5.2.3 CLARIFY ORCRAC ISSUES
A Clarify issue is similar to a Tell issue, but it is an issue that is a shade more complex. The term Clarify signals that the issue needs a bit more detail in order for the reader to understand either why the issue is not controversial or why the issue is not relevant.
For example, presume that your client, Old Testament Publishers, is an employer with eight full-time employees. A plaintiff has filed a suit under both state and federal age discrimination statutes. The federal statute applies only to employers with “twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” In a memorandum in support of a motion to dismiss, you could conceivably treat the applicability of the federal statute as a Tell issue:
Because Old Testament Publishers has only eight employees, the federal Age Discrimination in Employment Act does not apply. 29 U.S.C. §630(b) (defining “employer” as having “twenty or more” employees).
On the other hand, if your client were an ice cream parlor in a tourist town, its employee count might take a little more time to make clear, because the employee count is not stable throughout the year. In that situation, the applicability of the statute would be a little more complicated, and you should treat the issue as a Clarify issue:
Mr. Zawierucha cannot bring a cause of action under the federal Age Discrimination in Employment Act. The Act applies only to employers with “twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. §630(b). Admittedly, Ice Cream Dreams sometimes employs more than twenty people. During this calendar year, it has employed twenty or more people during ten calendar weeks. For the preceding year, it employed twenty or more people during twelve calendar weeks.
Because it has never employed more than twenty employees for “twenty or more calendar weeks” in a calendar year, however, Mr. Zawierucha will be unable to bring a cause of action using this statute, and this court should accordingly dismiss Count IV of his complaint.You might think of a Clarify issue as a CRAC issue, since it requires you to state a Conclusion, state the Rule, Apply the rule, and provide a Connection-conclusion.
It is difficult to give an exact formula for distinguishing between Tell issues and Clarify issues. You may presume that “more is always better,” but that is not always true. You will needlessly annoy some readers by giving a paragraph of analysis where a sentence plus citation will suffice. As you gain more experience in written legal analysis (and experience with various readers), you will develop your own sense of judgment as to the appropriate depth for your analysis. In the meantime, there are a few factors you can consider. For example, is the language in the rule abstract or highly technical? The harder the rule is to understand on its own, the more likely it is that your reader will benefit from a Clarify analysis. Is the connection between the law and the facts complex enough that you want to take the reader by the hand to make sure that the connection is evident? Are you writing about an area of law with which the court may be unfamiliar? If so, it may be worth the extra sentence or two to clarify the outcome of the issue.