Using Formulas to Help Students Master the “R” and “A” of IRAC Professors Hollee S. Temple and Grace J. Wigal West Virginia University College of Law 2006 Legal Writing Institute Conference Atlanta, Georgia

A Tale of Two Teachers…

Today’s Discussion I. Goals for First-Year Students II. Types of Legal Reasoning a. Deductive (IRAC) b. Inductive (R of IRAC) c. Analogical (A of IRAC) Formulas to Help Students Gain Competency in Reasoning and Writing Part A: Presentation Formulas Part B: Analytical Formulas This is a brief outline of today’s talk. Should note that I have written an article on this topic that will be published in the spring edition of Perspectives (journal for legal writing professors), and that Grace and I recently learned that we were selected to present on this topic at the national Legal Writing Institute conference that will be held in June in Atlanta.

Goals for First-Year Course Professional competence in legal reasoning Professional competence in legal research Professional competence in legal writing Professional persona in legal workplace We’ll address two of those – reasoning and writing

Students quickly learn that they’re not in undergrad anymore – faulty logic is immediately exposed in writing! Or as William Zinsser says, fuzzy writing is almost always the result of fuzzy thinking.” Fix the thinking and the writing will follow. THEY COME TO US THINKING THEY’RE ALREADY GOOD AT THINKING THINGS THROUGH, AND THEY’RE NOT. NOT GOOD PROBLEM SOLVERS. (PAUSE TO ALLOW READING OF SLIDE)

Types of Legal Reasoning Deductive Reasoning Inductive Reasoning Analogical Reasoning We introduce students to three major lines of reasoning in the first semester, all of which they must immediately apply in producing an office memorandum. LOTS OF PEOPLE DO NOT USE THESE TERMS, AND DON’T EXPLAIN THAT THESE ARE THREE TRADITIONAL FORMS OF LOGIC AND THAT WE BUILD OUR CLASSES AROUND THOSE, DATING BACK TO GREEKS, AND LAWYERS USE THOSE.

Why Use Formulas? Our students need help entering this new “discourse community” The “Google generation” likes formulas Past teachers have stressed content over form Just like in sports, we have to get students into the right ballpark before they can be expected to develop expertise and finesse Should preface this discussion by conceding that some people don’t like formulas, and they say they don’t work for a variety of reasons. We think they do, but we’re not going to spend any time trying to convince you of that. This is intended to share some techniques that have worked with our students.

Types of Formulas for Today’s Discussion Presentation Formulas Analytical Formulas

Presentation Formula #1: IRAC The Basics A formula for thinking about and presenting an ultimate legal conclusion Presents a form of reasoning expected by the trained legal mind This is the “big” formula The big formula – so big, in fact, that we need to do cartwheels to get the students to pay attention

IRAC Embraces Deductive Reasoning Question Major Premise Minor Premise Conclusion Issue Rule Analysis Conclusion As many of you may remember from law school, the primary structural tool that we teach is a deductive paradigm commonly known as IRAC (although there are many variations on the letters). You know what they stand for. This is the first building block for the legal writing structure. Critical to students’ ability to think and write clearly. This is a major point of emphasis in the first semester, and use almost any trick in the book to highlight its importance to their success in the professional setting.

Deductive Reasoning Example Question: Is Socrates mortal? Let’s reason through it. Major Premise (learned rule through observation): All men are mortal. Minor Premise (factual conclusion): Socrates is a man. Conclusion: Socrates is mortal because all men are mortal, and Socrates is a man. In law, we use the deductive model by setting up major premise as rule, minor premise as factual application, conclusion is result of application of facts to law.

Presentation Formula #1: IRAC IRAC Outline Big I/C: Greenbrier will succeed in her negligence action because by failing to provide adequate security, her landlord proximately caused her injury. Big R: Negligence = 1) Duty + 2) Breach + 3) Causation + 4) Injury Big A: “Nested” IRACs on each element Requires I-R-A-C analysis for each element of the Big R Big C: Greenbrier can satisfy all four elements, so she wins! Just as restaurant-goers would not like a blended lasagna, the trained legal mind expects a specific structure in legal writing: IRAC. What does the big picture look like? This is our overarching formula – formula for the big IRAC. This is the first formula, the formula for the big document. Gets them thinking about how to set it up immediately, Google generation can sketch this out right away.

Presentation Formula #2: The Big A “Nested” IRACs 1) Duty I/C R A C/A C 2) Breach 3) Causation I/C R A C 4) Damages This is the second big formula – a formula for the A section of your big IRAC. Color-code these yellow ic green rule pink a

Techniques to Help Students Master The Presentation Formulas Emphasize structure! Use colors to differentiate I-R-A-C (Mary Beth Beazley’s brilliant idea) Do the tattoo. When we read with colors, we can assess what they think they’re doing versus what they should be doing

1) Color-Code With IRAC Mrs. Greenbrier will prove that Potomac owed her a legal duty because Potomac was responsible for keeping common areas of the building safe. A landlord’s duty is to exercise “reasonable care” to protect invitees from unreasonable risks caused by dangerous conditions in common areas. Butler. Here, Mrs. Greenbrier was rightfully in the elevator, a common area of the building, at the time of the incident. Just as the landlord in Butler owed the plaintiff a legal duty to protect her from an unsecured post in the rear porch, Potomac owed Mrs. Greenbrier a duty of “reasonable care” to protect her from “unreasonable risk of harm” in the elevator. Therefore, Mrs. Greenbrier satisfies the duty element.

2)Sheila Simon’s IRAC Recipe IRAC is like a lasagna. www.law.siu.edu/ssimon/lasagna

Diners expect (and enjoy) a particular structure.

Give the diners the structure they expect, and everyone is happy.

Don’t mess with a good structure!

If you change the structure, you confuse the diner.

Avoid the blender!

Techniques to Help Students Master The Presentation Formulas 3) Use peer critiques 4) Music examples When all else fails, keep showing the blender!

Analytical Formulas Formulas to help students reason through and write about the sub-parts of IRAC Formulas for the R section Formulas for the A section

Formulas for the R of IRAC Formula #1: Simple Rule R = Simple Rule + (maybe) Case Illustration Section 61-8-9(a) of the West Virginia Code provides: (a) A person is guilty of indecent exposure when such person intentionally exposes his or her sex organs … and does so under circumstances in which the person knows that the conduct is likely to cause affront or alarm. W. Va. Code. For example, in Randall, the defendant exposed his genitals several times to an eleven-year-old boy. Because “persons of reasonable intelligence” could conclude that the defendant’s conduct would cause affront or alarm, the court held that the defendant’s conduct constituted indecent exposure. I-R-A-C sounds simplistic, but as you all know, there is typically more than just one rule upon which a court will rely in analyzing a legal issue. So it’s hard for the students to figure out what goes in the R. I show numerous examples to expose students to the breadth of rules that they’ll be writing about in practice. That helps, but this is the Google generation, accustomed to instant results. From the start, I tell them that I will not be a vending machine of answers to their legal questions, and that they’ll need to develop judgment because legal reasoning and writing often comes down to a writer’s choice, but I’ve found that they need some guidance. So I’ve come up with this: the R is made up of a rule synthesis and case illustrations.

Formulas for the R of IRAC Formula #2: Complex Rule R = Rule Synthesis + Case Illustrations

Formulas for the R of IRAC Rule Synthesis/Inductive Reasoning Synthesized Rule Particular 1 Particular 2 Particular 3 This is where we teach them about inductive reasoning. Tell them it’s really hard because they have to find particulars, read carefully, value of generalization depends on ability to truthfully assess the particulars, you have to be accurate! This is really hard. Have to make sure particulars are accurate so synthesis will be. Grabbing ingredients. Some people don’t get this, so I need an alternative. Ingredients

Formulas for the R of IRAC Formula #3: Rule Synthesis Synthesis = 1) What is the rule? 2) What isn’t the rule (exceptions)? 3) Which factors will the Court consider? The dialectic approach to reasoning (it is a form of inductive reasoning because particulars get you to the whole). Greeks believes you could find truth with dialectic. Ask what it is and what it isn’t and you will find the truth. What is rule synthesis? Section of legal analysis where writer lays out all applicable rules and policy upon which judge might rely. Often ingredients from different shelves – some statutory law, some case law, some policy.

Example A: Strong Rule Synthesis Landlords have a duty to exercise reasonable care to protect invitees from foreseeable risks of harm, including foreseeable criminal acts of third parties, in areas under the landlord’s control. Butler (general rule); Doe (foreseeable criminal acts). However, landlords do not have an absolute duty to protect invitees from “open and obvious dangers.” Butler. A danger is open and obvious if “an average user of ordinary intelligence could discover the danger and risk presented on casual inspection.” Id. Example from the problem our students are grappling with this week.

Example B: Strong Rule Synthesis Under West Virginia law, a person is guilty of indecent exposure when he or she (1) intentionally exposes his or her sex organs, (2) does so under circumstances in which he or she knows that the conduct will likely cause affront or alarm, and (3) does so without the consent of the victim. W. Va. Code § 61-8-9; Randall. In analyzing the defendant’s intent, the Court will carefully consider the circumstances surrounding the exposure. Jones.

Formulas for the R of IRAC Formula #4 : Case Illustrations Case Illustration = 1) Key proposition + 2) Factual background 3) Reasoning 4) Holding That worked well, so I came up with formula for case illustration. Not complicated, but it works. I have one undergrad accounting major who has made a template for a predictive memo out of these formulas, and he’s producing highly readable, analytically sound content, even though he didn’t have the strongest writing background.

Example A: Case Illustration In analyzing proximate cause, the Michigan Supreme Court considers whether the landlord had prior notice of similar crimes. (KEY PROPOSITION) For example, in Doe, the plaintiff was raped on the vacant ninth floor of the defendant landlord’s office building. (FACTUAL BACKGROUND) Because there was no evidence that the landlord had no prior notice of similar crimes in the building (REASONING), the court held the landlord could not foresee the plaintiff’s specific injury, and therefore did not proximately cause the plaintiff’s injury. (HOLDING) Start with 2-3-4 (factual background, reasoning, holding). Later add key prop

Example B: Case Illustration In analyzing the defendant’s knowledge, the court likely will consider the circumstances surrounding the defendant’s conduct objectively (KEY PROPOSITION). In Capetta, a topless dancer exposed her breasts to patrons and allowed them to touch her breasts. The patrons of the establishment were willing participants, solicited her conduct, and did not leave in shock (FACTUAL BACKGROUND). Because a reasonable person would interpret the patrons’ conduct to signal approval (REASONING), the court held that the defendant had no reason to know that her exposed breasts would cause affront or alarm (HOLDING).

Formulas for A of IRAC Formula #1: The A of IRAC Give your best fact first, and predict! Explicitly compare to the precedent 3) Connect analogy or distinction to the expected result The A of IRAC- Rule Application This is when you can’t just apply simple rule. Case illustrations in R are critical because ethey are binding or highly persuasive. Try to find picture – connecting the dots Case illustration connecting to A

Analysis Formula #1: Example A Greenbrier can point to her assailant’s violent criminal background to establish causation. The attacker had stabbed a woman in her home several years before this incident. (BEST FACTS/PREDICT) Unlike in Doe, in which the past criminal incident was nonviolent and the court held that the landlord therefore could not have foreseen a violent crime, here the assailant had a history of the same type of violence. (EXPLICIT A OR D) Thus, because Greenbrier’s attacker had committed a stabbing before, the court is likely to rule differently here and find causation because it was foreseeable that the same violent act would recur. (EXPECTED RESULT).

Analysis Formula #1: Example B Here, because Ms. Boyle was asked repeatedly to cover herself, the prosecution can show that she knew her conduct was causing alarm. (BEST FACTS) Unlike in Capetta, in which the court held that a topless dancer would not know that she was affronting men who were signaling their approval by giving her money, here Ms. Boyle was notified that her conduct was offensive when both the lifeguard and another patron asked her to be more discreet while breastfeeding. (COMPARE) Thus, Ms. Boyle’s conduct likely satisfies the knowledge requirement because she was twice alerted to the offensiveness of her conduct. (CONNECT)

Formula #2: Explicit Comparison (Analogical Reasoning) Formulas for A of IRAC Formula #2: Explicit Comparison (Analogical Reasoning) Like/unlike Case A, where the Court held X because of Y, here we have/don’t have Y. Therefore, we expect the same/different result because ______. (Consult Sarah Ricks and Julie Baker articles for additional formulas)

Example of Explicit Comparison Unlike in Capetta, in which the court held that a topless dancer would not know that she was affronting men who were signaling their approval by giving her money, here Ms. Boyle was notified that her conduct was offensive when both the lifeguard and another patron asked her to be more discreet while breastfeeding.

I/C= Because X (key fact), then Y (legal conclusion). Bonus Formula for I/C I/C= Because X (key fact), then Y (legal conclusion). Example: Because the victims were children and therefore legally unable to consent to indecent exposure, the prosecution will prove that Ms. Boyle failed to obtain their consent.

Conclusions Mastering legal reasoning and writing is a huge challenge for 1Ls. While no single organizing paradigm can apply to the analysis of all legal issues, formulas can help bridge the learning gap and set students on a path toward professional competency.

Questions?

More Complex Analogy/Distinction Fact A Fact B Fact C Policy Reasoning Holding