KEVIN M.

A law student who stumbled upon this blog emailed with a query on the mysteries of writing like a lawyer, resulting in this exchange:

Sir:

 

      Many heartfelt thanks for your incredibly thoughtful response.  It puts me considerably more at ease that you were against the whole IRAC issue from the get-go, and I feel a little more comfortable not worrying so much about the form.  [I'm not sure I'm against it, it's just that it gets in the way sometimes.  For bar exam purposes, it seems to be mandatory, so I don't advise ignoring it so much as trying to figure out a way to make it work for you instead of against you.]

 

      Ironically, in some instances, trying to craft a careful outline might be an impediment - I do like the notion of just writing down ideas as they come at first.  Organizing my mental clutter on paper might very well be a useful shift in how I begin writing.

 

    In any event, thanks again very much for the kind and considered response.

 

Best,

 

Kev M.

 

 

To: Kevin M. 

 

Sent: Saturday, July 22, 2006 5:53   PM

 

Subject: Re: bar exam essays

 

Kevin M. wrote:

Hello:

    I stumbled across your site when searching for essay writing tips,
and thought I'd summon the sheer audacity to ask if you'd be willing
to provide any advice as to the bar exam essay section.  Really,
anything, however brief, would be good.

     I took BarBri, and while very helpful, as to essays submitted for
grading, I think only 2 had helpful criticisms, 2 really didn't tell
me much as to the grade given, and 1 may have been graded by someone
they pulled out of a local pub.

      I understand the basic idea of spotting issues, not being
conclusory, using headings, and furnishing definitions to at least the
more important terms used. I also get it that a short, concise essay
written written after 10 minutes of outlining is better than throwing
the kitchen sink in.

     But there is some sort of disconnect between conceptually grasping
the more common theories and consistently employing them.  I know what
I want to throw, I just can't seem to always execute my pitches.

    I suppose I'm looking for something in the pre-writing reading,
issue spotting, and identification period that goes beyond "outline
your answer before you write".  Perhaps there really isn't any advice
that can be given with more illumination or strategy than that, but,
my thought is you might have some ideas with a little more potency, or
at least something more readily executable for myself....

     I'm old - 30 - have gone to school at night [4 years] squandering
the last flower of my youth.  I was a phil/psych major in college and
writing never seemed to be a problem until law school and this
stylistic IRAC fascism.

Anyway, thanks, at very least, for reading.

-kev m.

*****

Hi, Kevin,

I certainly don't mind your asking; it's just that if I had the answer
I'd have invented the legal equivalent of the cure for the common cold.

Regarding the IRAC fascism, I've been rebelling against it all my life. 
Never could write like a lawyer, which is why what you see is pretty
much what you get in a brief.  I was involved in a lengthy case that had
gone on for years when a new judge was run in on us and I had to brief
him on my client's position, as the lead party, quickly.  I wrote up a
ten-page precis in plain English, submitted it, and the following week
was pleased to hear the judge advise that he'd read it in his study over
the weekend and it felt as though I'd been standing there sorting out
the whole complicated mess for him.  The entirely good result, I
believe, was in large part based on writing the way I'm talking to you,
in plain language, with examples.

I've read all sorts of books on writing, legal and other, as well as
stuff on IRAC, which I could never understand very well because my mind
is not compartmented in the usual way (either, perhaps) thank goodness. 
I did find it helpful to take writing coaching bar review seminars so I  
could get organized.  LRA  was what I'd been taught, Law, Reasoning,
Argument, as in On these facts, the law is that you may not legally
shoot someone you're annoyed with, subject to certain qualifications
such as indicated by this or that fact in the given, following which you
then argue for whichever way seems most reasonable by your lights. 
Having graded many blue books of law students, all of whom were pretty
bright in real life, I noticed how foolish they seemed on paper, all
trying to be something that they weren't, trying to sound like lawyers
but appearing as a lot worse than that.

The trick, I think, is to stick with what brung you to this point and
see whether you can channel that into something that makes sense to an
examiner, who doesn't care what your political position is on anything,
but does care, say on an abortion related legal issue, that you reveal
familiarity with the ins and outs of the Roe/Casey right and its
erosions as applied to these particular facts in the exam.  The way I
found helpful was to think whatever I could, get it down on scrap,
Roman-number the big and subordinate issues, and that was about as close
to an outline as I was capable of doing in a short span of time.  So for
bar exam purposes there is a certain amount of artificiality, but the
requirement shouldn't be fatal if intelligently handled, and hey, you
wouldn't be asking if you weren't intelligent.

Your law school ought to be able to direct you to people who coach on
writing.  Practice helps.  Writing the blog is my self-imposed homework
as well as an expressive modality.  If I can understand what I write,
and folks like you and the judge, above, can understand it, I figure I'm
ahead of the game.  One thing I don't ever do is to compare my writing
with the corporate product known as an appellate court or law review
opinion.  You need a lot of time, help, guidance, and use of a style
manual before you can do that, which is why student blue-books rarely
look like O.W. Holmes, Jr.'s work.   I tell students that they probably
know a lot more than they think they do, if they only thought about it. 
They lack confidence, however, that their thoughts have value, because
they're theirs, and they aren't used to being taken seriously when
writing law.  One thing you might consider is blogging on legal topics
of interest to you just to get in the habit of writing often on what's
important.   Otherwise why would anybody want to go to all the trouble
of studying law if they can't put it to good use?  I also encourage
students to work in small teams so they can look over each other's
shoulders.  For some reason they almost never do, but they can't say I
didn't try to encourage them to do something good.

Good luck, Kevin.

Yours,

Bob

I'm bothered about what I said about IRAC, stating at one point, when told by Kevin that he was glad I was against it from the get-go, that I wasn't against it but also saying that I'd been rebelling against it, which is not saying it's wrong, necessarily, only that I have trouble with it. 

I should clarify. 

For many people, IRAC must work fine, or the law schools wouldn't have adopted it as a useful tool.  For the uninitiated IRAC stands for Issue, Rule, Argument (my Law, Reasoning, Argument) plus Conclusion.

In the interests of full disclosure, I should admit that I'm left-handed, and you know what that means:  fighting the world from the git.  IRAC was invented by a right-brained SOB, and you can figure out what that stands for.  We southpaws are far more creative, using on a daily basis what you RBSOBs have trouble calling up on weekends and holidays.

I have trouble memorizing rules, mainly because someone else wrote them and I couldn't remember them even if I had written them.  Memorizing rules is not how how you learn, or do, law. 

The way you, or at least I, learn law, is by studying examples of conflict to see how they came out. 

If you tell me this country had a civil war over slavery, essentially, and here's how it came out, I'm going to read all sorts of books on the subject and figure out for myself the hows and whys of how it came out and then I can discuss it with you. 

I do this for all sorts of conlaw issues.  I read a lot of history, one sort or another.  Why?  Because how else is anything going to make sense to me?  I'm sure I don't know.  But once I get into it, I make the story mine.  I can tell it to my kids and they'll understand.  That's my test.  If I can explain to people who haven't put in the study I have, and they show that they understand, then I understand.  If I can't do that, then I don't understand.  Once I understand, I can pass a law exam, argue to a judge or jury, or use what I've learned in class as a law prof, or blogging, which is teaching.

Here's what I do, and I see law students doing it, and I counsel against it.

Someone tells me a story or a joke.  As I'm listening, I'm asking, "What's wrong with this picture?, What's the punch-line going to be?  I'll bet I've heard this one before."  Sometimes I guess correctly and sometimes I get a good laugh.

When a lawyer is given a complex fact pattern, or one with a lot of hidden avenues to explore, such as on a law exam, it's not uncommon to think your way all the way through the woods, over hill and dale, until you come out the other side.  Then you write about what you see on emerging from the forest.

The law examiner doesn't much care what you see on the other side (you could have guessed that part, fifty:fifty), but does want to see a description of how you got there.  The journey is worth more than the destination.

This is the part that students typically leave out.  It's a bit like describing how to make clam chowder without describing all the steps between obtaining the clams and taking a sip.  You may make wonderful clam chowder, but if you can't describe how you made it, you fail the recipe writing exam.