Hello! This is another post from the Written Advocacy Series. Time to have a look at the most basic, yet often overlooked aspect of writing a memorandum: the correct way of presenting an argument. Making a substantiated claim is difficult. Unless, of course, you bear in mind these three simple rules.
- BARAC, IRAC, CRAC and more
To understand your argument judges and arbitrators need to know: what you request, what are the legal grounds for your request and what circumstances make your request justified. Once they have it, they will rule in your favour. These three ingredients are found in a recipe for a correct argument, which is called BARAC. BARAC is a framework for making an argument and stands for:
– Bold Assertion: claim, request, what you want the court or tribunal to confirm;
– Rule: the legal norm applicable in the case;
– Application: explanation how the test or threshold derived from the norm is met;
– Conclusion: summary of the whole reasoning and repetition of the Bold Assertion.
If you googled it, you would find dozens of other abbreviations similar to BARAC. IRAC, CRAC, ILAC… The idea is always the same: to clearly say what you at the beginning and then justify in an orderly manner.
Do you need some practice? Let’s have a look at an example.
Imagine a situation when you are suing a company who did not comply with the contract it signed with your client: it delivered goods of different shape and colour than agreed ad now refuses to return payment. How will BARAC work in this relatively simple case:
– Bold Assertion: Respondent breached Art. 5 of the contract;
– Rule: a contract is the law between the parties and it stipulated that Respondent should deliver 50 round red items;
– Application: in the case at hand, Respondent delivered 50 blue triangle items;
– Conclusion: Respondent failed to comply with its obligations, which amounts to a breach of contract.
As simple as may it seems, these elegant reasonings become distorted and twisted in more complex cases. Be wary of it and always keep your writing on the BARAC track. Hardly ever during a moot court you will find yourself in such a straightforward situation. However, you must find a way to fit even the most difficult, complex arguments into this framework – it is simply the most effective.
- Build a 3-layer high pyramid
As we discussed in the previous post, you should limit the number of “layers” when you structure your memo. The “pyramid” of arguments you build to substantiate each claim allows to clearly distinguish between main points and subsidiary points. Adding too many points, though tempting, might give the opposite effect: the reader gets lost and forgets how subsidiary points are related to each other. Beyond the 3-layer threshold you increase risk that the memorandum becomes too fragmented to follow easily. Ideally, your main arguments should preserve simple outline and look e.g. like this:
I. Respondent breached Art. 5 of the contract
A. Respondent delivered goods which failed to comply with contractual requirement
1. The goods were of different colour than stipulated in the contract
2. The goods had shape different than stipulated in the contract
Unless it is indispensable (though sometimes it might be the case) do not go further. Moot issues are usually simple enough to fit them within such form.
- Imagine you write the award for the tribunal
The most general and universal guideline for formulating the argument in my opinion derives from the goal each argument is supposed to achieve: swaying judges or arbitrators in you favour. If your reasoning is so strong and your reasoning so good that judges or arbitrators feel like copy-pasting it to the final award, then you achieved the desired result. At the end of the day, the argument you are making is essentially what you would like the tribunal to decide. Write and revise the memorandum as if it was a final decision you would gladly sign and take responsibility for.
Remember to follow these rules and the chances your argument will be understood are high. However, how to make it too persuasive for the arbitrators to reject? We will focus on it in the upcoming posts from the Written Advocacy Series.