Doing CRAC
As an adjunct professor, I tend to remember that old saw about those that can, those that can't, and which of the two are teachers. It's a little scary. Between avoiding being in the wrong half of that equation, and wondering what the students might ask me next, there is plenty of incentive to try hard to stay sharp and also, practice what I preach. Avoidance of the expression, "do as I say, not as I do" comes to mind. It's with no small trepidation that you look upon the sea of faces waiting for you to impart wisdom. Or something.
As lawyers, a frequent lament is about the poor quality of written briefs (never our own, of course). We sometimes see them in our own cases, filed by our opponents. And ask any trial or appellate judge at the next MCLE seminar you attend, you'll hear the frustration of a difficult job for shorthanded and overworked courts, exacerbated by poorly written briefs.
Let's face it, between discovery squabbles, pre/post-trial motions, mediation and trial briefs, 90% of what we do is write. And we must do it (collectively speaking) fairly poorly. Otherwise, how do you explain the popularity and success of brief writing gurus like Bryan Garner? His MCLEs are not cheap. They are also very popular.
In law school, we are taught to IRAC during our first semester and to think about legal writing from that framework. But when it comes to writing the legal argument sections of briefs, doing CRAC is even better. So whether you are trying to stay one step ahead of your opponents (or those hungry lawyers below you on the firm totem pole) or just been meaning to take a hard look at your own briefs, doing CRAC is a habit that is actually good for you.
Conclusion; Rule; Application; Conclusion. Appellate briefs are a good forum for demonstrating proper use of CRAC to draft legal arguments.
Conclusion: The "Conclusion" that forms the first "C" in CRAC is a heading. This includes subheadings too. Make sure your headings are in fact conclusions and not just generic categories. Compare: "The Issue Is A Latin Cross" with "The Latin Cross on Sunrise Rock Has Secular Context as a War Memorial Sufficient to Constitute Ceremonial Deism." It's easy to tell the generic, directionless heading from the conclusion. Make sure your headings and subheadings are affirmative conclusions. Each should translate as "We win because . . ."
Rule: To write legal argument is to (hopefully) create a paradigm of proof. So for each discrete legal issue, the critical thing is to fully "Set the Table" before doing application. I use that phrase, "Set the Table" for good reason. It's because later, when you think you have finished the "Application," a good way to check before moving on is to see if you "Cleared the Table."
So when doing Rule, set the table. First the positive, then last, the negative distinguished. It looks and sounds like this (in shorthand form, each of the following sentences could be the start of a paragraph or paragraphs):
In Marsh v. Chambers, this Court held that a chaplain paid with public funds did not violate the Establishment Clause. [Explain]
And in Van Orden v. Perry, this Court held that display of a six-foot high, three-foot wide, Ten Commandments monument in a large park did not violate the Establishment Clause. [Explain]
In contrast, in City of Eugene, the Ninth Circuit held that a Latin cross violated the Establishment Clause. However . . . [Explain while distinguishing the ruling from the authorities above]
Application: Have you set the Rule table? Then it's time for application. Give it a strong signal and stick with the simple signals: "Here . . ." "In this case . . ." "Turning to the Sunrise Rock cross . . ." Application is light and breezy writing because if you have properly "set the table" in the Rule section above, application is the hot-knife-through-butter moment with little need for case citations, just deployment of cases to your fact pattern:
"Here, as in Marsh, the practice of using Latin crosses to memorialize the sacrifices of our fallen soldiers is just as much a part of the fabric of society as . . . Moreover, as in Van Orden, the context of the physical surroundings . . . And unlike City of Eugene, the Sunrise Rock cross features . . ."
Good application has that crisp, easy flow. It applies the Rule cases to the facts of the current case.
Conclusion: End your Application section's last paragraph with another, paraphrased sentence that matches your heading above, that is the final "C" in CRAC. "Therefore, the Sunrise Rock cross is ceremonial deism."
Now before you write that next heading or subheading, ask, "Did I clear the table?" Go back through your Application section, comparing authority used with authority discussed in your Rule section. In other words, in your Application section, did you use all the authority you set out in your Rule paragraph(s) immediately above? If you didn't, is it because you left something important out of your Application section? Or is it because, you actually don't need that authority up above in your Rule section? And if you have authority in your Application section that you did not "set the table" with in your Rule section, you have an assertion of proof lacking force and flow. Either way, the edits you make in response create a better brief.
Once you've cleared the table, congratulations. You are on CRAC!
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From the day we enter law school we hear the mantra "simplify simplify simplify". In honor of "simplicity" this holiday season, Howard Posner, an appellate attorney in Los Angeles, wrote a great article for California Lawyer Magazine about avoiding getting bogged down in words.