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LEGAL WRITING AND POSTCONVICTION

The vast majority of postconviction pleadings are completed by pro se--that is, self-represented--litigants. Below is a discussion that we hope will assist the pro se litigant. Feel free to print this and send a copy to anyone whom you believe it may assist. If you are able to make it through the first paragraph, you are truly an expert! If not, you sit with the many judges who are forced to read difficult pleadings:


I. Unnecessary Complications


It is obdurately vital when composing legal pleadings that, inter alia, profusion of law-Latin aphorisms remain omitted so as to alleviate the occasion of miscommunicating the deliberate concepts as well as to ensure the affording of a deeper and more comprehensive discernment on part of the audience, whether be they lay or, in the alternative, expert, thereby withdrawing from a possibility of litigants, judges, justices, et al., feeling non compos mentis ensuing not from juristic standing vel non, but rather from one legist’s misapprehension of the lex fori and the pleading requirements therefor, notwithstanding that legist’s ostensibly esurient attempt to formally plead within the devices set forth pursuant to one's governing rules of court.


But, unfortunately, it happens all the time.


The first paragraph of this article illustrates exactly how NOT to write.


While it is, indeed, common for attorneys to overuse legal jargon and Latin in written pleadings, it is much more common for nonlawyer inmate law clerks to try to sound “lawyerish’’ by writing a document that cannot reasonably be understood by anyone--jurist or otherwise.


Rather than trying to sound lawyerish, try CRAC!


II. Writing Methods: IRAC and CRAC


There are two primary methods of legal writing: IRAC and CRAC. These prominent methods can be identified in most legal pleadings and often in judicial opinion. Below is an examination and explanation of each.


IRAC is an acronym for Issue Rule Analysis Conclusion. In IRAC, the first part of the document--Issue­--explains the issue presented. For example, if, in a 3.850, you were arguing ineffective assistance of counsel (“IAC”) for failing to call a witness, your first paragraph might state:


In the present case, counsel’s primary theory of defense was mistaken identity Defendant’s wife told trial counsel that Defendant was home with her at the time the offense was committed. She also testified to the same during sentencing. Nevertheless, counsel failed to call her during sentencing.


Next in IRAC is Rule. This is the same in CRAC. "Rule" is where you explain the rule of law that applies to the facts of your case. In the above example, you would follow with a summary of the general Strickland Standard for IAC claims, followed by specific rules for IAC claims where the underlying claim is failure to call a witness:


In order to prove that trial counsel was ineffective, a defendant must show that (1) counsel’s performance fell below the reasonable standard guaranteed by the Sixth Amendment, and (2) that, but for counsel’s errors, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).


When a defendant alleges ineffective assistance of counsel for failure to call a witness, the defendant must also (l) allege that counsel was aware of the witness; (2) allege that the witness was available to testify at trial; (3) describe what the substance of the witness’s testimony would have been; and (4) explain how such testimony would have affected the outcome of the trial. Nelson v. State, 875 So.2d 579, 582-83 (Fla. 2004); Jacobs v. State, 880 So.2d 548 (Fla. 2004).


To clarify, the Rule section does not require court rules, but rather the rules of law that are applicable to your case. These may be cases, statutes, court rules, administrative codes or procedures, or common practices and usages.


The Analysis section is where you apply the rule of law to the facts of your case. For example, in the rule section above, it was demonstrated that you must meet four prongs in order to demonstrate IAC for failing to call a witness. The Analysis section is where you do so:


Trial counsel’s primary theory of defense was mistaken identity. Counsel effectively showed the jury that at the time of the crime--which occurred late at night--the parking lot was dark and it was drizzling. The witness claimed to have identified Defendant while looking through a window in the security booth that, as counsel elicited during cross- examination, was fogging up.


Counsel failed, however, to give the jury any alternative to believing that Defendant committed the crime. Merely demonstrating that it was difficult for the State’s chief witness to see would not have cast the reasonable doubt necessary for Defendant to prevail. Instead, the jury needed to hear an alternative theory than that of the State, and counsel had a witness and evidence to do just that.


During Defendant’s first meeting with counsel after signing a retainer, Defendant’s wife told counsel that Defendant was home with her at the time of the burglary. She informed counsel that at the time the burglary occurred, she and Defendant had gone to dinner and a movie. She told counsel that she wanted to testify to clear her husband and provided counsel with ticket-stubs and a credit card receipt from dinner.


But counsel did not call her as a witness.


Instead, counsel told Defendant that calling her was unnecessary, and that the State’s case was “so weak that it would likely end with a motion for judgment of acquittal.” That motion was denied, and Defendant is now serving an eight-year prison sentence.


With IRAC, once you are finished applying the rules and law to your facts, apply cases to your facts. How to do this will be explained in the CRAC section below. IRAC really should be IRACC-the first “C” being for cases.


The Conclusion section of IRAC should sum up the argument and assert the requested relief:


Counsel’s failure to call Defendant’s wife as a witness deprived the jury from testimony and evidence of Defendant’s alibi, which would have supported his "mistaken identity" theory of defense. Had counsel called Defendant’s wife as a witness, there is a reasonable probability that the jury would have reached a different verdict. Accordingly, counsel was ineffective in violation of Defendant’s Sixth Amendment right to effective assistance of counsel and clearly established federal law as determined by the Supreme Court in Strickland. Defendant’s judgment must be reversed, and he permitted to proceed to a new trial with competent counsel.


Now that IRAC has been explained, NEVER USE IT!!! Instead, use CRAC! In the CRAC method, the conclusion comes first:


In the present case, counsel’s primary theory of defense was mistaken identity. Defendant’s wife told trial counsel that Defendant was home with her at the time the offense was committed. She also testified to the same during the sentencing hearing. Nevertheless, counsel failed to call her during trial. Had counsel called Defendant’s wife at trial, the jury would have received both testimony and physical evidence of Defendant’s alibi, and there is a reasonable probability that the jury would have reached a different verdict. Accordingly, counsel was ineffective in violation of Defendant’s Sixth Amendment right to effective assistance of counsel and clearly established federal law as determined by the Supreme Court in Strickland. Defendant’s judgment must be reversed, and he must be permitted a new trial with competent counsel.


CRAC puts the conclusion first based on the reality that judges may not always read your whole argument. As such, you don’t want to wait until the end of the argument to form a conclusion or assert the requested relief; the judge may not make it that far. By putting the conclusion first, the judge will immediately know what the issue is, what affect the issue had on the proceedings, and the relief requested.


The next section in CRAC is Rule. This is the same as IRAC.


The Analysis section is the same as IRAC, too, but does not include cases. This does not mean that you can’t cite case law in the Analysis section, it just means that the cases should only be cited to support your argument, not broken down and explained in depth.


The final section of CRAC--Cases--is where you find cases that are identical (sometimes referred to as “Whitehorse” cases) or very similar (referred to as “on all fours”) with your case. These cases should be summarized and then compared to your case, as follows:


In Jacobs, 880 So.2d at 551, the Florida Supreme Court considered whether a Rule 3.850 motion alleging ineffective assistance of counsel was facially sufficient. In the motion, Jacobs alleged that counsel was ineffective for failing to call two alibi witnesses who would have testified that Jacobs was with them at the time of the burglary. Jacobs alleged that the witnesses were known to counsel-counsel file a notice of alibi stating that “[a]t the exact date and time of the alleged offense, the defendant was at: 3638 Percipal Avenue, Coconut Grove, Florida”--and that the witnesses “were available ... and would have testified that at the time of the alleged crimes Jacobs was with them and not at the scene of the crimes.” Id. at 549.


The trial court denied Jacobs’ motion, relying on “overwhelming evidence against the defendant.” Id. at 551. On appeal, the Fifth District affirmed, stating


[a]lthough the defendant claims these witnesses would have testified that he was in their home at the time of the crime, other eyewitness testimony placed the defendant at the scene of the crime and there was overwhelming evidence of the defendant's burglary of the unoccupied dwelling.


Id. (citing Jacobs v. State, 800 So.2d 322,323 (Fla. 3d DCA 2001)). The Supreme Court disagreed, holding that


the mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses. Rather, such a claim involves an assertion that a defendant is entitled to have counsel act reasonably and effectively, in determining whether to present exculpatory evidence in support of the defense. And, where it is facially asserted that such evidence exists, but was not presented, a State response must be ordered and considered before determining if a hearing is required unless the record demonstrates a reasonable explanation or otherwise conclusively refutes the claim.


Id. at 555.


In the present case, Defendant is entitled to the same relief as Jacobs. Counsel should have called Defendant’s wife as an alibi witness. Although there was existence of evidence of guilt, the testimony of Defendant’s wife was heavier than the inculpatory evidence, especially when coupled with the physical exculpatory evidence that the witness would have provided. The Supreme Court has held this to be a facially sufficient claim, and Defendant should be afforded an evidentiary hearing.


Because CRAC offers the conclusion to the reader at the beginning of the document, it is far more likely that the reader will understand your point without putting the document down than had you used IRAC.


III. The Court: Your Reader


Keep in mind that there will be a real person reading the pleading. In many cases, it will be a law clerk or judicial assistant, not just a judge. For this reason, even if you are regularly using CRAC, another rule is KISS, don't KILL (Keep It Short and Simple, don't Keep It Long and Lengthy). Nobody wants to read an unnecessarily long, drawn-out document. Assert your facts and claims precisely and accurately. Support the claims with authority where necessary, and not EVERY authority--just a couple of supporting citations (assuming a discussion is not necessary). Rarely should one exceed the page limits provided by the rules of court.


Good luck, we hope this helps!

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