation throughout rule application. 117

The examples described above strongly suggest, then, that while practicing attorneys certainly include the parts of CREACwhen crafting their arguments - they state the rule, explain the rule, and apply the rule - they do so in a much more flexibleway than most first-year legal writing textbooks teach, even when analyzing factor-based issues very similar to issues assignedto first-year legal writing students. This may be true for many reasons, and the reasons may vary for each attorney. One likelyreason is that the attorneys deemed it more persuasive to deviate from a pure R-E-A paradigm. Perhaps when citing to casesin the rule application that were not used in the rule explanation, the attorneys were emphasizing the number of cases thatsupported their argument - too many to include in a single rule explanation section. Perhaps attorneys used EAEAEA ratherthan EA in a single subsection so they could discuss the facts sooner in the section than they could if all the rule application weredone after the rule explanation. Perhaps they were trying to avoid the repetition that comes with stating the relevant facts of acase in the rule explanation and repeating the key facts in the rule application. When the deviations involved including extensivefacts where pure CREAC does not allow for them, perhaps the attorneys were trying to do what many judges encourage legalwriters to do: emphasize the facts. Alternatively, perhaps the attorneys just did what seemed to flow best as they were writing.

As long as the briefs were persuasive as a result of these organizational decisions, 118 however, the attorneys were not incorrectto deviate from strict adherence to an organizational paradigm like CREAC. If the briefs were more persuasive because theydeviated from pure CREAC, then the attorneys made good choices about organization.









V. Teaching a Flexible CREAC

Given the examples above, it seems safe to say that when writing about factor-based issues, attorneys use variations of paradigmslike CREAC in organizing their arguments: They state rules first, which are usually followed by rule explanation and ruleapplication. They provide proof for their conclusions of law, just as first-year law students are taught to do via organizationalparadigms. When they deviate from strict *593 adherence to CREAC, it is often to include facts in places other than ruleapplication - often before the rule or between the rule and rule explanation - and to intersperse rule explanation with ruleapplication.

What, then, should we teach first-year law students about organizing legal analysis? Because the attorneys writing about factor-based issues in the examples above used the parts of CREAC in more or less the order C-R-E-A-C, it makes sense to continueto use such paradigms to help beginning law students learn this new, deductive type of organization. However, teaching anorganizational paradigm should be done in a way that moves from basic, straightforward use of the paradigm to a more flexible

use of the paradigm in appropriate circumstances. 119 I liken CREAC to a basic white sauce. 120 All white sauces contain fat(usually butter), flour, and a liquid such as milk, just as all legal analysis that involves questions of fact contains rules and

rule application. 121 As beginning cooks need to master the basic white sauce - or any basic recipe - before moving on to itsvariations, beginning legal writers need to master CREAC before moving on to its variations. After learning to make the basicwhite sauce, a more advanced cook learns she can add lemon to the sauce when serving it with fish, or horseradish and dry

mustard when serving it with corned beef. 122 Similarly, once a legal writer has mastered CREAC, she should learn whenvariations like those in the examples above are appropriate. If she is working with compelling facts, for example, she should

learn that she can add those facts to the beginning of a section, for example after the rule but before the rule explanation. 123

In short, while an organizational paradigm can be tremendously helpful to beginning legal writers, it also makes sense toexpose these writers to at least some of the alternatives early on, as do the examples provided in the textbooks by Oates et

al. 124 Students whose progress is slower may stick with basic CREAC, while other students may begin to experiment with thevariations of basic CREAC, such as including facts before the rule, or alternating between rule explanation and rule applicationwithin a section. Students should be taught that such variations are fine, and can be very effective, as long as the students havea reason for using them.

Of course, the main limitation on teaching the variations of organizational paradigms to our students is time: Given everythingthe students must learn in first-year legal writing, many legal writing professors will despair at finding time to teach anything

but a basic organizational paradigm to the first-year students. 125 Therefore, *594 using a third semester of legal writing to

teach advanced techniques such as CREAC variations is ideal. 126 One focus of such an advanced class could be the importance

of using facts in legal analysis, as illustrated in the examples above. 127 As legal writing scholars recognize, many judges wantand expect legal analysis to go beyond the parameters of formalist analysis, for example to include more emphasis on facts and

*595 telling a story. 128 Our students should know that, and know how to write in a way that responds to judges' expectations.In doing so, they will be more effective advocates for their clients.

The question of whether and how to use organizational paradigms to teach legal writing is almost as old as the legal writingprofession itself. We serve our students well when we give them the tools they need to do the jobs they will be expected todo as practicing attorneys. An organizational paradigm is one such tool, especially when students are taught when and howto vary the parts of the paradigm. As George Gopen has correctly said, “there is not and cannot be a single structure that isthe right answer to the question of how argumentative thought is best conveyed from the mind of a writer to the mind of a

reader.” 129 Mastery of a more flexible CREAC can be a potent weapon for the attorney writing a brief, so we should be sureit is in each of our student's arsenals.



*596 Appendix

Briefs reviewed for article (*brief cited in article)

I. Custody Issue

*Brief for Petitioner, Thompson v. Keohane, 516 U.S. 99 (1995) (No. 94-6615).

Brief for Respondents, Thompson v. Keohane, 516 U.S. 99 (1995) (No. 94-6615).

*Brief for Petitioner, Stansbury v. California, 511 U.S. 318 (1994) (No. 93-5770).

Brief for Respondent, Stansbury v. California, 511 U.S. 318 (1994) (No. 93-5770).

Brief for Appellant, U.S. v. Littledale, 652 F.3d 698 (7th Cir. 2011) (No. 10-3063).

*Brief for Appellee, U.S. v. Littledale, 652 F.3d 698 (7th Cir. 2011) (No. 10-3063).

*Brief for Appellant, U.S. v. Brooks, 379 Fed. App'x 465 (6th Cir. 2010) (No. 08-5875/08-5948).

Brief for Appellee, U.S. v. Brooks, 379 Fed. App'x 465 (6th Cir. 2010) (No. 08-5875/08-5948).

*Brief for Appellee, U.S. v. Panak, 552 F.3d 462 (6th Cir. 2009) (No. 07-4476).

*Brief for Appellant, United States v. Bassignani, 575 F.3d 879 (9th Cir. 2009) (No. 07-10453).

Brief for Appellee, United States v. Bassignani, 575 F.3d 879 (9th Cir. 2009) (No. 07-10453).

Brief for Appellee, U.S. v. Willaman, 437 F.3d 354 (3d Cir. 2006) (No. 05-1336).

*Brief for Appellee, United States v. Street, 472 F.3d 1298 (11th Cir. 2006) (No. 05-16299-DD).

*Brief for Appellant, United States v. Kim, 292 F.3d 969 (9th Cir. 2002) (No. CA 01-30166).

*Brief for Appellant, U.S. v. Romaszko, 253 F.3d 757 (2nd Cir. 2001) (No. 00-1580).

Brief for Appellee, U.S. v. Romaszko, 253 F.3d 757 (2nd Cir. 2001) (No. 00-1580).

Brief for Appellee, Smith v. Commonwealth, 312 S.W.3d 353 (Ky. 2010) (No. 2008-SC-000060-DG).

Brief for Appellant, Alkabala-Sanchez v. Commonwealth, 255 S.W.3d 916 (Ky. 2008) (No. 2006-SC-000196-MR).

*Brief for Appellant, Fugett v. Kentucky, 250 S.W.3d 604 (Ky. 2008) (No. 2006-SC-000051-MR).

*Brief for Appellee, Fugett v. Kentucky, 250 S.W.3d 604 (Ky. 2008) (No. 2006-SC-000051-MR).

Brief for Appellant, Emerson v. Commonwealth, 230 S.W.3d 563 (Ky. 2007) (No. 2005-SC-205-MR).

*597 II. Expectation of Privacy Issue

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*Brief for Appellee, United States v. Maestas, 639 F.3d 1032 (10th Cir. 2011) (No. 10-2226).

*Brief for Appellee, U.S. v. Miravalles, 280 F.3d 1328 (11th Cir. 2002) (No. 01-13027-AA).

*Brief for Appellee, Minnesota v. Carter, 525 U.S. 83 (1998) (No. 97-1147).

*Brief for Appellant, Minnesota v. Olson, 110 S. Ct. 2558 (1989) (No. 88-1916).

Brief for Appellee, Minnesota v. Olson, 110 S. Ct. 2558 (1989) (No. 88-1916).

Brief for Respondent, California v. Greenwood, 486 U.S. 35 (1988) (No.86-684).

*Brief for Appellant, U.S. v. Correa, 653 F.3d 187 (3d Cir. 2011) (No. 05-16299-DD).

*Brief for Appellee, U.S. v. Correa, 653 F.3d 187 (3d Cir. 2011) (No. 05-16299-DD).

Brief for Appellant, U.S. v. Kimber, 395 Fed. App'x 237 (6th Cir. 2010) (No. 07-4060).

*Brief for Appellant, Mendoza v. United States, 281 F.3d 712 (8th Cir. 2002) (No. 00-3631MNST).

Brief for Appellants, U.S. v. Heath, 259F.3d 522 (6th Cir. 2001) (Nos. 99-6549; 99-6550).

Brief for Appellee, U.S. v. King, 227 F.3d 732 (6th Cir. 2000) (No. 98-4060).

*Brief for Appellant, U.S. v. Acosta, 965 F.2d 1248 (3d Cir. 1992) (Nos. 91-2071, 91-2072, 91-2073).

*Brief for Appellees, U.S. v. Acosta, 965 F.2d 1248 (3d Cir. 1992) (Nos. 91-2071, 91-2072, 91-2073).

*Brief for Appellee, Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2001) (No. 2010-CS-000187).

Brief for Appellee, Nourse v. Commonwealth, 177 S.W.3d 691 (Ky. 2004) (Nos. 2003-SC-00220, 2003-SC-00021).

Footnotesa1 Assistant Professor of Legal Research and Writing, University of Kentucky College of Law; B.A. University of Wisconsin; M.A.

Indiana University; J.D. University of Wisconsin Law School. Special thanks to the participants at the 2013 LWI Writers Workshop,

in particular Jill Ramsfield, Lou Sirico, and Abigail Patthoff, and to my legal writing colleagues at the University of Kentucky College

of Law.

1 IRAC stands for Issue-Rule-Application or Analysis-Conclusion; CREAC stands for Conclusion-Rule-Explanation-Application-

Conclusion.

2 Paradigms like IRAC and CREAC have also properly been called analytical rather than organizational schemes because they are “a

kind of shorthand for the categorical syllogism.” Kristen K. Robbins-Tiscione, A Call to Combine Rhetorical Theory and Practice in

the Legal Writing Classroom, 50 Washburn L.J. 319, 328 (2011); see infra Section I.

3 E.g., Kristen K. Robbins, Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning, 27 Vt. L. Rev. 483, 492 (2003).
























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4 See, e.g., Charles R. Calleros, Legal Method and Writing 80-82 (6th ed. 2011); Veda Charrow et al., Clear and Effective Legal

Writing 210-19 (5th ed. 2013); Linda H. Edwards, Legal Writing: Process, Analysis, and Organization 82-83 (6th ed. 2014); Laurel

Currie Oates et al., Just Briefs 35-37 (3d ed. 2013); James A. Gardner, Legal Argument: The Structure and Language of Effective

Advocacy 6-7 (1st ed. 1993); Cathy Glaser et al., The Lawyer's Craft: An Introduction to Legal Analysis, Writing, Research, and

Advocacy 64-69 (2002); Michael D. Murray & Christy Hallam DeSanctis, Legal Writing and Analysis 19 (2009); Teresa J. Reid

Rambo & Leanne J. Pflaum, Legal Writing by Design: A Guide to Great briefs and Memos 18, 30-32 (2d ed. 2013); Deborah A.

Schmedemann & Christina L. Kuntz, Synthesis: Legal Reading, Reasoning and Writing 81-82 (3d ed. 2007); Robin Wellford Slocum,

Legal Reasoning, Writing, and Other Lawyering Skills 156-59 (3d ed. 2011).

5 E.g., Robbins-Tiscione, supra note 2, at 328; Anita Schnee, Logical Reasoning “Obviously”, 3 J. Legal Writing Inst. 105, 106 (1997).

6 Oates et al., supra note 4, at 35.

7 Gardner, supra note 4, at 722.

8 Id. at 4; accord James M. Boland, Legal Writing Programs and Professionalism: Legal Writing Professors Can Join the Academic

Club, 18 St. Thomas L. Rev. 711, 722 (2006); Tracy Turner, Finding Consensus in Legal Writing Discourse Regarding Organizational

Structure: A Review and Analysis of the Use of IRAC and its Progenies, 9 Legal Comm. & Rhetoric: JALWD 351, 356 (2012).

9 Gardner, supra note 4, at 4; accord Boland, supra note 8, at 722; Turner, supra note 8, at 356.

10 Schnee, supra note 5, at 107; accord Boland, supra note 8, at 722; Turner, supra note 8, at 356.

11 E.g., Boland, supra note 8, at 717-27; Gardner, supra note 4, at 3-13 (stating that “all legal argument should be in the form of

syllogisms.”); 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. Legal Educ. 192, 208 (2009) (“Deductive reasoning is closely associated with logic,

comprehension, common sense, and order. Judges and lawyers use it because it is generally recognized as the most common, sound,

and indispensable of the forms of reasoning.”); Robbins, supra note 3, at 493 (“What makes the syllogistic argument so appealing

is its seemingly ironclad quality.”); Robbins-Tiscione, supra note 2, at 329; Gerald B. Wetlaufer, Rhetoric and Its Denial in Legal

Discourse, 76 Va. L. Rev. 1545, 1558-59 (observing that a good lawyer “will engage in a style of argument and proof that is highly

rational and that is made in the spirit, and where possible the form, of deductive, syllogistic logic.”).

12 Gardner, supra note 4, at 3.

13 E.g., Calleros, supra note 4, at 80-82; Charrow et al., supra note 4, at 210-19; Diana R. Donahoe, Experiential Legal Writing:

Analysis, Process and Documents 12-13 (2011); Glaser et al., supra note 4, at 64-69; Rambo & Pflaum, supra note 4, at 18-21, 31-35;

Schmedemann & Kuntz, supra note 4, at 81-87; Slocum, supra note 4, at 156-59.

14 Robbins-Tiscione, supra note 2, at 329. Some argue that the more accurate word for syllogisms used in legal reasoning is

“enthymemes.” E.g., Wilson Huhn, The Use and Limits of Syllogistic Reasoning in Briefing Cases, 42 Santa Clara L. Rev. 813,

848-49 (2002) (citing James G. Wilson, Surveying the Forms of Doctrine on the Bright Line - Balancing Test Continuum, 27 Ariz.

St. L.J. 773, 839 (1995)). For an explanation of the difference between a syllogism and an enthymeme, see Kristen Konrad Robbins-

Tiscione, Rhetoric for Legal Writers 118-19 (2009); see also Linda L. Berger, Studying and Teaching “Law as Rhetoric”: A Place

to Stand, 16 J. Legal Writing Inst. 3, 50 (2010) (“Because an enthymeme contains a conclusion and only one premise, the other

premise being implied and both premises being only presumably true, the enthymeme cannot lead to certainty, but only to a tentative

conclusion from probable premises.”).

15 See Turner, supra note 8, at 356-59. As Turner correctly notes, the paradigms “may be more detailed than IRAC, but they are not

inconsistent with IRAC.” Id. at 359.

16 See id. at 357-58.

17 See id.; Richard K. Neumann, Jr. & Kristen Konrad Tiscione, Legal Reasoning and Legal Writing: Structure, Strategy, and Style

175 (7th ed. 2013). One item in a list of questions for students to ask themselves after completing the first draft is, “Have you

completed the rule proof and explanation before starting the rule application? If you let the material get out of control, the result

may be a little rule proof, followed by a little rule application, followed by a little more rule proof, followed by a little more rule

application . . . . Finish proving the rule before you start applying it. If you start to apply a rule before you have finished proving it,















the reader will refuse to agree with what you're doing.” Id; see also Michael D. Murray, Rule Synthesis and Explanatory Synthesis:

A Socratic Dialogue Between IREAC and TREAT, 8 Legal Comm. & Rhetoric: JALWD 217, 230-31 (2011) (suggesting that the

full explanation section should follow the rule).

18 See Turner, supra note 8, at 357-58.

19 See id.

20 See id. Specifically, CRARC stands for Conclusion, Rule, Application, Rebuttal and refutation, Conclusion, while CRAAAP stands

for Conclusion, Rule, Authority, Application, Alternative Analysis, Policy. As Turner notes, one exception to the use of organizational

paradigms is the textbooks by Laurel Currie Oates et al. In particular, The Legal Writing Handbook includes examples of organization

that is essentially CREAC, but also examples that allow for inclusion of facts before stating the rule. Laurel Currie Oates & Anne

Enquist, The Legal Writing Handbook 439-41 (6th ed. 2014); see also Ruth Anne Robbins et al., Your Client's Story 206 (2012)

(including CPRA (Conclusion - Prime - Rule - Application) as a variation on CREAC that allows for facts before the rule. As Robbins

explains it, “[i]n this variation, the writer follows the Conclusion with a paragraph designed to prime the reader, emotively. This

might be a story about our client or an explanation of public policy. The goal is to motivate the judge so that she wants to find a

reason to rule in your client's favor on that particular issue.”).

21 “The Value of IRAC” was the topic of Volume 10, No. 1 of The Second Draft, which appeared in November 1995. As is clear

from the content of that issue, the debate over the usefulness of organizational paradigms like IRAC was happening even then. See

also 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, 152, 169 (2010) (recognizing the difficulty of determining when IRAC and its progeny were first

recommended in legal writing pedagogy).

22 Turner, supra note 8, at 359.

23 Calleros, supra note 4, at 355. CRAC stands for Conclusion-Rule-Application-Conclusion. Acknowledging the potential limits of

any organizational paradigm, Professor Calleros also urges students to “exercise the flexibility and creativity to adopt any method

of internal organization and advocacy that will present your client's argument most effectively,” but suggests that students use a

deductive organization such as CRAC unless they have good reason to organize their arguments in a different way. Id.

24 Richard K. Neumann, Jr. & Sheila Simon, Legal Writing 118 (2d ed. 2011).

25 Rambo & Pflaum, supra note 4, at 21. BaRAC stands for Bold Assertion-Rule-Application-Conclusion.

26 See, e.g., Donahoe, supra note 13, at 42-45.

27 E.g., Meredith Aden, CREAC Scramble: An Active Self-Assessment Exercise, Second Draft, Fall 2010, at 5-16; Lurene Contento,

Demystifying IRAC and Its Kin: Giving Students the Basics to Write “Like a Lawyer,” Second Draft, Dec. 2006, at 8, 9 (asserting

“[l]awyers use IRAC, judges use IRAC. From the new associate writing his first memo, to the appellate judge writing her last opinion,

everyone (well, almost everyone) uses IRAC (or its kin) to get organized.”); Ann Cronin-Oizumi, Beethoven's Fifth & IREAC, Second

Draft, Aug. 2005, at 12; Jacquelyn E. Gentry, Creating a Rock-Solid Foundation for IRAC, Second Draft, Aug. 2005, at 8, 9; Angela

Caputo Griswold, Teaching IRAAC: The Power of Self Discovery, Second Draft, Aug. 2005, at 11 (arguing that “[l]egal paradigms

work.”); Jill Koch Hayford, Empowering Students to Build a Better CREAC, Second Draft, Fall 2009, at 6; Christine Hurt, Teaching

Legal Analysis Using IRAC, Second Draft, May 2000, at 11, 12; M. H. Sam Jacobson, Learning Styles and Lawyering: Using

Learning Theory to Organize Thinking and Writing, J. Ass'n Legal Writing Directors, Fall 2004, at 67-68 (suggesting CRAFADC as

an advanced organizer); Ken Swift, [Not Just] For New Teachers: My Dinner with IRAC, Second Draft, Dec. 2005, at 13; Hollee S.

Temple, Using Formulas to Help Students Master the “R” and “A” of IRAC, 14 Persps.: Teaching Legal Res. & Writing 129 (2006)

(arguing that “[o]ur students, most fresh from undergraduate writing experiences that prized both length and obfuscation, need a

template to help them transition into the legal setting, where supervisors and judges expect practitioners to adhere to the IRAC . . .

format.”); Stephanie A. Vaughn, Persuasion is an Art . . . But It Is Also an Invaluable Tool in Advocacy, 61 Baylor L. Rev. 635, 662

(2009) (advocating use of IRAC as a way to present complex legal arguments in a way that is simple to follow).

28 E.g., Gerald Lebovits, Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to Combinations in Between, N.Y.

St. B.A. J., July/Aug. 2010, at 64 (stating that “[a]ll legal writers will improve their writing skills and their submitted product by using

IRAC or one of its many variations.”); DiAnn Lindquist, Effective Legal Argument - Appellant's Opening Brief, in Colo. Practice









2012, § 19.13 (telling readers to “[f]ormat your arguments in IRAC, just as you learned in law school.”); Sarah E. Ricks & Jane L.

Istvan, Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs, 38 U. Tol. L. Rev.

1113, 1115 (2007) (“Tip: Use CRAC as a Default Analytical Structure for Each Legal Conclusion”).

29 E.g., Boland, supra note 8, at 721 (arguing that “[w]hile IRAC can be useful in organizing legal briefs, it does not adequately convey

the core of what lawyers do, i.e., make legal arguments.”); Jo Anne Durako, Evolution of IRAC: A Useful First Step, Second Draft,

Nov. 1995, at 6 (arguing that “students benefit from having some organizing principle to help decode legal problems and to help

them begin the complex process of learning legal analysis”); Chris Iijima & Beth Cohen, Reflections of IRAC, Second Draft, Nov.

1995, at 9 (stating that “IRAC provide[s] a good starting point to explain the components of legal analysis”); Jeffrey Metzler, The

Importance of IRAC and Legal Writing, 80 U. Det. Mercy L. Rev. 501, 501 (2003) (stating that IRAC has “some value . . . as merely

an organizational tool”).

30 Joseph Kimble, In Defense of IRAC (As Far As It Goes), Second Draft, Nov. 1995, at 10; see also Kedia, supra note 21, at 150

(observing that “[t] hough the distinctiveness of the IRAC method itself has come into question in recent years, its utility is not

generally in doubt.”).

31 E.g., Marion W. Benfield, Jr., IRAC - An Undesirable Formula, Second Draft, Nov. 1995, at 16-17 (1995); Toni M. Fine, Comments

on IRAC, Second Draft, Nov. 1995, at 7 (arguing that “[t]here are times when the structure represented by IRAC is completely

unworkable . . . [and] other situations in which, while an analysis organized around IRAC concepts would be feasible, it would

not be the best approach.”); Kedia, supra note 21, at 150 (criticizing the rule-centric nature of IRAC and arguing for an alternative

pedagogy); Christine M. Venter, Analyze This: Using Taxonomies to “Scaffold” Students' Legal Thinking and Writing Skills, 57

Mercer L. Rev. 621, 624 (2006) (stating “CREAC tends to encourage formalism, rather than creative thinking”).

32 The November 1995 issue of The Second Draft was devoted to the pros and cons of using IRAC to teach legal analysis. For the sake

of consistency within this article, and because CREAC is the more recent iteration of IRAC for legal writing purposes, I am using

CREAC where the authors in that issue of The Second Draft used IRAC.

33 Jane Kent Gionfriddo, Dangerous! Our Focus Should be on Analysis, Not Formulas Like IRAC, Second Draft, Nov. 1995, at 2; see

also Jane Kent Gionfriddo et al., A Methodology for Mentoring Writing in Law Practice: Using Textual Clues to Provide Effective

and Efficient Feedback, 27 Quinnipiac L. Rev. 171, 188 n.71 (2009) (noting that the authors do not teach IRAC or its variants because

“too often this formula causes students to fail to fully develop an abstract analysis of the law separately from applying that law to

their client's situation”).

34 Manning Warren, IRAC Response, Second Draft, Nov. 1995, at 19; see also Jennifer Sheppard, Once Upon a Time, Happily Ever

After, and in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate

Briefs and Motion Memoranda, 46 Willamette L. Rev. 255, 262 (2009) (stating that “[t]he problem with the recitation of the law

under one of these structural paradigms is that there is no action, no movement, and consequently, no plotline”).

35 George G. Gopen, Keynote Address at the Capital Area Legal Writing Conference, Feb. 26, 2011, in IRAC, REA, Where We Are

Now, and Where We Should Be Going in the Teaching of Legal Writing, 17 J. Legal Writing Inst. xvii, xviii (2011); see also Lisa

Eichhorn, Writing in the Legal Academy: A Dangerous Supplement?, 40 Ariz. L. Rev. 105, 135 (1998) (arguing that “formulas” like

IRAC “shut off the use of analytical styles other than rule-based reasoning”).

36 Todd Winegar, The Best Brief Wins: On Writing Well, ALI-ABA Professional Skills Program, June 28, 2011 (available on Westlaw

at SS625 ALI-ABA 1). But see Karin Ciano, A Briefreader's Guide to Briefwriting, Fed. Law., Jan.-Feb. 2012, at 43 (implying that

IRAC is the basic organizational structure of legal arguments in briefs). However, Ciano also urges brief writers to use narrative to

make their arguments more persuasive. Id. at 44-45.

37 Beate Bloch, Brief-Writing Skills, 2 Persps.: Teaching Legal Res. & Writing 4, 4 (1993) (noting, “[i]t is a truism that most cases are

decided on their facts”); see also Clyde H. Hamilton, Effective Appellate Brief Writing, 50 S.C. L. Rev. 581, 587 (1999) (using an

organizational paradigm not included in list of factors that most effective brief writers did).

38 Jim Regnier, Appellate Briefing: A Judicial Perspective, 11 Persps.: Teaching Legal Res. & Writing 72, 73 (2003); see also Michael

J. Newman, The Importance of Storytelling as a Tool in the Practice of Law, The Legal Intelligencer (Apr. 19, 2013) (stating that

“stories are far more effective than argument and facts at changing people's minds”); Raymond P. Ward, How to Write an Appellate

Brief (2006), http:// raymondpward.typepad.com/newlegalwriter/files/HowToWriteAnAppellateBrief.pdf; Jacques L. Wiener, Jr.,



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Ruminations From the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70 Tul. L. Rev. 187, 194 (1995) (stating

only that “written argument . . . must be grounded in logic, legally supported, and ‘readable”’). For two articles about what judges

and practitioners think of attorneys' brief-writing skills but that do not mention organizational paradigms like CREAC, see Susan

Hanley Kosse & David T. ButleRichie, How Judges, Practioners, and Legal Writing Teachers Assess the Writing Skills of New Law

Graduates: A Comparative Study, 53 J. Legal Educ. 80 (2003), and Kristen K. Robbins, The Inside Scoop: What Federal Judges

Really Think About the Way Lawyers Write, 8 Legal Writing 257 (2002); see also Charles A. Bird & Webster Burke Kinnaird,

Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court, 4 J. App. Prac. & Process

141, 141 (2002) (describing a survey on judges' preferences in appellate advocacy in which the use of organizational paradigms is

not mentioned). Also, neither the Federal Rules of Appellate Procedure nor the Kentucky rules governing appellate practice direct

attorneys to use any particular organizational paradigm. Fed. R. App. P. 28; Ky. R. Civ. P. 76.12(4)(c)(v). But see Harry Pregerson,

The Seven Sins of Appellate Brief Writing and Other Transgressions, 34 UCLA L. Rev. 431, 435 (1986) (stating, “[t]he mark of a

well-organized brief is the skill with which it applies legal argument to the facts of the case”).

39 Wilson R. Huhn, Teaching Legal Analysis Using a Pluralistic Model of Law, 36 Gonz. L. Rev. 433, 440, 481-82 (2000-2001). For

an in-depth presentation of Huhn's theories, see generally Wilson Huhn, The Five Types of Legal Argument (3d ed. 2014).

40 Anthony G. Amsterdam & Jerome Bruner, Minding the Law 110 (2000).

41 Christopher J. Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Legal Writing: J. Legal Writing Inst. 53, 54

(2008); see also Sheppard, supra note 34, at 255-68 (urging lawyers to “be more conscious of narrative during the structuring and

drafting of the argument section of [[briefs and memoranda]”).

42 Linda Edwards, The Convergence of Analogical and Dialectic Imaginations in Legal Discourse, 20 Legal Stud. F. 7, 9-11, 13 (1996).

43 Huhn, Teaching Legal Analysis Using a Pluralistic Model of Law, supra note 39, at 437.

44 See, e.g., Eichhorn, supra note 35, at 136 (stating that “rule-based reasoning alone cannot explain the complexity of the law”); Bret

Rappaport, Tapping the Human Adaptive Origins of Storytelling by Requiring Legal Writing Students to Read a Novel in Order to

Appreciate How Character, Setting, Plot, Theme, and Tone (CSPTT) are as Important as IRAC, 25 T.M. Cooley L. Rev. 267, 272

(2008) (stating that “[t]he first element of persuasion, such as appealing to ‘reason,’ is covered by IRAC - the formula provides a

rational method for the reader to come to a conclusion. But IRAC is not structured to appeal to the reader's innate ‘understanding’ -

the second element of persuasion”). For more on rhetoric in legal analysis, see Berger, supra note 14; Donald H. J. Hermann, Legal

Reasoning as Argumentation, 12 N. Ky. L. Rev. 467 (1985); see also Robbins-Tiscione, supra note 2; Kurt M. Saunders, Law as

Rhetoric, Rhetoric as Argument, 44 J. Legal Educ. 566 (1994); Paul T. Wangerin, A Multidisciplinary Analysis of the Structure

of Persuasive Arguments, 16 Harv. J.L. & Pub. Pol'y 195 (Winter 1993). For an excellent discussion of narrative persuasion, see

Rideout, supra note 41.

45 Kedia, supra note 21, at 170.

46 Kenneth D. Chestek, The Plot Thickens: The Appellate Brief as Story, 14 Legal Writing: J. Legal Writing Inst. 127, 132, 162 (2008).

In a 2010 study, Chestek found that judges were more persuaded by briefs that emphasized the story behind the dispute than by briefs

that relied primarily on logic alone. Kenneth D. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J.

Ass'n Legal Writing Directors 1, 2 (2010).

47 See, e.g., Oates & Enquist, The Legal Writing Handbook, supra note 20, at 439-40 (giving the following examples of acceptable

ways, although not the only ways, to organize an elements analysis:

1. Argumentative heading for first element

• Assertion

• Statement of the rule

• Descriptions of analogous cases

• Your argument, including your response to your opponent's arguments

• Conclusion

...

1. Argumentative heading for first element

• Statement of the rule

• Descriptions of analogous cases






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• Your argument, including your response to your opponent's arguments

• Conclusion

...); see also Robbins et al., supra note 20, at 204 (noting that “a full-CREAC brief is likely only when you are working with an

elements test”). Robbins believes writers “might find that the CREAC structure is too limiting” when analyzing a factors test, for

example when the factors are interrelated. Id. at 204, 209.

48 The brief also involved a question of whether the Defendant had been interrogated, but because the custody question was the one we

expected would require a more in-depth analysis given the fact scenario, I am limiting my discussion to that issue.

49 A person is in custody when there is (i) formal arrest or (ii) a restraint on one's freedom of movement to a degree that is associated

with formal arrest. E.g., Smith v. Commonwealth, 312 S.W.3d 353, 358-59 (Ky. 2010).

50 Id. The factors include the threatening presence of several officers; the display of a weapon by an officer; the physical touching of the

suspect; the use of tone of voice or language that would indicate that compliance with the officer's request would be compelled; the

purpose of the questioning; whether the place of the questioning was hostile or coercive; the length of the questioning; whether the

suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do

so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact

with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions. Id.

51 See, e.g., Lorraine Bannai et al., Sailing Through Designing Memo Assignments, 5 J. Legal Writing Inst. 193, 193 (1999); Gail

Anne Kintzer, Maureen Straub Kordesh & C. Anne Sheehan, Rule Based Legal Writing Problems: A Pedagogical Approach, 3 Legal

Writing: J. Legal Writing Inst. 143, 151 (1997); Helene S. Shapo & Mary S. Lawrence, Designing the First Writing Assignment, 5

Persp.: Teaching Legal Res. & Writing 94, 95 (Spring 1997).

52 Our expectation is supported by the suggested organization of an issue involving a rule with multiple elements in Just Briefs. Oates

et al., Just Briefs, supra note 4, at 170-71; see also Miller & Charles, supra note 11, at 208 (stating that the analysis of factors is an

example of deductive reasoning, with the factors as the major premise and the facts as the minor premise).

53 At the University of Kentucky College of Law we use Richard K. Neumann & Sheila Simon, Legal Writing (2d ed. 2011), which

teaches CREAC as an organizing/analytical paradigm for legal memos and briefs.

54 Many students combined similar factors under one subheading to avoid repeating facts, so they had fewer but slightly broader

subsections that still adhered to CREAC within each subsection.

55 The brief also involved the issue of whether the identity of a confidential informant should be revealed, but because that issue did

not require the same depth of analysis, I am limiting my discussion to the expectation of privacy issue.

56 Katz v. United States, 389 U.S. 347, 362 (1967).

57 United States v. Dillard, 438 F.3d 675, 682 (6th Cir. 2006).

58 Here, too, many students combined similar factors under one subheading, so they had fewer but slightly broader subsections while

still adhering to CREAC within each subsection.

59 See Appendix A for a list of the briefs reviewed for this article. Because I wanted to review briefs that would be considered “good”

by experienced attorneys, I relied heavily where possible on briefs written by U.S. attorneys and assistant U.S. attorneys, who would

be likely to have written many briefs. To ensure that I had a good cross section of briefs, I also reviewed briefs written by public

defenders and other local practitioners.

60 Use of rule explanation varied more than any other part of CREAC.

61 By this I mean more than a cursory reference to the facts in a case before stating the relevant rule.

62 See, e.g., Edwards, supra note 4, at 290-93 (Edwards takes a flexible approach to organizing a multi-element issue, however, advising

students that “[o]ccasionally, later drafts can vary the normal multi-issue paradigm by combining the rule explanation section for

each element into one comprehensive explanation of the rule and then combining the rule application section for each element into










a comprehensive rule application.”); Neumann & Tiscione, supra note 17, at 164; Oates et al., Just Briefs, supra note 4, at 170-72;

Schmedemann & Kuntz, supra note 4, at 107-08.

63 Brief for Appellant at 27-36, United States v. Romaszko, 253 F.3d 757 (2d Cir. 2001) (No. 00-1580).

64 As noted elsewhere, a few do allow for fact-focused variations on CREAC. The textbooks by Oates et al. - Just Briefs and The Legal

Writing Handbook - provide an example of an element's analysis that includes a “Statement of the Facts” between the heading for

that element and the rule. Oates et al., Just Briefs, supra note 4, at 171-72; Oates & Enquist, The Legal Writing Handbook, supra note

20, at 441. Similarly, Your Client's Story includes CPRA as a variation that motivates the judge by emphasizing the client's story.

Robbins et al., supra note 20, at 206. In Experiential Legal Writing, Donahoe advises, “[Y]ou might want to present your client's facts

before you provide the rule, especially if the facts are compelling and the law is not very beneficial.” Donahoe, supra note 13, at 45.

65 Brief for Plaintiff-Appellant at 13-14, United States v. Panak, 552 F.3d 462 (6th Cir. 2009) (No. 07-4476) (citations omitted).

Although it could be argued that this paragraph is essentially an umbrella paragraph that uses the facts of the case to set forth the

factors in a custody analysis, the next paragraph restates those factors. Therefore, the main purpose of this paragraph seems to be

to put the facts before the reader as early as possible.

66 Id. at 14-17.

67 See Brief for Appellant at 35-37 and Brief for Appellee at 32-35, Fugett v. Kentucky, 250 S.W.3d 604 (Ky. 2008) (No. 2006-

SC-000051-MR).

68 Brief for Appellant at 35-37, Fugett, 250 S.W.3d 604. In other words, the pre-rule discussion of the facts is in addition to the Statement

of the Case earlier in the brief.

69 Brief for Defendant-Appellant at 20, United States v. Brooks, 379 Fed. App'x 465 (6th Cir. 2010) (No. 08-5875/08-5948) (citation

omitted).

70 Id. at 21-22.

71 Brief for Appellant at 16, Minnesota v. Olson, 110 S. Ct. 2558 (1989) (No. 88-1916).

72 Id. at 17-19.

73 Brief for Appellant at 7-8, Mendoza v. United States, 281 F.3d 712 (8th Cir. 2002) (No. 00-3631MNST) (citations omitted).

74 Id. at 8-12.

75 Brief for Appellee at 9, United States v. Maestas, 639 F.3d 1032 (10th Cir. 2011) (No. 10-2226) (citation omitted).

76 Brief for Appellee at 4-5, Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2001) (No. 2010-CS-000187); Brief for Appellee at 19-20,

United States v. King, 227 F.3d 732 (6th Cir. 2000) (No. 98-4046).

77 Brief for Appellee at 4-5, Blades, 339 S.W.3d 450 (citations omitted).

78 Id. at 5-7.

79 Brief for Appellee at 19-20, King, 227 F.3d 732.

80 Id. at 20-21 (citations omitted).

81 Id. at 21-22.

82 Brief for Appellee at 22-31, Nourse v. Commonwealth, 177 S.W.3d 691 (Ky. 2004) (Nos. 2003-SC-00220, 2003-SC-00021). For

additional examples of discussion of facts before rule or rule explanation, see Brief for Appellant at 15-16, United States. v. Acosta,

965 F.2d 1248 (3d Cir. 1992) (Nos. 91-2071, 91-2072, 91-2073); Brief for Appellees at 13-18, Acosta, 965 F.2d 1248; Brief for

Appellee at 9, United States v. Miravalles, 280 F.3d 1328 (11th Cir. 2002) (No. 01-13027-AA); Brief for Appellant at 14, United

States v. Kim, 292 F.3d 969 (9th Cir. 2002) (No. CA 01-30166).




























83 Brief for Petitioner at 13-31, Stansbury v. California, 511 U.S. 318 (1994) (No. 93-5770). The fifth section is a policy argument.

84 Id. at 20-27.

85 Id. at 23-24 (citations omitted).

86 The rule regarding whether a person is in custody is stated in the analysis of the first issue, which argues that “whether a suspect is in

‘custody’ for purposes of Miranda is a mixed question of law and fact not subject to section 2254(d)'s presumption of correctness.”

Brief for Petitioner at 8-16, Thompson v. Keohane, 516 U.S. 99 (1995) (No. 94-6615).

87 Id. at 37-42. This section is not divided into subsections.

88 Regnier, supra note 38, at 73.

89 Neumann & Tiscione, supra note 17, at 175. One item in a list of questions for students to ask themselves after completing the first

draft is, “Have you completed the rule proof and explanation before starting the rule application? If you let the material get out of

control, the result may be a little rule proof, followed by a little rule application, followed by a little more rule proof, followed by

a little more rule application . . . . Finish proving the rule before you start applying it. If you start to apply a rule before you have

finished proving it, the reader will refuse to agree with what you're doing.” Id.; see also Murray, supra note 17, at 230-31 (suggesting

that the full explanation section should follow the rule).

90 Neumann & Tiscione, supra note 17, at 146.

91 Neumann & Simon, supra note 24, at 121-22.

92 Edwards, supra note 4, at 86-87 (emphasis in original).

93 Neumann & Tiscione, supra note 17, at 146.

94 See id.; Edwards, supra note 4, at 110 (urging readers to “[b]e sure to complete the rule application section by matching its coverage

and approach to the explanation section.”).

95 Brief for Appellant at 13-22, United States v. Kim, 292 F.3d 969 (9th Cir. 2002) (No. CA 01-30166). The initial rule and rule

explanation sets forth the rule from Stansbury and explains the relevant factors regarding whether a person is in custody for Miranda

purposes.

96 Id. at 14-17. The six cases in the initial rule explanation are California v. Beheler, 463 U.S. 1121 (1983); Oregon v. Mathiason, 429

U.S. 492 (1977); People of the Territory of Guam v. Palomo, 35 F.3d 368 (9th Cir. 1994); United States v. Gregory, 891 F.2d 732

(9th Cir. 1989); United States v. Hudgens, 798 F.2d 1234 (9th Cir. 1986); and United States v. Levya, 659 F.2d 118 (9th Cir. 1981).

97 Brief for Appellant at 17, Kim, 292 F.3d 969.

98 Id. at 17-18. The two new cases are United States v. Hall, 421 F.2d 540 (2d Cir. 1969) and United States v. Beraun-Panez, 812 F.2d

578 (9th Cir. 1987).

99 Brief for Appellant at 18-21, Kim, 292 F.3d 969. The six new cases are Michigan v. Summers, 452 U.S. 692 (1981); United States v.

Saadeh, 61 F.3d 510 (7th Cir. 1995); United States v. Crawford, 52 F.3d 1303 (5th Cir. 1995); United States v. Burns, 37 F.3d 276

(7th Cir. 1994); United States v. Ritchie, 35 F.3d 1477 (10th Cir. 1994); and United States v. Richmann, 860 F.2d 837 (8th Cir. 1988).

100 Brief for Appellant at 21-22, Kim, 292 F.3d 969.

101 Brief for Plaintiff-Appellant at 13-30, United States v. Bassignani, 575 F.3d 879 (9th Cir. 2009) (No. 07-10453).

102 Id. at 13-14.

103 Id.

104 Id. at 15-30.





























105 Id. at 18-20 (citations to record omitted).

106 Id. at 20-22.

107 Brief for Appellant at 39-43, Fugett v. Kentucky, 250 S.W.3d 604 (Ky. 2008) (No. 2006-SC-000051-MR).

108 Brief for Appellant at 9-13, United States v. Wallace, 323 F.3d 1109 (8th Cir. 2003) (No. 02-3613).

109 Brief for Appellant at 12, Wallace, 323 F.3d 1109 (citations omitted).

110 Brief for Appellee at 17-18, United States v. Littledale, 652 F.3d 698 (7th Cir. 2011) (No. 10-3063).

111 Id. at 19 (citations to record omitted).

112 Brief for Appellee at 30-31, United States v. Brooks, 379 F. App'x 465 (6th Cir. 2010) (No. 08-5875/08-5948).

113 Brief for Appellee at 33-34, Brooks, 379 F. App'x 465 (citations to record omitted).

114 Brief for Appellee at 47-48, United States v. Street, 472 F.3d 1298 (11th Cir. 2006) (No. 05-16299-DD). United States v. McDowell

was cited earlier in the brief in the Standard of Review section and in support of the point that when a defendant lengthens a roadside

stop “by giving inconsistent stories and refusing to provide the interviewing agents with a valid telephone number to verify his story,”

the stop does not become a custodial interrogation. Id. at 25, 35.

115 Brief for Appellee at 47-48, Street, 472 F.3d 1298 (citations to record omitted).

116 Brief for Appellant at 14-16, United States v. Correa, 653 F.3d 187 (3d Cir. 2011) (No. 05-16299-DD). The case not included in rule

explanation is McDonald v. United States, 335 U.S. 451 (1948).

117 Brief for Appellee at 11-12, 23-30, Correa, 653 F.3d 187. For additional examples of interspersing rule explanation with rule

application, see Brief for Appellee at 24-33, Minnesota v. Carter, 525 U.S. 83 (1998) ( No. 97-1147).

118 It is certainly conceivable that a judge who expects pure CREAC would be distracted by deviations from that paradigm, which could

detract from the brief's persuasiveness. However, given judges' views on what makes a brief effective, this seems unlikely. See supra

note 38.

119 Or at least to raising students' awareness that it is sometimes appropriate to deviate from the paradigm, even if not expecting first-

year students to master advanced use of paradigms.

120 For more analogies between legal analysis and cooking, see Kristen Robbins-Tiscione, Aristotle's Tried & True Recipe for Argument

Casserole, 16 Persps.: Teaching Legal Res. & Writing 45, 47 (Fall 2006).

121 Irma S. Rombauer & Marion Rombauer Becker, Joy of Cooking 341-42 (1975 ed.).

122 Id. at 341-43.

123 Other examples of teaching advanced students to add new “ingredients” to basic legal analysis include making policy arguments and

arguments on questions of law.

124 Oates & Enquist, The Legal Writing Handbook, supra note 20, at 439-442; Oates et al., Just Briefs, supra note 4, at 169-173.

125 See, e.g., Linda H. Edwards, A Chance to Teach Analytical Skills Intentionally and Systematically, Second Draft, May 2002, at 1

(“The breadth of coverage demanded of a required Legal Writing course sequence is already massive, and we don't have time to do

all we're already asked to do.”); Kate O'Neill, Formalism and Syllogisms: A Pragmatic Critique of Writing in Law School, 20 Legal

Stud. F. 51, 56 (1996) (noting that “the typical credit-loading of legal writing courses,[sic] makes it very unlikely that the course,

no matter how well planned, can accomplish the multiple goals assigned, which can include remediation in reading, reasoning and

writing skills, training in the conventions of professional legal writing, and research instruction, and also provide serious instruction

in legal reasoning. The ‘time-crunch’ is especially severe because first-year students are understandably inefficient researchers and

writers.”). While many law schools have increased the number of credit hours assigned to legal research and writing classes since

these articles appeared, required LRW classes at many other law schools are still limited to two semesters and as few as one credit
















hour per semester. Survey Comm., Ass'n of Legal Writing Dirs. & Legal Writing Inst., 2002 Survey Results (2002); Survey Comm.,

Ass'n of Legal Writing Dirs. & Legal Writing Inst., Report of the Annual Legal Writing Survey 7 (2013).

126 E.g., Randall Abate, The Third Time is the Charm: The Structure and Benefits of a Three-Semester Legal Writing Program, Second

Draft, May 2002, at 7 (explaining that the third semester of legal writing at his school “is designed to deepen and expand the range

of skills addressed in the first two semesters. It introduces appellate advocacy and addresses even more sophisticated techniques of

analysis, organization, research, and persuasive writing than those addressed in the second semester.”); Edwards, supra note 125,

at 10 (arguing that “[a] three-semester [legal writing] program can give us the chance to take our students to a significantly deeper

mastery of analytical Legal Writing. We could both teach our current syllabus content more thoroughly and add express, intentional,

and systematic coverage of the most important analytical skills . . . [including] . . . framing a narrative theme[[,] . . . organizing the

analysis of multiple issues[,] . . . [and] explaining and applying a factors test or a balancing test . . . .”); Constance Hood, Using a

Third Semester to “Pull it All Together,” Second Draft, May 2002, at 8 (arguing that “[h]aving three semesters [of legal writing]

makes it possible to build skills slowly and spend more time developing them.”); Nancy Soonpa, A Retrospective on Three Teaching

Experiences, Second Draft, May 2002, at 4 (describing one advantage of a three-semester legal writing class as “the ability to examine

and teach everything in depth” and noting many students thought a third semester of legal writing “should be required.”). Some

legal writing scholars call for as many as six semesters of required legal writing classes. E.g., Kristen Konrad-Tiscione, A Writing

Revolution: Using Legal Writing's “Hobble” to Solve Legal Education's Problem, 42 Cap. U. L. Rev. 143, 144-45 (2014).

127 See, e.g., Berger, supra note 14, at 7, 40-43 (describing an upper level elective course, Law & Rhetoric, that teaches “classical and

contemporary rhetorical theories[,]” including narrative, “that seem particularly appropriate for interpreting and composing legal

arguments.”); Rideout, supra note 41, at 55 (noting that a main focus of the discussion on theories of persuasion in his advanced

legal writing seminar is the question of why narratives are persuasive in legal analysis); Tracy Turner, Adapting IRAC to Meet the

Challenges of Practice 26 (July 5, 2013) (unpublished manuscript) (on file with author) (noting, “[w]ith adequate instruction, upper-

level students who have already taken a legal writing course can likely absorb the organizational choices as extensions of the IRAC

paradigm.”). This is not to say that the importance of facts cannot be taught in the first and second semesters of legal writing-certainly

it can. However, learning how to use facts in the argument section of the brief to persuade a judge is a skill that takes more than one

year of beginning legal writing to even begin to master.

128 E.g., Helen A. Anderson, Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice, 11 J. App. Prac. & Process 1, 15

(2010) (recognizing a renewed “emphasis on the importance of narrative and creative storytelling . . . in legal writing scholarship”);

Berger, supra note 14, at 40-43; Megan E. Boyd & Adam Lamparello, Legal Writing for the “Real World,”: A Practical Guide to

Success, J. Marshall L. Rev. 487, 497 (2013) ( “Most cases are won or lost on the facts.”); Kenneth D. Chestek, The Life of the

Law Has Not Been Logic: It Has Been Story, 1 Savannah L. Rev. 21, 25, 29 (2014) (“[T]he law, almost unconsciously, incorporates

storytelling . . . . [N] arrative reasoning is not only a necessary feature of law-making, but also a desirable feature.”); Kenneth D.

Chestek, Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions, 9 Legal Comm. & Rhetoric:

JALWD 126 (“[A] rule that requires a close examination of the facts of the case (for example, to determine whether specified factors

are present or not, or how those factors should be weighed) may require the advocate to tell a compelling story.”); Edwards, supra

note 42, at 28 (“Lawyers are storytellers.”); Philip N. Meyer, Storytelling for Lawyers 2 (2014) (“Make no mistake about it - lawyers

are storytellers . . . . As professional storytellers we can do our jobs better the more consciously we deploy the tools of the storyteller's

craft.”); Philip N. Meyer, Vignettes from a Narrative Primer, 12 J. Legal Writing Inst. 229, 229-30 (2006) (“Legal arguments are,

perhaps, best understood as disguised and translated stories . . . . [P]erhaps more often than we care to admit, it is narrative that truly

does the persuasive work in legal advocacy.”); Rappaport, supra note 44, at 268 (“[L] awyers must write and tell stories.”); Richard A.

Posner, Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, 51 Duq. L. Rev. 3, 36 (2013). Judges are not

the only legal writing experts to recognize the importance of facts and storytelling in persuasion; legal writing professors and scholars

have long encouraged attorneys and law students to see storytelling as an essential part of persuasion. Rideout, supra note 41, at 54

(“Lawyers persuade by telling stories.”); Robbins et al., supra note 20, at 24 (“We use pathos effectively when we choose strategies

that allow our audience to empathize with our client. We do that through story.”); Ruth Anne Robbins, An Introduction to This

Volume and to Applied Legal Storytelling, 14 J. Legal Writing Inst. 1, 4 (2008) (“[S]tories or narratives . . . are cognitive instruments

and also means of argumentation in and of themselves. Lawyers need to realize the importance of story towards accomplishing the

goals of legal communication and legal persuasion.”); Robbins-Tiscione, supra note 2, at 332-35; Jonathan K. Van Patten, Storytelling

for Lawyers, 57 S.D. L. Rev. 239, 239 (2012) (“One of the principal techniques of persuasion comes through understanding the art

of storytelling. Storytelling is primal.”); Vaughn, supra note 27, at 656 (“An advocate should analyze the facts of the case, and weave

facts and theme with the law . . . .”); Wetlaufer, supra note 11, at 1559 (“The lawyer will tell a story, weave a narrative . . . . It will

be his purpose, in generating this narrative, to enhance the intelligibility and the persuasiveness of his argument.”).










129 Gopen, supra note 35, at xviii.

63 CLVSLR 567

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