Legal Writing and Analysis: Structure, Precision, and Persuasion
Two modes, one discipline
The exam tests both objective analysis (predicting what a court would do) and persuasive writing (advocating a result). Both depend on the same discipline: state the rule, apply it to the facts, and reach a conclusion. For objective writing, use CREAC or IRAC; for persuasive writing, lead with your strongest argument and frame the rule favorably.
The rule statement
The most common weakness is a rule that is too vague. A good rule statement names the legal test and its components. For example, instead of "negligence requires care," write that a defendant breaches the duty of care when conduct falls below that of a reasonable person under the circumstances.
Application and counterargument
Application must connect specific facts to each element. Avoid conclusory sentences. In persuasive writing, anticipate the counterargument and rebut it. In objective writing, acknowledge contrary authority and explain why it does or does not control.
Citation and clarity
Use signals accurately (see, e.g., compare, but see). Quote only when the exact language matters. Keep sentences short; put the actor first. Define terms on first use.
Worked example
A question asks you to advise a client on whether a noncompete is enforceable. Structure: (1) the governing rule (reasonableness in time and scope, legitimate interest); (2) application to the client's role and geography; (3) counterargument that the scope is overbroad; (4) conclusion with a probability estimate.
Traps
- Do not bury the conclusion; state it early in a memo and at the end of each analysis section.
- Do not recite facts without tying them to an element.
- Do not overquote; paraphrase and cite.