Predictive Writing

Predictive writing is one of the primary forms of analysis and writing that lawyers perform. Remember that when you are asked to complete a predictive writing task, you are not assuming what the ending will be and are instead following the path on which the law takes you to reach a conclusion.

Predictive writing, also known as objective writing, consists of using rule synthesis and case synthesis to analyze a specific factual situation and forecast what the likely outcome will be. The most common types of predictive writing that lawyers produce include formal legal memoranda, e-mail memoranda, and client letters. When completing this type of writing, you are serving in an advisory role to assist someone, such as your supervisor or client, in making the best decision possible.

You should keep your client’s interests in mind by still being honest about the likelihood of a favorable result. Predictive writing must convey if something is uncertain or unknown, remain accurate as to what the state of the law is on the particular topic, and disclose both strengths and weaknesses of the case. Unlike persuasive writing, the goal of predictive writing is not to convince your audience that your argument is correct. Instead, you are writing an informed prediction of the outcome of the case based on your research. As with all types of legal writing, you should write clearly, concisely, and precisely.

How do I remain predictive in my writing?

When you are predicting how likely it is that a particular outcome will occur, remember that you are serving as an advisor. While you are sharing your opinion about the likelihood of possible outcomes, you should not share your opinions on the facts or the case law unless it directly ties into your ultimate conclusion. Some will like this type of writing, and some of you will prefer persuasive writing. Whether you enjoy writing predictively should not influence your ability to produce an objective piece of writing when that is what the assignment requires.

Common Types of Predictive Documents

Summary of Law

The Summary of Law is the first building block of written legal analysis. Your understanding of where laws come from, practicing reading and briefing sources of law, and shifting focus from the sources of law to legal issues come together to let you find and synthesize legal rules and provide descriptions of the sources of law on which you rely to formulate your rule. Remember that a Summary of Law is like a geometry proof; you are showing the reader not just what the final answer is but also the steps you took along the way to reach your conclusion.

A Summary of Law is both exactly what it says and also far more challenging to write than it sounds. There are times in legal practice when you do not have a specific fact pattern that you are analyzing and instead you are focused on determining what the law says to do with a particular piece of a legal issue. In essence, a Summary of Law is the written product of the process of rule synthesis. 

Remember how our legal system is founded on the English common law system? An earlier case might have stated a legal rule that was sufficiently clear to answer that particular legal issue, but a later case had facts that were just different enough to create ambiguity or confusion in how the legal rule should not be applied, which required the later case to clarify or expand on the earlier case’s legal rule.

In a Summary of Law, you are tracing how the law evolved and then reorganizing the material to produce a final product that is organized by topic rather than chronologically. Your job in this document is to do the “heavy lifting” for the reader and show clearly how and why the cases you discuss address the legal issue and answer the question posed. Put another way, your Summary of Law is where you demonstrate the work you did in finding and synthesizing the rule so that the reader does not have to conduct that process independently.

For your Summary of Law, you will have an introductory paragraph that provides the overall conclusion, the general rule, and the roadmap for the remainder of the document. For your body paragraphs, use a CRE-C structure. There is no Application section because in this document you are not applying the general rule to determine a specific outcome for a specific fact pattern. The Application section will come later in your case synthesis practice and your memoranda.

Memorandum of Law

Formal legal memoranda are one of the most common types of predictive writing that law students do. This type of document allows students to practice, refine, and demonstrate their grasps of core legal writing concepts such as reading and briefing cases, following rules for document design and organization, rule synthesis, case synthesis, use of analogy and distinction, and predicting legal outcomes. Memoranda are used as internal documents for an attorney to assess how a legal rule will likely be applied to a given set of facts. 

There are several components that can make up a formal legal memorandum: Header, Question Presented, Brief Answer, Statement of Facts, Discussion, and Conclusion. Not all components are going to be required, or even desired, for every memorandum you will be asked to produce for internships, externships, clinics, and associate positions. Instead, your supervisor might ask you to produce a document that is quicker to skim through or a checklist that can be used in court. However, the primary purpose behind the memorandum (to predict a legal outcome) and the method you use to produce the memorandum (where you examine past cases to determine how to apply the law to the current set of facts) still remain. If you can produce a quality formal legal memorandum, then you are in an excellent position to create these other types of practice-oriented predictive writing documents.

Other Documents

Any document that is expected to synthesize a rule for future undetermined use or to assess how the law will likely be applied to a set of facts without having a predetermined outcome in mind is typically considered to be written predictively.