How Lawyers Write

Posted on Categories Legal Scholarship, Legal Writing, Speakers at Marquette

This week’s faculty workshop presenter was our very own Professor Jessica Slavin, whose talk was entitled “Talking Back to IRAC: Legal Writing Beyond the Paradigm.” The project on which the talk was based has two components. First, Professor Slavin traced the history and questioned the utility of using IRAC and related formulas as vehicles for teaching legal writing. Second, she presented the results of her own empirical study of briefs submitted to the Wisconsin Supreme Court, which suggest that something other than strict adherence to IRAC characterizes the brief writing of at least one set of advocates.

To me, this is interesting and provocative stuff. I find the psychology of writing fascinating (put it together with the process of judging and I could maybe write a whole article about it). Having tried to teach a writing class once, I’ve experienced first hand just how difficult it is to articulate what makes for good writing. For me, at least, this is partly because I go about my own writing in a highly intuitive way. I don’t recall ever consistently thinking about IRAC when writing in a legal context, and I cannot articulate many of the rules of grammar (although I consciously violate some of the more ridiculous “rules,” such as the ones about split infinitives and prepositions at the end of sentences). Given all this, I share Professor Slavin’s sense that there’s something not quite right about a method of teaching writing that suggests that it is somehow a mechanical or rule-driven process. This is not (on my part, at least) to suggest that IRAC-like formulas are not useful, but rather that they are incomplete.

Lately my bedtime reading has included large helpings of the flat-out brilliant David Foster Wallace (R.I.P.). Wallace, in his essay “Authority and American Usage,*” provides perhaps the best statement I’ve seen about why it’s so hard to teach writing, and why constructs like IRAC seem to fall short. He writes of “the error that most Freshman Composition classes spend all semester trying to keep kids from making — the error of presuming the very audience-agreement that it is really their rhetorical job to earn.” He continues, characteristically, in a footnote:

Helping them eliminate the error involves drumming into student writers two big injunctions: (1) Do not presume that the reader can read your mind — anything you want the reader to visualize or consider or conclude, you must provide; (2) Do not presume that the reader feels the same way that you do about a given experience or issue — your argument cannot just assume as true the very things you’re trying to argue for.

Because (1) and (2) are so simple and obvious, it may surprise you to know that they are actually incredibly hard to get students to understand in such a way that the principles inform their writing. The reason for the difficulty is that, in the abstract, (1) and (2) are intellectual, whereas in practice they are more things of the spirit. The injunctions require of the student both the imagination to conceive of the reader as a separate human being and the empathy to realize that this separate person has preferences and confusions and beliefs of her own, p/c/b’s that are just as deserving of respectful consideration as the writer’s. More, (1) and (2) require of students the humility to distinguish between a universal truth (“This is the way things are, and only an idiot would disagree”) and something that the writer merely opines (“My reasons for recommending this are as follows:”). . . . I therefore submit that the hoary cliché “Teaching the student to write is teaching the student to think” sells the enterprise way short. Thinking isn’t even half of it.

Wallace seems to have nailed it, though he has perhaps sold his assessment short. This, it seems to me, is the trick not only to Freshman Composition, but to all effective writing. There’s more to it, of course — there’s organization, and at some point one moves from mere concerns about effectiveness to striving for some sort of euphony — but as a description of the basic struggle I find myself engaged in every time I sit down to write, it’s hard to do better. Viewed from that perspective, IRAC appears as the treatment of a symptom rather than the cause. Of course, that’s often all that one can reasonably do. To her great credit, Professor Slavin is struggling with the question of whether, and how, we might do more.

*This essay appears in the collection “Consider the Lobster.” The quoted material is at page 106. A shorter version, which does not include the quoted material, appeared in Harper’s as “Tense Present: Democracy, English, and the Wars over Usage.”

Cross posted at Ratio Juris.

5 thoughts on “How Lawyers Write”

  1. “There’s more to it, of course — there’s organization, and at some point one moves from mere concerns about effectiveness to striving for some sort of euphony”

    Pretty much everything about legal writing is hard to teach, but the writing concept I found hardest to articulate is the “good transition” between paragraphs. Other than merely stating it–“you need better flow here”–I’m completely flummoxed in my ability to describe what it is I’m looking for. And IRAC, obviously, tells you absolutely nothing about the relationship *between* paragraphs.

  2. Thanks, Chad, for a post that is, I think, more thought-provoking than my presentation on this subject. I do think Wallace is right on. The longer I teach writing, the more I realize that I am really trying to teach my students to read (and think), rather than to write in some particular way. The writing that comes out of them is a product of the way they read and think.

  3. Jessica, I also applaud your efforts to think critically about IRAC.

    A few years ago I came across a quote by Wisconsin Supreme Court Justice William Bablitch. It has become my legal writing mantra. Justice Bablitch wrote: “do not confront the reader with details until you have provided a context for the details.”* Whether a person chooses to use IRAC, CREAC, or another syllogistic paradigm, or tries a different approach to organizing legal writing, Justice Bablitch’s advice is sound.

    *Mark Rust, Mistakes to Avoid on Appeal, A.B.A. J., Sept. 1998, at 79 (quoting Justice William Bablitch of the Wisconsin Supreme Court), quoted in Sarah B. Duncan, Pursuing Quality: Writing a Helpful Brief, 30 St. Mary’s L.J. 1093 (1999).

  4. Professor Slavin says that she has realized “that I am really trying to teach my students to read (and think), rather than to write in some particular way.” If I’m understanding her correctly, I couldn’t agree more that there is a need to focus on reading and thinking along with (and even before) the focus on the writing.

    I think it would serve students well to start a legal writing class by having them read examples of good legal writing other than judicial decisions. As I remember first semester of my 1L year, I remember reading a lot of judicial opinions that were condensed, old, and frequently poorly organized and poorly written. I don’t remember reading briefs, ABA journal or other magazine-style articles, or law review articles, unless, of course, the article was about writing. To learn how to write well, it makes sense that students also read good writing.

    I strongly believe that law students need to receive more formal instruction on how to make an argument. Marquette offers courses on argumentation. I know because I sought out a class on argumentation from the undergraduate course catalog for this semester, but was unable to enroll because of scheduling conflicts. But beyond a smattering in legal writing, I don’t remember being taught about how to make an argument, just that I needed to make one. I know that there is a wide world of argumentation beyond comparing and contrasting and supporting my opinion with precedent. I know there are a host of logical fallacies that I should be able to recognize (and then attack) when I see them in others’ arguments. I believe that teaching students how to “think in a particular way” should include teaching students the formalities of making arguments.

  5. I’m sitting at my desk on this first day of Spring Break, and I’m vexed by these same issues.

    Now that we’re into Spring semester, most students have submitted papers that are well-organized. Most papers contain good arguments.

    But I want students to show me how those good arguments fit together. I want them to show me how cases fit–and fail to fit–together. I’m interested in the kinks and quirks of the legal argument. And I don’t want to read writing that sounds formulaic or like it came from a treatise.

    I agree that the analysis has to be organized, or the reader is lost. But I fear students leave out insightful analysis and interesting observations because the students think the ideas don’t “fit” in an organizational paradigm.

    I like the suggestions of reading more and studying logic. Both would help students, I think.

    But I’m not sure how to get at the problem Wallace identifies. I keep saying dorky things like: Think of the writing like a math problem. It’s good that you gave me an answer, but show the work. Show me how you got there. Spell out reasoning explicitly.

    Even more dorky, I sometimes ask for an invitation and tour of a student’s thought process for a given argument.

    Oh, well. I take comfort knowing others struggle with the same issues.

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