Phương pháp giải quyết tình huống pháp luật bằng IRAC pdf

Theo Wikipedia thì IRAC đọc là EYE-rack là viết tắt của 4 từ sau: Issue, Relevant law, Application facts, và cuối cùng là Conclusion.. The IRAC Method of Written Legal Analysis: A Writti

Phương pháp giải quyết tình huống

pháp luật bằng IRAC

IRAC là gì? Theo Wikipedia thì IRAC (đọc là EYE-rack) là viết tắt của 4 từ sau: Issue, Relevant law, Application facts, và cuối cùng là Conclusion Nó được dùng làm phương pháp để phân tích các tình huống pháp luật

Ý nghĩa của nó có thể hiểu như sau

1 Issue: các sự kiện có ý nghĩa pháp lý, các tính chất pháp lý của vụ việc Các vấn

đề cần giải quyết Các câu hỏi của khách hàng đặt ra Thường thì câu chuyện rất dài, rất nhiều tình tiết nhưng ta chỉ cần tóm lượt được tình tiết có ý nghĩa pháp lý

Chẳng hạn anh A yêu chị B sắp đi đến kết hôn nên anh A quyết định mua một căn nhà để sau này về sống chung, Anh A có mượn của má chị B là bà M một số tiền

để mua căn nhà đó Tự nhiên anh A bị tai nạn nằm bệnh rất lâu rồi mất Bà M đòi gia đình anh A phải đưa căn nhà đó cho chị C

Tóm gọn lại sự kiện trên ta chỉ cần quan tâm : A và B chưa có kết hôn A sở hữu căn nhà x A mượn bà M một số tiền y A chết M đòi sở hữu nhà do A để lại

2 Relevant law: pháp luật liên quan trong trường hợp này là gì? dân sự, hình sự,

hành chính hay thương mại Có thể áp dụng tập quán pháp không? Cũng có thể là các bản án đã xử, để tìm hiểu các vận dụng luật của quan tòa trong tình huống cụ thể đó như thế nào

Có nơi thì gọi là Rule: cũng có thể hiểu là các quy tắc pháp luật nào được áp dụng

3 Application facts: chổ khác thì gọi là Analysic còn nói đơn giản là vận dụng

luật cụ thể vào tình huống của mình như thế nào Tại sao dùng điều luật này mà không vận dụng điều luật khác Đây chính là phần quan trọng nhất vì nó giải thích các vấn đề đặt ra ở phần 1

4 Conclusion: Đây là phần kết luận cuối cùng giải đáp các vấn đề đặt ra ở phần 1

The IRAC Method of Written Legal Analysis: A Writting Tool for Legal Assistants

While working in a law office as a paralegal or other research position, your supervising attorney will request that you make a written analysis of each case you research He/She will more than likely expect that you know how to do this The results of your legal analysis should be put into writing so that they can be used in the future in addition to the case at hand

The written analysis will likely mirror your thought process during your research This written analysis of a case needs to be concise and to the point All of the

necessary facts must be present but an attorney or judge basically wants to know four things:

Issue-what your client's problem is

Rule-what the rule is

Analysis-how that law will affect your client's case

Conclusion-what you expect to be the likely result

One widely accepted method for conveying your thoughts in a logical order is known as IRAC IRAC is an acronym for Issue, Rule, Analysis, and Conclusion The IRAC approach is certainly not the only approach and nor is it always the best, but it is always a very good starting point Here is the basic information to be contained in each of the IRAC elements:

Issue

Create a topic sentence that states the issue you will be discussing in the paragraph Again, make this brief and concise Only use one issue in this paragraph If your case includes different issues, use the IRAC method for each issue

Rule

In this section, you need to state the rule of law that you found to govern the particular issue at hand Be sure to quote the exact statutory language However, if the statute is long, quote only the relevant language You should use ellipses to show any omissions but be sure that your omissions do not change the rule or statute's meaning

Analysis

Now you need to explain how the statute and policy of the statute will determine the outcome of your client's case Be sure to note the strengths as well as the weaknesses of your argument so that your attorney can be prepared You will also

be doing your client a great disservice by not pointing out the pros and cons of your application of the law to his or her case

Conclusion

You must conclude the analysis You cannot leave your reader to make their own conclusion because that is what you were asked to do Tell your reader what the outcome of the case is likely to be in relation to the research As noted earlier, this IRAC method is to be used for each issue pertaining to the facts of your client's case Include a paragraph for each issue Also include in your written analysis a

"road map" paragraph that outlines the events that led to the case Tell your reader what happened to get your client to this point After using the IRAC method on all

of your issues, include a concluding paragraph This will include the incorporation

of all of the elements and issues of the case and how the case is likely to turn out based on your legal analysis

When working in a law office you must also first consult with your supervising attorney on what he or she prefers Some attorneys would rather use a CRAC method that starts with a conclusion Many attorneys still find this IRAC method

to be very effective in conveying a legal analysis Also be sure to use transitions to help your reader move from one thought to the next and to see the connections between them Legal research is often regarded as the most important job a legal assistant has in a law office, however without an effective way of communicating that research to your attorney, it is just a thought

Briefing Cases The IRAC Method

When briefing a case, your goal is to reduce the information from the case into a one-page case brief When we discuss the case in class, you will immediately be able to discern the problem the court faced (the issue); the relevant law the court used (the rule); how the facts of the case applied to the rule (the application); and the outcome (the conclusion)

Follow the “IRAC” (Issue; Rule; Application; Conclusion) Method

Facts:

For case briefs only (not exams), write a brief synopsis of the facts as the court found them to be

Procedural History:

For case briefs only, write as much information as possible about the history of the case What court authored the opinion? The Supreme court? Court of Appeal? What was the decision(s) below? Did the lower court issue the decision following

a court trial, jury trial, or motion for summary judgment?

Issue:

Next, identify the issue(s) Usually, only one issue will be discussed, but sometimes there will be more What is the fight over in the case?

For example, the main issue in Roe v Wade was whether a state could constitutionally restrict a woman from procuring an abortion without violating the 14th Amendment

Rule(s):

Next, list the relevant rule(s) of law that the court identifies Each case will give a discussion of the relevant law

Application:

This is probably the most important portion of the brief The case will undoubtedly discuss how the facts interplay with the relevant rule(s) of law

Conclusion:

What was the final outcome of the case? This should be a short statement

What is IRAC?

IRAC stands for Issue, Rule, Application, Conclusion It is one way to structure legal analysis An effective essay (no matter the overall length) follows some form

of the IRAC structure where it is organized around each of these elements for each and every issue and subissue identified as a legal problem

IRAC is an extremely useful tool in organizing any law related essay answer It is not the only way to structure an answer, but it helps to make sure all bases are covered

So, until you achieve the level of mental and written fluency where you can weave together rule and fact in a seamless tapestry and transition between thoughts without loss of either the substance or your reader, you might choose to rely on some form of IRAC to keep focused Use IRAC as tool for organizing your thinking and your writing

Think of it as a weaving loom that is there only to support the threads of your argument, while you weave and create an intricately beautiful piece of fabric, i.e a complete, logical argument Soon, the process will become automatic and you will rely less and less on the loom Until then, you have something you can rely on to guide you through the process

How to IRAC

1 State the issue

The issue is the most important element in the analysis and must be stated in a way[COLOR=rgb(0, 0, 0)][/COLOR]to show what is in controversy The legal question weaves together the rule and the facts particular to the problem you identified

Articulate the issue by creating the legal question presented by the facts To find the issue, ask: “what is in controversy in these facts.” (Of course you need to know the law to find a legal question in the facts.) Use the “whether, when” structure to help you isolate and write an issue statement Some professors might not want to see this particular language – “the issue is whether.” You achieve the same result with other words – “Did” or “Can.” Don’t get fixated on language Follow your professor’s instruction, either way you achieve the same result: identification of the legal problem

You should always use the following language to guide your thought process:

“The issue is whether,” then identify and state the legal conclusion you want the court to reach Don committed a battery, (or an offer was made, or the court can assert personal jurisdiction) and connect to the “relevant” facts (the relevant facts being those facts which impact the outcome) when he pushed Pam even though he knew she was in no danger of being hit by the bicyclist (or when he said, “would you buy my watch for $500 in cash next Tuesday?” or when the defendant conducted business in the forum state, had an office and a full-time staff, and paid state taxes) When completed, the sentence will read: “The issue is whether Don committed a battery when he pushed Pam even though he knew she was in no danger of being hit by the bicyclist.”

2 State the law

After you have the issue, you must articulate the rule The rule and the facts are inextricably linked Your analysis of the facts will not make sense unless you have first identified the rule which determines the legal meaning to be attributed to those facts

Use building blocks for writing the rule of law, consider:

♦ Elements

♦ Definitions

♦ Exceptions to the general rule

♦ Limitations to the rule

♦ Defenses

When writing, follow a hierarchy of concepts by:

♦ Moving from the general to the specific

♦ Defining each legal term of art

Identify:

♦ The consequences of applying the rule – what will happen?

♦ What are the consequences of this rule in this situation?

Which leads you to consider:

♦ What does application of the rule mean here? What will be its effect?

3 Analyze the facts in light of the law

The analysis or application is the heart of the discussion and sometimes works better combined with the rule It is where you examine the issues raised by the facts in light of the rule Your statement of the rule will drive your organization of the analysis

You simply match up each element you have identified in the rule (in order) with a fact, using the word “because” to make the connection between rule and fact

“Because” is the single most important word to use when writing the analysis Using the word “because” forces you to make the connection between rule and fact Also make use of the words “as” and “since” — they serve the same function

as “because” and sometimes will sound less redundant when used in the same paragraph as “because.”

4 Conclusion

Conclude each issue before drawing your final overall conclusion There is no right or wrong answer, only logical analysis based on the rule and the facts which lead to a reasonable conclusion Note: Repeat the process for each issue you identify — each issue forms the basis for a separate IRAC analysis

Examples

1a Don’t write:

In this case, while Pete the police officer was giving Dan a sobriety test, he noticed that Dan fit the description of an eyewitness to the robbery, giving the police officer probable cause to arrest Dan

1b Do write:

In this case, Pete the police officer realized that Dan fit the description of the suspect, providing probable cause for arrest, because Dan was extremely tall at 6’4”, was wearing a green and tan sweater with purple patches and pointy-toed alligator cowboy boots, fitting the description provided by the eyewitness to the robbery

2a Don’t write:

ABC Inc engaged Dr Jones to develop a drug that reduced hair loss Dr Jones worked in his own laboratory, hired and fired his own assistants and set their working hours as well as his own He meets with the President of ABC every Friday morning to discuss progress on the project, and at this time, Dr Jones submits his timesheet for payment The President pays Dr Jones weekly

2b Do write:

Here, Dr Jones can be considered an independent consultant for ABC Inc because he completes all the research and development work in his own laboratory, in a separate facility from that of ABC, where he has direct control over the employees because he hired his own assistants, setting their work hours

He also exercises direct control over his own work because he sets his own work hours and only meets with ABC once a week Further, since he only meets with the President of ABC on a weekly basis to discuss progress on development of the

hair loss product, the President does not supervise Dr Jones on a daily basis as to the work which goes on in the laboratory