Creac legal writing

1

CREAC and the Objective Memo

CREAC and Legal Analysis

Golden Rule:

Explain the law before you

Apply the law.

2

3

What is CREAC?

Acronym for:

Conclusion

Rule

Explanation

Rule Examples; Case Illustrations

Application

Legal Analysis; Case Applications

Conclusion (restated)

Use CREAC to organize a legal analysis based on one or more cases or authorities

Related Acronyms

TREACC

Thesis

Rule

Explanation

Application

Counter Argument

Conclusion

CRAC

Conclusion

Rule

Analysis

Conclusion

IRAC

Issue

Rule

Analysis

Conclusion

4

5

Conclusion

Your answer to the legal question (issue).

In a memorandum, this is phrased as a statement, not a question.

You may refer to your client here, but not in the Rule or Explanation sections.

Position:

Most helpful as a heading.

Can repeat as topic sentence.

6

Conclusion—Examples

As a heading

I. Clifton’s actions toward Gorski during the comedy routine were not so extreme and outrageous that they could be considered “beyond all bounds tolerable to society.”

As a topic sentence

The covenant not to compete is unreasonable because the Don Rayne (the employer) imposed restrictions on Peggy Day (the employee) that were not reasonably necessary for the protection of his business.

7

Rule

“R” stands for the rule or rules that you draw from a statute, case or cases, and/or other authorities concerning the specific issue you are discussing.

No Client Names in the Rule or Explanation Section.

Example:

In order to succeed in an action for IIED, a plaintiff must prove four elements: “(1) the wrongdoer’s conduct was intentional or reckless…(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.” Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-9 (Fla. 1985).

8

Rule (continued)

Sometimes a RULE will be specific and straightforward.

Statute

Key Precedent Case

Example:

Statute XXX.XX interprets the term “weapon” to include a switchblade.

What is the rule in our client’s case?

9

Rule—Synthesized Rules

Synthesized Rules

In Common Law jurisdictions (particularly), sometimes a rule must be created by synthesizing case law.

Also known as an “interpretive” rule.

Example:

To be actionable under the theory of IIED, conduct must be “outrageous.” Slocum. Conduct is outrageous where … Korbin. Outrageous conduct includes … Korbin. Outrageous conduct never includes … Slocum

10

Rule (continued)

Broad to Narrow

The order in which you present rules is important.

Think of the RULE section as an inverted pyramid

(1) Use binding authority (wherever possible) to establish the general rule(s).

(2) State the most general rule first

(3) Order rules in logical order from more general to more specific

Example

(1) Elements;

(2) Defenses or Exceptions;

(3) Major requirements;

(4) Minor requirements.

10

11

Rule (continued)

Tell the reader up front if any elements or factors are not at issue in your client’s case.

Example

In this instant case, there is no dispute regarding whether Sunset Trails is a state-owned park. Furthermore, Mr. Smith admits that he was asleep at the time of his arrest. Accordingly, the only element at issue is whether he was sleeping in a designated “picnic area.”

12

Explanation—Case Illustrations

Case Illustrations

Applies rule to the facts of past cases.

Examples from cases help explain the rule by showing how the rule operated in previous specific situations.

Forms a “spectrum of authority” which you can use to predict the outcome of your case.

Uses “analogy” or “analogical reasoning.”

No Client Names in the Rule or Explanation Sections.

13

Explanation—Case Illustrations (continued)

Begin with analogous cases and move through the spectrum.

Use transition words or phrases to help the reader understand how the case relates to the rule.

Example:

In Case A, [t.s./facts/holding/reasoning].

Similarly, in Case B, [t.s/facts/holding/reasoning]

In Contrast, in Case C, [t.s/facts/hold/reasoning]

Likewise, in Case D, [t.s/facts/holding/reasoning]

Case Illustrations (continued)

A complete case illustration contains:

(1) case name;

(2) the relevant facts;

(3) the court’s holding on your legal issue; and

(4) the court’s reasoning (if it would help your audience understand the court’s holding).

14

Sample Format for a Case Illustration

In [case name], [facts] happened.

The court held [X].

The court reasoned [Y].

15

16

Application

Apply the rule and case illustrations to your client’s facts in order to predict a likely outcome.

No Client Names in the Explanation Section.

Never mention your client’s case in the Rule and Explanation sections.

Case Applications—Continued

Case applications compare the case illustration to the your client’s facts.

Emphasizes relevant similarities or differences between the two cases.

Helps the reader or listener understand the relationships between the case illustration and your client’s facts.

17

18

Application—Case Applications

Apply the rule to the facts in your case.

Use Analogies (Analogical Reasoning)

Compare the facts and reasoning of your case (where possible) with those of analogous cases.

Use statements of similarity and dissimilarity.

Like the buyer in Smith, our client also had no prior knowledge of a dangerous defect.

(5) Case Applications (continued)

A complete case application should contain the following:

(1) Statement of Like/Unlike

(2) Actor (precedent case)

(3) Action (precedent case)

(5) Actor (client’s case)

(6) Action (client’s case)

(7) Result/Conclusion

19

Sample Formats for a Case Application

Like [case name], in this case [facts] happened. Therefore, the court should reach the same conclusion.

Unlike [case name], in this case [facts] happened. Therefore, the court should reach a different conclusion.

20

21

Application—Counter Arguments

Consider potential counter arguments (arguments that do not support your conclusion).

State the counter argument, then explain why it is not likely to change your thesis or prediction.

Example

The defendant may argue that no negligence existed because they were unaware of the defect. However, this argument is not likely to be persuasive because lack of knowledge is not a defense in a product liability case.

21

22

Conclusion (Reiterated)

Predict the outcome.

“The court will likely find …”

Make it fact-specific to your client’s case.

“Based on facts a, b and c, Plaintiff will be able to demonstrate ...”

It may seem repetitive, but it reinforces the structure of your analysis.