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Drafting a Single CREAC

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S Wawrose

on 15 September 2015

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Transcript of Drafting a Single CREAC

The Path to a Single CREAC
Step 1
Explicit Rules
Implicit Rules
The Shape of the Rule section

Step 2
The "E" in CREAC
"E" stands for...
Why use these?
Common parts
Order & Considerations
Step 3
The "A" in CREAC
Step 4
There is no Step 4!!
Just revise, revise, revise.

Oh, and then edit or revise some more.

(And, don't forget to check your citations.)
Explicit Rules
Describe a "prevailing standard"
ask: What is the law on [X]?
May "cut-and-paste" from case or statute
use quotation marks!
May use only the "phrases thay pay'
use quotation marks for PTP
May paraphrase/put in your own words
Rules are ALWAYS cited to authority
The Shape of a Rule
Implicit Rules
Are not stated expressly in case law
Can be synthesized from comparing cases
Can be deduced from the case you are reading
State what the court is doing, rather than what the court is saying
Require courage!
Example on p. 93

Use bridges to create "flow"
First Collect
Drafting Rules
Then assemble
"E" stands for...
Rule Explanations
Also called
Case illustrations
Rule illustrations
the "facts of the ___________ case"
Why use an illustration?
To provide details from case law to show how a rule works in "real life"
To "prove the rule"
To "set up the Analysis"

Let's look at Ex. 7.2A, p. 102
Parts of an Illustration
Trigger Facts
Can you spot the pieces in action?
Let's look again at Ex. 7.2A
Do I need an illustration?
Is the issue "grey?" Yes.
Is the rule framed in subjective terms? (What were the characteristics of the accused?) Yes.
Do you need to show where behavior falls on a spectrum? Yes.
Do you need to "draw a line?" Yes.
Order & Other Considerations
Analogies before distinctions OR
good before bad

Organize around issues

No need to "double-stack"

Recent before old unless old is "dead on"

Binding before persuasive, but consider the content.
The Rule: A pet owner is liable under Illinois Animal Control Act if her pet attacks a victim "without provocation."

The Exception: The victim's actions towards the pet (provocation) can be excused if done in self-defense.
Why discuss the facts of a case?
Would the self-defense exception apply here?
Is this provocation?
The Hard One: Analogical Reasoning

Use when:
case law facts are available for comparison
the meaning of the rule is not "crystal clear"
E.g., you don't need an analogy to show that a biological child is a "child"
Elements of an Analogy
Start with a conclusion: Tell the Reader what you plan to prove.
Compare or contrast case law facts with your client's facts.
Explain why the comparison matters.
Quick Tips to Make the Reader's Job Easier II
Compare apples to apples
Right: Like the defendant in
, Martinez...
Wrong: Like
, Martinez...

Use explicit words of comparison to compare:
similar to/dissimilar from
the same as/different from

Quick Tips to Make the Reader's Job Easier I
1. Organize the Analysis around arguments, not cases.

2. When you mention a case,
"flag" a few key facts
, to remind the Reader why you included it.

Example -->

Unlike the conduct in
where the psychologist merely hurt the plaintiff's feelings
, Martinez' conduct towards Kemp reached the level of outrageousness required to establish intentional infliction of emotional distress.
Full transcript