substance and style
Legal Writing Lingo by Tonya Kowalski, Professor, Washburn School of Law
T
oday’s law graduates increasingly have studied legal writing as both a practice and a discipline. Over the past twenty to thirty years, the art of legal analysis and writing has exploded as one of the fastest-growing fields in law. And as we all know, every discipline—even one that prizes concision—must come with some jargon. Knowing some of the basic terms can help practitioners— and not only with talking about writing with their interns or new hires. One reason the legal writing field has developed some basic jargon is to help identify and study different modes of analysis. This process of identifying and naming can help more seasoned practitioners be more mindful and reflective of the processes they are using. Acronyms for patterns. To this day, law students continue to learn IRAC as the basic analytical pattern, at least for law school essay exams. But Issue, Rule, Analysis, Conclusion does not capture the depth practitioners need to persuasively explore difficult issues. To avoid cursory analysis that attempts to apply the main rule directly to the facts, most law students now learn to add an E to IRAC for memos and briefs. The E stands for Explanation and the A becomes application: explain the rule before applying it to the facts. A few more units and letters yield a potential alphabet soup of acronyms for different situations; with T for Thesis, F for Facts, and P for Proof, further iterations include: FIRAC, IREAC, CREAC, TREPAC, and so on. Thesis, issue, or conclusion. In a brief, the lettered and numbered headers that form each unit of analysis may be called a thesis or conclusion. Thinking of the header argument as a thesis can help to instill the sense that it is a proposition that must be proved to the satisfaction of the audience—not merely argued. Rules, broad and narrow. The broad rule tends to be the governing test from a statute or case. Narrow rules are those that have been built on through statutory definitions and judicial interpretations. Rule explanation. To “explain” the rule is to synthesize general principles and then prove any disputed aspects with authority, as described below. Synthesis. The process of gathering and stating well-accepted legal principles from a breadth of authority in order to provide context and foundation for the main rule. Proof. For issues of law, proof involves providing examples, such as case illustrations or legislative history, and counteranalyzing opposing authority. For mixed questions of law and fact, proof usually involves building both supportive and con22
The Journal of the Kansas Bar Association
trastive fact pattern analogies to the client’s case and then applying authoritative reasoning to the facts. Case illustration. Most proofs need descriptive examples of the few most decisive cases both for and against the client’s position. These paragraphs have a structure rather like a mini-case brief: rule, fact context, concise holding, and most importantly, judicial reasoning. Affirmative and counter-analysis. Affirmative analysis is the use of authority that tends to align with the client’s preferred rule and outcome. Counter-analysis confronts the stronger authorities that oppose them. They are equally important; every offense needs a good defense. Application. Many of us were taught that the “A” in IRAC stands for “analysis.” In legal writing, we tend instead to say “application.” The reason is that otherwise, students tend to think that the only thing analysis requires is the application of blackletter law to facts. But as practitioners know, analyzing and arguing the rule itself can be just as important, or in the case of a pure question of law—the only thing that is important. When judges and senior attorneys express dissatisfaction with the quality of lawyers’ writing, their main concern is not only errors in grammar, punctuation, citation, and formatting, although those are very distracting to the reader. Even worse is a cursory analysis: one that fails to address contrary authority, makes arguments without examples or analogies, or misses rules and interpretations that provide important context. Naming and identifying these functions can help to build awareness of the legal writer’s toolbox. Further reading: • For recent graduates: A Lawyer Writes by Coughlin et al. • For all: The Art of Advocacy by Messing; The Winning Brief by Garner. n
About the Author Prof. Tonya Kowalski teaches Legal Analysis, Research & Writing I and II at Washburn University School of Law and is currently also a member of the Board of Directors of the Association of Legal Writing Directors. She also teaches courses in Tribal Law and Indigenous Peoples’ human rights. tonya.kowalski@washburn.edu