IRAC. CREAC. TREAT. TRAC. C-RAC. BaRAC. CIRIP. QALEICPA.* Whichever poison you (or your professor) picks, you might have a few burning questions in the back of your mind: why use it? Don’t these acronyms reduce legal arguments to a mere formula? And isn’t formulaic writing bad?
Those were questions I had when I was first exposed to CREAC as a law student. I never really got the answers to them at the time, either. The reality of 1L year being what it is, I internalized the paradigm and went with it because that’s what my professor told me and my classmates to do. Despite what my English teachers once taught me—that formulaic writing is boring, confining, and lazy—I had to put those misgivings aside. Successful legal writing followed a formula, I was told. I wanted to be successful—so I followed the formula.
But as it turns out, not all writing formulas are equal. The alphabet soup of legal writing acronyms does not merely represent a formula for successful legal writing. They represent a formula for successful legal reasoning. And that formula, when stripped down to its core, is an extended logical argument. Which is, I’m happy to report, a much different type of formula than the ones my high school English teachers berated me for using, such as “each paragraph must have five sentences” and “each essay must be five paragraphs, three of which must be ‘body’ paragraphs.” (In fairness to me, those formulas are what my middle school English teachers told me to use.)
This is the first in a series of blog posts in which I plan break down the formula taught to first-year legal writing students to reveal its logical roots. A deeper understanding of the formula will show why lawyers use it, why it’s effective, and why—despite appearances—it’s actually not so formulaic. Peeling back its layers will also allow us to see that the formula is not the end-all, be-all of legal reasoning, and that there are circumstances when it should be tweaked or thrown out altogether.
Logic, Smogic. I’m a lawyer, not a philosopher.
If a thought like this just crossed your mind, fair enough. You certainly can get by without understanding the logical underpinnings of the legal writing formula taught to first-year law students. I did, for a time. But I guarantee you that if you stick with me and dip your toe into the subject, you will have a much better appreciation of how the law works and an enhanced toolkit you can use to make effective legal arguments. Hopefully that’s incentive enough.
Types of Logical Reasoning
Any argument, legal or otherwise, contains at least two parts: one or more premises and a conclusion that follows from those premises. “Logical reasoning” is, at its heart, the process we use to move sensibly from premises to conclusions.
Logicians have identified two primary types of logical reasoning. Lawyers use both. They are:
- Deductive reasoning: Reasoning that results in a guaranteed conclusion. If a deductive argument’s premises are true, then the conclusion is certain.
- Inductive reasoning: Reasoning that results in a likely conclusion. If an inductive argument’s premises are true, then the conclusion is probable.
Some resources (including some introductory philosophy textbooks) erroneously describe deductive reasoning as “arguing from general to specific” and inductive reasoning as “arguing from specific to general.” While it’s true that deductive and inductive arguments often follow these structure, they don’t always, as we will see.
The “Formulas” of Logical Arguments
Legal arguments are logical arguments. If you want a judge to rule for your client, you need to convince the judge that your premises (facts and law) adequately support your conclusion (your client should win). Part of this advocacy requires you to present your premises and conclusions in a sensible structure that the judge can follow. This is especially important in a typical legal issue that involves multiple sub-arguments, some of which are deductive and others of which are inductive.
Fortunately, logicians have created structures for logical arguments that make them easy to understand. All of these structures share a common pattern: provide each premise, do so in a sensible order, and then provide the conclusion at the end. For example, the classical way to structure most deductive arguments is with a syllogism with two premises and a conclusion. For example:
All law students are mortal.
Kim Kardashian is a law student.
Therefore, Kim Kardashian is mortal.
If you look closely at this example, you can discern a “formula” is at play here that ensures this argument makes intuitive sense. In future posts in this blog series, we’ll deconstruct this example to reveal its formula, explore the formulas of inductive arguments, and relate our findings to work of lawyers in drafting effective legal arguments.
*Question, Answer, Law, Explanation, Interweaving, Comparison, Policy, Answer. This is obviously the superior acronym. Never mind that I just made it up; look at how many letters it has!