7.2 Critical Analysis and the IRAC Method

The PCCE blueprint’s critical analysis leaf is the thinking that sits underneath every memo, brief, and client letter in this chapter. You will not type a live brief in the Prometric room. You will be given a short fact pattern and asked which issue the facts raise, which authority supplies the rule, or which next analytical step a competent paralegal takes. Writers who jump to a gut conclusion and then hunt only for friendly quotes miss those items. Writers who run IRAC in order hit them.

Identify the audience first

The same research can produce three different documents. The audience decides the voice.

A classic miss is writing the office memo as if it were a brief: burying the bad case, overstating the holding, and ending with “we win.” The partner asked what the law is, not what a press release would say. The opposite miss is writing a summary-judgment brief in memo voice: “a court might possibly conclude either way.” The court asked for a ruling. CREAC (conclusion first) is built for that advocacy product. IRAC with a candid conclusion is built for the office memo.

Never treat “the client” as the audience for a document that exercises legal judgment unless the attorney has reviewed it. Explaining a hearing date is communication. Telling the client “you should reject this release because consideration is inadequate under state law” is advice.

Issue spotting

An issue is a precise legal question that the facts force the decision-maker to answer. “Torts” is a topic. “Whether a social guest can recover from a homeowner under this state’s premises-liability duty when the guest tripped on an unmarked step the owner had been told about” is an issue.

How to spot issues on a PCCE stem:

1. Circle the legally loaded facts — status of the parties (invitee, employee, officer, minor), dates (limitations, notice), writings (signed, oral, electronic), mental state (knew, should have known), and procedural posture (motion to dismiss, summary judgment, appeal).
2. Name the body of law those facts implicate (negligence duty, contract formation, Fourth Amendment search, Rule 12(b)(6)).
3. Turn it into a whether-question that a court could answer yes or no, or that a memo can answer “likely / unlikely.”
4. Separate issues. Duty and damages are not one issue. Jurisdiction and the merits are not one issue.

A good issue is narrow enough to research. “Who wins?” is not an issue. “Is there a case?” is not an issue. If the stem’s facts mention a search of a phone and a later confession, you likely have two issues, and the exam may ask which one a particular authority addresses.

Primary versus secondary authority, then extract the rule

After the issue, identify authority. This chapter does not repeat the entire research chapter, but analysis fails if you plug the wrong kind of source into the R of IRAC.

• Primary authority is the law: constitutions, statutes, regulations, cases, treaties, court rules.
• Secondary authority explains the law: encyclopedias, ALR, Restatements (until a court adopts a section), treatises, law reviews.
• Mandatory primary authority is what this court must follow on this issue.
• Persuasive primary authority (other jurisdictions, unpublished opinions with limited weight) and secondary sources may help you understand or argue. They do not replace the forum’s statute or high-court case.

Extract the rule from the primary source and break it into elements. A negligence rule is not “be careful.” It is duty, breach, causation, damages. A Rule 56 summary-judgment rule is not “we should win.” It is: no genuine dispute of material fact, and the movant is entitled to judgment as a matter of law. Write the elements as a checklist. If a statute has four numbered requirements, your rule paragraph has four numbered requirements. If a case adds a fifth gloss (“the duty runs only to a foreseeable plaintiff”), that gloss is part of the rule in that jurisdiction.

Do not extract the rule from a headnote, from an Am. Jur. 2d paragraph, or from a partner’s recollection of “what we argued last time.” Those are leads. The rule is in the statute and the holding.

Apply facts element-by-element, then conclude

Application (the A in IRAC) is where most exam items live. You do not dump all the facts and then announce a winner. You walk element by element:

• Element 1: state the test in a short clause, then the fact that meets or misses it.
• Element 2: same.
• If an element is missing, say so. That is analysis, not disloyalty.

Analogize when a published case’s material facts match the element you are applying: “Like the overnight guest in Lee, Rivera was on the property with permission and for a social purpose, so the same duty attaches.” Distinguish when a material fact is different: “Unlike Lee, Rivera was a social guest, not a business invitee, and this state’s cases still split those duties.” Party names, the year of the opinion, and who “feels more sympathetic” are not material unless the rule makes them material. Dictum in the published case is not a holding you can analogize as if it were.

The conclusion answers the issue in one direct sentence: “A court in this jurisdiction is likely to hold that the homeowner owed Rivera only the duty owed to a social guest, so Count I as pleaded is weak.” Do not introduce a new authority in the conclusion. Do not refuse to conclude because the partner “just wanted research.” A memo without a conclusion is a stack of quotes.

IRAC, CREAC, and the cousins

IRAC is Issue, Rule, Application, Conclusion. CREAC is Conclusion, Rule, Explanation, Application, Conclusion. CRAC drops the separate explanation paragraph. TREAT (Thesis, Rule, Explanation, Application, Thesis) is another classroom label. The PCCE cares about the engine, not the branding:

1. Know what question you are answering.
2. State the binding test, with elements.
3. Explain the test with a case or two when the rule is case-built (this is the extra E in CREAC).
4. Apply the client’s facts, analogizing and distinguishing.
5. Answer the question.

Use IRAC or a candid CREAC in the office memo. Use CREAC in a persuasive brief, because the judge wants the requested holding in the first sentence of the argument heading. Mixing them badly — opening a memo with “this Court must grant summary judgment” when no motion is on file — is an audience error.

Explanation is not a third copy of the rule. It is how courts have used the rule: one analog, one distinguish, a note on a split if the forum has not spoken. Then apply.

How PCCE items actually look

Expect a two-to-five-sentence story plus a question in one of these molds:

• Which issue should the paralegal research first? (The attractive wrong answer is a related but unraised topic, or a remedy question before liability is framed.)
• Which authority belongs in the rule paragraph? (A forum supreme-court case or the governing statute beats a law-review note or an out-of-state trial opinion.)
• What is the next analytical step? After the issue is spotted, extract the rule. After the rule is extracted, apply this client’s facts. After application, conclude. “Write the conclusion and then hide contrary cases” is never the next step.
• Which comparison is an analogy, and which is a distinction? The exam will change one status, one date, or one mental-state fact.

Worked pattern

Facts: A store’s automatic door closed on a customer. The jurisdiction’s high court held in Ortiz that a business owes invitees a duty to use reasonable care to keep the premises safe. A later intermediate case, Nguyen, said a store is not liable when a door meets the manufacturer’s standards and there were no prior incidents. The partner wants a memo on negligence, not a brief.

• Audience: supervising attorney → objective memo.
• Issue: whether the store breached the invitee duty when its automatic door closed on this customer.
• Rule (elements): duty (invitee — Ortiz), breach (reasonable care), causation, damages. Manufacturer-compliance and lack of prior incidents are facts that Nguyen treated as going to breach, not as a separate immunity.
• Application: analogize to Ortiz on status (paying customer = invitee). Distinguish or analogize Nguyen depending on whether this door had prior pinch incidents (the stem will tell you). Do not cite a blog “10 Worst Automatic Doors” as the rule.
• Conclusion: likely or unlikely breach on these facts, with the missing element named if one is missing.

If the exam then asks “what next?”, and you already have Ortiz, the next step is apply the client’s facts to each element, not “download an encyclopedia.” If the exam asks “which authority is primary and mandatory on duty?”, the answer is Ortiz, not Nguyen if Nguyen is distinguishable, and not Am. Jur. 2d.