Academic and Legal English
'the limits of my language mean the limits of my world.' —ludwig wittgenstein, 13. hirac/irac method: an example.
by Tran Nguyen
HIRAC and IRAC:
The HIRAC/IRAC method is used to sort through a hypothetical legal problem in many Australian law schools.
HIRAC = Heading, Issue, Rule, Application, Conclusion
IRAC = Issue, Rule, Application, Conclusion
See more details about the HIRAC/IRAC method at UWA Faculty of Law | IRAC Guide and Legal reasoning and HIRAC
Legal problem (Contract law): Aristotle (aged 22 years) had recently established a small suburban greengrocer’s shop. He owed his father, Plato, who ran a small market garden as a part-time activity, the sum of $2000 for vegetables that Plato had supplied him.
When Plato approached him about payment, Aristotle replied that his business had not been doing well and that the only way in which he would be able to obtain financial stability would be for him to take up a lease, which had been offered to him, of a shop in a new shopping arcade which was in a much better location than his existing premises. Aristotle said that such a move would involve his using all his capital and obtaining a bank loan and, if he were to make the move, he could only afford to pay Plato $1500.
Plato agreed to accept Aristotle’s cheque for $1500 in full settlement. He told Aristotle that he did so partly out of fatherly affection for his son, and partly because he hoped that Aristotle would continue to buy vegetables from him.
Aristotle subsequently obtained the necessary finance and moved his shop to the new arcade. Soon after Plato had a disagreement with Aristotle and now wishes to sue for the remainder of the original debt.
Advise Aristotle.
This is a contract law problem relating to intention to be legally bound and consideration.
The issues involve: (1) whether the parties do or do not intend to be legally bound; and (2) sufficiency of consideration and part payment of a debt.
Rules/principles
Where the agreement between the parties is of a social or domestic nature, it is presumed that the parties do not intend to be legally bound by what they agrees on and that, therefore, such agreement is legally unenforceable [1] ( Balfour v Balfour [1919] 2 KB 571).
However, this presumption can be rebutted by evidence to the contrary [2] ( Roufos v Brewster (1971) 2 SASR 218). Matters to be considered include:
- What the parties said/represented to each other;
- The context in which the statements were made;
- How the parties conducted themselves; and
- How grave the consequences if the promise were breached. [3]
Consideration must be present in every ‘simple’ contract. To enforce a promise made in such a contract, the promise must be supported by consideration. [4]
Consideration must also be sufficient in the eyes of the law. Performance of an existing contractual duty owed to promisor is not sufficient [5] ( Stilk v Myrick (1809) 2 Camp 317) unless the promisor receives a practical benefit that otherwise might have resulted [6] ( Williams v Roffey Bro & Nicholls (Contractor) Ltd [1990] I AII ER 512). A promise to perform a mere moral obligation also does not legally obligate the person making it [7] ( Eastwood v Kenyon (1840) II Ad & E438).
Part payment of an existing debt on the due date without something extra is not sufficient consideration for creditor’s promise to forego the balance. [8] But part payment in a different manner, or at a different time, or in a different place (ie something not required under contract) may be sufficient [9] ( Pinnel’s case (1602) 77 ER 237 and Foakes v Beer (1884 9 App Cas 605). Also noting that no sensible distinction can be taken between the payment of lesser sum by cash and by cheque [10] ( Builders Ltd v Rees [1965] 3 AII ER 837).
Applying rules/principles to the facts
The courts would presume that the parties to the agreement, Aristotle and Plato, as family members, did not intend to be legally bound ( Balfour v Balfour ). To rebut this presumption, Aristotle would need to produce evidence that would lead a reasonable person to believe there was an intention to be bound. The facts here are similar to those in Roufos v Brewster , so this is obviously likely.
Moreover, Aristotle would argue that Plato couldn’t sue for the remainder of the original debt ($500) because he has provided a sufficient consideration to his father (the rule in Pinnel’s case) . This includes:
- He would continue to buy vegetables Plato supplied since he moved to the new shop.
- With the new shop which was in a much better location than his existing premises, he would need more vegetables from Plato. So that Plato would take more benefits than before.
Thus, it is clear on the facts that Plato received a practical benefit from his promise to accept $1,500 in full settlement ( Williams v Roffey Bro & Nicholls) . Plato will be bound by such a promise.
Finally, Plato would still argue that his promise only created moral obligation because his promise, as he said, based partly on the fatherly affection, and therefore he cannot be legally held to it, as in Eastwood v Kenyon . Considering this argument in whole circumstance, a reasonable person will not believe Plato’s promise merely created a moral obligation because of his intention to be bound and sufficiency of consideration.
On the facts provided I would advise Aristotle do not have to pay his father the remainder of the original debt.
[1] Daniel Khoury and Yvonne Yamouni, Understanding Contract Law (LexisNexisButterworths, 8 th ed 2010) [4.1].
[2] Ibid [4.5].
[3] Warwick Fisher, LAW10159 Principles of Contract Law Study Guide (Southern Cross University, 4 th ed, 2012)12.
[4] Khoury and Yamouri, above n 1, [3.4].
[5] Ibid [3.20].
[6] Ibid [3.21].
[7] Ibid [3.16].
[8] Ibid [3.23].
[9] Ibid [3.24].
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The Art of Written Persuasion: From IRAC to FAILSAFE – A Compilation of Legal Problem-Solving Models
Introduction
‘A process model … of problem-solving provides a useful framework … because it offers a systematic, non-random way of tackling problems.’ 1
In my previous article, I outlined some of the problems with the ‘case method’ of teaching law and I outlined some of the advantages of the ‘problem method’. Proponents of the problem method have developed several problem-solving models. I describe some of these models below so that in my next column I may suggest the criteria for evaluating these models.
‘IRAC ’ purportedly provides the simplest and commonest ‘problem-solving’ model. Under IRAC, you state the Issue, state the Rule to apply, Apply the rule, and reach a Conclusion.
People call IRAC a ‘problem-solving’ method; but IRAC really helps only in structuring an analysis, such as summarising a case, rather than solving problems. The IRAC formula resembles less the problem method than the case method, which Christopher Columbus Langdell , Dean of Harvard Law School , introduced in 1870. 2
For example, one can spot the ‘Issue’ in a case relatively easily; but spotting the issues in an unfocussed problem takes much more work. 3 You must analyse the facts before you can identify the ‘Issue’.
The ‘I’ in ‘IRAC ’, when applied to unfocussed problems, presumes the lawyer knows enough of the law to identify issues. Yet ‘the great secret, kept by all lawyers, is that lawyers don’t know the law … there is too much law for any man to master in his lifetime’. 4
The ‘R’ in IRAC considers ‘rules’. But ‘rules’ still leave decision-makers with discretion. 5 Lawyers win most cases on the facts , not rules . This means IRAC:
‘forces unprepared students to learn the hard way, at the expense of their clients, that practicing law involves understanding facts first, “what happened” and the “how” and “why” of the mess that brought the parties to the last resort of dispute resolution.’ 6
When used as a problem-solving method, the ‘A’ in IRAC tells you to ‘apply the law to the facts’. Yet it does not explain how to apply the law to the facts. 7 And, as a problem-solving method, the ‘C’ in IRAC too confidently predicts an unqualified ‘conclusion’. 8
IRAC may provide a good way to organise an analysis after you have done all the hard work—finding facts, analysing facts, identifying the relevant areas of law, and so on. 9 But IRAC provides no suitable ‘problem-solving’ model. This explains why IRAC has mutated into countless variations, some of which I outline below. >
2. IRAC variations
IRAC has grown into ‘HIRAC ’. 10 HIRAC stands for ‘Heading, Issue, Rule, Application, Conclusion’. Under HIRAC, you construct a ‘Heading’ or legal label for the relevant areas of law for each issue or sub-issue.
HIRAC addresses one of IRAC ’s weaknesses by identifying the relevant areas of law as a preliminary step to identifying relevant issues and sub-issues. 11 But HIRAC, like the other models I describe below, still omits crucial steps.
‘CRAC ’ stands for ‘Conclusion, Rule, Application, Conclusion’. People use ‘CRAC’ for persuasive writing. For example, when advocating a position in a brief rather than discussing an issue in a case—‘I’ changes to ‘C’, so that the writer states their conclusion upfront. 12
‘CRPAC ’ stands for ‘Conclusion, Rule, Proof, Application, Conclusion’. Adding ‘Proof’ recognises the uncertainty of law, requiring the writer to ‘prove’ the rule the writer advocates in a dispute about the applicable law. 13
‘TRRAC ’ stands for ‘Thesis, Rule statement, Rule explanation, Application, Conclusion’. Putting the writer’s ‘Thesis’ upfront mirrors ‘real life’. People reading a brief want the ‘bottom line’ first, and the support second. Adding a ‘Rule explanation’ section lets you discuss policy, analyse precedent, conduct counter-analysis, and analyse the rule in other ways to help the reader understand the rule and its application. 14 The creator of TRRAC stresses the need to present the model as a flexible model and not a ‘pair of formalistic writing handcuffs’. 15
‘IGPAC ’ stands for ‘Issue, General Rule, Precedent, Application, Conclusion’. Adding ‘General Rule’ and ‘Precedent’ clarifies how to apply the law to the facts. You will have facts from precedents that you can use to analogise and distinguish to support your application of the law to the facts in your case. 16
(f) IRAAAPC
‘IRAAAPC ’ stands for ‘Issue, Rule, Authority synthesis, Application, Alternative analysis, Policy, Conclusion’. Adding ‘Authority synthesis’ and ‘Alternative Analysis’ introduces the need to think about both sides of an argument. Adding ‘Policy’ shows that deciding cases involves more than just ‘rules’. 17 For persuasive writing, where the writer wants to put the conclusion first, the model changes to ‘CRAAAP’. 18
3. Better models
(a) (qfrfr)+irac.
(QfrFR)+IRAC stands for ‘Question, entire set of possibly relevant Facts and Rules, relevant Facts and Rules, Issue, Rule, Application, Conclusion’. This model recognises that IRAC describes only the result of analysis, not the process of analysis. The model explicitly recognises the need to do preliminary analysis before working out the issues. That preliminary analysis involves clarifying the ‘Question’, sorting through all the facts and possible legal rules, and sorting out those elements of the rules that the facts call into play. 19
‘MIRAT ’ stands for ‘Material facts, Issues of law and policy, Rules (and Research and Resources), Arguments—Pro and Con (or Application), Tentative conclusion’. Students and lawyers should read Professor John Wade ’s MIRAT model 20 to understand its sophistication. But some features include:
- the 5 concepts in MIRAT, especially the first 3, interact: ‘research unearths more “rules”, which leads to identification of new issues, questions about missing material facts, and a quota of fresh arguments. That is, it is an identifiable skill itself to move “to and fro” between the first three concepts thereby expanding and refining material facts, issues and rules.’ 21
- identifying issues depends on how much law you know: ‘issues emerge gradually. They arise initially from experience, first impressions or gut reactions, and then in more detail as legal research progresses. As any issue is identified, the question can be asked “How did you decide that was an issue?”’ 22
- relevant resources extend beyond the law library: ‘lawyers must acquire the basic skills of locating current case and statutory rules and expressing these accurately’ 23 but other ‘rules’, such as ‘street law, the law in action, trial judge law’ should be ‘assiduously pursued.’ 24
(c) FAILSAFE
Professor Bryan Horrigan has invented an even more detailed model that captures all the steps in litigant-focused research and problem-solving:
Horrigan provides another model to structure the writing that follows the problem-solving process:
4. Non-academic models
Academic lawyers have written most of the models described so far. But one of the best models comes from a Canadian article that synthesises the ideas of several practising lawyers. 25 The model succinctly describes the processes involved in 5 steps: ‘Identify the Facts’; ‘Analyze the facts to identify issues’; ‘Identify the Issues’; ‘Gather the Raw Research’; and ‘Analyze the Raw Research ’.
5. Inter-disciplinary models
Some authors invoke disciplines beyond just the law. For example, Margot Costanzo applies theories about preferences in thinking and personality to the process of identifying and solving legal problems. 26 Costanzo engages all parts of the brain through text, pictures, and diagrams.
Michael R Smith applies inter-disciplinary theories to the result of legal problem-solving—namely, persuasive writing. 27 He analyses psychological theories of persuasion and then explores persuasive writing strategies those theories sugges t.
What makes a good problem-solving model?
In my next column, I will use the problem-models described so far to isolate the traits we should look for when developing and evaluating useful legal problem-solving models.
1 Stephen Nathanson , ‘Problem-Solving in Professional Legal Education’ (1989) 7 Journal of Professional Legal Education 121, 123. Nathanson continues: ‘A process model reinforces the idea that people should not jump to conclusions they should not try to solve problems prematurely, but rather go through all the steps first’.
2 See also Michael BW Sinclair , ‘What is the “R” in “IRAC”’ (2002–3) 46 New York School Law Review 457, 473 (noting IRAC ‘is pure Langdell in its jurisprudence’).
3 Bryan Horrigan, ‘Materials on Problem-Solving Techniques’, prepared by the University of Canberra Law School, accessed May 2007.
4 Robert A Kesler , ‘Analysis of the Problem’ in William R Roalfe , How to Find the Law (1965) 9, 9.
5 See, for example, Thomas Michael McDonnell , ‘Playing Beyond the Rules: A Realist and Rhetoric Approach to Researching the Law and Solving Legal Problems’ (1998) 67 UMKC Law Review 285, 287: ‘It is undeniable that the major decision-makers in the legal system possess a large reservoir of discretion—a discretion that written, published law fetters loosely, if at all’.
6 Manning Warren , ‘IRAC Response’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 19.
7 See, for example, David J Jung , ‘I Love IRAC?’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 10 (noting ‘the real problem is with the A’. It suggests ‘a mechanical process that doesn’t exist’. ‘“Application” connotes something difficult … the reason for the rule, principles, policies, the judge’s breakfast must come into play … The application has to take you outside the issue and outside the rule if it is to get you to the conclusion’.
8 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 289.
9 For a more comprehensive description of the tasks involved in legal problem-solving, see Troy Simpson, Win More Cases: The Lawyer’s Toolkit (2008). For examples of how to use IRAC to organise an analysis, in an exam setting, see Harry McVea and Peter Cumper, Learning Exam Skills (1996, 2002 reprint).
10 Kathy Laster et al, Law as Culture (1997) 170–171.
11 Bryan Horrigan , ‘Materials on Problem-Solving Techniques’, prepared by the University of Canberra Law School, accessed May 2007.
12 Charles R Calleros , ‘IRAC: Tentative and Flexible and Therefore Reliable’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 4; Deborah E Bouchoux , Aspen Handbook for Legal Writers (2005) 160.
13 Charles R Calleros , ‘IRAC: Tentative and Flexible and Therefore Reliable’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 4.
14 Kim Cauthorn , ‘Keep on TRRACING’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 5.
15 Kim Cauthorn , ‘Keep on TRRACING’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 5.
16 Mary Garvey Algero , ‘On IRAC’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 4.
17 Ellen Lewis Rice et al, ‘IRAC, The Law Student’s Friend or Foe: An Informal Perspective’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 13.
18 Ellen Lewis Rice et al, ‘IRAC, The Law Student’s Friend or Foe: An Informal Perspective’ (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 13.
19 Dennis R Honabach , ‘“IRAC” or “(QFRFR)+IRAC” (Nov 1995) 10 Second Draft: Bulletin of the Legal Writing Institute 13.
20 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283.
21 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 284.
22 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 287.
23 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283.
24 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 288.
25 Barbara Cotton , ‘Advanced Legal Research and Writing: How to Build a Cadillac’ (1991) 13 Advocates’ Quarterly 232.
26 Margot Costanzo , Essential Legal Skills: Problem Solving (1995).
27 Michael R Smith , Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002).
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- Answering a legal problem - IRAC
Proper planning is vital to successfully answering a legal problem. Below are some hints and tools using a problem from Company Law. When answering a legal problem, it is useful to apply the IRAC structure so that you address all areas required.
- IRAC structure
The IRAC method has four steps:
- Identify the issue
- Relevant law - Here you need to explain the law not just state it. This could be sections/s of the Corporations Act or case law
- Application to the facts - the law is applied to the facts of the problem
Use the following IRAC structure as a guide to answer case study questions.
- Issue: Define the legal relevant issue.
- Relevant law: Identify legal principles from cases and statutes. Explain the law, don't just state it.
- Apply to the facts: Develop legal arguments by applying the law to the facts.
- Conclusion: Arrive at a considered conclusion.
Note: Students gain the most marks by explaining the relevant law and then applying it to the facts.
Example question and answer
Bingo Ltd is a manufacturer of electrical goods. It entered into a contract with Melvin Ltd, a large discount retailer. Under this contract, Bingo Ltd was to supply its goods exclusively to Melvin Ltd. The directors of Melvin Ltd subsequently discover that a wholly-owned subsidiary of Bingo Ltd is selling identical electrical goods to competitors at cheaper prices. It appears that the subsidiary was incorporated to enable Bingo Ltd to avoid the effects of the contract with Melvin Ltd. Advise the directors.
(This a five-mark question)
Please note: This is a simple low mark answer (5 marks) to illustrate the use of IRAC only. Many Company Law problems will involve multiple issues. In these scenarios each issue would need to be addressed. For example: The first issue is... The second issue is whether...
1. Read the following question.
2. Now read the following text and try to identify the IRAC structure. Check your understanding by clicking on the buttons to reveal the IRAC structure.
Read the following question, then identify which part of the IRAC structure best fits each text excerpt by selecting from the drop down menu.
- Writing case notes
- Writing a legal memo
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