Creativity in Legal Writing: Make It Interesting

As a public relations student, I regularly encountered the opportunity to be creative during my undergraduate school years.  Whether by creating newsletters, designing brochures, or planning fundraising projects from scratch, I was "always," as a public relations professor of mine once put it, "coming up with new things."  Fast forward a few years to my first year of law school, and suddenly my creative side seemed to fade away as the concept of "IRAC"/"CREAC" ("Issue-Rule-Application-Conclusion"/"Conclusion-Rule-Explanation-Analysis-Conclusion") swiftly engulfed every piece of legal writing I undertook.  During my second year of law school, I took notice that my creative juices were at a dangerously low level, and I started to long for the days when my creative spirit was allowed to run wild.  It wasn't truly until my third year of law school that I felt the beginning of that same spark of creativity I had experienced so many years ago as a student in the public relations field: I was tasked in my pretrial litigation class with writing a brief in support of a motion for summary judgment, and as I crafted the facts section and formulated issue statements, I at long last felt my creative juices start to rumble back to life.  As someone who values creativity immensely, that was a happy day.

In my last column installment, I concluded my discussion on the principle of consistency.  In this installment, I'll turn to the principle of creativity by discussing when creativity should be fostered as well as when it needn't be.  I'll also explain how the IRAC structure does present its benefits and is worth following.

For starters, it should come as no real surprise that the facts section of a brief is prime real estate in the land of creativity.  Just as lawyers tend to tell stories during closing arguments in order to engage juries, the facts section of a brief can--and should--function as a story designed to capture the attention of its reader.  Too often, however, I'm afraid legal writers tend to forget to unleash their creativity when narrating facts in their briefs (perhaps because they labor under strict deadlines or because their energies are spent on other tasks); my hope, therefore, is that this column installment serves as a friendly reminder to legal writers to approach the facts section with a creative mindset.  Certainly facts should never be presented so creatively that they distort the truth (this concern motivated me to be largely unimaginative during the course of my judicial clerkship experience), but they needn't sound lifeless either.  The best way, therefore, to exhibit creativity and truthfulness while drafting a facts section, I believe, is to use descriptive, sensory language (i.e., language that evokes images and/or engages the other senses).  For example, I've always admired Dr. Seuss for his ability to make reading outloud enjoyable through the use of his singsongy writing style.  If we, as legal writers, could capture that same sense of creativity in our legal writings, then our briefs could turn from being potentially dull to entertaining, and the writing process could go from being potentially monotonous to gratifying.

When it comes to the IRAC structure, it may seem unimaginative to always adhere to a pre-established structure or method of legal organization.  Doing so has its benefits, however.  For example, I believe that the brief I wrote during my third year of law school for a legal writing and oral advocacy competition won the "best brief" award because in large part of my strict adherence to IRAC.  By following IRAC, I stayed true to that old adage of "short, sweet, and to the point" while the other briefs submitted tended to contain superfluous introductions with flowery language.  Truly, IRAC serves as a quick, easily recognizable method of legal organization, and as I'll now discuss in the rest of this column installment, can still provide an outlet for creativity. 

Of the different components comprising IRAC, the issue statement presents perhaps the most fertile ground for creativity.  For example, instead of formulating my issue statement for the brief I wrote for my pretrial litigation class with something as simple as, Did the defendant falsely imprison the plaintiff when the defendant took the plaintiff into the office of the defendant's store to wait for about half of an hour on the police?, I instead wrote something like, Did the defendant commit false imprisonment when he led the plaintiff deeper and deeper through the store into his narrow, windowless office and made her wait for more than thirty minutes for the police?  As you can tell, the second version is slightly longer than the first  but also creates an impression of entrapment that lends well to arguments for the plaintiff's cause.  Ultimately, this example shows that issue statements, so long as they aren't overly long and are true to the truth, can be presented with creativity in mind; the example also shows that the principle of creativity should probably trump the principle of concision when creativity can engage the reader and convince her or him of your side.

While, of the different IRAC components, the issue statement tends to offer the most fertile ground for creativity, the rule presentation presents perhaps the least fertile ground.  After all, thinking of any creative way to present a rule in a piece of legal writing can be difficult.  Instead of attempting any amount of creativity, my standard method of rule presentation is merely to quote each rule as much as possible and to preface each with introductory language like "___ provides" or "___ states."  Writing about a rule in a different way is, I believe, not only unnecessary but also counterproductive as the reader tends to expect a presentation of the rule without the use of flowery language.

If the rule isn't presented creatively in its section and the facts of the case are in their section, then the application component of IRAC should, by the component's very nature, be semi-creative.  In other words, the facts should continue to be presented creatively in the application section while the rule shouldn't be.  As for the conclusion component of IRAC, generally the conclusion need only be responsive to the issue by providing a short, direct answer.  The conclusion needn't be anything elaborate.

In this column installment, I've begun to focus on the principle of creativity by ranking the facts section of a brief and the issue statement component of IRAC as offering the most opportunities for creativity.  In the next few and next-to-last installments, I'll continue discussing more facets of the principle.  To start with, return next month to read about how to handle legal jargon.

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