The Art of Written Persuasion: From IRAC to FAILSAFE - A Compilation of Legal Problem-Solving ModelsBy Troy Simpson, Published on October 11, 2008
‘A process model … of problem-solving provides a useful framework … because it offers a systematic, non-random way of tackling problems.’1
In my previous article, I outlined some of the problems with the ‘case method’ of teaching law and I outlined some of the advantages of the ‘problem method’. Proponents of the problem method have developed several problem-solving models. I describe some of these models below so that in my next column I may suggest the criteria for evaluating these models.
‘IRAC ’ purportedly provides the simplest and commonest ‘problem-solving’ model. Under IRAC, you state the Issue, state the Rule to apply, Apply the rule, and reach a Conclusion.
People call IRAC a ‘problem-solving’ method; but IRAC really helps only in structuring an analysis, such as summarising a case, rather than solving problems. The IRAC formula resembles less the problem method than the case method, which Christopher Columbus Langdell , Dean of Harvard Law School , introduced in 1870.2
For example, one can spot the ‘Issue’ in a case relatively easily; but spotting the issues in an unfocussed problem takes much more work.3 You must analyse the facts before you can identify the ‘Issue’.
The ‘I’ in ‘IRAC ’, when applied to unfocussed problems, presumes the lawyer knows enough of the law to identify issues. Yet ‘the great secret, kept by all lawyers, is that lawyers don’t know the law … there is too much law for any man to master in his lifetime’.4
The ‘R’ in IRAC considers ‘rules’. But ‘rules’ still leave decision-makers with discretion.5 Lawyers win most cases on the facts, not rules. This means IRAC:
‘forces unprepared students to learn the hard way, at the expense of their clients, that practicing law involves understanding facts first, “what happened” and the “how” and “why” of the mess that brought the parties to the last resort of dispute resolution.’6
When used as a problem-solving method, the ‘A’ in IRAC tells you to ‘apply the law to the facts’. Yet it does not explain how to apply the law to the facts.7 And, as a problem-solving method, the ‘C’ in IRAC too confidently predicts an unqualified ‘conclusion’.8
IRAC may provide a good way to organise an analysis after you have done all the hard work—finding facts, analysing facts, identifying the relevant areas of law, and so on.9 But IRAC provides no suitable ‘problem-solving’ model. This explains why IRAC has mutated into countless variations, some of which I outline below. >
2. IRAC variations
IRAC has grown into ‘HIRAC ’.10 HIRAC stands for ‘Heading, Issue, Rule, Application, Conclusion’. Under HIRAC, you construct a ‘Heading’ or legal label for the relevant areas of law for each issue or sub-issue.
HIRAC addresses one of IRAC ’s weaknesses by identifying the relevant areas of law as a preliminary step to identifying relevant issues and sub-issues.11 But HIRAC, like the other models I describe below, still omits crucial steps.
‘CRAC ’ stands for ‘Conclusion, Rule, Application, Conclusion’. People use ‘CRAC’ for persuasive writing. For example, when advocating a position in a brief rather than discussing an issue in a case—‘I’ changes to ‘C’, so that the writer states their conclusion upfront.12
‘CRPAC ’ stands for ‘Conclusion, Rule, Proof, Application, Conclusion’. Adding ‘Proof’ recognises the uncertainty of law, requiring the writer to ‘prove’ the rule the writer advocates in a dispute about the applicable law.13
‘TRRAC ’ stands for ‘Thesis, Rule statement, Rule explanation, Application, Conclusion’. Putting the writer’s ‘Thesis’ upfront mirrors ‘real life’. People reading a brief want the ‘bottom line’ first, and the support second. Adding a ‘Rule explanation’ section lets you discuss policy, analyse precedent, conduct counter-analysis, and analyse the rule in other ways to help the reader understand the rule and its application.14 The creator of TRRAC stresses the need to present the model as a flexible model and not a ‘pair of formalistic writing handcuffs’.15
‘IGPAC ’ stands for ‘Issue, General Rule, Precedent, Application, Conclusion’. Adding ‘General Rule’ and ‘Precedent’ clarifies how to apply the law to the facts. You will have facts from precedents that you can use to analogise and distinguish to support your application of the law to the facts in your case.16
‘IRAAAPC ’ stands for ‘Issue, Rule, Authority synthesis, Application, Alternative analysis, Policy, Conclusion’. Adding ‘Authority synthesis’ and ‘Alternative Analysis’ introduces the need to think about both sides of an argument. Adding ‘Policy’ shows that deciding cases involves more than just ‘rules’.17 For persuasive writing, where the writer wants to put the conclusion first, the model changes to ‘CRAAAP’.18
3. Better models
(QfrFR)+IRAC stands for ‘Question, entire set of possibly relevant Facts and Rules, relevant Facts and Rules, Issue, Rule, Application, Conclusion’. This model recognises that IRAC describes only the result of analysis, not the process of analysis. The model explicitly recognises the need to do preliminary analysis before working out the issues. That preliminary analysis involves clarifying the ‘Question’, sorting through all the facts and possible legal rules, and sorting out those elements of the rules that the facts call into play.19
‘MIRAT ’ stands for ‘Material facts, Issues of law and policy, Rules (and Research and Resources), Arguments—Pro and Con (or Application), Tentative conclusion’. Students and lawyers should read Professor John Wade ’s MIRAT model20 to understand its sophistication. But some features include:
- the 5 concepts in MIRAT, especially the first 3, interact: ‘research unearths more “rules”, which leads to identification of new issues, questions about missing material facts, and a quota of fresh arguments. That is, it is an identifiable skill itself to move “to and fro” between the first three concepts thereby expanding and refining material facts, issues and rules.’21
- identifying issues depends on how much law you know: ‘issues emerge gradually. They arise initially from experience, first impressions or gut reactions, and then in more detail as legal research progresses. As any issue is identified, the question can be asked “How did you decide that was an issue?”’22
- relevant resources extend beyond the law library: ‘lawyers must acquire the basic skills of locating current case and statutory rules and expressing these accurately’23 but other ‘rules’, such as ‘street law, the law in action, trial judge law’ should be ‘assiduously pursued.’24
Professor Bryan Horrigan has invented an even more detailed model that captures all the steps in litigant-focused research and problem-solving:
|F||Fact gathering||Gather and analyse relevant facts, noting gaps in information|
|A||Action analysis||Analyse various causes of action arising between particular parties|
|I||Issue identification||Identify relevant legal and practical issues and sub-issues|
|L||Legal research||Undertake legal research on relevant law and policy|
|S||Statement of law and policy||State the results of that research, including uncertainties|
|A||Application||Apply that summarised statement of the legal position to the relevant facts|
|F||Finding||Come to a conclusion on the application of the relevant law to each issue and sub-issue in particular fact situations|
|E||Evaluation||Critically evaluate both the law and the practical courses of action available to particular parties in light of your analysis|
Horrigan provides another model to structure the writing that follows the problem-solving process:
|I||Instructions from client|
|F||Facts, documents, assumptions, and qualifications|
|I||Issue-by-issue identification and analysis|
|A||Authority, Argument, and Application|
|O||Options, tactics, and practicalities|
4. Non-academic models
Academic lawyers have written most of the models described so far. But one of the best models comes from a Canadian article that synthesises the ideas of several practising lawyers.25The model succinctly describes the processes involved in 5 steps: ‘Identify the Facts’; ‘Analyze the facts to identify issues’; ‘Identify the Issues’; ‘Gather the Raw Research’; and ‘Analyze the Raw Research ’.
5. Inter-disciplinary models
Some authors invoke disciplines beyond just the law. For example, Margot Costanzo applies theories about preferences in thinking and personality to the process of identifying and solving legal problems.26 Costanzo engages all parts of the brain through text, pictures, and diagrams.
Michael R Smith applies inter-disciplinary theories to the result of legal problem-solving—namely, persuasive writing.27 He analyses psychological theories of persuasion and then explores persuasive writing strategies those theories sugges t.
What makes a good problem-solving model?
In my next column, I will use the problem-models described so far to isolate the traits we should look for when developing and evaluating useful legal problem-solving models.
1 Stephen Nathanson , ‘Problem-Solving in Professional Legal Education’ (1989) 7 Journal of Professional Legal Education 121, 123. Nathanson continues: ‘A process model reinforces the idea that people should not jump to conclusions they should not try to solve problems prematurely, but rather go through all the steps first’.
2 See also Michael BW Sinclair , ‘What is the “R” in “IRAC”’ (2002–3) 46 New York School Law Review 457, 473 (noting IRAC ‘is pure Langdell in its jurisprudence’).
3 Bryan Horrigan, ‘Materials on Problem-Solving Techniques’, prepared by the University of Canberra Law School, accessed May 2007.
5 See, for example, Thomas Michael McDonnell , ‘Playing Beyond the Rules: A Realist and Rhetoric Approach to Researching the Law and Solving Legal Problems’ (1998) 67 UMKC Law Review 285, 287: ‘It is undeniable that the major decision-makers in the legal system possess a large reservoir of discretion—a discretion that written, published law fetters loosely, if at all’.
6 Manning Warren , ‘IRAC Response’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 19.
7 See, for example, David J Jung , ‘I Love IRAC?’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 10 (noting ‘the real problem is with the A’. It suggests ‘a mechanical process that doesn’t exist’. ‘“Application” connotes something difficult … the reason for the rule, principles, policies, the judge’s breakfast must come into play … The application has to take you outside the issue and outside the rule if it is to get you to the conclusion’.
8 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 289.
9 For a more comprehensive description of the tasks involved in legal problem-solving, see Troy Simpson, Win More Cases: The Lawyer’s Toolkit (2008). For examples of how to use IRAC to organise an analysis, in an exam setting, see Harry McVea and Peter Cumper, Learning Exam Skills (1996, 2002 reprint).
10 Kathy Laster et al, Law as Culture (1997) 170–171.
11 Bryan Horrigan , ‘Materials on Problem-Solving Techniques’, prepared by the University of Canberra Law School, accessed May 2007.
12 Charles R Calleros , ‘IRAC: Tentative and Flexible and Therefore Reliable’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 4; Deborah E Bouchoux , Aspen Handbook for Legal Writers (2005) 160.
13 Charles R Calleros , ‘IRAC: Tentative and Flexible and Therefore Reliable’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 4.
14 Kim Cauthorn , ‘Keep on TRRACING’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 5.
15 Kim Cauthorn , ‘Keep on TRRACING’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 5.
16 Mary Garvey Algero , ‘On IRAC’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 4.
17 Ellen Lewis Rice et al, ‘IRAC, The Law Student’s Friend or Foe: An Informal Perspective’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 13.
18 Ellen Lewis Rice et al, ‘IRAC, The Law Student’s Friend or Foe: An Informal Perspective’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 13.
19 Dennis R Honabach , ‘“IRAC” or “(QFRFR)+IRAC” (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 13.
20 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283.
21 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 284.
22 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 287.
23 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283.
24 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 288.
25 Barbara Cotton , ‘Advanced Legal Research and Writing: How to Build a Cadillac’ (1991) 13 Advocates’ Quarterly 232.
27 Michael R Smith , Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002).
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