By Jason Crockford, Student at San Joaquin College of Law
Law likes efficiency and clarity. Thus, effective legal writing is often viewed as the transmission of information; and a good writer is one whose prose is a sort of sieve through which facts pass, being purified thereby, with the results being a pure, cohesive analysis from which the reader may take meaning. It is efficient because all extraneous material has been purged. It is clear because it is unadorned by any personal accident or stylistic flourish. This method, so dominant at my law school and others, is analogous, I think, to a child cupping rain. Impurity falls through her fingers; what remains she disinterestedly shows her friend. It is this remaining something which her friend values. So too with legal writing. We read a situation (rain), distill the situation with our mind (hands), and present our conclusion to the judge or reader (friend). I shall return to this figure later.
The kind of writing just described, properly denominated “IRAC” by most law schools, seeks to provide a sort of analytic cartography for the process of writing. Thus we see, first, the “I” or issue, laid down; then the “R” or rule is recited; followed by the “A” or analysis and finally the “C” or conclusion. The general proposition is that such a “system” ensures both thoroughness and organization. It sharply delimits the space in which each “letter” can be expressed. This allows the writer to retain clarity and economy, hallmarks, as we’ve said, of good legal writing. In other words, bad legal writing occurs when the “letters” are combined, mixed, or omitted.
But if the premise of this method is that organization is the basis from which good legal writing proceeds--and I think it is-- then does it not follow that those who don’t write according to the IRAC method are bad legal writers? Here it might be useful to provide an example of a different kind of writing, which I would call “aesthetic.” Here is Learned Hand:
“The interest at stake in all defamation is concededly the reputation of the person assailed; and any moral obliquity of the opinions of those in whose minds the words might lessen that reputation, would normally be relevant only in mitigation of damages”
Under an IRAC lens, meaning is evasive. Is Hand reciting a rule? And if he is, what is the value in burdening the expression with such verbal difficulty? And what of the tone? It is more akin to the musings of a narrator in a novel than that of a judge. The words “concededly” and “might” divest the piece of its oracular effect. Judges usually speak to us on stilts; they do this to make their authority wider, their vision of the law more powerful. Hand, however, requires no such distance. He is humane and wise enough. He takes us as we are. He declines to dangle judgment over us, and is more a friend over at dinner gently persuading us. The effect is vicious; and Hand feeds us a “rule,” rigid and unforgiving as any other, but made palatable. Like when we insist our significant other break up with us in person and not over the phone. We know their presence will not change what they wish to tell us. But because we can look them in the eye and see their physical person we are willing to accept their words. We value the personal. Judge hand is a master of this style. When we read his opinions we feel he is addressing us individually. It is his rhetorical power, then, and not his use of logic, which ultimately persuades us. A conversational tone makes us feel sufficiently safe so as to allow us to accept the medicine.
Under a traditional IRAC Formula we wonder if Hand would be obliged to rewrite the example just cited, into something like: “the interest invaded in defamation is reputation. A person has a right to be esteemed by everyone.” Such a formulation certainly adheres to IRAC rules. The logic is stated clearly, concisely, and plainly. It is free of personal affectation and unnecessary verbiage. But it also sacrifices something vital, something of the tone or voice to which we have just referred. It is this something which I seek to briefly defend. The question becomes: What is the value of the type of writing here characterized by Hand?
Generally, when we speak of aesthetics, we mean matters of beauty or taste. Within the context of legal writing a writer is “aesthetic” when value is placed upon the rhetorical method or style to the same degree as the substance or factual analysis. Indeed, to the aesthetic writer there is little if any difference between the two. The aesthetic legal writer uses these methods, which include metaphors, analogies, turns of phrase, axioms, word inversion, ellipses, etc., to produce what Judge Cardozo calls a “cumulative and mass effect,” which is of more importance than the effect produced by factual analysis. Said simply, the style is quintessentially rhetorical. Indeed the aesthetic writer often degrades the factual; or at least chooses to marshal rhetorical arguments directly alongside her legalisms. She relies on the “clarity and the memorableness of words” rather than on an “accurate statement of facts.” (again Cardozo). This conflict, between the aesthetic writer and the writer laboring under an “IRAC” rubric, is expressed wonderfully by Judge Posner, who, in making remarks on Cardozo, observed that:
“His grouping of fact and argument and illustration produce a certain effect; and these, after all, are the things that count above all others. The more interesting point, however, is that the aesthetic perspective, or one much like it, may be the proper one for judging appellate opinions after all. Maybe the principle function of such opinions is to state a rule clearly, memorably, rather than to state facts accurately, and maybe there is tension between the two functions. I myself would think it better to resolve the tension in favor of accuracy, but perhaps there is a case for giving priority to the aesthetic."
The aesthetic writer mixes fact with analysis; analysis with issue; conclusion, with rule. Turning back to Judge Hand’s statement, we clearly see the perspective to which Posner refers. He is able to produce a certain persuasive effect upon us. The factual analysis become secondary to the conversational tone. IRAC writing, on the other hand, neglects this element. Its style mandates persuasion based upon clarity: issue, rule, analysis conclusion. Anything additional is considered superfluous. But I know of no memorable case I’ve encountered as a first year law student—Scalia in ATT, Traynor in PGE, Cardozo in Palsgraf, Ginsberg in Virginia to name a few--in which the legalisms and analysis employed (the IRAC) were not to some extent buoyed by rhetorical gambits. In most these cases the logic is often flawed or else so attenuated that the only viable means of persuasion is rhetorical. It is no coincidence that the most transformative judges are aesthetic minded. How else could Cardozo deface privity, Traynor obliterate “plain meaning,” and Ginsberg shift the law to track lay understanding of, and respect for, gender? Logic can never achieve such goals on its own. IRAC only carries one so far. The reason these judges are repeatedly in the case books, I believe, is because of how they made their arguments.
Perhaps law’s finest aesthete is Justice Cardozo. I shall therefore use him here for a brief analysis. I first encountered Cardozo under my Contracts professor, Justin Atkinson, whose thoughtful teaching inspired me to write this article. Here is a line culled from my torts book, which I have handy: “Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to the other travelers, only because the eye of vigilance perceives the risk of danger.” We are, perhaps, struck first by the peculiar sentence structure. The English language is highly rigid, in contrast to more inflected languages like Greek and Latin. By loosening word order Cardozo vividly portrays his arguments without creating ambiguity. His words and argument become inevitable because of the way in which he says them—the style: “Negligent the act is” and not “the act is negligent.” This inversion of subject and predicate, one of Cardozo’s rhetorical hallmarks, is as important as his legal pragmatism and analysis. Poets do the same thing, as when Wordsworth writes: “to me alone there came a thought of grief.” But Wordsworth was content with the English countryside; Cardozo, on the hand, dwells in the land of practicality and consequence. His wording becomes practical, even necessary, because it brings our attention to the broader concept of duty. There is also something axiomatic about its presentation: “Negligent the act is, and unsocial in its presentation” is demonstrable without factual amplification. There really is a sense of inevitability.
Whenever I read Cardozo I fret: Would he pass his first year under a system that demands IRAC? Of course he would. No one would reasonably say he lacked cognitive mettle, or that he used his stylistic felicities as cover for weak analysis. But the question still stands. It would be interesting to see what effects the IRAC method would have on his prose.
Perhaps we should consider adding another element to our IRAC rubric. Perhaps the formula should read “IRACA”--the extra A standing for “aesthetic.” Everything I’ve learned in school thus far leads me to one conclusion: that the most effective, persuasive, and celebrated legal writers are those to whom style or rhetoric was crucial.
All writing labors under form: poets under the tyranny of rhyme and meter; novelists, narrative. Legal writers, too, must choose how best to express themselves. But while in the literary arts the kind of form in which one works varies immensely, in law there is but one choice: IRAC. Surely no one would argue that it is impossible to get the same result through different means. Professors and teachers of legal writing should be receptive to these different means.
I close by returning to my image of children cupping rain. A few weeks ago it was I who, exhausted from studying for finals and seeking a diversion, witnessed such a scene from the window of our law building. But while before I viewed the act as symbol of IRAC, it now appears to me in a different guise. Perhaps the purpose is not to capture the purity of the rainwater at all. Instead, purpose resides in the comingling of the rain with other material like sticks and leaves and sweat. Purification was not the point; rather, hands capturing one of life’s most pleasant experiences (rain) was. And it is towards this end, to experience life and to simultaneously give that experience meaning, to which the aesthetic legal writer aspires. The aesthetic writer expresses experience in a rhetorically unique way. She does not dispassionately transmit situations to the reader. She understands that what is vital about persuasion is the ability to rhetorically describe events and legal situations in a vivid, memorable way. As Judge Holmes remarked: “The life of the law has never been logic; it has been experience.” Any type of writing system that places a premium on the mere transmission of fact or experience loses something dear, not only in the application of law, but to life as well. Such a trade-off the legal community should not be willing to make.