Rule-Based Writing and CREAC

Much of the material below is adapted from Nan L. Haynes, Legal Writing Handbook for Clinical Students, published by CALI eLangdell® Press, CC BY-NC-SA 4.0 license. CALI® and eLangdell® are United States federally registered trademarks owned by The Center for Computer-Assisted Legal Instruction. Other material is adapted from Jean Mangan, et. al., Legal Writing Manual, 3d ed, CC BY-NC-SA 4.10 license.

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Except for purely legal issues, such as issues about the meaning of a rule, every objective analysis (such as in a predictive memorandum) or persuasive argument (such as in motion papers filed in court) is rule-based. That is, it centers on how a given legal rule does, or does not, fit a particular set of facts.

CREAC Organization

In this course, you will learn that when analyzing or arguing a legal issue, you should follow an organizational form that goes by the abbreviation CREAC (“cree-ack”). There are other organizational forms for legal writing, but CREAC is common.

CREAC is the organizational form for analyzing or arguing about a single issue governed by a single legal rule. This course centers on single-issue legal analyses or arguments.

At its core, a single legal argument or analysis is about applying a legal rule to the relevant facts of a particular case. Here is a complete legal analysis in a straightforward case, a small kernel of what CREAC does:

Simple Legal Analysis: Speeding

Rule - If a driver travels in excess of 30 mph on Delaware Avenue, he is in violation of Municipal Code §789.2.

Application - Joe Smith was driving his car at a rate of 45 mph on Delaware Avenue when he was stopped by a police officer.

Conclusion - Thus, Smith was in violation of Municipal Code §789.2 when he drove on Delaware Avenue.

You can use this type of simple rule application when you write certain kinds of legal genres, such as some client letters. Here is a sample client letter with a single legal analysis:

Dear Mr. Smith:

I write to follow up on our July 8th meeting.

On March 11 this year, you were issued a ticket for speeding on Delaware Avenue and were charged with driving at 45 mph in a 30-mph zone. You want to challenge that charge because your license already has three speeding violations, and your insurance company will not renew your policy if you get a fourth violation.

If we ask for a trial to contest the ticket, you will lose because the speed limit on Delaware Avenue is 30 mph, and police radar shows you were traveling at 45 mph. Police officers are trained to demonstrate that their radar equipment is properly calibrated and accurately used. Thus, the prosecutor will be able to show that you were in violation of Municipal Code §789.2. Please let me know how you wish to proceed before our court appearance on August 22.

I strongly suggest that we enter plea negotiations with the city prosecutor. She will probably agree to reduce the charge to a non-moving violation because the city can keep any money that it collects from fining you due to a non-moving violation. In contrast, the state would get the money collected for a speeding conviction fine.

(Signature)

That is a simple example of Rule, Application, Conclusion. It's not a CREAC yet.

But most legal issues are based on rules that include terms that are more complex or open to interpretation than a simple speeding ordinance. When writing a memo or brief, you will usually need to add an explanation of the key terms that define the rule and apply the same key terms to the facts of your case.

The explanation is the E of CREAC. Adding the explanation before you apply the rule lets the reader know the meaning of your rule and why the facts of a particular case do or do not fall under the rule.

Here is a color-coded chart of the organization of a single legal analysis or argument that does rule-based reasoning:

CREAC Organization

(Refer to this chart often) C - initial statement of conclusion

R - the legal element or rule at issue

E – rule explained through key terms

A – application of the key phrases from the rule explanation to the facts of this case, in the same order that they appear in the rule explanation

C – final statement of conclusion

CREAC Example: Rule-Based Writing

Let's see what CREAC looks like in a fleshed-out legal argument. Below is a color-coded CREAC rule-based argument. It is an excerpt from a brief filed by a prisoner who is opposing the government’s attempt to defeat his civil rights case without the need for a trial (this is called a “summary judgment”). Later, you will find this same annotated CREAC, with reasoning by analogy added. But for now, let's focus on its use of a legal rule and explanation of that rule.

(Don’t worry if you don’t understand the format of legal citations. You will learn about that in later sections. For now, just read this color-coded example as a good illustration of CREAC writing. References to R indicate citations to particular pages in the record to support a factual statement.)

Example CREAC Argument The evidence raises genuine issues of material fact as to whether the defendant guard, Officer Rath, knew that the plaintiff prisoner, Mr. Fox, was at a substantial risk of serious harm from other inmates, particularly Mr. Ball.

Prison officials meet the knowledge prong of a deliberate indifference claim when they are subjectively aware of a substantial risk of serious harm to prisoners. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Although an official “must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference,” a claimant can demonstrate that an official had knowledge if a risk is obvious. Id., at 837, 844. An obvious risk can be shown by evidence that prison assaults were “longstanding, pervasive, well-documented, or expressly noted by prison officials” because these circumstances suggest an official must have known. Id., at 842-43.

Whether a prison official is subjectively aware of a substantial risk of serious harm “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id., at 842. Advance notice is not necessary to establish knowledge if a prisoner falls into a victim-prone category. Id., at 843; Corbett v. Kelly, No. 97-CV-0682 E, 2000 WL 1335749, at *4 (W.D.N.Y. Sept. 13, 2000). Thus, a prison official may be put on notice that a prisoner faces a substantial risk of serious harm if there is a similar history of violence at the prison. One circumstance that can give rise to knowledge of an obvious risk is if there are classes of victim-prone prisoners whom officials know are more susceptible to attack. See Farmer, 511 U.S. at 843.

Examining the evidence in the light most favorable to Fox raises the inference that Rath knew that Fox was at a substantial risk of serious harm for two reasons. First, Rath knew that as a convicted sex offender Fox was victim-prone. After all, Rath admitted he knew that the DOJ found sex offenders at the Holding Center were targeted, and he knew that Fox was a convicted sex offender. (R.30).

Second, Rath knew about Ball’s well-documented history of violent behavior towards sex offenders. (R.30). Rath also knew that Ball was a security risk who was ordered to stay away from other prisoners. (R.32). Ball had a well-documented history of violent offenses on his intake sheet, including an assault on a convicted sex offender at the Holding Center. (R.29). Because Ball had assaulted another prisoner earlier in the same day he assaulted Fox, he was classified as a security risk and ordered not to comingle with other prisoners (R.53, 55). Rath heard Ball threaten that prisoner hours before he assaulted Fox. (R.33). And Rath admitted he had read both Ball’s Intake Sheet and the order that classified Ball as a security risk. (R.29, 53, 56). Indeed, Ball's taunting of Fox as a “pervert” while he beat and kicked Fox (R.34) underscores that a jury could rationally infer that Rath was on notice that Fox faced a substantial risk of harm.

These facts all would allow a jury to draw the reasonable inference that Rath knew Fox was at risk of harm. Thus, there are genuine questions of material fact, making summary judgment inappropriate.

The same CREAC form would apply to objective writing That example was of a legal argument—the prisoner is seeking to persuade the court that his civil rights case should not be thrown out. The form of the reasoning would be the same in an objective analysis, such as in a predictive memorandum. See the examples of predictive memoranda in this resource. If you were to color-code those examples as I have done with the argument above, where would you put which color codes and why?

Tips for Rule Explanations

• A rule explanation should consist of the rule’s essential terms, which are the words or phrases at the heart of the issue of how the rule applies.

• Use your explanation to clearly and concisely identify the key terms that a court would likely consider when analyzing the particular issue that you are writing about.

• Ground your explanation in mandatory authority.

• Except for the key terms, avoid overreliance on the court’s actual language, which can result in an awkward series of quotes. For concise rule explanations, use ellipses and minimize the use of block quotations.

Test your understanding: Scrambled CREAC Activities

Test your understanding of CREAC by reordering the numbered passages into a coherent CREAC. Why is the order you put them in the right one to make a coherent CREAC?

(Credit for activity: Meredith Aden)

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1) The Phoenix Club will likely be held liable for Peterson’s injuries caused by Dixon’s operation of a motor vehicle while intoxicated.

2) Dixon’s statement establishes that in the hour before he arrived at the club, he had drunk two 16-ounce alcoholic energy drinks and all but one "swig" of a 750-ml “fifth” of 80-proof bourbon.

3) A liquor licensee "is under a duty, imposed both by common law principles and statute, to exercise affirmative, reasonable care in serving intoxicants to patrons who might later injure themselves or an innocent third party, whether on or off the premises." Patterson v. Thunder Pass, Inc., 214 Ariz. 435, 438 (App. 2007).

4) In Patterson, a bar served alcohol to an obviously intoxicated patron. 214 Ariz. at 436. But when the patron tried to leave, a bar employee took her car keys, drove her home in another vehicle, returned her key, and returned to the bar. Id. Unbeknownst to bar employees, the patron walked back to the bar parking lot, retrieved her car, and caused a collision. Id.

5) "Obviously intoxicated" means "inebriated to such an extent that a person's physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person." A.R.S. § 4-311(D).

6) Arizona's "dram shop" statute, A.R.S. § 4-311(A), provides that a licensee is liable for property damage or personal injuries if the licensee sold liquor to an obviously intoxicated person and that person's consumption of the liquor proximately caused the plaintiff's injury.

7) The Patterson court affirmed a summary judgment for the bar because the bar’s employees "fulfilled their legal duty of affirmative, reasonable care to [the patron] and the public by separating [the patron] from her vehicle and arranging for, as well as subsequently providing, the safe transportation of [the patron] to her residence." Id. at 439.

8) Thus, in light of all the evidence, the Phoenix Club will likely be held liable for Peterson’s injuries.

9) Given the three-hour period that Dixon was at the club, his pre-arrival consumption of alcohol, the twelve beers he consumed while at the club, and the fact that he left the club without interference from employees, a jury would likely find that Dixon was obviously intoxicated at the club, but was served alcohol anyway and that the club did nothing to keep Dixon from causing injury to others in his intoxicated state.

10) However, even if a licensee serves alcohol to an obviously intoxicated patron, it might still escape liability if it fulfills its duty of affirmative, reasonable care to the patron and the public by other means.

11) Here, the evidence is that The Phoenix Club did not exercise reasonable care in serving alcohol to Dixon or in its interactions with him after he became intoxicated.

12) Once at the club, he drank twelve 12-ounce bottles of beer—144 ounces of 5% alcohol—over the next three hours. He said that he became intoxicated and was “in [his] own little world."

1) "Generally, in a legal malpractice case, expert witness testimony is required to rebut a defendant's motion for summary judgment challenging the causation element." Starwood Mgmt., LLC by and through Gonzalez v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). 2) To prevail on a legal malpractice claim, a plaintiff must establish that "the defendant owed the plaintiff a duty, the defendant breached that duty, the breach proximately caused the plaintiff's injury, and the plaintiff suffered damages." Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009). An attorney’s failure to meet the proper standard of care may include their failure to exercise ordinary care in preparing, managing, and presenting litigation, including filing suits on time. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004). 3) In its no-evidence summary judgment motion on Watkins's legal malpractice claim, Grainger asserted that Watkins had no evidence that Grainger’s alleged breach of a duty of care in failing to timely file her suit caused Watkins any damage. It is undisputed that Watkins did not provide any expert testimony in support of her malpractice claims, and the crux of the parties' arguments on appeal is whether Watkins can maintain her legal malpractice suit against Grainger without such evidence. Watkins contends that she is not required to provide expert testimony to meet the essential elements of her case because Grainger's negligence is "clear and obvious" since Grainger missed the statute of limitations. 4) The trial court properly granted summary judgment to Grainger on Watkins’s legal malpractice claim. 5) We disagree with Watkins's reasoning. Watkins failed to bring forth evidence to show that, but for Grainger's alleged mishandling of the case, the outcome of her underlying suit would have been more favorable. This case hinges on whether Watkins had viable claims against the defendant in the case that she hired Grainger to pursue and whether she would have obtained a favorable outcome in her suit against that defendant (the case-within-the case). These determinations are well outside the scope of a layperson's common knowledge or experience. Thus, Watkins was obligated to provide competent expert testimony on the element of causation to challenge Grainger’s no-evidence summary judgment motion. She did not. 6) But as the Supreme Court of Texas has explained, "Breach of the standard of care and causation are separate inquiries, . . . and an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other. Thus, even when negligence is admitted, causation is not presumed." Alexander, 146 S.W.3d at 119-20. To satisfy the causation element of a legal malpractice claim when the plaintiff alleges that some failure on the attorney's part caused an adverse result in prior litigation, a plaintiff must establish that she would have prevailed in the underlying case "but for" the attorney's negligence. Alexander, 146 S.W.3d at 117. "When a legal-malpractice case arises from prior litigation, the plaintiff must prove that the client would have obtained a more favorable result in the underlying litigation had the attorney conformed to the proper standard of care." Rogers v. Zanetti, 518 S.W.3d 394, 401 (Tex. 2017). This burden of proof on the malpractice plaintiff is often referred to as the "suit within a suit" requirement. See Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex. App.-Houston [1st Distr.] 1998, pet. denied). “A lawyer can be negligent and yet cause no harm." Rogers, 518 S.W.3d at 400. "And, if the breach of duty of care does not cause harm, no valid claim for legal malpractice exists." Id. 7) For these reasons, we affirm the summary judgment in Grainger’s favor. 8) Expert testimony is required to show both that a lawyer’s tactical choices were unwise and also that the consequences of those choices harmed the client. Id. at 119-20. "Expert testimony is required when an issue involves matters beyond jurors' common understanding." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006). See, e.g., Rogers, 518 S.W.3d at 404-10 (summary judgment proper because no competent expert stated jury would have returned different verdict if trial counsel had employed different strategy); Saldana-Fountain v. Chavez Law Firm, 450 S.W.3d 913, 918 (Tex. App.-El Paso 2014, no pet.) (no-evidence summary judgment proper where plaintiff failed to offer expert testimony on causation); Lopez v. Yates, No. 14-01-00649-CV, 2002 Tex. App. LEXIS 8229, at 9 n.5 (Tex. App.-Houston [14th Dist.] Nov. 21, 2002, no pet.) (affirming summary judgment where plaintiff failed to present evidence demonstrating he had "case within a case" that would entitle him to damages).

Writing True Topic Sentences: Advice by Wayne Schiess

Don't write a succession of paragraphs that give the reader a mere tour of cited cases.

Remember that the reason you are using legal authorities is to show how the law applies to your particular factual situation.

Wayne Schiess shows you what not to do, then what to do, in his "Before and After True Topic Sentences":

Before and after true topic sentences. | LEGIBLE

"Before and After True Topic Sentences" by Wayne Schiess