How Important is the Paragraph Structure in Legal Writing? It’s Everything.

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The Power-Packed Paragraph™*

In legal writing, if you do not wish to lose your reader immediately, you must write in power-packed paragraphs.  What is a power-packed paragraph? It is a phrase I coined, for law, after learning the expression from one of my excellent high school English teachers!  She used the expression to describe the paragraph structure for writing basic English papers.

Preferring CRAC to IRAC

What is a power-picked paragraph in law?  I prefer CRAC  . . . to IRAC. Those already in law know that IRAC is the analytical structure law professors teach students in drafting legal documents, like motions.  IRAC is Issue, Rule, Analysis, and Conclusion.  CRAC is Conclusion, Rule, Analysis, and Conclusion. Let’s apply each element of IRAC in a power-packed paragraph.  Then, we will see why I prefer CRAC.

IRAC at Work

The Issue, generally, is a mix of law and facts that the writer uses to pose as a question.  For instance: Is a jury likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her? 

Next, the writer states the Rule moving from “big to small.”  In other words, the drafter states the broader legal principle and “drills down” to move to the exact elements.  Here is an example: For murder, the defendant must have the mental state of malice aforethought at the time of the killing.  (Pen. Code, § 187.)**  Malice aforethought is either express or implied.  (Ibid.)  A defendant has the mental state of express malice aforethought when he/she/they has/have the intent to kill.  (Ibid.)

What follows next is the Analysis where the writer states the facts/evidence, and marries the facts to the law. Using our hypothetical: Defendant Jack King (defendant) extracted a gun from under his suit jacket and fired it at his wife and victim, Debra Jones, point-blank.  Specifically, he had a gun under his suit jacket, having placed it there himself.  The defendant removed it.  Then, he aimed the gun at his wife.  Based upon the forensic evidence—specifically the gunshot residue evidence on the defendant’s right hand, the prosecution’s forensic expert will opine that the defendant fired the gun, striking his wife, from only inches away.  When the defendant removed his gun from his jacket, aimed it at his wife, and pulled the trigger, he had formed the intent to kill her.

And last, in the paragraph, is a brief Conclusion. (If the paragraph is short and the Conclusion does not add anything, the writer can omit it.) Here: Therefore, a jury is likely to find that the defendant committed first-degree murder when he shot his wife five times, point-blank and killed her.

That’s IRAC.

Why No Love for IRAC?

Why do I have no love for IRAC?  That’s not how lawyers write in real life.  What I mean is that lawyers do not start every paragraph with “the issue here is . . . .” This just isn’t strong legal writing.  Attorneys are advocates, and in litigation, starting every paragraph with a question detracts from making a forceful argument. It is important not to distract the reader. California Court of Appeal Justice Jim Humes, in an interview, agreed that it is key for legal writers not to distract the reader. This includes attorneys not distracting court of appeal justices with poor grammar, writing briefs that are too long, and significantly here, not using the introduction well. Justice Humes said:

The most important paragraph of every brief is the first paragraph: the opening paragraph. Because in that opening paragraph, you’ve got to convince the judge, you’ve got to explain to the judge what’s going on, what the issue is and why you should win. You have to do that right off the bat. You basically say, “This is what I’m going to talk about in this brief and this is why you should rule in my favor.”  That’s the prime real estate of any brief: that first opening paragraph. But after that, then you absolutely have to be persuasive, you have to be brief, you have to be concise, you have to be clear, you have to be readable. You have to be, and this is hugely important, non-distracting.

The Key Difference Between IRAC and CRAC

The only difference between IRAC and CRAC is that first sentence—the topic sentence in the power-packed paragraph. With the Issue, the topic sentence is a question. Under CRAC, the first Conclusion is a topic sentence and is an affirmative statement. Either way, this topic sentence must contain a mix of law and facts. For example, using CRAC, the topic sentence would be: The jury is likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her. What’s wrong with having an issue statement in every paragraph? It is “wimpy” writing. Real lawyers write as advocates for their clients and take every opportunity to write forcefully. Can you imagine in a motion that the defense counsel files with the court, if counsel started every paragraph with a question? This weak writing does not serve the client. As you can see, CRAC is what lawyers use in the real world.  (Some commentators even refer to the preferred structure as CREAC, slipping Evidence into the term.)

Why Not Start a Power-Packed Paragraph with the Rule?

Don’t start a paragraph with the Rule. You may be tempted to do this, but don’t. New legal writers recognize that all legal documents revolve around both the facts and the law. The law is new to them in the relative scheme of things. When the drafter starts a paragraph with the Rule, the reader has no idea what the writer is discussing. For instance, if the writer started the paragraph with the law only, it might sound like this: For murder, the defendant must have the mental state of malice aforethought at the time of the killing.  (Pen. Code, § 187.) So, what is the problem? Let’s assume that the reader is a partner at a criminal law defense practice and has any number of murder cases. The partner is thinking which murder case is this? As writers, we need to make the reader’s work easy—tell him/her/them exactly which case this is and what the legal analysis is. Writing the following is much more likely to guide the busy reader: A jury is likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her. The reader thinks: I remember this case and I understand the legal analysis here. Do not bury the lead. And, hit the reader “over the head” with the analysis.

There Are Proper Uses for IRAC

Don’t get me wrong, there is plenty of room in law for IRAC. For instance, in a legal memo, an attorney may be recognizing a true dilemma, and state initially what the issue is.  The lawyer writes: Is a jury likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her? If so, we should consider requesting a settlement for a manslaughter charge. And, under appellate rules, a court of appeal may require a statement of all of the issues, so the court knows exactly which issues are “teed up” for the court’s resolution.

The Importance of a Topic Sentence in Each Paragraph

The topic sentence in a power-picked paragraph is critical.  It may be that your busy reader reads no more in that paragraph. Wait, what? Yes, judges, partners, and senior associates may read a topic sentence carefully and at best, skim the remainder of the paragraph.  Readers are busy.  I once asked a criminal court judge if she had read my brief, and she raised it from her lap, and said, “I’m reading it now.” The judge was presiding over a busy motion calendar.

Our Power-Packed Paragraph, in its Entirety, Using CRAC

Here is the whole power-packed paragraph discussed above, using CRAC:

A jury is likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her.  For murder, the defendant must have the mental state of malice aforethought at the time of the killing.  (Pen. Code, § 187.)  Malice aforethought is either express or implied.  (Ibid.) A defendant has the mental state of express malice aforethought when he/she/they has/have the intent to kill. (Ibid.) Defendant Jack King (defendant) extracted a gun from under his suit jacket and fired it at his wife and victim, Debra Jones, point-blank.  Specifically, he had a gun under his suit jacket, having placed it there himself.  The defendant removed it.  Then, he aimed the gun at his wife.  Based upon the forensic evidence—specifically the gunshot residue evidence on the defendant’s right hand, the prosecution’s forensic expert will opine that the defendant fired the gun, striking his wife, from only inches away.  When the defendant removed his gun from his jacket, aimed it at his wife, and pulled the trigger, he had formed the intent to kill her. Therefore, a jury is likely to find that the defendant committed first-degree murder when he shot his wife five times, point-blank and killed her.

If you would like to learn more about legal writing, particularly, writing legal motions, legal briefs, demand and advice letters, and legal memoranda (to senior partners and with multiple issues), check out my online Course, Legal Writing Launch.

Billionaire investor Warren Buffet states, “[b]y far the best investment you can make is in yourself.”  Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, Inc.com (Jan. 2021).  Buffett added that developing one’s communication skills—both in writing and in-person—”can increase [one’s] value by at least fifty percent.” Id. Invest in yourself, right? So, write!

*Power-packed paragraph is a trademark of Legal Writing Launch, LLC.

**The citation style is from the California Style Manual. 

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