Debra Austin, JD, PhD

professor of the practice of law
university of Denver Sturm College of LaW
FACULTY PAGE

Drafting and Editing

CREAC Legal Analysis Framework


C  Conclusion to Legal Analysis

RE  Rule Explanation 

  Rule(s): Including Statute and/or Regulation Quote & Synthesized Rule Statement from Case Law
​                      Synthesized Rule Form: When determining (the issue), courts consider (the elements, factors, or themes from cases)

  Case Illustrations: Facts of the Case Law, Holding of the Court, and Reasoning of the Court

RA  Rule Application 

  Case Comparisons: Application of the Law to the Facts of Client Situation


C  Conclusion to Legal Analysis


Sample Memo using CREAC Legal Analysis Framework


Memo

To:        Sr Partner
From:    Associate
Re:        Outrageous Conduct
Date:     

Ms. Richards has a claim for outrageous conduct against her supervisor, Lou Miller.  When determining whether conduct is outrageous, courts consider whether racial or religious slurs are public in nature and whether they are perpetrated or allowed by someone in a position of authority.  Cites.

Public in Nature

When determining whether conduct is outrageous, courts consider whether slurs are public in nature.  Cite.  In Kuerten, an employer allowed employees to direct personal slurs to a Brazilian employee in front of customers during work.  Cite.  In Patel, a Sikh student athlete sued his university for failure to stop teammates from calling him “towel head” during games.  Cite.  In both cases, the court held the employer and university acted outrageously because the conduct was public in nature.  Cites. 

Conversely, conduct is not deemed outrageous when there is no public humiliation.  Cites.  In Dep, a bar owner refused to serve a French patron.  Cite.  In Abbot, a man sent his Muslim neighbor a letter containing religious slurs.  Cite.  In these cases, the court held the conduct was not outrageous because there was no public humiliation.  Cites. 

In this case, Ms. Richards can show the conduct of her supervisor was outrageous because leaving her slur-filled personnel evaluation on her desk for other employees to view was public humiliation.  Leaving the personnel evaluation on Ms. Richard’s desk was public humiliation because it could be viewed by her fellow employees.  Like the employer in Kuerten who allowed employees to direct racial slurs at a Brazilian employee in front of customers, supervisor Lou Miller placed Ms. Richard’s slur-filled personnel evaluation on her desk in full view of other employees.  Like the university in Patel who allowed students to slur another student athlete during games, the insults in the personnel evaluation were accessible to other employees during work. 

Unlike the failure to serve the individual French bar patron in Dep and the private letter sent to the Muslim neighbor in Abbott, here there was public humiliation.  The personnel evaluation could have been read by numerous employees while it was sitting on Ms. Richard’s desk.  Because leaving the personnel evaluation on top of a desk accessible to employees during work was public in nature, it was outrageous conduct.

Position of Authority

When determining whether outrageous conduct has occurred, courts also consider whether it is perpetrated or allowed by someone in a position of authority.  Cites.  In Kuerten, the employer allowed its employees to direct personal slurs to a Brazilian employee during work hours and in front of customers.  Cite.  In Patel, a university allowed student athletes to call a fellow Sikh athlete “towel head” during games.  Cite.  In both cases, the court held the employer and university acted outrageously because they held positions of authority when they permitted public slurs directed at their employee and student.  Cites. 

In this case, Ms. Richards can show the conduct of her supervisor was outrageous because leaving her slur-filled personnel evaluation on her desk for other employees to view was perpetrated by a person in a position of authority.  The personnel evaluation containing personal slurs about Ms. Richards was placed on her desk by her supervisor, a person in a position of authority.  Like the employer who permitted employee slurs in Kuerten and the university that allowed student slurs in Patel, supervisor Lee enjoys a position of authority.  Because the supervisor in a position of authority perpetrated the public humiliation, this was outrageous conduct. 

Ms. Richards has a claim for outrageous conduct against her supervisor, Lou Miller, because leaving her slur-filled personnel evaluation in plain view of other employees was public humiliation by a person in a position of authority.


Editing and Polishing


  1. Use Concrete Words
    ​Not unilaterally terminated, but fired
  2. Eliminate Adverbs: clearly
    Not spoke loudly, but shouted
    ​Not moved quickly, but ran
    ​Not attacked viciously, but hit the victim in the face cutting his lip and blackening his eye

  3. Use Active Voice: To Find Passive Voice, add “by zombies”
    The lease was broken by zombies
    The statute of limitation was blown by zombies

  4. ​Simplify: Use short sentences, 1 and 2 syllable words, and omit jargon and unnecessary words
  5. Proofread
    ​Fresh eyes that have spent time away from draft


​More than half, maybe as much as two-thirds of my life as a writer is rewriting.  I wouldn’t say I have a talent that’s special.  It strikes me that I have an unusual kind of stamina.

~John Irving~