5.4 SUMMARY
By using the CREAC formula to analyze every controversial element in your argument, you give the court the information it needs to understand the validity of each element of your argument.
An important part of your job as an advocate is to identify which issues need a full CREAC analysis and which issues should be addressed more succinctly or summarily. Furthermore, you must be sure that, whenever possible, your argument addresses your opponent’s best points. Your goal is to write a brief that addresses — in appropriate depth — both the strengths of your arguments and the weaknesses of your opponent’s arguments. The more effectively you do so, the more you increase the chances that the court will understand why the law demands the result that you seek.
Chapter Five Review
1. Use CREAC or another analytical formula to make sure you address the reader’s needs. 2. For your initial draft, presume that each point in your working outline needs a CREAC unit of discourse. 3. As you write or after you write your draft, consider each point in your outline and decide which level of analysis the point needs: Ignore, Tell, Clarify, or Prove. 4. Be mindful of your opponent’s best arguments. You must decide the exact points of disagreement (do you disagree on overall focus? what the rule is? what the rule means? how it should be applied?), and whether and where to address each point. You need not re-articulate your opponent’s arguments, nor do you need to label each attack as an attack on the opponent’s argument. 5. For each CREAC unit of discourse, articulate “the” rule that you are focusing on, referencing other rules to provide context as appropriate. 6. Sometimes a CREAC unit of discourse will not be focused on a rule, but on an assertion (e.g., “[Opponent’s best case] misinterprets the problems underlying this issue”). 7. If you have trouble articulating “the” rule, consider one of the following solutions: a.
Identify a “rule-choice-rule” to argue that the court should apply the rule that is favorable to your client. b. Identify a previously unarticulated rule by using inductive reasoning to identify patterns that imply a relevant rule. 8. For each CREAC unit of discourse, explain the meaning of the rule, ideally by talking about one case in which a court found that the rule was met, and one case in which a court found the rule was not met. 9. If the focus of any point in your outline is a policy assertion or other non-rule thesis, you may be providing “evidence” instead of a typical rule explanation. 10. For each CREAC unit of discourse, apply the rule to the facts, starting with a statement that says, essentially, “phrase-that-pays equals [or does not equal] my facts.” 11. In rule application, you need not always include analogies and distinctions, nor do you have to analogize or distinguish each case cited in the rule explanation. 12. If you are analyzing a statutory interpretation issue, your “facts” may consist of statutory language, legislative history, or the like. 13. Facts are relevant to questions of law, either specifically (the impact the court’s decision will have on the parties) or generally (the impact the court’s decision will have on others). 14. Be certain that each CREAC unit of discourse includes a connection-conclusion that restates the assertion of that section and, if needed, connects it to your overall thesis.1 Previous editions of this book used the acronym “CREXAC” to highlight the fact that the “E” usually stands for “EXplanation.” 2George D. Gopen, Let the Buyer in the Ordinary Course of Business Beware: Suggestions for Revising the Prose of the Uniform Commercial Code, 54 U. Chi. L. Rev. 1178, 1185 (1987). 3A rule cluster is appropriate when, as here, the existence and applicability of these related rules is not controversial. The discussion in Section 5.2 of “Tell” issues is relevant here, because you are telling the reader what the rule is and that it is relevant in the given case.
A rule cluster may also function as part of an argument’s “backstory,” as discussed in Chapter Ten. 4See discussion below and in Chapter Ten (regarding legal backstory and roadmaps) for examples of how to deal with issues that are not controversial, but that must be included in the analysis in some way because they are necessary elements of a statute, test, or other legal rule. 5See also, e.g., Laurel Currie Oates & Anne M. Enquist, The Legal Writing Handbook §12.8.4 (5th ed., Wolters Kluwer 2010). 6I am grateful to my colleague, Monte Smith, who developed and introduced me to this concept. 7Be sure to cite to the record so that the court can verify each referenced fact. Rules about and methods for citingto the case record are discussed in Chapter Nine. 8See, e.g., State v. Cyr, 967 A.2d 32, 40 (Conn. 2009). 9In their text, Professors Neumann and Tiscione use the term rule proof in much the same way that this text uses the term rule explanation. Richard K. Neumann, Jr. & Kristen Konrad Tiscione, Legal Reasoning and Legal Writing ch. 12 (7th ed., Aspen 2013). 10Clyde H. Hamilton, Effective Appellate Brief Writing, 50 S.C. L. Rev. 581, 582 (1999). 11Fred I. Parker, Foreword: Appellate Advocacy and Practice in the Second Circuit, 64 Brook. L. Rev. 457, 463-64 (1998). 12Kathryn M. Stanchi, Playing with Fire: The Science of Confronting Adverse Material in Legal Advocacy, 60 Rutgers
L. Rev. 381 (2008). The article, which is well worth reading, notes that “the decision to volunteer negative information depends on a complicated algorithm” that measures several overlapping factors. Id. at 433.
13 Rule 3.3(a)(2) of the ABA Model Rules of Professional Conduct provides that an advocate may not “fail to disclose” legal authority in the “controlling jurisdiction” that the lawyer knows is “directly adverse” to the client’s position, unless opposing counsel has disclosed it.
http://www.americanbar.org/groups/professional_responsibility/publications/ model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html (last accessed June 18, 2018). The American Bar Association notes that these rules “serve as models for the ethics rules of most jurisdictions.” http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html (last accessed June 18, 2018).14 Professor Stanchi warns against bringing up negative arguments pre-emptively unless you are fairly certain that your opponent will actually bring them up. Stanchi, supra note 12, at 427, 428. Of course, if you are a respondent, an appellee, or a party opposing the motion, you may be able to consult an actual brief to determine what those arguments are. Admittedly, this option is not always available in a law school setting.
15 See generally Stanchi, supra note 12, at 424-27 (discussing when and how to volunteer negative information). 16 Commentators have referred to this educational style as the “scholarly” style. Stanchi, supra note 12, at 391
(citing James F. Stratman, Investigating Persuasive Processes in Legal Discourse in Real Time: Cognitive Biases and Rhetorical Strategy in Appeal Court Briefs, 17 Discourse Processes 1, 8-10 (1994)).
17 In this situation, you may want to mentally substitute the word “Evidence” for the “Explanation” part of CREAC. Your assertion that a certain line of cases is inapposite would be your “rule,” and in the place of the “Explanation,” you would provide evidence for the truth of that assertion by discussing the cases and describing how they do not provide the support that your opponent might suggest.
18Stanchi, supra note 12, at 383. 19Note that I am using “evidence” in its colloquial sense. I am not suggesting that these arguments will necessarily include citation of testimony, exhibits, or the like (although in certain circumstances, they may). 20Stanchi, supra note 12, at 397. 21Id. at 410 (citing Stratman, at 44).