As we saw in the first three chapters, facts persuade.

And they often come close to arguing. But legal arguments — which appear in the Argument section of a brief or motion — more openly and comprehensively advance a client’s legal position.

The chapters in this part reflect my view that lawyers often fail to appreciate the array of authorities that they can marshal. While a single argument can win some cases, lawyers maximize their chances of winning when they deploy all available tools that are likely to convince a judge.

The following chapters therefore cover nearly all of the types of arguments that appear in a typical brief or motion. While lawyers need not (and typically should not) use every type of argument in every case, they should hunt for more varied authorities than they usually cite. For instance, if your brief discusses five strong cases, elaborating on the sixth- through tenth-best cases will rarely help your client. By contrast, discussing five helpful cases and pertinent regulations and an airtight textual argument and powerful policy arguments and a lengthy national history of the disputed practice will, in most cases, improve a client’s prospects. The following chapters encourage you to use a wide range of tools to persuade judges.

The skills discussed in the following chapters can also help you avoid the most common blunder of novice legal writers: being overly defensive. For instance, new lawyers regularly cite a helpful case or two and then shift into rebuttal mode. They have nothing else to say in support of their position, but they have lots of reasons that the other side’s position is flawed. So they parry the other side’s actual or anticipated arguments rather than build a robust affirmative argument. Worse yet, some lawyers begin their rebuttal even sooner, offering a point-by-point refutation of the other side’s arguments without advancing any affirmative case.

Successful lawyers advance their affirmative points, exploring a variety of arguments that favor their client on a particular issue — usually from strongest to weakest (but ending with a decent finale) — before countering the other side’s arguments. As you get more comfortable with building robust, multifaceted affirmative arguments, you can and should adapt this default rule. But as a starting point, tell readers why you win before you explain why you don’t lose.

This book’s exploration of arguments begins in familiar territory. Chapter 4 discusses how to build arguments with authorities such as cases and statutes. Chapter 5 then discusses how to dismantle these same arguments when your adversary makes them.

The subsequent chapters each discuss a discrete type of argument:

· Fact-based arguments (Chapter 6)

· Textual arguments (Chapter 7)

· Arguments built on legislative history and statutory history (Chapter 8)

· Policy arguments (Chapter 9)

· Historical arguments (Chapter 10).

A subsequent segment of the book (Chapter 11) looks at how to organize your arguments. But let’s take one argument at a time for now. The first step in that process is to remember how to organize individual arguments — the basic technique by which lawyers persuade courts. This technique goes by many names: CRAC, CREAC, TREAT, TREAC, TRAC, and so on. The approaches aren’t very different from one another when you use them correctly.

CRAC remains the most popular mnemonic among legal writing professors, so this book uses it.¹ CRAC stands for Conclusion, Rule, Application, and Conclusion.² Whatever you call it, use it — at least most of the time. But don’t cling to it too tightly, either.³

Here’s how CRAC, which is basically a way of telling readers what you’re going to prove and then proving it, works:

Here is a paradigmatic CRAC paragraph (from a hypothetical case in Maryland). But remember that the Rule and the Application often contain multiple sentences (or, even, multiple paragraphs):

[Conclusion] The statute of limitations on Wilson’s claim has expired, so his claims must be dismissed. [Rule] Under Maryland law, contract claims must be filed within three years of the date on which they arise. Md. Cts. & Jud. Proc. Code Ann. § 5–101. [Application] Wilson’s complaint acknowledged that King’s alleged breach occurred on March 1, 2006 — far more than three years ago. Compl. ¶ 22. Maryland law thus required Wilson to file his complaint by February 28, 2009. He did not. In fact, he waited another four years (until March 4, 2013) to file. [Conclusion] Thus, Wilson missed the filing deadline, and Maryland law bars his lawsuit.

CRAC also helps lawyers to organize counterarguments. For instance:

[Conclusion] Wilson’s attempt to salvage his lawsuit — by arguing that the statute of limitations was tolled while he arbitrated a related contractual claim — is meritless. [Rule] Maryland’s highest court rejected this exact argument last year, holding that the statute of limitations may “not be tolled by the pursuit of arbitration.” Kumar v. Dhanda, 426 Md. 185, 204, 43 A.2d 1029, 1040 (2012).^[4] [Application] Wilson’s complaint admits facts that doom his case: “this lawsuit could have been filed earlier, but Wilson sought to resolve as many of his disputes as possible through arbitration before filing this case.” Compl.

Most textbooks fail to specify whether CRAC should be used to organize single paragraphs or entire sections of arguments. The answer: either. CRAC helps to organize discussions or individual paragraphs. When discussing a fact-intensive issue, you might need just one line of Rule but five pages of Application, such as in a case about whether an employer’s objectionable conduct suffices to support an employee’s sex discrimination claim. Conversely, your Rule might require multiple pages, but the Application might be straightforward. And you might raise four distinct points in support of an argument, and each of those points could follow CRAC. Thus, the components of CRAC expand or contract to meet the demands of an argument.

To go even further, lawyers can manipulate the C, the R, the A, and the C, cutting one or more of these components, flipping their order, combining them, and otherwise sculpting them. For instance, top lawyers often combine two of the letters of CRAC into a single sentence, as in this example: “[Rule] The Supreme Court held X, [Application] which is exactly what happened in this case: [add details.]” Lawyers also sometimes introduce and apply multiple Rules quickly. Or they lop off one of the Conclusions in a short paragraph lest the passage sound too repetitive. They even invert the Rule and Application, especially when the facts are short but when the Rule requires a prolonged explanation: for instance, “[Application] Marshall defrauded and bankrupted hundreds of senior citizens, [Rule] which is the exact type of conduct that led this court to ’permit punitive damages for egregious fraud.’” Thus, very few paragraphs or sections in superb briefs resemble paradigmatic uses of CRAC — good writing is more flexible than that — but CRAC nevertheless is a stellar default organizational strategy, especially for new attorneys.

Here’s one warning about CRAC: avoid listing multiple Rules at once.

Remember, too, that readers yearn for variety, but some legal standards are built to bore. For instance, the Georgia-Pacific patent infringement test has fifteen factors, and many briefs and motions march through each of the elements in monotonous CRAC- compliant paragraphs. Try to spare your readers from this approach — somehow. Good lawyers find ways to avoid stultifying judges; if judges are bored, your points won’t stick. Thus, figure out a way to engage judges lest you lull them to sleep by the sixth element of a twenty-element test.

Let’s continue our exploration by looking at a familiar type of argument: those based on legal authorities such as cases, statutes, and regulations.

1. For memos, the mnemonic IRAC is used. The I stands for Issue—and intends to signal that the typical topic sentence in a memo is more objective and less argumentative than a typical topic sentence in a brief. For instance, a typical paragraph in a memo might begin,“The Court will first need to assess whether the statute of limitations has expired on Wilson’s copyright infringement claim.” In a brief, this sentence would instead state its position more directly, beginning with something like“The statute of limitations on Wilson’s copyright claim expired eight months ago” or“Wilson’s copyright claim remains timely.” Modern memos, however, often follow CRAC rather than IRAC.

2. Cf. Handout,“IRAC/CRAC,” available at http://www.law.berkeley.edu/files/IRAC_handout.doc (last visited Feb. 15, 2013) (describing the A in CRAC as Analysis rather than Application).

3. I largely agree with the view of Boston College’s Jane Kent Gionfriddo, who observed,“The bottom line is that our profession should not use formulaic concepts like ’IRAC’ that do not adequately teach the very real complexity of legal analysis and its communication.” See Jane Kent Gionfriddo, Dangerous! Our Focus Should Be Analysis, Not Formulas Like IRAC, 10 Second Draft 2, 3 (Nov. 1995), available at http://www.lwionline.org/publications/seconddraft/nov95.pdf. But these tools make a good starting point; the training wheels come off eventually.

4. If this counterargument was a major issue, lawyers would probably want to elaborate on the facts of Kumar to show that Kumar resembled the hypothetical lawsuit brought by Wilson.

5. See generally Daniel Kahneman, Thinking, Fast and Slow 20-24 (2011).