Writing the Argument
Section of the Appellate Brief
What’s Up
with I.R.A.C.?
Four Ways Premises May Be
Connected To The Conclusion
Empirical Generalization
Analogy
Accumulation of Factors
The Deductive Entailment
Empirical Generalization

Suppose that you have seen 1000
students who have graduated from a
particular high school, and every single
one has been blind. You infer that the
school is a school for the blind.

When you make this inference, you
are making an inductive argument.
What is the limitation of an inductive
argument?
Empirical Generalization

The limitation of the empirical
generalization is that the premises of
your argument could be true but the
conclusion false.

In other words, it could be true that all
the students you saw were blind but the
high school was not a school for the
blind.
Arguing by Analogy

Arguing by analogy is a common way lawyers
make legal arguments.

This kind of argument identifies certain
similarities between the primary subject and
the analogue (two things compared).

Arguing by analogy is what you do when you
compare the facts of your case with precedent
cases.
Arguing by Analogy

What is the limitation of an argument by
analogy?

The limitation of the analogy is that
someone else may be able to identify
relevant differences (i.e. distinguish the
precedent).
Accumulation of Factors

Suppose you are considering a decision
about suitable office space. You think
about factors such as centrality of
location, cost, decor and so on.

To argue that it is suitable, you point out
which of the relevant features it has.
Arguments of this type are called
conductive.
Accumulation of Factors

What is the limitation of a conductive
argument?

Someone else might use different factors
to argue the space is not suitable.
The Deductive Entailment

The deductive argument is the most
complete relationship of logical support.

A deductive argument is valid because
its conclusion follows directly from its
premises.

The only way a deductive
argument can fail is if the
premises are untrue.
The most simple example of a
deductive argument is the syllogism.

A syllogism is a statement of
logical relationships.

You may remember them
from a philosophy class or
from the L.S.A.T.
Classic Example



1. All men are mortal.
2. Socrates is a man.
3. Therefore, Socrates is
mortal.
Power of Syllogisms



Use of Deductive Reasoning.
Conclusion is compelling, based on the
premises.
The opponent must attack the premise,
not the conclusion.
Parts of a Syllogism



Major premise: Broad statement of
general applicability.
Minor premise: Narrower statement of
particular applicability.
Conclusion: Logical consequence of the
major and minor premises.
Legal Arguments as Syllogisms



Major premise = statement of law.
Minor premise = application of law to
specific facts.
Conclusion = derives from premises.
Example

1. To be enforceable, a contract must
be supported by consideration.

2. The contract between Tim and Mary
is not supported by consideration.

3. Therefore, the contract between Tim
and Mary is not enforceable.
So What Are You Really Doing?
I.R.A.C.
Setting forth the law,
and then applying it to
the facts –
just what you have
been doing all along.
Issue:
Whether the contract between
Tim and Mary is enforceable?
Rule
To be enforceable, a contract must be
supported by consideration.
Application
The contract between Tim and Mary is
not supported by consideration
Conclusion
Therefore, the contract between Tim
and Mary is not enforceable.
Relationship to Analogies



Analogies help with legal reasoning.
Syllogisms help with legal argument.
Analogies can support a premise, but
do not provide the answer (the “so
what”?).
To Draft a Syllogism,
1) Start with the Conclusion




Determine your client’s position in the
lawsuit.
What does your client HAVE to argue to
WIN?
Write down the position.
The position becomes
your conclusion in the
syllogism.
2) Draft the Premises
The premises must be true.
Specifying any two terms
will determine the third.
Example



1. A federal court has diversity
jurisdiction over claims that exceed
$75,000.
2.
3. Therefore, a federal court has
diversity jurisdiction over the plaintiff’s
claim.
Another Example



1.
2. The plaintiff’s claim exceeds
$75,000.
3. Therefore, a federal court has
diversity jurisdiction over the plaintiff’s
claim.
3) “Ground” the Premises


You must “ground” each
premise.
Grounding = providing
enough support for the
premises to convince your
audience that the premises
are true.
How do you ground
the Major Premise?


By citing to legal authorities
Demonstrate that mandatory authority
dictates a certain result; ground the
major premise in law. Cite either a . . .
– Higher court.
– Statute.
– Constitution.
How do you ground
the Minor Premise?

Because a minor premise of a legal
syllogism applies a legal principle to the
facts of the case, the minor premise
always includes some sort of factual
assertion.

Ground factual propositions in evidence
(THE RECORD ON APPEAL).
Examples of Grounding:

1. Traffic lights should be installed at
dangerous intersections. Smith v.
Jones (Rule)

2. The intersection at Streets A and B is
dangerous. (R. at 4.) (Application)

3. Therefore, a traffic light should be
installed at the intersection of Streets
A and B. (Conclusion)
Grounding a Legal Argument

Your goal is try to create the
appearance of certainty in the
law, to make the judge feel like
she has no choice but to find
for your client.

Try develop more than one way
to ground the premise. You
may, for example, be able to
also ground your minor premise
by using another syllogism.
Example of Grounding the
Minor Premise



1. Traffic lights
should be installed
at dangerous
intersections.
2. The intersection
at Streets A and B
is dangerous.
3. Therefore, a
traffic light should
be installed at the
intersection of
Streets A and B.



1.
2.
3. Therefore, the
intersection at
Streets A and B is
dangerous.
Draft/Ground a Major Premise



1. Traffic lights
should be installed
at dangerous
intersections.
2. The intersection
at Streets A and B
is dangerous.
3. Therefore, a
traffic light should
be installed at the
intersection of
Streets A and B.

1. Intersections with
more than 4 accidents
per year are dangerous.
Allen v. Moore .

2.

3. Therefore, the
intersection at Streets
A and B is dangerous.
Draft/Ground a Minor Premise



1. Traffic lights
should be installed
at dangerous
intersections.
2. The intersection
at Streets A and B
is dangerous.
3. Therefore, a
traffic light should
be installed at the
intersection of
Streets A and B.

1. Intersections with
more than 4 accidents
per year are dangerous.
Cite.

2. Last year there were
5 accidents at the
intersection of Streets
A and B. (R. at 9).

3. Therefore, the
intersection at Streets
A and B is dangerous.
Constructing Syllogisms

Gulf Sturgeon Example (handout)
The Issue is whether the
ESA prohibits the Pier.

What is best conclusion for your client?
That the ESA
prohibits the pier
Convert this to a Syllogism

1.

2.

3. Therefore, the ESA prohibits the pier.
(Conclusion)
Construct the Major Premise
What Does the ESA Prohibit?

1.

2.

3. Therefore, the ESA prohibits the pier.
(Conclusion)
Construct the Major Premise
What Does the ESA Prohibit?

1. The ESA prohibits “takings.” (Rule)

2.

3. Therefore, the ESA prohibits the pier.
(Conclusion)
Construct the Minor Premise

1. The ESA prohibits “takings.”

2

3. Therefore, the ESA prohibits the pier.
Construct the Minor Premise

1. The ESA prohibits “takings.”

2. The pier would be a “taking.”

3. Therefore, the ESA prohibits the pier.
Ground the Major Premise

1. The ESA prohibits “takings.”

2. The pier would be a “taking.”

3. Therefore, the ESA prohibits the pier.
Ground the Major Premise

1. The ESA prohibits “takings”: 16
U.S.C. § 1538(a)(1).

2. The pier would be a “taking.”

3. Therefore, the ESA prohibits the pier.
Ground the Minor Premise by
Converting to a New Syllogism



1. The ESA
prohibits “takings”:
16 U.S.C. §
1538(a)(1).
2. The pier would
be a “taking.”
3. Therefore, the
ESA prohibits the
pier.

1.

2.

3. Therefore, the
pier would be a
“taking.”
Construct and Ground a Major Premise
for the of New Syllogism.

1.

2.

3. Therefore, the pier
would be a “taking.”
Construct and Ground a Major Premise
for the of New Syllogism.

1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).

2.

3. Therefore, the pier
would be a “taking.”
Construct the Minor Premise of
Your New Syllogism

1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).

2.

3. Therefore, the pier
would be a “taking.”
Construct the Minor Premise of
Your New Syllogism



1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).
2. The pier would
“harm” the Gulf
Sturgeon, an
endangered species.
3. Therefore, the pier
would be a “taking.”
Ground the Minor Premise by
Converting to a New Syllogism



1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).
2. The pier would
“harm” the Gulf
Sturgeon, an
endangered species.
3. Therefore, the pier
would be a “taking.”

1.

2.

3. The pier would
“harm” the Gulf
Sturgeon, an
endangered
species.
Construct and Ground
a Major Premise

1.

2

3. The pier
would “harm”
the Sturgeon,
an endangered
species.
Construct and Ground
a Major Premise

1. “Harm” means habitat
modification effecting
breeding. 50 C.F.R. §
17.3

2

3. The pier would “harm”
the Sturgeon, an
endangered species.
Construct and Ground
a Minor Premise

1. “Harm” means
habitat modification
effecting breeding. 50
C.F.R. § 17.3

2.

3. The pier would
“harm” the Sturgeon, an
endangered species.
Construct and Ground
a Minor Premise



1. “Harm” means habitat
modification effecting
breeding. 50 C.F.R. §
17.3
2.The pier will modify
the habitat enough to
effect breeding.
3. The pier will “harm”
the Sturgeon, an
endangered species.
Remembering IRAC:
Writing the Appellate Brief
I is for Identifying the Issue
– This is an introduction which briefs
the reader on the precise issue which
you are about to discuss.
– Typically, in the Appellate Brief, you
will do this with your issues presented
and again with your point headings
and/or sub-point headings (the form of
which we will discuss later).
Example: Sample Memo
– II. The denial of Sample’s Motion for
Summary Judgment should be affirmed since,
even though there is no dispute of material
fact, Sample is not entitled to judgment as a
matter of law.
R stands for Rule Identification.
(The first part of a deductive argument)

You should next inform the
reader of the pertinent law
to the client’s situation.

This rule section may include rule
sentences, case discussions or both.
R stands for Rule Identification.
(The first part of a deductive argument)

Use rule sentences to spell out for your
reader an outline or the relationships
between legal principles.

However, where the facts of your case
and the precedent cases are a relevant
basis for comparison, draft a case
discussion in your rule section.
Using Rule Sentences

Example:
It is the party seeking summary
judgment that bears the initial
responsibility of informing the court of the
basis for the motion and for
demonstrating the absence of any
dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Case Discussions Provide Relevant Facts:

In Kass v. Kass, 696 N.E.2d 174 (N.Y.
1998) the plaintiff sued for ownership of five
pre-zygotes created during the parties’
marriage. (allegation) Now divorced the wife
wanted them implanted, claiming it was her
only chance for genetic motherhood. The
husband objected to the burdens of
unwanted fatherhood, claiming the wife had
previously agreed that in the event of
divorce, the pre-zygotes would be donated
for research. (facts) The court held that the
previous agreement regarding disposition
was controlling. Id. at 175. (holding)
Ground the Major Premise!
(In this case your rule section)

As, legal authorities both rule sentences and
case discussion should be cited.

Remember you are demonstrating that
mandatory authority dictates a certain result.
Cite to a higher court, statute or
Constitution.

If the rule is from a statute, quote the
relevant part of the statute.
A Stands for Application of the Rule
– The heart of analysis is this application
of the law to your client’s facts.
– Using strong topic sentences to lead
your reader through the discussion.
– Demonstrate how your client’s facts
meet the factual conditions of the rule
which you are discussing.
A Stands for Application of the Rule
(Ground the minor premises)
– You should also compare the facts in the record
with the facts of the precedent cases;
– draw links between the law and facts;
– make references to important similarities/
differences with cases;
– and make references to important words in a
case or statute.
– Finally, your application section should discuss
and evaluate relevant counter-arguments to
your application of the element of rule.
Placement of Counter-Arguments

Your counter-argument should go at the
end of your analysis section (before the
mini-conclusion- the conclusion on the
particular issue your are discussing).

UNLESS you have divided up the section
into sub-issues, in which case the
counter-argument should follow the
respective sub-issue.

For example, if you are discussing
“condition or proclivity” the counterargument which addresses competency
should go after that respective discussion.

I. Condition or Proclivity
 A.
Condition of Incompetence
 (Insert competency counter here)
 B.
Dangerous proclivity
 Mini-conclusion
C is for Conclusion:

Your IRAC discussion should close
with a statement of whether the
requirements of the element have or
can not be met.

Mini-conclusions should follow each issue and at
the end of the paper, you will have a final
conclusion.

The form for the overall conclusion of an appellate
brief is different from the form of the memo.
C is for Conclusion:

Therefore, for the above-stated
reasons, Appellant respectfully requests
that this Court reverse the District Court’s
order denying Appellant’s Motion to
transfer venue, or, in the alternative,
reverse the District Court’s order denying
Appellant’s Motion for Summary
Judgment.
To be a winner, use I.R.A.C., a form
of Deductive Logic in Your Brief .
The End.