> For the complete documentation index, see [llms.txt](https://jennyrice.gitbook.io/wrd-418-legal-writing/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://jennyrice.gitbook.io/wrd-418-legal-writing/chapter-6-writing-objective-legal-analyses/memo-discussion-section.md).

# Memo Discussion Section

Legal arguments and analyses can be complex, often involving multiple issues, sub-issues, or even sub-sub-issues. To organize your thoughts clearly in a legal memo's discussion section, we use a <mark style="color:blue;">**nested CREAC structure:**</mark> Conclusion, Rule, Explanation, Application, Counteranalysis — repeated as needed for sub-issues.&#x20;

For each issue you analyze, you will follow the CREAC structure in this way:

## <mark style="color:blue;">**1. Start with the Conclusion (C)**</mark>

In a legal memo, start your issue’s discussion with the likely conclusion. This lets the reader know immediately what your prediction or answer is. Think of it as the “answer” in a math problem before showing the work. Next, identify the controlling rule of law and its elements. After that, explain which of these elements need to be addressed as sub-issues in the memo. These will be the sub-issues that follow next in the discussion (after this opening.) &#x20;

**Example Paragraph Opening:**

> <mark style="color:blue;">**Ms. Connor most likely will not have a strong fair-use defense.**</mark>**&#x20;**<mark style="color:red;">**In determining fair use, the statute outlines the following factors: (1) purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Campbell v. Acuff-Rose Music, Inc., 510 U.S.569, 577 (1994)**</mark>. <mark style="color:purple;">**The deciding factors in this case are the first and third fair-use factors, which both weigh against Ms. Connor**</mark>.&#x20;

<mark style="color:blue;">**Blue = Likely conclusion**</mark>

<mark style="color:red;">**Red = Controlling rule of law + elements**</mark>

<mark style="color:purple;">**Purple = Which elements will be addressed as sub-issues**</mark>

***

## <mark style="color:blue;">**2. State the Rule + Explain (R+E)**</mark>

After your conclusion, **summarize** **the general legal rule that governs the issue.** The rule can be a statute  (law written by the legislature), a synthesized rule from multiple cases, or both.&#x20;

<mark style="color:$info;">**Example**</mark>**:**

> “Under the Copyright Act, a person infringes copyright when they reproduce, distribute, or publicly display a copyrighted work without permission.”

After summarizing, you'll then **explain how courts apply the rule in the various precedents**. When you explain how a court applied a rule in a memo, it can be helpful to use a three-part paragraph structure:

<figure><img src="https://lh7-rt.googleusercontent.com/slidesz/AGV_vUeynJa-A_jcTpwadwp2uudwu66OxRrLACfzwKe22VR4Ere4RcMSFzQVohgzEUNsarKbtT2b0UcCn9pL--tSx50XnhAWX21i8ao6aq0n250RcLmZZ4RskoVnVqIrhb0lNZxjQrl6PFNNjoWw6KrdqZ9SOcmIPOxL=s2048?key=SkUS96CCLqzvM2C8oAtqoA" alt=""><figcaption></figcaption></figure>

1. <mark style="background-color:blue;">**Present the Holding (What the Court Decided)**</mark>

   * Begin by stating the case name and the court.

   * Clearly summarize the legal decision or holding.

   > “In *Case Name*, the \[Court] held that \[present the holding].”

   **Example:**

   > “In *Smith v. Bakery*, the Court of Appeals held that a bakery is strictly liable for injuries caused by an unattended spill in the store.”
2. <mark style="background-color:blue;">**Describe the Salient Facts (What Happened in the Case)**</mark>

   * Explain the relevant facts that led the court to its decision.

   * You can use multiple sentences if necessary.

   > “There, \[present all salient facts; can use multiple sentences].”

   **Example:**

   > “In that case, a customer slipped on a puddle of water near the entrance, which had been present for at least 30 minutes. The store staff had not cleaned it or posted a warning sign.”
3. <mark style="background-color:blue;">**Explain the Court’s Rationale (Why the Court Decided the Way It Did)**</mark>

   * Describe how the court reasoned from the facts to the holding.

   * Focus on the principles and reasoning the court relied on.

   > “The court reasoned that \[give the court’s rationale; can use multiple sentences].”

   **Example:**

   > “The court reasoned that businesses have a duty to maintain safe premises, and a hazard that persists long enough for the business to discover it constitutes constructive knowledge, triggering liability.”

{% hint style="success" %}
Example of three-part rule explanation:

<mark style="color:purple;">**In State v. Smith, the Supreme Judicial Court of Maine held that a non-verbal act constituted a communication for purposes of the state's marital privilege statute.**</mark> <mark style="color:red;">**There, the defendant stole a gun and a camera and showed these items to his wife who was waiting in a getaway car.**</mark>**&#x20;**<mark style="color:green;">**The court concluded that the defendant's act was the equivalent of spoken words; it was as if the defendant had said "I have stolen a gun and camera."**</mark><br>
{% endhint %}

{% hint style="warning" %}
**Tip:** Keep this section general. **Do not include your client’s facts yet.**
{% endhint %}

***

## <mark style="color:blue;">**3. Application/Analysis (A)**</mark>

This is where you connect your client’s facts to the law — like “showing your work” in math.

#### **Techniques for Effective Application**

1. **Fact-Matching:** Compare the facts of your case to precedent facts.
2. **Analogy:** Show how your situation is similar to past cases.
3. **Distinction:** Show how your situation differs from past cases and why that matters.

**Example Paragraph:**

> “<mark style="color:orange;">**Like in Case A,**</mark> Alice copied an entire copyrighted book, which the court held was infringement. <mark style="color:orange;">**In our case,**</mark> Bob uploaded full images without permission, which is similar because both involve copying without consent. <mark style="color:purple;">**Unlike Case B,**</mark> where the court allowed copying short quotes for research, Bob copied entire works publicly, making infringement more likely.”

**Tips for Application Paragraphs:**

* Be explicit; don’t leave connections for the reader to figure out.
* Weave precedent into your client’s facts to clearly justify your conclusion.

***

## <mark style="color:blue;">**4. Counteranalysis (C)**</mark>

Since legal memos are objective and predictive, you must show that you have considered alternative outcomes.

#### **How to Include a Counteranalysis**

* Ask: “Could someone argue a different outcome?”
* Briefly explain the alternative argument.
* Show why it is weaker or less likely, using analogy and distinction again.

**Example Paragraph:**

> “One could argue, like in Case B, that Bob’s copying was minimal and educational, so it shouldn’t count as infringement. However, unlike Case B, Bob copied full images and used them publicly, making this argument less persuasive than the conclusion that infringement occurred.”

***

### **Putting It All Together: Nested CREAC**

Each issue or sub-issue gets a mini CREAC paragraph sequence:

1. **Conclusion:** State your prediction for this issue.
2. **Rule:** Summarize the governing law/statute or synthesized rule.
3. **Explanation:** Explain how courts have applied the law in past cases.
4. **Application:** Compare your client’s facts to the rule and cases.
5. **Counteranalysis:** Consider alternative arguments and why they are less persuasive.