Monday, October 4, 2021
The Magic Formula of Legal Writing
When you Google “magic formula,” you get a series of articles all referring to the “Magic Formula of Investing” which is based on a book written by Columbia University Professor Joel Greenblatt. That formula is often defined on websites as, “… a simple, rules-based system designed to bring high returns within reach of the average investor.”
The first set of 1L legal writing memos were due over the weekend. For our students, it was a closed objective memo involving essentially two issues, three cases, and one overarching statutory rule. I must have discussed and drawn the chart that accompanies my magic formula for legal writing easily twenty times in just the past week, in person on a 3x5 post-it note, or over Zoom. I have shared my formula possibly thousands of times over the years. I would describe it as a rules-based system designed to bring good analysis within the reach of the average legal writer.
This is the “magic formula” that I share with my students:
- Start with a Rule. A well-synthesized, complete rule is the key to everything. Everything unspools from your rule. It shapes and orders your discussion of the cases and your analysis of the facts. The rule divides your small legal world into essentially yes and no. Some cases will fall on the yes side of the rule while others will be nos.
- Your rule may come from more than one source. Cases, statutes, regulations etc. may all be relevant.
- Do your research. You need to use cases on both sides of the rule divide.
- Talk about cases in the past tense-they have no value but historical value. Precedent is about the past and how it shapes the decisions that will be made in the future (stare decisis).
- Use the Facts, Holding, Reasoning (FHR) method of using cases in your writing. For example: In Claus, where a senior citizen was struck by a reindeer, the court held that the sleigh driver was not liable because plaintiff’s decedent was walking on the reindeer path. The court reasoned that "grandma" assumed the risk of walking on the path, and while the driver had less than ideal lighting conditions, a pedestrian on the path was not a foreseeable event. I know-I haven’t even decorated for Halloween yet and here I am putting a winter earworm in your head. I’m almost sorry.
- While this is somewhat formulaic writing, you can control your narrative. We all teach this, but possibly in different ways. Here is where the chart below comes in handy. In paragraphs where you are explaining the law in your writing, think of this as the space where you place cases on a spectrum created by dividing your world by the rule (this would be E paragraphs in CREAC, and the first part of the A in IRAC). You should place your cases (using the FHR format) on this “spectrum” and then when doing your analysis later on (or soon thereafter in IRAC), put the facts of your current “case” on the spectrum as well. The place where I put the circle is where the facts in front of you go-this is the sweet spot-the facts are not a slam dunk “yes” like case 1, but better than case 2--while still staying on the side of the rule you want to be on. The court cases closer to yours are your positive analogies because the facts are more similar, and you distinguish the cases on the far side of the rule. You only create this “distance” by having a full spectrum. The key here is that you, as the writer, get to lay out the spectrum.
Honestly, this is probably old news to most of you. But on the off chance that this rules-based system brings good analysis within reach of the students you are working with, I feel it was worth putting out there. Some might say there is no magic in legal writing, but as for me and grandpa, we believe.