Dear Student,

Welcome to The Law School Playbook!  I’m Halle Hara, a professor of academic success and personal skills coach to law students and attorneys.  I’m glad you’re here!  If you’ve listened to the episodes on deductive reasoning, inductive reasoning, and policy-based reasoning, you know there is a lot of room for creativity in conducting legal analysis.  This is one of the many reasons lawyering is challenging but also fun.  Deciding which type of legal reasoning to use in a given case is driven by numerous considerations, such as careful reading, critical thinking, and professional judgment.

Particularly for beginning students, it is easy to grab onto organizational paradigms like IRAC (which stands for issue-rule-application-conclusion) and CREAC (which stands for conclusion-rule explanation-rule application-conclusion) in search of legal analysis.  But I want to make one point very clear:  whichever organizational paradigm you use (they are all very similar) that paradigm is not in and of itself legal analysis.  I attended a presentation by Professor Maryann Herman on teaching legal analysis.  She had a powerful slide about IRAC that applies to any organizational paradigm.  The slide didn’t have any words—just two photographs.  The picture on the left was a puddle of water and the picture on the right was a clear glass pitcher filled with what seemed to be the same amount of water.  This was a perfect visual explanation of what an organizational paradigm is—a container for legal thought.

It is worth mentioning that organizational paradigms are not without controversy.  Some professors urge their students to avoid IRAC at all costs.  Some find it only beneficial for issue-spotting exams.  An often-cited problem with IRAC is that it assumes that there is a single rule and a single way to apply it.  Others contend it constrains advocates from making creative arguments.  My position is that it is a fine way to organize an argument, but others are acceptable as well, as long as your professor or the court knows where to find the key parts of your reasoning.  A lack of organization in an exam answer is a common problem for beginning law students, but it is definitely not the only pitfall to avoid.

Other common pitfalls can be separated into three categories used by one of my mentors, Professor Susan Gilles.  Professor Gilles groups them into: (1) law-based problems, (2) fact-use problems, and (3) writing problems.  We will discuss each category briefly.

Law-based problems are rooted in a student’s failure to state or understand a rule fully.  For example, if deductive reasoning is called for in a law school exam question, a general sense of what the rule is will not suffice.  Generalized rule statements produce generalized analysis and will not result in the points you are hoping for.  Some students manage to articulate a precise rule statement, but they really have no understanding of what the rule means.  Consequently, the student’s analysis goes off track.  There is no getting around it:  knowing and understanding the law is the floor for any exam answer.  Without that, you’ll never get anywhere close to the ceiling.

But even students who know and understand the rule sometimes have fact-use problems.  An easy problem to fix is overgeneralizing or summarizing the facts instead of using the words provided.  A more troublesome problem arises when a student engages in what Professor Gilles calls “one and done.”  That occurs when a student finds one fact and then stops looking for others.  In other words, the student does not make use of the full range of facts.  As I tell students often, law professors work diligently to construct the facts for law school exams; thus, it is unwise to leave them on the table.  In order to do well on exams, you must make use of more than just obvious facts.  The other, more subtle facts are there to inspire deeper thinking and the best papers will use those.

The final category of pitfalls is the one I see most often—writing problems.  By far the most troublesome writing problem occurs when students recite the facts on a law school exam as opposed to using them.  This is also referred to as “fact listing.”  Students who do this fail to link the law to the facts.  I’ve tried a few different approaches to correct this problem, but by far the one I’ve had the most success with is teaching students to use “rule words” and “fact words” together in the same sentence.

I’ll give you an example modified from a problem Professor Melinda Molina adapted from Professor Anita Bernstein’s Q&A book on Torts.  Consider the tort of intentional infliction of emotional distress.  Let’s assume that, in this jurisdiction, a plaintiff bringing an IIED claim must demonstrate that, among other things, the defendant engaged in extreme and outrageous conduct.  Extreme and outrageous conduct is defined as going beyond all reasonable bounds of decency, regarded as atrocious and utterly intolerable in a civilized community so much so that an ordinary reasonable person (upon learning of the conduct) would exclaim “outrageous”!  In the facts we are given, a neighbor knocks on the door of a homeowner, and tells the homeowner that his daughter has been gravely injured in a bike accident.  The neighbor quickly shows the homeowner a picture on her iPhone showing a local accident with police arriving at the scene.  The homeowner observed a mangled powder blue bike in the picture—the same color bike his daughter owned.  We later learn in this fact pattern that the neighbor had been lying, that the daughter was alive and well, and the neighbor misled the homeowner to get revenge for a land dispute they were having about erecting a fence.  The homeowner thereafter filed a claim of IIED.

In analyzing whether the neighbor engaged in extreme and outrageous conduct, a student with a writing problem might provide the rule, set forth the facts, and then conclude.  That answer, however, would be missing the big “A”—the legal analysis every law school professor (and court for that matter) is looking for.  Knowing the rule and the facts relevant to that rule isn’t enough, even if the student manages to reach what is likely the “proper” conclusion.  Without linking the law and facts together, the student will never earn a top grade.  Like your elementary school math teacher admonished: to earn a strong grade, you have to “show your work.”  Professor Herb Ramy puts it slightly differently.  In his book Succeeding in Law School, he explains that legal analysis is a lot like giving a great set of directions—the destination is important but how you get there is the key.

A novice student attempting legal analysis might provide an answer like this:

The neighbor’s conduct was spiteful and false.  The homeowner’s daughter was not injured or in a horrible bike accident.  Anybody would view the neighbor’s conduct as hurtful and it would be the last thing the homeowner would expect from a fellow community member.  Neighbors are supposed to be neighborly, not out to play mind games for revenge.  Accordingly, the neighbor engaged in extreme and outrageous conduct and that element is satisfied.

What’s wrong with this answer?  The conclusion seems correct and it used some facts from the fact pattern.  However, where are the “word rules” in this answer?  The student uses terms like spiteful, false, hurtful, unexpected, and vengeful to describe the neighbor’s conduct, but the problem is that none of those words appear in the rule.  That is, the rule does not indicate that a defendant engaged in extreme and outrageous conduct if the defendant acts in a way that is spiteful, false, hurtful, unexpected, or vengeful.  What the rule does say is that extreme and outrageous conduct is defined as going beyond all reasonable bounds of decency, regarded as atrocious and utterly intolerable in a civilized community so much so that an ordinary reasonable person (upon learning of the conduct) would exclaim “outrageous”!

Using the specific words from that rule, sound legal analysis might read like this:

The neighbor engaged in extreme and outrageous conduct by knocking on homeowner’s door and falsely claiming that the homeowner’s daughter had been gravely injured in a bike accident.  Showing the homeowner a picture of a local accident with a mangled powder blue bike and police arriving at the scene went beyond all reasonable bounds of decency.  Particularly because the neighbor knew the homeowner’s daughter had a bike the same color, that she was alive and well, and engaged in the conduct simply as revenge for a land dispute over a fence, the neighbor’s conduct would be regarded as atrocious and utterly intolerable in a civilized community—so much so that an ordinary reasonable person (upon learning of the conduct) would exclaim “outrageous”!

This is a better answer.  Why?  Because each sentence uses the rule words and fact words together.  Let’s look at the first sentence:

The neighbor engaged in extreme and outrageous conduct by knocking on homeowner’s door and falsely claiming that the homeowner’s daughter had been gravely injured in a bike accident.  The rule words are “extreme and outrageous conduct” and the fact words are “knocking on homeowner’s door and falsely claiming that the homeowner’s daughter had been gravely injured in a bike accident.”

The next sentence says:  Showing the homeowner a picture of a local accident with a mangled powder blue bike and police arriving at the scene went beyond all reasonable bounds of decency.

The rule words are “beyond all reasonable bounds of decency” and the fact words are “showing the homeowner a picture of a local accident with a mangled powder blue bike and police arriving at the scene.”

The third sentence also uses rule words and fact words.  It says:  particularly because the neighbor knew the homeowner’s daughter had a bike the same color, knew that she was alive and well, and engaged in the conduct simply as revenge for a land dispute over a fence, the neighbor’s conduct would be regarded as atrocious and utterly intolerable in a civilized community—so much so that an ordinary reasonable person (upon learning of the conduct) would exclaim “outrageous”!  In that sentence, the rule words are “atrocious and utterly intolerable in a civilized community—so much so that an ordinary reasonable person (upon learning of the conduct) would exclaim “outrageous”!” and the fact words are “particularly because the neighbor knew the homeowner’s daughter had a bike the same color, knew that she was alive and well, and engaged in the conduct simply as revenge for a land dispute over a fence.”

The moral of the story is that using rule words and fact words together in the same sentence forces the student to use the facts, rather than recite them.  It also helps students to avoid writing answers that are too conclusory.  Although the shift of using rule words and fact words together in the same sentence may seem subtle or unnecessary because an answer or why the facts are relevant seems “obvious” (a common first-year mistake), it can make all the difference in writing a solid exam answer.  Here’s how to make sure you are doing it on practice exams:  after you have completed the answer, go back and highlight the rule words in yellow and the fact words in green.  Yellow and green should be in every sentence.  If they are not, you risk having been too conclusory or listing facts rather than using them.  If you don’t perform well on an exam, ask your professor if you can review your answer and try this technique.  It can tell you a good deal about why you may have received an undesirable outcome.

Finally, every exam question must be read critically.  If you write a beautiful exam answer to a question that wasn’t asked, you won’t get the result you are looking for.  And if you are looking for icing on the cake, don’t forget to make alternate arguments and counter-arguments.  You will certainly do this in practice by anticipating your opponent’s view and explaining why it is incorrect, so why not start now?

Thanks for listening, and I hope this episode at least made you aware of common pitfalls and how to avoid them.  If would you like to read this episode, get suggestions for further reading, or to request individual coaching with me, please visit my website at www.lawschoolplaybook.com.

As always, do your best, and I’ll be rooting for you!

References and Further Reading

Anita Bernstein, Questions & Answers: Torts 74 (3d ed. 2014).

Diane B. Kraft, CREAC in the Real World, 63 Clev. St. L. Rev. 567 (2015).

Hon. Gerald Lebovits, Cracking the Code to Writing Legal Arguments:  From IRAC to CRARC to Combinations in Between, New York State Bar Association Journal, July/August 2010 Vol. 82 | No. 6, pp. 50–53.

Herbert N. Ramy, Succeeding in Law School 112–113 (2d ed. 2010).

The Writing Center at GULC by Maureen Aidasani & Osamudia Guobadia, What Do You Mean “There’s More than One Way to Do It”?  Selecting Methods of Legal Analysis That Work Best, 2004.  https://www.law.georgetown.edu/wp-content/uploads/2018/02/legalanalysismethods.pdf.