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LEGAL WRITING DESTINED TO AMERICAN CLIENTS AND LAWYERS

Updated: Nov 10, 2023

A lawyer’s writing skills are central to effective communication, whether directly with a client, to opposing counsel and even to law firm colleagues. In the ordinary course of legal writings by lawyers, the goal is to provide a structured discussion, that proceeds from the facts raised to a reasoned and substantiated conclusion. A structure or framework can guide and facilitate ease of writing by the author and ease of reading by the person to whom it is destined. Lawyers are to perform legal analysis and to write clearly and persuasively.



Legal writing styles and techniques certainly vary by country. The text of a translated document necessarily uses language emulating and reflecting a country’s history, evolution of laws and precedent and political, social and cultural influences. Accurate and successful translations must take these into consideration.


When writing for American readers, there is a structural “formula” of legal analysis that, although learned in law school, is typically used throughout the course of a lawyer’s career. Its objective is to provide a structured discussion that proceeds from the facts raised to a reasoned and substantiated conclusion.


This formula for legal analysis is known as “IRAC”:

Issue

Rule

Analysis

Conclusion.


Having as its goal the clear and precise analysis and conclusion on a set of facts, IRAC is used to dissect legal issues. It permits the reduction of complexities to an equation. It is expected to provide a predictive or persuasive response to the issues raised by the facts. It is not an executive summary but, in a structured manner, resolves the legal issues presented.


Briefly, the issue articulates an important legal issue or question; next, the relevant legal rule is stated; there is then an analysis of how the rule applies to the facts, ending with the conclusion.


The issue is the legal question that, when answered, determines the result of the case. It is stated in specific, rather than general, terms. Correct identification of the issue is essential to the advice to be offered to a client, another lawyer or other reader. An issue arises from the facts as presented. It alone determines the conclusion’s outcome. If the issue is not correctly identified, the conclusion will fail.


The rule sets forth the relevant legal rule as extracted and synthesized from sources of legal authority. The rule is the law governing the issue, which it describes and explains. It presents the statutes, directives and regulations, and the relevant court decisions (supreme, appellate and trial) relevant to the issue statement. It could also include any legal precedent that might explain how the rule operates. The law should be explained, not just stated. Block citation of any legal authority should be avoided, and short and concise sentences used, noting any exceptions to the rule. The rule is stated as a general principle, not a conclusion.


The analysis, the bulk of the writing, applies the rule to the facts, demonstrating how the facts fit with the existing law. It weaves the rule into the facts, comparing the facts to the rule to form the analysis. The analysis uses the legal authority set forth in the rule to draw analogies and distinctions. It follows the order of the rule, using the same key phrases.


Conclude by explicitly addressing the issue by taking a position on it. The conclusion is stated in a way that makes the issue clear. Most often a short paragraph, the conclusion uses short, concise and clear language. It explains the most probable outcome.


Use and Form:

The IRAC framework may be used in legal memoranda, opinion letters, correspondence and similar documents requiring a well-reasoned conclusion to the facts presented.


If necessary, certain elements of the formula may be modified for a specific situation.


For the presentation of complex legal issues, a separate IRAC analysis may be applied to each. IRAC is not an established rule; it is merely a highly effective means towards resolution of a set of facts issue.


Note that variations of IRAC exist, including CRAC (Conclusion, Rule, Application Conclusion) and CREAC (Conclusion, Rule, Explanation, Analysis, Conclusion).

Fine tuning the result of the IRAC analysis


During the writing process, proper wording and phrasing are always front of mind in the application of the IRAC analysis. However, after successfully completing a draft of the document in the review process, what elements should be considered? Remember that the document’s goal is to communicate and be persuasive.


  • ·Some suggestions


Legal writing should be:


  • Clear – The primary goal of legal writing is clarity – without it, the objective of the document will fail. For a writing to be persuasive, its language must be clear. The document must facilitate decision-making, with the resolution becoming naturally apparent. The writing should begin with its strongest point. There is no reward for brevity or, conversely, for inflated writing. A clear writing captures and holds the reader’s attention and leads the reader to agreement with the author’s position. Short sentences aid in understanding. Often a long sentence can be effectively divided into two or more sentences for clarity and ease of reading.

  • Concise – Legal writing is concise, yet comprehensive in scope, and uses language precisely, judiciously, efficiently and effectively. Conciseness if often confused with brevity, but concise writing is not merely brief, or abrupt. The style of writing conveys the author’s points succinctly. It provides the appropriate level of detail, without superfluous words. The appropriate level of detail often depends on the intended audience, be it a client, or a court. Citations may be woven into the discussion rather than using block quotes, with subsidiary language dropped to footnotes.

  • Engaging – Even the most successful analysis will fail if it does not engage the reader. Dull and rigid writing will usually not hold the reader’s attention. The reader should want to continue to read. A writing may be clear and concise, but if it does not engage the reader’s attention and interest, reading will most likely stop. Engaging language facilitates ease in reading, assisting the reader in following the writer’s analysis. The reading process cannot be laborious. The writing should have variety in the use of language and sound authentic. It should not sound artificial in overusing legal jargon and in containing stilted constructions (for example, “hereinabove”, “hereinbelow”, “hereby”, ”heretofore”, and “thereupon”). Engaging writing is writing that comes naturally, sometimes showing a part of the writer’s personality.


Barbara J Macon

May 2023



[1] Although American in origin, IRAC provides a solid and substantive framework for legal documents provided to Anglophone clients and attorneys generally.

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