Argumentative Headers

Scan the table of contents for a brief and you’ll see everything you need to know about the attorney’s organization. When I pick up a brief, that’s the first place I turn. It’s surprising how much (or how little) you can learn about a case from the ToC alone.

Of course, a ToC is mostly made up of headers for the argument section. And argument headers should be…argumentative!

There are two ways to think about this:

  1. Argumentative headers contain opinions.

  2. Argumentative headers create mini outlines of the argument.

The argument headers from Fig. 1 below do both. They’re taken from a brief filed by Defendant Carmike Cinemas in a Title VII case, Chapman v. Carmike Cinemas, 2:06-CV-00948 TS, U.S. District Court for the District of Utah, Central Division.

Brief Writing Essentials

Fig. 1 - Defendant Carmike Cinema’s Brief in Support of Motion for Summary Judgment

Imagine if, instead of section A(1)-(2), the attorney had written this:

A. Knowledge of the Potential Threat of Sexual Assault is Necessary
1. Actual knowledge of sexually inappropriate behavior
2. Constructive knowledge of sexually inappropriate behavior

A couple of things happen if we substitute the originals with these headers. We no longer have grounding specifics (Walter McFashion, one of the key employees). We’re longer reminded that Carmike definitely did not have either actual or constructive knowledge of sexually inappropriate behavior.

Notice also how the attorney split up the two sections about prompt and effective actions in B (1) and (2). Most people would have made a single section for that. Why would the writer do this? By splitting up the sections, the attorney makes it really easy to see how well the client’s management responded to the harassment.

Revisiting CRAC

Thinking about IRAC and CRAC may give you unwanted flashbacks to being a 1L! Though the two forms look similar (“Issue” vs. “Conclusion” being the only difference), the results can feel pretty different. For purposes of our brief, you’ll want to lean into CRAC more than IRAC whenever you can. This is because briefs written in CRAC format tend to be more pointed and effective because they spoon-feed the court your arguments.

What’s the real difference?

Let’s take a silly example to compare IRAC to CRAC:

IRAC Version

The first prong of the Dalmation test considers whether the dog is cute.


CRAC Version

Under the first prong of the Dalmation test, Mr. Mittens is cute.


As you can see, the IRAC version is neutral—it objectively states the issue without taking a side. On the other hand, the CRAC version states an opinion: Mr. Mittens is one cute dog. This opinion (a conclusion!) gets folded immediately into the issue statement. Another difference between the two is that we’re specific about naming the dog in the CRAC version—it’s Mr. Mittens, not some hypothetical dog.

Here’s a more complex CRAC statement in which we discuss a case:


More Developed CRAC Version

Mr. Mittens easily satisfies the cuteness, fitness, and affability standards established in Dalmation v. Greyhound.


This example shows how we can use CRAC even when we’re summarizing the application of multiple rules in that first sentence. It’s more pointed than its IRAC cousin:

More Developed IRAC Version

The court will consider the cuteness, fitness, and affability of the dog under Dalmation v. Greyhound.


While there’s nothing wrong with this “I” version statement, you can see how it’s more neutral and indirect than its CRAC cousin.

In the first passage (marked C1), the conclusion is an opinion about the nature of the plaintiff’s evidence in support of her hostile work environment claim. There are only three types of evidence (sexual jokes, rating customers’ appearance, and mismanagement of confidential information), this sentence says, and they’re all deficient.

Evidentiary conclusions like this are often underutilized in briefs. They can be particularly effective, though, when opposing summary judgment motions. In our own case study, we could summarize the evidence in this way:

Milton County’s argument that the lieutenant promotion is too “speculative and remote” to satisfy the material adversity requirement ignores Captain Bricker’s repeated statements to Ms. Stephens over the years.

In the second passage from the Carmike brief (marked C2), the conclusion is more traditional: it’s a legal conclusion based on one of the prongs for proving hostile work environment. Plaintiff can’t prove the “unwelcome” prong because of her own conduct.

“R” or “rule” statements and application statements follow, as I started to indicate in the above example.

Let’s go back to the Chapman v. Carmike Cinemas case for a minute.

Here’s an example of an expanded CRAC form where the first two sentences of the section constitute the first conclusion (“C1”) and the first sentence of section 1 forms the second conclusion (“C2”) :