Writing in Law
Like writing in other disciplines, all academic writing in Law courses should be clearly structured, persuasive, and take a position. Despite these similarities, legal writing emphasises accessibility and precision when communicating ideas and interpretation of a case or topic. This is largely due to its practical application in the legal profession.
Being able to write persuasively and concisely are fundamental skills required of legal practitioners, so developing these communication skills at an early stage is crucial. Even if you do not go into a legal career, these written skills will be useful in other professional areas of employment, such as the public service.
Legal academic writing has its own conventions and standards that will be explored in the following topics. You will find useful strategies you can use to help refine, structure and present your position in some of the most common forms of law assessment
Using HIRAC
Most legal reasoning follows a particular convention: HIRAC. HIRAC provides a statement of the issue or concern (Issue); an explanation of the legal rules that are applicable to the issue (Rule); an application of the rule to a client's facts (Application); and a conclusion that summarises the explanation and application provided (Conclusion). HIRAC is useful as a way of organising and structuring a response to a problem question.
Typically, HIRAC is used to test your ability to analyse facts in a legal case and to apply the law to the facts to see what the possible outcome might be. They also test your ability to identify relevant legal issue(s) and to evaluate competing legal precedents. Whatever the legal problem is, a clear argument or position is required to be taken. This argument should use primary sources (legislation and cases) to persuade its audience and successfully address counterarguments relevant to each legal issue.
How to structure a HIRAC response?
What follows is a general guide for using HIRAC. HIRAC is generally understood to be a flexible framework which can be used in multiple contexts. As you practice using HIRAC during your degree, it is important to develop a fluid framework that suits you.
It should be noted that HIRAC should not be used too rigidly, but it does provide a useful way to structure a response to a legal question. When you write an assessment using HIRAC, remember that some lecturers will prefer you to follow the method carefully while others won't be as rigid. You will need to clarify your expectations with them.
Heading
Identify the legal issue and summarise it in your heading. This is usually phrased as a short question that encompasses the legal issue.
Issue
Identify the issues that are central to the case. This can be done briefly. Ask yourself what legal question(s) the facts raise. When writing down the issue(s) you should think about questions a judge might be asked to answer. Be aware there might several issues raised. If more than one issue needs to be analysed, the following sections might need to be repeated several times. For example, HIRAC 1, HIRAC 2, HIRAC3, etc, then an overall conclusion.
Rule
Identify the law or legal principle relevant to the issue. This should consist of a brief statement of the legal principles to be applied as a way of signposting your analysis in the next section. A citation for each rule should be included. This is done by referring to a primary source of law (legislation or a case). The rule will generally need to be broken down into its component parts and stated accurately to avoid misinterpretation.
Application
Apply the law to the facts. This is the main part of your answer. This is where you match each element of the legal rule(s) you have identified in the previous section with fact. You need to consider arguments on both sides. Are the facts of your case similar to a previous case or can they be distinguished? You need to make an argument here and support that argument by reference to the law. If the law is unclear on a particular set of facts, you are expected to engage in a detailed hypothetical discussion about how the courts are likely to respond to this ambiguous area of the law. Unlike a traditional essay, your main points or conclusions should be stated at the end of each paragraph of your application.
Conclusion
Based on your analysis in the previous section, state a conclusion as to the most likely outcome. This is where you summarise the points of your argument and suggest an answer to the question presented as the heading. You should make a clear statement about what you think is the strongest outcome is likely to be.
Sample HIRACs
Here is a sample of a HIRAC response, focusing on one issue. Note how it addresses the issue concisely. It provides the relevant rule, with references, and applies that rule to the scenario in question. The conclusion is a concise final sentence.
Mitomi v Trinity Beach Life-Saving Club Inc.
Duty of care
Mitomi must establish the Club's personal liability by proving that it owed a duty of care. The defendant will owe a duty when their actions or omissions lead to a reasonably foreseeable risk of inury to a foreseeable plaintiff or class of plaintiffs.[1] Reasonable foreseeability is that which is 'not far-fetched or fanciful'.[2] The vulnerability[3] and special characteristics of the plaintiff[4] are also relevant to duty.
In taking responsibility for the safety of the beach it is reasonably foreseeable that the Club's omission to provide a universally recognisable warning sign led to a risk of injury to a class of plaintiffs of which Mitomi is one. It is foreseeable that a tourist not understanding the sign would swim in the enclosure. Mitomi is a foreseeable plaintiff as tourists frequently visit the area. Mitomi's vulnerability is increased because she cannot read English, the club owes a duty to all foreseeable plaintiffs not just English speaking plaintiffs. Therefore, a duty of care is likely to be found.
Here is another sample HIRAC addressing the same scenario. Again, note how it concisely and clearly analyses one issue, follows the steps of heading, rule, issue, application and conclusion.
Mitomi v Trinity Beach Life-Saving Club Inc. ("the Club")
Duty of care
Following Donoghue v Stevenson,[1] the Club must take reasonable care to avoid acts or omissions, which they can reasonably foresee would cause injury to their neighbours. In this case, the Club's neighbours are the visitors who frequent the beach and are likely to enter the stinger-free enclosure. These people ought to be within the reasonable contemplation of the Club. The Club has assumed responsibility for patrolling the beach and monitoring beach safety. This gives rise to a duty to take reasonable care to avoid foreseeable risks of injury to those entering that part of the beach that the Club patrols. In the similar cases of Nagle v Rottnest Island Authority[2] and Manly Municipal Council and Anor v Boylan,[3] the Court identified management and control as elements that gave rise to the duty of care. As this would therefore appear to be an established area of duty it can be readily concluded that the Club owed Mitomi a duty of care.
Essay writing in Law
The purpose of a legal essay is to advance or persuade your reader of a particular understanding, interpretation, or application of law. In order to do this, legal essay writing needs to be simple, compelling, and well-constructed. Unlike a paper that utilises HIRAC, a law essay involves detailed analysis and discussion of the law in a more abstract setting. When writing a legal essay, you are required to take up a position in response to a question. But how is this different from essays you write in other disciplines? The following information provides some suggestions about the specifics of writing a legal essay.
What distinguishes a law essay from an essay written in another discipline?
Like essays written in other disciplines, legal essays require a central argument, based on logical reasoning and critical analysis of evidence. They should have a clear structure with a strong introduction and conclusion. As Baron and Corbin (2016, p. 26) note, even though legal writing is perceived to be portrayed as logical, highly structured and formal, composition of law essays is much as the same as any other essay writing.
"The manipulation and use of language are at the heart of the common law legal tradition" (Webley 2013, p. ix).
There several features that, in one way or another, distinguish legal essays from essays written in other disciplines. Probably the most crucial difference is the use and control of language. Law essays should be written clearly, concisely and with precision. For example, a lot of emphasis is placed on the use of simple English. This is because much of the subject matter is complex and needs to be communicated clearly to a specific audience. Words should be chosen carefully and the use of clichés should be avoided. The following table summarises some of the other similarities and differences:
| Similarities | Differences |
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The best way to become familiar with the expectations of a good legal research essay is to read some articles in legal journals, taking note of style, tone and citation.
Is your essay writing clear and concise?
Clarity has been described as the most basic and paramount goal of legal writing (Baron & Corbin 2016, p. 70). Not only must your reader be able to understand the contents of your essay, they must be able to easily identify your position and follow your logic. In other words, you need to ensure that your writing makes its point efficiently and with an appropriate level of detail so as not to waste the time of your reader.
When it comes to the editing stage of your writing process, you should ask yourself the following questions:
- What information does the reader need?
- Is the work organised clearly so that the reader can find the information they need easily, and understand the points made?
- Is the language used clear and appropriate for the audience?
Like an essay written in the humanities or social sciences, it's important to make sure you take a clear position and have a clear thesis statement and signposting in the introduction (macro level). It is also important to make sure that your headings and topic sentences accurately reflects the sequence of the ideas presented in your signposting (micro level). Have you used clear and descriptive headings and subheadings? Are paragraphs and sentences connected smoothly? Do paragraphs build on each other or introduce new topics? Do your topic and concluding sentences reflect such transition?
For more information about essay argument and structure, see our page on essay writing.
Baron and Corbin (ref) recommend the following tips for achieving clarity:
- Use ordinary words and simple sentence structures. Avoid legalese (the use of Latin words; overcomplicated sentences; legal jargon) and keep sentences to no more than 22 words, although this should not be adhered to rigidly.
- Vary sentence structures, vocabulary and sentence length. This creates a more natural flow that helps maintain the reader's interest. Vary sentence length to create a rhythm and interest in your writing.
- Develop your own voice. The aim of good legal writing is to develop an authentic professional voice, one that has character and individuality. This is something that helps to engage the reader. Achieve this by using an active voice.
- Pay attention to tone. Tone, according to Baron and Corbin (p. 74), is the expression of the writer's attitude towards the subject, audience, and self. In legal writing, the tone should be clear, concise, confident and courteous. While legal writing must be sophisticated, it should not be pretentious, and while courteous, should not be overly familiar or informal.
- Presentation matters. Good presentation of your written work can make reading easier and more engaging for your reader. Things to consider include text alignment, use of headings, spacing, and fonts. Information regarding formatting can be found in the AGLC. Make sure you proof read your work, paying attention to matters of style, presentation, and citation.
Making summaries
Summaries are an important tool when studying law because they enable an efficient and effective way of preparing for assessment items and exams. They can be used to help you identify what you know and what you don't know. Creating clear and well-structured summaries saves time and helps you produce neat, tight arguments backed up by relevant cases in your answers. Your examiners will appreciate this.
It is essential for you to put in the effort to produce your own summaries. Don't rely on the summaries prepared by others. These summaries may be useful to you, but will normally only be a useful supplement to your own studies. You have to spend time reflecting and pulling apart what you have been taught and building it up into a framework that you can use to complete your assessments.
Different summaries will work for different people. Find what works best for you!
There is no one way to write a summary. When you are summarising, you are collating information from lecture notes, tutorial notes, cases you have read and the textbook reading you have done. In some courses, you will be provided with reading lists. You can use these lists as a way of organise or planning your summaries. Reading lists are typically based on topics you will cover in lectures and cases relevant to these topics.
You should aim to write you summary twice. The first summary should be like the rough draft of an essay. At this stage you are gathering ideas, listing key concepts and principles, using headings to structure your notes, and potentially useful flowcharts. You should aim to do this at least 6 weeks or so before the exam. This will ensure that you:
- Give yourself plenty of time to revise;
- Know that, if there is an emergency, you will have something prepared;
- Force yourself to consider ideas more than once and refine what you have;
- Begin working on the overall conceptual framework of the subject.
Make sure you practice using your summary before the exam. One of the other good ways of preparing for an exam is to do past exams. You don't need to wait until you have completely finished your summary before trying some practice questions. As you work through the exam questions you may be able to add to your summary.
For information about preparing for exams, see our page on exam preparation.
What makes a good summary?
- A good summary is typed and clearly formatted. Organisation is key. You need to be able to glance at each page in order to find what you are looking for. If each page is well set out you can read to the point instead of around it.
- They use bullet points and avoid using full sentences. This makes finding information in an exam easier. Write in a way that makes sense to you.
- They contain information to help you locate the original source. Provide full references, including case names and page numbers, where necessary. The additional effort required is well worthwhile since it can be used later.
- They make good use of the abbreviations and key phrases. Abbreviations are excellent shorthand because they save a great deal of time and writing space. Develop your own system and use them consistently when making notes.
- They use visual aids, colour, and highlighting effectively. Flow charts, diagrams and other visual aids, such as tables, can help you understand a concept or case. A summary which makes good use of colour is easier to read and use. Decide what is right for you and use it consistently.
Preparing case notes
A case note is similar to a summary in that both require you to summarise information that will be useful when it comes to completing an assessment or preparing for an exam. The differences between a case note and a summary is the breadth of subject matter covered and the fact that a case note requires taking a position and evaluating the value of a particular case. In terms of breadth, a case note should focus on a single case, while a summary address a wider area of the law, focusing on a collection of issues, cases, and legislation. A case note can be included as part of a summary.
Case notes are a common method of assessment in law subjects because they are typically short and useful when constructing legal arguments. The purpose of legal case notes is to summarise and synthesise "the pertinent parts" of a legal judgment, including the facts, issue(s), and reasoning that went into court's decision making process (Corbett-Jarvis & Grigg 2017, p. 148). What they require you to do is thoroughly familiarise yourself with a notable court decision or statute and its legal context. This generally means examining the relationship between the decision and the existing case and/or statutory law, discussing important issues, cases, and legislation within that area.
Case notes tend to focus on important changes or interpretations of the law in certain cases. This is what makes them notable in some sense. When writing a case note, you should ask yourself what makes this case significant in the context of your course:
- Does it represent a significant departure from precedent?
- Does it represent a significant area of concern?
- Does it represent a first of its kind?
- Does it represent an abandonment of logical reasoning?
- Does it represent a precedent with long lasting effects?
A case note requires you to take a position (make an argument) and critically analyse the significance of the case in question. As Baron and Corbin (2016, p. 91) write, "[b]y articulating and arranging the information contained in cases... the writer can influence or persuade others to think in a more detailed way about the legal reasoning process".
How can I structure my case notes?
When writing a case note, the emphasis should be on being as clear and concise as possible. There is no definitive structure for a case note, but the following provides a flexible guideline of the common features. As a general rule, HIRAC should be used to compile and organise case notes.
Introduction
You should begin by briefly introducing the area of law, the legal issue(s), and what was decided. Indicate your line of argument: was this a significant decision? Does the decision create legal precedent, or uphold legal precedent? Explain the significance of the case, which should also indicate the organisation (or signposting) of the case note.
Facts
Identify the important, relevant facts of the case and, if appropriate, its background. This section will generally be more descriptive rather than analytical since you are just identifying the parties to the case (e.g. buyer, seller, employer, employee), procedurally significant facts, and the arguments that were put forward on behalf of both parties. Significant conflicting evidence should also be briefly noted. Keep it as short as possible.
Decision
In this section, you should provide the reader with an outline of the court's holding (i.e. the court's decision) on each relevant issue, as well as the court's reasoning. What is the legal rule essential to the decision in this case? Were comments made by the judge that are not directly related to the decision in this case, but may be important to issues raised in other cases? Reasoning is the way in which the court applied the rules/legal principles to the particular facts in the case to reach its decision. Indicate whether there was dissenting judgement and what reasons were provided for dissent. In closing this section, relate the selected case to the prior law to illustrate how, if at all, the selected case affects prior law.
Analysis
This is the most significant section of your case note: this is where you demonstrate your critical analysis and evaluation of the case in your own words. In other words, this is you provide your argument. Start by stating the existing and the major developments both supporting and opposing the decision of the court. Then critically analyse the court's reasoning and decision. The analysis should be presented logically and be signposted accordingly. If appropriate, attempt to predict the impact the case will have on future decisions. Address any ambiguous statements made by the court, and questions the court left unanswered. This section affords you the opportunity to demonstrate legal skill and prowess by dissecting the case and raising important issues involved.
These are useful questions to use when it comes to writing your analysis:
- Was the court's decision appropriate and persuasive? Was the court's decision influenced by policy issue or particular values?
- Does this decision change/conform with existing law? Was the reasoning consistent with previous reasoning in similar cases? Is it likely that the decision will significantly influence existing law?
- Did the court adequately justify its reasoning? Was its interpretation of the law appropriate? Was the reasoning logical/consistent? Did the court consider all/omit some issues and arguments? And, if there was omission, does this weaken the merit of the decision?
- What are the policy implications of the decision? Are there alternative approaches which could lead to more appropriate public policy in this area?
Conclusion
Your conclusion should summarise the main points of your analysis and reiterate the significance of the case. If your finding is that the decision creates legal precedent, or conversely, upholds legal precedent, what does that mean? What are the wider implications of this case? The length of the conclusion depends on the argument being made. If you reach the legal conclusion in a previous section, a brief summary is sufficient.
Reference List
Baron, Paula, and Lillian Corbin. Legal Writing: Academic and Professional Communication. South Melbourne, Vic: Oxford 51³Ô¹ÏÍø Press, 2016.
Campbell, Enid, Richard Fox, Melissa de Zwart. Students' Guide to Legal Writing, Law Exams and Self Assessment, 3rd Ed. Annandale, NSW: Federation Press, 2010.
Corbett-Jarvis, Nichola, and Brendan Grigg. Effective Legal Writing: A Practical Guide, 2nd Ed. Chatswood, NSW: LexisNexis Butterworths, 2016.
Macken, Claire. Law student survival guide: 9 steps to law study success, 2nd Ed. Rozelle, NSW: Thomson Reuters (Professional) Australia Limited, 2010.
Webley, Lisa. Legal Writing, 3rd Ed. London; New York: Routledge, 2013.