Thursday, February 12, 2009

How Lawyers Write

(I've been posting reactions to our weekly faculty workshops at the Marquette Faculty Blog. This post is part of that series.)

This week’s faculty workshop presenter was our very own Professor Jessica Slavin, whose talk was entitled “Talking Back to IRAC: Legal Writing Beyond the Paradigm.” The project on which the talk was based has two components. First, Professor Slavin traced the history and questioned the utility of using IRAC and related formulas as vehicles for teaching legal writing. Second, she presented the results of her own empirical study of briefs submitted to the Wisconsin Supreme Court, which suggest that something other than strict adherence to IRAC characterizes the brief writing of at least one set of advocates.

To me, this is interesting and provocative stuff. I find the psychology of writing fascinating (put it together with the process of judging and I could maybe write a whole article about it). Having tried to teach a writing class once, I’ve experienced first hand just how difficult it is to articulate what makes for good writing. For me, at least, this is partly because I go about my own writing in a highly intuitive way. I don’t recall ever consistently thinking about IRAC when writing in a legal context, and I cannot articulate many of the rules of grammar (although I consciously violate some of the more ridiculous “rules,” such as the ones about split infinitives and prepositions at the end of sentences). Given all this, I share Professor Slavin’s sense that there’s something not quite right about a method of teaching writing that suggests that it is somehow a mechanical or rule-driven process. This is not (on my part, at least) to suggest that IRAC-like formulas are not useful, but rather that they are incomplete.

Lately my bedtime reading has included large helpings of the flat-out brilliant David Foster Wallace. (RIP) Wallace, in his essay “Authority and American Usage,*” provides perhaps the best statement I’ve seen about why it’s so hard to teach writing, and why constructs like IRAC seem to fall short. He writes of “the error that most Freshman Composition classes spend all semester trying to keep kids from making – the error of presuming the very audience-agreement that it is really their rhetorical job to earn.” He continues, characteristically, in a footnote:

Helping them eliminate the error involves drumming into student writers two big injunctions: (1) Do not presume that the reader can read your mind – anything you want the reader to visualize or consider or conclude, you must provide; (2) Do not presume that the reader feels the same way that you do about a given experience or issue – your argument cannot just assume as true the very things you’re trying to argue for.

Because (1) and (2) are so simple and obvious, it may surprise you to know that they are actually
incredibly hard to get students to understand in such a way that the principles inform their writing. The reason for the difficulty is that, in the abstract, (1) and (2) are intellectual, whereas in practice they are more things of the spirit. The injunctions require of the student both the imagination to conceive of the reader as a separate human being and the empathy to realize that this separate person has preferences and confusions and beliefs of her own, p/c/b’s that are just as deserving of respectful consideration as the writer’s. More, (1) and (2) require of students the humility to distinguish between a universal truth (“This is the way things are, and only an idiot would disagree”) and something that the writer merely opines (“My reasons for recommending this are as follows:”). … I therefore submit that the hoary cliché “Teaching the student to write is teaching the student to think” sells the enterprise way short. Thinking isn’t even half of it.

Wallace seems to have nailed it, though he has perhaps sold his assessment short. This, it seems to me, is the trick not only to Freshman Composition, but to all effective writing. There’s more to it, of course – there’s organization, and at some point one moves from mere concerns about effectiveness to striving for some sort of euphony – but as a description of the basic struggle I find myself engaged in every time I sit down to write, it’s hard to do better. Viewed from that perspective, IRAC appears as the treatment of a symptom rather than the cause. Of course, that’s often all that one can reasonably do. To her great credit, Professor Slavin is struggling with the question of whether, and how, we might do more.

*This essay appears in the collection “Consider the Lobster.” The quoted material is at page 106. A shorter version, which does not include the quoted material, appeared in Harper’s as “Tense Present: Democracy, English, and the Wars over Usage.”


Blogger Shanthi said...


I am a July 2009 CA bar candidate. I could not begin to tell everyone how this IRAC paradigm, utilized in legal writing in the US has affected my life personally and my progress with this exam. With just points away from passing this exam, I am always told if I don't adhere strictly to this IRAC paradigm, I will never pass it! With all the legal knowledge acquired from studying both in the UK and the USA and with two Masters degrees, one of which is a Masters in Law, I feel paralyzed in my legal thinking..

If the IRAC paradigm will one day help me pass the bar and welcome me into the legal field as a licensed attorney, it will also at the same time welcome me as an abstract, monotonous thinker. It definitely retards my freedom of thinking. When I have to think “The issue is...The rule is....Here, when applied to the facts.......Therefore, it can be concluded....” I feel like I am thinking inside a box and not outside it.

Ironically, at the same time, when I do not adhere to the IRAC paradigm, I have a problem reading and understanding my own essays! If I cannot understand my own arguments, I cannot expect someone else too.

A friend of mine, a practicing attorney in dual jurisdictions, answered my question. His response was that it “makes brief reading for judges easier, and to help lawyers write stronger arguments. A good argument buried in poor writing loses its persuasion.”

I cannot say I disagree with his response.

Nonetheless, What is law? Where did the law come from? Who created the law? If only we take the time to consider these questions, we will be appalled to find out that law was created for a society in which people live. Law was created for people in a society with emotions which wiki defines as a mental and physiological state associated with a wide variety of feelings, thoughts, and behavior. Law was created to resolve disputes between emotional people with real worries such as finding gainful employment, paying the bills, feeding their dependents, paying their taxes, their mortgages and car insurance payments. Law was created to resolve disputes between emotional people in society.

Yet, everything about law is cold, dry, monotonous, abstract. The irony is the very people for which law was created find it to be an unfathomable, cold creature.

In an effort to create a concise and precise way of solving problems, what have we created in the way of The Law? A surreal robot when we needed just a shoulder to cry on. It is for the people to decide.

For me, I only wish there were ways to make brief readings and other legal writing less monotonous and more emotive so that reading about law can be an enjoyable experience for both the judges and the people.

6/24/2009 12:36 PM  

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