Legal Reasoning and Writing: A Detailed Approach

The Nature of Legal Reasoning

Legal reasoning is the foundation of legal practice, comprising the ability to apply legal rules to factual situations. It involves analyzing cases from a wide range of perspectives, including the procedural history of each case, the issues addressed, the court’s profile, and its electivity and overall persuasiveness. Every law student learns to analyze cases and apply the holding to a fact pattern in preparation for their final exams, but few lawyers remain in this analytical mindset once they are employed. To become successful attorneys, law school students must transition and learn to predict the probable outcome of legal issues while considering all perspectives, viewpoints, and strategies. The primary components of legal reasoning are derived from the IRAC method: identifying the relevant issue, researching the general rule for the relevant issue, applying the general rule to the facts, and arriving at a conclusion.
A common mistake law students make when learning to exercise legal reasoning is they fail to apply the general rule for the legal issue to the subsequent facts. For example, they may correctly identify the issue as negligence per se, and correctly identify the general rule that an injured party may have a private right of action for a statutory violation under CA Civ. Code 43, but where they often miss the mark is their failure to address the facts in conjunction with the general rule to arrive at the proper conclusion . One of the simplest ways to ensure you have properly applied the general rule to the material facts is to ask yourself which party the general rule directly favors and excluding from your analysis any biases toward a particular party that you may naturally have based upon the facts.
For example, let’s say the facts pertain to a car accident where person A is drinking alcohol at a cottage, leaving to make a beer run, and crashing his car into person B’s parked car, causing significant damage and injuries to person B. Who would the general rule favor keeping these material facts in mind, person A or person B? When the injured party, person B, argues the general rule for negligence per se in their favor under CA Civ. Code 43 and person A argues in their favor by stating statutory violations do not create private causes of action absent legislative intent to create such. Now that you have asked yourself which party the general rule favors, person A, you can easily exclude him from your analysis. As a result, your analysis will focus entirely on the general rule in favor of the injured party, person B. By excluding the analysis of person A, you have already improved your chances of earning a high grade on your law school exam or writing a persuasive brief as you have now effectively excluded person A from the analysis altogether.

Core Techniques in Legal Writing

There are certain techniques that are key to effective legal writing. these include the following:
Clarity
Perhaps the most important element of legal writing is clarity. In this regard, the goal is to write as clearly as possible. This objective requires avoiding as much as possible the use of legalese, which is legal jargon consisting of Latin or French terms that are rarely used outside the legal field. Clarity also demands that legal writers avoid convoluted sentences without using run-on or overly complex sentences. In addition, legal writers must be careful to use words that are clear and not subject to differing interpretations.
Precision
Legal writing must also be precise. For this reason, it is essential that legal writers consider every single element of the law that the writer used as their basis for deciding to address a specific point in the writing. Using precise language is essential to avoid undermining the goals that the writer has for the final product. In many cases, different courts, agencies or lawmakers may have differing interpretations of the law. Legal writers must be careful to avoid giving ambiguous words or phrases multiple interpretations. Therefore, legal writers must strive to be as precise as possible in all aspects of their writing.
Organization
When writing legal materials, it is also critical to be organized. There are two parts to organization in legal writing. The first involves an outline before the creation of the legal writing that provides structure to the document. The second is following the outline that the writer has put in place. The end result of following an organized outline is to create a logical flow to the reader that is easy to follow and examine.

The Power of Logic in Legal Reasoning

The study of logic is the study of knowledge. It helps lawyers put facts together, and thus facts can be decided per the law. Important to logic is the application of deductive and inductive reasoning, which exist together in everyday life. In practical terms, that means that lawyers apply logic to every single case, every single day.
Deductive reasoning proceeds from the general to the specific. The most common example is involving syllogisms — A is a B, C is a B, therefore A must be a C. (A is a B, C is a Not-A, therefore A is a Not-C.)
Inductive reasoning proves the general from the specific. For example: This chair is red, this chair is red. This chair is blue, this chair is blue. This chair is green, this chair is green. Therefore, all chairs that I have seen Mr. Lawyer’s smoke breaks are different colors.
While those statements seem like both law school words, the truth is they are far from it. Syllogisms are used in case law often. An example of a syllogism in a case is: Part A is a public place because the law says that all places that do certain things must be public places. Part A is doing those things. Therefore, Part A is a public place.
Using the large umbrella of logic, lawyers are able to dissect case scenarios into parts by using the rules of logic to help with case law analysis.

How to Structure Legal Documents

Structuring the Elements of Legal Documents
You will need to develop an outline of the sections and components of legal documents. There are various degrees of outlines. The closet degree of an outline is a detailed outline. A less detailed outline or general outline is sufficient for most legal documents.
The document sections also have components, which will be described later. Here you will find examples of typical sections of legal documents. You will see and handle many other types of sections. You may use these examples as a suggested template for memorizing the basic sections of legal documents. These examples can also be useful as reference material. Begin memorizing the sections of legal documents now, because it is essential in every area of your practice of law.
You are expected to know how to organize information on paper. Therefore, as you organize material on paper into a reasonable and logical manner, a clear presentation of arguments and examples will be obvious. Be aware of what information is and is not appropriate in each section, and where to include such appropriate information; the purpose for each section; and how to use the information in specific sections. Over time you can design your own pattern and style of organizing information when writing.
Before studying this page, you may not have been aware of the existence of outlines within the sections you see in legal documents.
Outlines of legal documents result in components, leading to the following examples of the sections and subsections of several legal documents:
MEMORANDUM
I. Nature and Purpose of this Memorandum (Section)
A. Nature and Purpose (Sub-section)
B. Nature of [other topic listed in I, Section] (Sub-section)
C. How [other topic listed in I, Section], Relates to This Memorandum (Sub-section)
II. Parties (Section)
A. Party names (Sub-section)
B. Party addresses (Sub-section)
C. Party [other description] (Sub-section)
D. Additional Comments on Parties (Sub-section)
III. Facts (Section)
A. Facts [subsection of what facts, i.e. relevant to the case at bar, or relevant to motion for a new trial, etc. (Sub-section)
B. Additional Facts (Sub-section)
C. Laws and Statutes (Sub-section)
IV. Law (Section)
A. Law [subsection of what law, i.e. relevant to the case at bar, or relevant to motion for a new trial, etc. (Sub-section)
B. Additional Laws (Sub-section)
C. Sub-section Reason 1 (Sub-section)
V. Discussion (Section)
A. Discussion [subsection of what discussion, i.e. relevant to the case at bar, or relevant to motion for a new trial, etc. (Sub-section)
B. Additional Discussion (Sub-section)
C. Sub-section Reason 1 (Sub-section)
VI. Conclusion [or To Best Serve Justice] (Section)
AFFIDAVIT
I. Declaration (Section)
A. General (Sub-section)
B. Completeness and Truthfulness – Declaration (Sub-section)
C. Additional [other info] Declaration (Sub-section)
II. Background and Qualifications (Section)
A. Background (Sub-section)
B. Qualifications – Affiant (Sub-section)
C. Additional Background and Qualifications – Affiant (Sub-section)
III. Performance of Services in This Matter (Section)
A. General (Sub-section)
B. Primary Intent – Affiant (Sub-section)
C. Additional Information of Affiant (Sub-section)
PROPOSED ORDER
I. Court Considerations (Section)
A. Considerations of [other topic listed in I, Section] (Sub-section)
B. Considerations of [other topic listed in I, Section] (Sub-section)
C. Considerations of [other topic listed in I, Section] (Sub-section)
II. Orders of Court (Section)
A. Court [other topic listed in II, Section] (Sub-section)
B. Court [other topic listed in II, Section] (Sub-section)
C. Court [other topic listed in II, Section] (Sub-section)
III. Conclusion (Section)

Pitfalls to Avoid

As I read legal documents there are certain errors I see frequently. In this section I will address some common mistakes I see.
Unclear reasoning: You think the reasoning is clear because you understand it, but in fact, it isn’t. After reading your document, the reader needs to "see the picture" and understand not just the conclusion reached, why (and how) you reached that conclusion. If your reader cannot follow your reasoning, how can they agree? Whenever your reasoning gets longer than a few sentences, stop and ask yourself, "could I explain this to a high school or college student who knows nothing about the subject?" If you think the explanation will be lengthy or complicated, rewrite that explanation so that it complies with the clarity requirement.
An example of reasonably clear reasoning: "Under the evidentiary rules, the evidence of ‘committed violence against me’ is admissible in a protective proceeding. I declare under penalty of perjury that in support of this allegation I am relying on the following evidence: (1) On April 15, 2015, Respondent shot across the road and shot at two men who had parked their car across the street. I reported this event to the police immediately after it happened. (2) The same year, Respondent made me agree to a confrontational meeting with my mother, where he insisted that I falsely accuse my mother of abusing our daughter. Respondent was holding our baby girl at the time, and I was desperately concerned about the emotional damage our daughter would suffer if she witnessed this argument. I did not want our daughter to see Respondent act so violently. I agreed to meet with my mother because she had some possessions in my garage. For the sake of our daughter, I probably should have called the police when Respondent threatened me with our baby and insisted I should falsely testify against my mother."
An example of confusing reasoning: "I did not shoot across the road and shoot at two men who had parked their car across the street. My mother lives in a studio apartment in the back of my house and thus had nowhere to put the possessions in her car, which is why she said that that I could get them out of the garage. Our neighbors heard the gunfire and called the police. Their testimony is not credible because they showed up before anything else had happened. I was angry at my mother for what she had said about the Respondent’s visitation with our daughter, not "committed violence." I know because the term "committed violence" means somebody else doesn’t think the Respondent can be trusted to be alone with our daughter. I was under attack by the Respondent, not "abused." I did not want to be forced into the position of being unable to forgive my mother for something that was not true."
Wordiness: If there is no action, there is no sentence. Cut out all the unnecessary words, adjectives and narrative. Your legal document is not a novel. Do not explain who did what and then how that affected someone. Just give the facts you can document, explain only the most relevant impact those facts had.
Example of wordy passage: "On 10/5/2015, Petitioner texted Respondent (Exhibit A, p 2). In her text message, Petitioner asked Respondent to stop texting her. Also, Petitioner told Respondent in her text message that when she went to the grocery store, and asked the produce manager to "check in her back," in connection with Respondent’s texts, that Petitioner would be at Costco "around 7:30ish." Respondent started texting Petitioner at 5:58 pm and he continued to text her until 9:02 pm. It was nearly 4 hours from the time Petitioner asked Respondent to stop texting her until he did finally stop texting at 9:02 pm. Petitioner received these text messages while driving home from the grocery store and Costco. Respondent’s text message activity made her "feel anxious and frustrated." Also, Petitioner has a four-year-old daughter who is very aware of what is going on. At the time of this incident, both Petitioner and Respondent were seated in the front seat of their car, with their daughter in the back of the car. She heard and was upset by Respondent’s constant texting. "She too was reaching for her iPad, since that is sometimes how we handle resolving disagreements" (Declaration, pg. 3, line 22-25), according to Petitioner.
Much improved version: "On 10/5/2015, Petitioner was driving home from the grocery store. Petitioner was in the driveway of Costco around 7:30 pm. (Exhibit A, p 2) Anytime petitioner is driving and receives texts she feels anxious and frustrated. (Declaration, pg. 3, line 22-25) She has a 4 year old daughter who is in the back seat. Her daughter has become very aware of the texting relationship between Petitioner and Respondent. Petitioner has allowed her daughter to witness the texting behavior. (Declaration, pg. 2, line 29-30) Respondent started texting her at 5:58 pm. Respondent texted Petitioner until 9:02 pm. Petitioner needed to focus on her driving. While she was driving she received three text messages from Respondent.

Tips for Better Legal Argumentation

A central tenet of effective legal reasoning and writing is the ability to make sound and strategic legal arguments. An argument, at its core, is a set of reasons or statements in support of a proposal. In the legal context, you’re advocating for a viewpoint or a desired outcome based on the application of law to the facts at issue. Therefore, to develop a persuasive legal argument, it’s important to understand the strengths and weaknesses of your own reasoning, as well as that of your opponent.
One way to enhance your capability for legal argumentation, both in writing memoranda and drafting briefs, is to fully understand several models of persuasive reasoning. Each model requires the ability to convince through a methodical presentation of legal authority, typically in the form of cases.
We’ll start with a basic model that most are familiar with, the syllogism. The syllogism is a logical deduction in this format:
Major Premise: If you sell alcohol without the appropriate license to do so, you can be prosecuted for a license violation.
Minor Premise: You sold alcohol without the appropriate license to do so.
Conclusion: Therefore, you can be prosecuted for a license violation.
This argument works effectively because it follows a logical format, where the conclusion is derived from a combination of the major and minor premises. A flaw in this reasoning is that it’s lacking sufficient factual support, so at best this argument serves only as a demonstration of the syllogism and its strength.
A more suitable example of legal reasoning is an argument based on a two-step model for strong legal arguments:
First, the writer must identify the goal, which is the desired result in an appeal or persuasion of a legal issue or dispute .
Second, the writer establishes credibility through a thorough analysis of the facts and law utilized to reach the conclusion.
For example, in the case of a minor who causes damage to the property of a non-parent, a good legal argument should establish both grounds for liability, as well as an explanation of why the minor lacks a defense to liability as an unemancipated minor. With these fundamentals in place, the writer has established both the goal and the grounds for liability, as well as a credible path to the goal (by emphasizing the importance of the elements for this type of liability and why liability exists in this particular context).
In addition to these models of reasoning, a writer can enhance his or her capability for legal argumentation through the use of precedent. Precedent is a previous legal case that has a principle or rule of law established that’s persuasive in your legal argument. Much like a previous factual scenario serves as an effective means of demonstrating proper use of a legal concept, precedent takes this to the next step by establishing a legal outcome as precedent for a similar legal situation. An example is a successful claim by a plaintiff that an employer’s liability insurance covered the actions of its employee who was being sued for negligence. In this legal argument the case establishing the precedent represents a minor element of the two-step model. Through its use, the writer identifies the goal and establishes credibility. This is especially true if the writer uses clear reasoning that thoroughly explaining the legal significance of the precedent. By doing so, we have a complete legal argument.

The Impact of Precedent in Legal Writing

The understanding and application of precedent can have a profound impact on the effectiveness of legal writing. Precedent is essentially the report of a decision or holding that establishes the law in a certain case, which then becomes the same law for other cases. It creates consistency and predictability in the law and becomes the weight by which people are held. Lawyers are especially aware of the importance of precedent for it determines how cases are to be decided and how lawyers are to handle their cases. For legal writers, an understanding of precedent is critically important to ensure consistency in their work. In all cases, they are expected to demonstrate their understanding of how their case applies to precedent in order to make their argument. Lawyers and judges alike must have a complete understanding of precedent in order for them to provide the best possible arguments and decisions. The importance of an understanding of precedent is also important in observing and quoting authority. All lawyers know the power of precedent when it comes to arguing the applicability of authorities like statutes and case law. Thesauri, encyclopedias, treatises and cases all serve as important precedent and authorities and therein lays a priority of use. For example, the Supreme Court and federal appellate courts are always of the highest priority. The U.S. Supreme Court is the highest court of law in the land. When it is the highest appellate court for federal law, inevitably it precedes Supreme Court precedent for state law. Supreme Court precedent is also authoritative precedent for state courts.

Writing Law for Various Audiences

Successful legal writing requires an understanding that you are rarely drafting a document solely for your own purposes. Instead, you are often writing for an audience, whether it be a judge, client, or your colleagues. These different audiences have different expectations, and it is important that you adjust your tone, complexity, and approach as needed.
For example, many of us grew up being taught that brevity is the soul of wit. In other words, we learned that shorter writing is better writing, and that every word counts. And short writing often is better. But what may be common knowledge for you may be absolutely critical background information for someone else. When writing to a judge (who may know very little about your case), including relevant information in your brief for context may be necessary for the judge to appreciate the importance of your arguments. But the judge should not have to turn your brief into a factual background. Especially if your brief is long enough without it.
Alternatively, if you are writing to a colleague who may have no working knowledge of your case at all, you will probably find that giving them all available information is a welcome gift. But again, the key here is that you always want your audience to leave your document with the feeling that they learned something, not the feeling of having all of your desk files thrown onto their desk in random order. So treat each writing assignment like every judge is going to read your pleading from beginning to end, putting the important arguments up front and reserving the supporting facts for later.
Just keep in mind your audience – and remember that it is perfectly okay to provide some background information, or other important details, in the body of your document. It won’t be seen as laziness (or as a "declaration" as it may be known in state court), and judges don’t have a "no dictionary policy." Phrases are often left unexplained, acronyms and abbreviations are sometimes preferred, and you can generally expect the judge to know at least the fundamentals about your subject matter.
The key here is to be consistent. The rules regarding numerals, or abbreviations, or spelling out acronyms are generally set out in the California Style Manual and various courts’ local rules. The rules are often not requirements, but rather are simply guidelines to govern writing style. As such, it is important that you choose a style that you are comfortable with, and then use the same style throughout the document. Switching between using "CA S.B. 456" for California Senate Bill No. 456, "CA SB 456", and "Senate Bill No. 456" can be disorienting and will turn off your reader, making them question your attention to detail and the work put into the rest of the document.
So take a moment to consider your reader for each writing project, and always focus on the goal of your writing. What do you want your reader to learn? (I suppose you could actually call it a teaching exercise).

Getting Better at Legal Reasoning and Writing

The notion that there is a definitive model for legal writing is a bit of a myth, for as people have differrent voices, styles, and perceptions, it stands to reason the same is true of legal writing. Legal writing is never truly done, it is constantly a work in progress. The trick for lawyers is to recognize this, and to reexamine for both the purpose and the effectiveness of their writing on a regular basis.
The challenge with legal writing, however, is that much of it does not lend itself well to peer to peer review. That is, the average legal service provider will submit its proposition to the court for analysis, but it may be quite difficult to find other resources to obtain feedback on that proposition. Similarly, many legal writing resources are directed at law school legal writing curriculums , or at the least, are written in a fashion that is confusing to even the most astute attorney. So how does an attorney continually improve their writing without the availability of peers to work and collaborate with?
The American Bar Association Section on Legal Writing, Reasoning, and Appellate Practice is by far the most comprehensive resource in existence with respect to legal writing. Each month the organization publishes articles related to legal writing and reasoning, appellate practice, and updates to each of these topics. Additionally, the organization offers several courses each year to help professionals in the field hone their skills. The one working element for lawyers interested in continuing to improve their writing is that in order to benefit from these resources, you must actually use them.