Three Tools for Smarter Structures in Your Legal Writing
Structures are the backbone of legal writing, whether you're writing a brief or a contract. Learn how to help your readers move around the text to see what's important and not.
You’ve learned the basic structures in legal writing. Write an introduction. Write a chronological fact section. Then put together your analysis using a trusty acronym like IRAC, CREAC, TREAT, or something else. These default structures are all a great starting place. For simple legal questions, they are probably all you’ll need.
But for more complex analysis, the default structures are just that—a starting place. You should deploy a wide variety of go-to structures that best leverage your facts and law—and what you know about your particular reader.
The truth is that one size does not fit all. And that goes for our writing structure, too.
I can’t tell you there is a perfect pre-built structure for every writing challenge you’ll face. But I can tell you that if you learn a variety of approaches that top legal writers take, you’ll have plenty of ideas for changing your approach in every case you handle.
To help you on this journey, let’s explore some of the most common approaches that great legal writers take when they depart from the IRAC family.
Changing up your starts
Your starts are powerful: Your introductions, your headings, and the starting of your sections. You can frame issues favorably, prime readers with details to get them in a good headspace, counter biases you’re worried they have—and more.
Usually, it’s best to be practical with these sections. Orient your readers to the issues you’re tackling, give them your pitch for how the law works, highlight the key factual details, and offer a concrete conclusion. Yes, that sounds a lot like IRAC. It’s no coincidence that this structure is a good default for your legal writing–even in your starting sections.
But sometimes you’ll want to change up that structure. Some common ways that great legal writers change up the traditional starting include:
Focusing on policy first. Usually, it’s smart to tuck your policy–any points not rooted in controlling law or relevant facts–after you deliver the relevant content. Most legal readers get skeptical if you dive straight into the more subjective stuff.
But sometimes, it makes sense to launch straight from the policy. And you see, great legal writers do just that quite often. Why?
One reason is if you already know your reader (a client, a judge, another attorney, a client) won’t mind and will be receptive to the practical bottom lines ramifications of your analysis. For example, in a litigation between two tech giants, the attorneys on one side knew the judge was more interested in the practical ramification of the decision than anything else–because the judge had repeatedly talked about it at a prior hearing. So the attorney went straight there:
“Ruling for the plaintiff will stop AI research and development in its tracks. No company will be able to afford the risk that a slew of patent cases like this one will be filed against it.”
Another common reason is that your legal and factual points are so thin that you’re certain policy is your only hope of pulling the reader over to your side. Rather than start with your weakest pitch (the relevant facts and law), you throw a hail-mary policy at your reader in the hopes that they will be so convinced they’ll be more receptive to your relevant points.
Focusing on the story first. Giving readers a lot of facts without a legal framework first can be confusing (after all, that’s why IRAC has the “R” before the “A”). But sometimes, the story is so powerful that it makes sense to lead with that. Or it may be that your readers will understand the law better if you first give them a snapshot of the facts.
Consider leading with your story in those beginning areas when you both are sure readers won’t be confused because they don’t know how the general law works–and you believe the facts will put readers in a good headspace when you do get to the law.
Focusing entirely on the law and ignoring the facts. On the other hand, sometimes the facts are so unimportant that they shouldn’t even make it into those key beginning areas of your document. You’ll still include the relevant facts in your fact section, but no one is forcing you to highlight them in your introductions and other key areas.
But this is risky. If there are bad facts for your client, ignoring them is usually the worst thing you can do. Much better to figure out how to reframe, offer context, or otherwise put the bad facts into perspective. Otherwise opposing folks will double down and ensure your readers never stop thinking about those bad facts.
But sometimes, the facts are truly unimportant, and your document is focused all on the law. Perhaps, your entire focus is urging the court to adopt one legal test over another, and the facts are all dry, procedural, and simple. That could be a good time to jettison the facts from all your key beginnings and focus on the law. This is going to be most common in complex advocacy, like appellate work. And plenty of great legal writers use this structure.
Like this U.S. Supreme Court justice, who knew that readers wouldn’t care about how the case got to the court (it was procedural and didn’t really matter to the issues). Instead, they used their storytelling and style skills to play up the pure legal issues:
“This case presents a clash: the plain English meaning of a statute versus a rigid rule that defies the ordinary tools of statutory construction and bears no relation to any interpretive technique this Court has ever applied.”
Focusing on what’s wrong with an opposing viewpoint first.
Usually, you should work to craft an affirmative argument and pitch that deals with any counterarguments naturally, rather than taking a lot of time to tee up the other side’s points first. In other words, your affirmative argument makes any counters irrelevant because you’ve discarded any counters as you go. This is usually doable because, in the end, legal decision-makers need the right answer–they don’t need a list of what’s wrong with the other side’s answer.
But sometimes your audience has already been persuaded by an opposing point. Or the other side has done such a good job framing an issue or argument you know your reader is already in that headspace. In that case, you should take on counters more forcefully and obviously.
Take this example. The attorney has decided that she will have better traction taking the counterargument head-on. So she starts her pitch by teeing up the argument made by the other side, albeit reframed and ripe for undermining:
The State’s argument boils down to this: Why make them go refile this case in another court if this court already has jurisdiction? The answer is because the statute requires it. The State relies on a case that this Court has impliedly overturned…
Or this example, from another great federal practitioner:
“Respondent portrays a dire threat to free speech from Congress’s decade-old prohibition of commercially trafficked depictions of illegal acts of cruelty to animals. In the respondent’s view, images of the intentional killing of animals “pervade” our culture; Section 48 suppresses such images based on viewpoint; and the interests advanced by Congress do not support the asserted major incursion on free speech. The statute that respondent attacks bears little resemblance to the statute that Congress enacted; and respondent’s view of the First Amendment finds scant support in this Court’s cases.”
Clearing away distractions and narrowing in on what matters.
Suppose you think your audience might be distracted by a red herring. In that case, whether it be an opposing argument or something else—it’s often helpful to include a section or carefully separate what matters from what doesn’t. Consider this tactic if you’re worried your reader might be thinking about something that shouldn’t be relevant to their decision.
Notice how this attorney clarifies at the outset of a brief by drawing a line between what is and is not at issue. This technique can be a powerful way to clear away distractions at the outset if you suspect they may take in your readers:
“González cannot justify his attack on Martinez-Agüero. He does not even try. That’s important here: Nowhere in his brief does González attempt to meet the first prong of the test, requiring justifiable threats to his personal safety. Instead, in an attempt to avoid liability, González asks the Court to create new law piecemeal out of dicta and doctrine borrowed from case law that has nothing to do with this issue.”
Finally, legal readers usually prefer a cheat sheet of your key arguments and points at the outset. That way, busy readers can get up to speed quickly—and you have the advantage of priming your readers with your best points. It’s great advice because legal readers are busy, so burying your points often backfires.
But sometimes, you may want to take it slower because your readers are particularly skeptical. Your takeaways may trigger them and turn them off. In that case, you might want to slowly convince them of smaller points and prime them before trying to convince them of your overall pitch.
For example, this attorney starts a motion not with what she wants, but with some compelling facts, trying to get the reader on her side before getting to the punch line.
Changing up your fact sections
The best default structure for delivering facts to readers is a short summary paragraph (a movie trailer–which we will learn more about later), and then a series of sections delivering related paragraphs of facts.
Chronological is the most common organization theme, but often topical organization makes more sense. For example, if the facts don’t include any events for which a timeline is helpful, then perhaps you organize your facts into sections like. For example, this attorney, in a major federal appellate brief, organized her fact section around a few key documents that formed the underpinning of her whole argument:
The Financing Document Includes Extensive Details About the Merger.
The 2020 Internal Memo Includes Extensive Details About the Merger.
Beyond your general organization, you can also change up your fact sections in other ways. For example, although it’s good advice to avoid advocating in your fact sections (readers are much better persuaded by stories they can trust), sometimes it’s helpful to tell a story about a key area of law, statute, or legal principle.
When you think that background will be helpful to readers, the fact section can be a nice place for it. You aren’t advocating or applying any laws yet; you are just delivering a law’s history, its story, or some other lengthy context.
Here’s an example of a fantastic advocate doing just that, delivering a story about a key law right at the start of the statement of facts:
“A. The Fair Housing Act One of our Nation’s most important statutes, Title VIII of the Civil Rights Act—commonly known as the Fair Housing Act—prohibits discrimination in housing. For example, § 804(b) of the FHA prohibits discrimination in the “terms, conditions, or privileges of sale or rental of a dwelling.” 42 U.S.C. § 3604(b). And § 805(a) prohibits discrimination in “residential real estate-related transactions,” including the “making or purchasing of loans * * * secured by residential real estate.” Id. § 3605(a), (b)(1). The types of discrimination covered include discrimination on the basis of race, color, religion, sex, and national origin. Id. §§ 3604(b), 3605(a).”
Another common change-up great legal writers occasionally use is the fragmented fact section. This approach has you deliver one set of facts–then analyze them. Then provide another set of facts–and analyze those. In other words, instead of a long fact section, then a long analysis section, you can break things up.
Consider this approach when you have so many facts that readers can’t reasonably follow them all in one section–and the legal issues are compartmentalized so that each group of facts is only relevant to one part of the analysis.
Changing up your analysis
First, although delivering the rules first is usually most helpful for readers–after all, they can’t understand why the facts matter and how they apply unless they understand the goalposts set by the rules–sometimes weaving the application and rule discussion together can make sense. In fact, great legal writers have occasionally cut the fact section altogether (or included only a very brief summary), preferring to just deliver the facts in the analysis as they go.
Weaving the law and facts together, or delivering facts for the first time in the analysis–should be used with care because this will be an obvious departure from the norm for legal readers.
One reason can be that there are so few facts it will be easier for readers to weave the facts and law together from the start. Some great attorneys occasionally use this structure when the story or the law are not so compelling on their own, and weaving them together makes a more persuasive or clearer pitch.
So if you have very few facts, or they tell a confusing story on their own: There’s usually no rule requiring you to have a separate fact section listing every tangential fact. You could opt for a quick summary and save the details for your argument. And within your analysis, there’s no rule stopping you from jumping straight to the application and ignoring that whole “R” or “RE” section.
These different structures are just scratching the surface. They are great ideas to consider, but you should always embrace your judgment and experience to change your structure at the document or section level–when your readers will benefit.
Write.law co-founder Joe Regalia combines his experience as both practitioner and professor to create exciting new ways to teach legal skills. Learn more about Joe
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