50
Writing for the Legal Reader: Legal Proofs and Deductive Reasoning © Prof. Mathis Rutledge

Deductive reasoning and irac

  • Upload
    kdouat

  • View
    1.194

  • Download
    3

Embed Size (px)

DESCRIPTION

 

Citation preview

Page 1: Deductive reasoning and irac

Writing for the Legal Reader: Legal Proofs and

Deductive Reasoning

© Prof. Mathis Rutledge

Page 2: Deductive reasoning and irac

Last week: case comparisons, synthesis This week: IRAC and CREAC (legal proofs) Drafting the discussion

Discussion section where pieces come together

Page 3: Deductive reasoning and irac

Social Host Liability

A social host is liable when the host serves alcohol to a visibly intoxicated adult, and the person injures a third party in a reasonably foreseeable manner or when the host serves alcohol to a minor with knowledge that the minor will drive.

A tavern owner is liable to an injured third party when he serves alcohol to a visibly intoxicated adult or someone the host knows is a minor.

Page 4: Deductive reasoning and irac

Consider the Sandwich₁

People know what a sandwich is. People have specific expectations of a

sandwich. When those expectations aren’t met, the

recipient is left confused, or worse, irritated.

Sandwich example and clip art adapted with permission from Professor Tracy McGaugh presentation on Organizing the Analysis, 2002-03.

Page 5: Deductive reasoning and irac

For example . . .

If someone tells you that he’s going to bring you a sandwich, and he brings you . . .

Page 6: Deductive reasoning and irac

this . . .

“Hey, I still have to put that together!”

Page 7: Deductive reasoning and irac

. . . or this . . .

“That’s useless to me.”

Page 8: Deductive reasoning and irac

. . . or this . . .

“Holy moly! That’s my sandwich?!”

Page 9: Deductive reasoning and irac

. . . you’re going to be confused and a little irritated because you thought you were getting this:

“Now that’s a sandwich.”

Page 10: Deductive reasoning and irac

The same is true for legal writing

It’s not enough to have all the parts there Legal writing has a certain structure Legal readers expect to receive information

within a certain order When you fail to meet those expectations, the

reader will be left not only confused, but will doubt your abilities

Page 11: Deductive reasoning and irac

The Legal Memorandum

Has a standard format

Page 12: Deductive reasoning and irac

The Memorandum To From Re

Question Presented Brief Answer Statement of Facts

Discussion Conclusion

Page 13: Deductive reasoning and irac

Sample Memos Notice 6 parts Address Question Presented

Identify specific legal issues Brief Answer

Brief conclusion to the legal issues Statement of Facts Discussion

Analysis, Rules of Law Conclusion

Page 14: Deductive reasoning and irac

The Discussion

Largest part of the memo Introduce the issue (thesis paragraph) Explain the law (synthesized rule; factors) Apply the law (case comparisons) Conclusion (prediction)

Page 15: Deductive reasoning and irac

Start from the Beginning

Thesis Paragraph Introduces the subject to the reader Puts things in context for the reader Explains the purpose of the memo or section Introduces the issues and the order States your conclusion and brief reason

Page 16: Deductive reasoning and irac

Thesis Statements

Every issue should begin with a thesis statement

Statement about the issue & your conclusion Follow the statement by an identification of

the factors

Page 17: Deductive reasoning and irac

Examples of Thesis sentences

The Stripes’ garage is a living quarters in which Michael Stripe “actually resides.” When determining whether a structure is a living quarters, courts evaluate the type of activities for which the owners use the structure, as well as the frequency of those activities and physical evidence of those activities. Textbook, appendix A pp. 524-25

Page 18: Deductive reasoning and irac

Example thesis sentences

The circumstances of Ms. Lush’s case prove that she was in physical control of her vehicle after she pulled off the road. The courts determine physical control by factors such as the “actual or constructive possession” of the car keys, and the defendant’s posture in the seat. From sample memo packet, student sample p. 3

Page 19: Deductive reasoning and irac

Analysis is expected to be in a certain format as well

Page 20: Deductive reasoning and irac

The Process ofLegal Analysis

Is there a relevant statute? Locate cases that have further defined the

elements in the statute Have the cases created additional sub-issues?

Find the general rule – usually through synthesis (inductive reasoning – looking at specific cases to articulate a general proposition of law)

Identify the Issues based on the determinative facts

Now you’re ready for Legal Analysis

Page 21: Deductive reasoning and irac

Legal Analysis

Lawyers write in Legal Proofs Based on Deductive Reasoning

Going from the general to the specific

Page 22: Deductive reasoning and irac

Deductive Analysis

Involves going from the general to the specific General rule of law to specific facts

Begin – rule of law and your conclusion Analysis – discuss the element at issue and

give a detailed evaluation of the law Explain how the law applies to your client

Page 23: Deductive reasoning and irac

Example

P. 3 sample memo Thesis paragraph (1st full paragraph) – rule of

law & conclusion Analysis (rule explanation)- Transition

sentence that identifies issue - possession; describes precedent;

Analysis (rule application) shows why the case is precedent and how it applies to the client

Page 24: Deductive reasoning and irac

Deductive Writing Pattern –

Overview Paragraph –CROutline rule of law, identify issue

Thesis paragraph – for each issueSummarize both the issue & analysis CR

Explanation-explain rule of lawFactors, holding, etc.

Analysis/Application – Apply rule to client & evaluate

opposing argumentsConclusion

Page 25: Deductive reasoning and irac

Legal Proofs

Pattern Justify your conclusion through the organization

of your analysis Based on Deductive Analytical Pattern

Progresses from broad conclusion to specific illustration of why conclusion is sound

Page 26: Deductive reasoning and irac

What is IRAC? What about CREAC?

Acronym Most common legal proof Gives a pattern for structuring and organizing

legal analysis Helpful in drafting legal memoranda, briefs,

exam answers

Page 27: Deductive reasoning and irac

IRAC

Don’t think in terms of sentences but Sections in your memo (paragraphs) IRAC each disputed issue

Page 28: Deductive reasoning and irac

I - IRAC

Issue – identifying the issue Should be narrowly framed Present in a focused precise topic sentence Question how/whether the law applies to your

client Use the elements & facts to define

Page 29: Deductive reasoning and irac

Issue

Identifies specific problem Sets out the dispute between the parties

Include client facts Written in terms of relevant law and facts of

the situation

Page 30: Deductive reasoning and irac

Issue must be defined narrowly

If you state the issue as a broad question the corresponding rule will be unfocused, and your analysis will be very general.

Ex: Does Smith have a claim for negligent infliction of emotional distress [too broad]

When an issue is narrowly-framed it results in a more focused analysis.

Narrow Legal Issues

Did Smith have a sensory and contemporaneous observation of the accident

Did Smith suffer emotional distress as a result

Page 31: Deductive reasoning and irac

R- IRAC

Rule Expressly stated Synthesized from holdings in several cases Write a precise rule statement for every legal

issue

Page 32: Deductive reasoning and irac

Rule

Give the pertinent facts of the precedent Legal readers need context Shows relevance to the facts for independent

comparison Include the reasoning If statutory rule, use the precise language

Page 33: Deductive reasoning and irac

A- IRAC

Analysis/Application (2 parts explain & apply)

Support/validate the rule Quote or explain the rule Describe facts/holding/reasoning in the

multiple cases Apply the rule – has it been satisfied

Is it supported by the case comparisons (based on stare decisis)

Page 34: Deductive reasoning and irac

Part I of Analysis: Explanation/Rule Support

Shows that rule has legal basis Can be simply explaining the rule and giving

a cite If synthesized rule, show correct synthesis

describe holding, reasoning, essential facts identify factors

Page 35: Deductive reasoning and irac

Explanation or Support for the Rule

Purpose: give the reader information to understand the rule application

To understand how the rule applies to your facts, the reader must understand how the rule has applied to similar facts

Explain rule’s purpose, policies, past application Does not mean everything about the rule, limit

explanation to information pertaining to client

Page 36: Deductive reasoning and irac

Explain

When describing precedent you must identify 1. the holding 2. all the facts necessary to the court’s

decision in a logical way that tells the story 3. the court’s reasoning A bare bones holding is insufficient because

it lacks the specific essential facts to allow the reader to make her own analysis

Page 37: Deductive reasoning and irac

Example: barebones rule explanation

The Michigan Court of Appeals held that a surrogate parentage contract is void and unenforceable if the surrogate receives compensation for the termination of parental rights (Doe v. Attorney General). This decision protects the natural rights of the birth mother and protects public policy issues of turning babies into commodities to be bought and sold

Page 38: Deductive reasoning and irac

Part II of Analysis: Application

Apply each point from the rule explanation Compare cases and explain how similarities or

differences explain your point Explain why the analogies & distinctions are significant

Use descriptive facts, not conclusions when applying the law to facts

Identify unknown facts that would be important to resolution

Include opposing arguments

Page 39: Deductive reasoning and irac

Analysis/Application

Important considerations Write for the uninformed reader

is the rule met use the language of the rule don’t forget underlying purpose - stare decisis &

precedent are the statements supported by case comparisons

case comparisons must be based on essential facts Is the reasoning behind the rule appropriate for client’s case Compare and contrast the facts of the case to the client’s

case

Page 40: Deductive reasoning and irac

Application & the syllogism

Syllogism – logical argument where conclusion is inferred from 2 premises

Underlying syllogism pattern Major premise + Minor premise = conclusion Major premise – All men are mortal Minor premise – Socrates is a man Conclusion – Therefore, Socrates is mortal

Page 41: Deductive reasoning and irac

Compare to IRAC A rule (major premise) is applied to a specific

fact situation (minor premise) to reach a conclusion

Major premise A social host who serves alcohol to a visibly intoxicated

person is liable for the injuries that visible intoxicated person causes.

Minor premise Johnny Mitchell is a social host who served alcohol to a

visibly intoxicated person who later caused injuries to another

Conclusion Johnny Mitchell is liable for the injuries caused by that

visibly intoxicated person.

Page 42: Deductive reasoning and irac

C- IRAC

Conclusion Beginning & End of the legal proof Predicts the outcome Tie the points together based on law and

facts. Short, but important.

Page 43: Deductive reasoning and irac

IRAC in exam writing

Issue - identify the issue – issue spotting Rule - state the rule of law Analysis - apply the law to the facts (case

comparisons) Conclusion - state your conclusion, does the

rule apply to your fact situation

Page 44: Deductive reasoning and irac

IRAC in Legal Writing

State your conclusion Issue – identify the issue to be analyzed Rule – state the applicable rule

Rule Support – Validate the rule by citing and discussing the cases you relied upon

Analysis – apply the rule to the facts of your case Case Comparison – Validate analysis by showing

that your case is analogous to the rule cases or distinguishable

Conclusion – predict how a court will resolve the issue

Page 45: Deductive reasoning and irac

IRAC Example

Back of Notes Page

Page 46: Deductive reasoning and irac

CREAC – an improved IRAC

Conclusion – state your conclusion about the issue

Rule – state the applicable rule of law Explanation – Explain the rule Application – Apply the rule to client’s facts Conclusion – Restate your conclusion

Page 47: Deductive reasoning and irac

IRAC vs. CREAC

Issue Rule

Rule Support

Application/Analysis Case Comparison

Conclusion

Conclusion Rule Explanation Application/Analysis Conclusion

Legal Proof Alphabet

Page 48: Deductive reasoning and irac

Starting with the end – Conclusion Legal readers are impatient, want the

bottom line Starting with the conclusion puts the

analysis into context You can rephrase the conclusion and use

it as a section heading Will help you draft thesis & overview

paragraph

Page 49: Deductive reasoning and irac

Conclusion/Issue

Conclusion and issue are combined and found in Overview or thesis paragraphs

To find the issue find cases, group of cases or statutes that sets

forth the elements use elements to identify the issues

Page 50: Deductive reasoning and irac

Putting it Together Legal Proofs are in the

discussion section of the memo

Conclusion and Rule should be in the thesis and overview (umbrella) paragraphs

Followed by Explanation and Analysis