This article will examine the extent to which common legal writing paradigms such as CREAC are used by attorneys in the "real world" of practice when writing on the kinds of issues law students may encounter in the first-year legal writing classroom. To that end, it will focus on the analysis of two factor-based criminal law issues: whether a defendant was in custody and whether a defendant had a reasonable expectation of privacy. In focusing on "first-year" issues, the article seeks not to examine whether organizational paradigms are used at all in legal analysis, but to discover whether and how they are used when analyzing the same kinds of issues first-year law students analyze. If experienced attorneys writing on these issues do indeed use organizational paradigms in the same way many legal writing professors teach first-year law students, it is strong support for the continued use of organizational paradigms in the classroom. If not, it is perhaps time to reexamine their use.
In section 1, the article will briefly review the rhetorical basis for the paradigms. Section II will review the central place organizational paradigms hold in legal writing pedagogy, as well as the resistance to those paradigms. Section III will examine how the organizational paradigms are used in appellate briefs filed in actual cases involving issues that first-year law students at the University of Kentucky College of Law have written about in their spring appellate brief assignments involving two hypothetical cases. Specifically, the article will show that while practicing attorneys writing on these issues do follow the general pattern of organizational paradigms like CREAC, they deviate from the paradigms in ways that suggest an increased emphasis on narrative as an essential part of persuasion above and beyond the story told in the Statement of the Case section of a brief. In section IV, the article will suggest ways that the findings of section III might be incorporated into legal writing pedagogy.
Diane B. Kraft, CREAC in the Real World, 63 Clev. St. L. Rev. 567 (2015).