Metaphors Help Students Write More Logically
by
Kathy L. Cerminara

It is a recurring problem for those who teach legal writing: How does a professor express to a first-year law student the logic behind legal memorandum structure?

Logical flow may be second nature to those who have spent years reading and analyzing cases. First-year law students, however, often are still struggling to read opinions when they draft their first legal memos. How is a legal writing professor to explain legal logic, other than IRAC or CRAC, in concrete terms familiar enough to help the neophyte case reader draft his or her own piece of legal writing? The following three techniques explain this foreign concept with concrete metaphors.

The Inverted Pyramid

One option is to use the inverted pyramid. Most judges use an inverted pyramid format when writing opinions; after identifying the issues and the relevant facts on appeal, a judge begins with the most general law that applies. This might be the statutory provision in question, or a list of the elements of a tort, for example. Then the judge progresses to the first rule over which the parties are fighting. (He or she may get there immediately, or may reach the disputed rule by setting forth the legal principles which naturally precede it in analysis, in ever-narrowing terms.) At that point, the judge analyzes the rule's application to the facts and reaches a conclusion. Then he or she somehow indicates that it is time to move on to the next issue, do the same thing there, and so on. Similarly structured memos work best.

By beginning with the broadest statement of applicable law, the judge is beginning with the broad base of an upside-down triangle of analysis. By moving through ever-narrower rules to focus on a particular disputed rule, the judge is working down through that triangle. When analyzing each disputed issue within this overall upside-down triangle of analysis, the judge again starts with a broad base (a legal rule) and works his or her way down through factual application to the point of the triangle (a conclusion).

Using this concept to explain memo-writing has at least two advantages. First, it may already be familiar to some students. Those who have taken newswriting courses or have worked on high school, college, or professional publications know about the inverted pyramid. I usually have a few such students in each class; using this metaphor to explain memo structure allows at least these students to grasp onto the pyramid's familiarity to help deal with the unfamiliar. Second, a professor can easily depict the inverted pyramid concept visually by drawing a large, upside-down triangle encompassing a number of smaller ones. The visual image may assist those students who learn best through graphics.

Giving Directions to a Driver from Out of Town

Another solution is to liken memorandum-reading to the process of driving in an unfamiliar location, and to ask the student to use the memo to direct the driver to his or her destination.

For example, it is often best to begin the discussion portion of a legal memo with a paragraph or two detailing the basics of the area of law in question. In a memo about tortious wrongful discharge, for example, the professor may want to see an introductory paragraph explaining the legal principles generally applicable to at-will employees, including an explanation that even those employees can sometimes recover from their former employers if they can show tortious wrongful discharge. The writer should explain, briefly, the underpinnings of the doctrine, and then, either in that paragraph or the next, list the elements of the tort.

Asking students to imagine that they are explaining things to the uninformed reader, beginning with an introductory, context-setting, road map, facilitates their beginning this way. Students map out the rest of the memorandum by laying groundwork at the very beginning, just as they would begin giving directions to a driver from out of town by handing him or her a road map or explaining the general layout of the streets. If they keep that out-of-town driver in mind, and remember that one must sometimes include landmarks and explanations of difficult turns when giving directions to such a person, students can better explain cases and holdings properly, with adequate factual background and explanation, to the uninformed reader.

In addition, the concept of providing a road map for the reader at the beginning of a memo allows students to think concretely about the necessary components of the remainder of the memo. After establishing the groundwork and the basic elements, students next must address, element by element in a tort case, the merits of the particular case before them in light of the relevant law. While many students easily can do this in encapsulated form within each element, they often have difficulty stringing the apparently disjointed portions of their memos together into a coherent whole. Transportation metaphors help students do so.

I usually ask my students to consider whether an out-of-town driver would be lost for lack of landmarks or signals if the student had given directions the same way he or she had written the memo. When a driver wants to cross a river, for example, he or she looks for a bridge. When he or she wants to move between two highways, he or she examines the map for a connector between those two highways. Similarly, when moving from discussion of one element to discussion of another in a legal memo, the reader needs a bridge or a connector. When explaining the logical interconnection between claims or arguments, students must remember to include street signs or landmarks so the uninformed reader can find his or her way, just as an out-of-town driver needs street signs or landmarks to navigate a city. Such bridges, connectors, street signs, and landmarks can range from headings and subheadings, to phrases such as "the next element is," to entire transitional sentences.

The road map image gives students concrete metaphors for their abstract writing process. The metaphors, in turn, both students and professors with easy references as they progress through a memo. It is easier to write, "You need a stronger bridge here," between two sections of a memo that require more of a link than it is to explain the concept of linking.

Visualization

Finally, one can use visualization to assist students in structuring memos in logical order. Popular as a psychological tool for preparing for a competition, examination, or experience, visualization can help students bring memos to life in the drafting stage.

To encourage students to visualize, I engage them in a dialogue paralleling the conversation the parties to the case might have. While this works best with a single student or a small group, a professor could adapt the technique to work with an entire class.

Taking the tortious wrongful discharge example again, I ask students to imagine a conversation between the discharged employee (the plaintiff) and her former employer (the defendant). The plaintiff might begin a conversation about her firing by saying, "Hey! You can't fire me! I'm a great employee!" The employer would reply, "Of course, I can fire you. You serve at will, so I can fire you any time I like." The parties might argue back and forth about whether the employee in fact served at will or had some implied contract, say for termination for cause only. In any case, at some point, whether "winning" on that argument or not, the plaintiff might say, "Well, even if I was an at-will employee, you can't fire me in violation of public policy." She then would describe what she meant and how she thought her discharge violated public policy. Finally, the parties would argue about whether the alleged public policy was the type that could serve as the basis for a tortious wrongful discharge claim, and, if so, whether the plaintiff had been dismissed for the reason alleged.

Constructing such a conversation helps students see that there is no mystery involved in structuring a memo. Moreover, the technique doubles in value once a teacher combines the conversation technique and the IRAC or CRAC method, asking students to use an IRAC or a CRAC each time the conversation switches speakers. Students can visualize the conversation and incorporate IRAC or CRAC into the conversation itself. One of my students thinks of the parties as tossing a conversational ball, sending, in his words, a "volley of CRACs" back and forth until they reach some conclusion.

Visualization thus can greatly assist students by bringing their assignments to life and encouraging them to actively participate in the learning process. Students can literally act out the conversation after completing their research. This active learning is more valuable than their passively parroting a memo format. Finally, students who have memory difficulties can tape-record the conversations as they visualize them; later, they can play the tape back to use in drafting.