i need help in writing a CREAC paper on one of my cases in my legal writing class ( law major ). 

 i have posted here: 

– an explanation on how to write a CREAC (ppt). 

– and the exercise that i need to write about it. battery problem (docx).

– also an example of a creac legal analysis. 

need it in less than 10 hours.  

1

CREAC
and the Objective Memo

CREAC and Legal Analysis

Golden Rule:

Explain the law before you

Apply the law.

2

3
What is CREAC?
Acronym for:
Conclusion
Rule
Explanation
Rule Examples; Case Illustrations
Application
Legal Analysis; Case Applications
Conclusion (restated)
Use CREAC to organize a legal analysis based on one or more cases or authorities

Related Acronyms
TREACC
Thesis
Rule
Explanation
Application
Counter Argument
Conclusion
CRAC
Conclusion
Rule
Analysis
Conclusion

IRAC
Issue
Rule
Analysis
Conclusion

4

5
Conclusion
Your answer to the legal question (issue).
In a memorandum, this is phrased as a statement, not a question.
You may refer to your client here, but not in the Rule or Explanation sections.
Position:
Most helpful as a heading.
Can repeat as topic sentence.

6
Conclusion—Examples
As a heading
I. Clifton’s actions toward Gorski during the comedy routine were not so extreme and outrageous that they could be considered “beyond all bounds tolerable to society.”
As a topic sentence
The covenant not to compete is unreasonable because the Don Rayne (the employer) imposed restrictions on Peggy Day (the employee) that were not reasonably necessary for the protection of his business.

7
Rule
“R” stands for the rule or rules that you draw from a statute, case or cases, and/or other authorities concerning the specific issue you are discussing.
No Client Names in the Rule or Explanation Section.
Example:
In order to succeed in an action for IIED, a plaintiff must prove four elements: “(1) the wrongdoer’s conduct was intentional or reckless…(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.” Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-9 (Fla. 1985).

8
Rule (continued)
Sometimes a RULE will be specific and straightforward.
Statute
Key Precedent Case
Example:
Statute XXX.XX interprets the term “weapon” to include a switchblade.
What is the rule in our client’s case?

9
Rule—Synthesized Rules
Synthesized Rules
In Common Law jurisdictions (particularly), sometimes a rule must be created by synthesizing case law.
Also known as an “interpretive” rule.
Example:
To be actionable under the theory of IIED, conduct must be “outrageous.” Slocum. Conduct is outrageous where … Korbin. Outrageous conduct includes … Korbin. Outrageous conduct never includes … Slocum

10
Rule (continued)
Broad to Narrow
The order in which you present rules is important.
Think of the RULE section as an inverted pyramid
(1) Use binding authority (wherever possible) to establish the general rule(s).
(2) State the most general rule first
(3) Order rules in logical order from more general to more specific
Example
(1) Elements;
(2) Defenses or Exceptions;
(3) Major requirements;
(4) Minor requirements.

10

11
Rule (continued)
Tell the reader up front if any elements or factors are not at issue in your client’s case.
Example
In this instant case, there is no dispute regarding whether Sunset Trails is a state-owned park. Furthermore, Mr. Smith admits that he was asleep at the time of his arrest. Accordingly, the only element at issue is whether he was sleeping in a designated “picnic area.”

12
Explanation—Case Illustrations
Case Illustrations
Applies rule to the facts of past cases.
Examples from cases help explain the rule by showing how the rule operated in previous specific situations.
Forms a “spectrum of authority” which you can use to predict the outcome of your case.
Uses “analogy” or “analogical reasoning.”
No Client Names in the Rule or Explanation Sections.

13
Explanation—Case Illustrations (continued)
Begin with analogous cases and move through the spectrum.
Use transition words or phrases to help the reader understand how the case relates to the rule.
Example:
In Case A, [t.s./facts/holding/reasoning].
Similarly, in Case B, [t.s/facts/holding/reasoning]
In Contrast, in Case C, [t.s/facts/hold/reasoning]
Likewise, in Case D, [t.s/facts/holding/reasoning]

Case Illustrations (continued)

A complete case illustration contains:
(1) case name;
(2) the relevant facts;
(3) the court’s holding on your legal issue; and
(4) the court’s reasoning (if it would help your audience understand the court’s holding).

14

Sample Format for a Case Illustration

In [case name], [facts] happened.
The court held [X].
The court reasoned [Y].

15

16
Application
Apply the rule and case illustrations to your client’s facts in order to predict a likely outcome.
No Client Names in the Explanation Section.
Never mention your client’s case in the Rule and Explanation sections.

Case Applications—Continued

Case applications compare the case illustration to the your client’s facts.
Emphasizes relevant similarities or differences between the two cases.
Helps the reader or listener understand the relationships between the case illustration and your client’s facts.

17

18
Application—Case Applications
Apply the rule to the facts in your case.
Use Analogies (Analogical Reasoning)
Compare the facts and reasoning of your case (where possible) with those of analogous cases.
Use statements of similarity and dissimilarity.
Like the buyer in Smith, our client also had no prior knowledge of a dangerous defect.

(5) Case Applications (continued)

A complete case application should contain the following:
(1) Statement of Like/Unlike
(2) Actor (precedent case)
(3) Action (precedent case)
(5) Actor (client’s case)
(6) Action (client’s case)
(7) Result/Conclusion

19

Sample Formats for a Case Application

Like [case name], in this case [facts] happened. Therefore, the court should reach the same conclusion.
Unlike [case name], in this case [facts] happened. Therefore, the court should reach a different conclusion.

20

21
Application—Counter Arguments
Consider potential counter arguments (arguments that do not support your conclusion).
State the counter argument, then explain why it is not likely to change your thesis or prediction.
Example
The defendant may argue that no negligence existed because they were unaware of the defect. However, this argument is not likely to be persuasive because lack of knowledge is not a defense in a product liability case.

21

22
Conclusion (Reiterated)
Predict the outcome.
“The court will likely find …”

Make it fact-specific to your client’s case.
“Based on facts a, b and c, Plaintiff will be able to demonstrate …”
It may seem repetitive, but it reinforces the structure of your analysis.

CREAC Exercise

Instructions

Read the text below. Then write a CREAC structure legal analysis.

Fact Pattern

Warren is about to meet with his professor, Dr. Smith, for a mandatory conference after his initial writing assignment was returned to him. He is unhappy with his grade, and has decided to confront his professor instead of asking for advice on how to do better in the future.

Warren angrily storms into her office without knocking. He rudely asks his professor why she gave him the grade that she did. Dr. Smith explains that she didn’t “give” him the grade. Rather, he had “earned” the grade. Dr. Smith then offers to go over his writing assignment in more detail. She shows Warren several specific examples in his paper to demonstrate how he earned his particular grade. She also offers some advice about things he could do to quickly improve his writing.

Not satisfied with her response, Warren abruptly stands up and violently throws an eraser down on her desk. The eraser bounces off the desk and strikes Dr. Smith in the eye. As a result, she experiences severe pain in her eye for several days and has a bruise.

Dr. Smith would now like to sue Warren for the tort of battery in Florida. Does she have a valid claim?

Battery Research

You conduct legal research and find the following:

Battery is defined in Florida as “an unlawful touching or striking or the use of force against the person of another with the intention of bringing about a harmful or offensive contact or apprehension thereof.” McDonald v. Ford,

2

23 So. 2d 553, 555 (Fla. Dist. Ct. App. 1969). The elements of battery can be broken down as follows: (1)(a) touching, or (1)(b) striking, or (1)(c) use of force; (2) against the person of another; (3) with intent to bring about; (4)(a)(1) harmful, or (4)(a)(2) offensive contact, or (4)(b) the apprehension thereof.

The Supreme Court of Florida described the requisite intent as either “a hostile intent, or a desire to do harm,” Spivey v. Battaglia, 258 So. 2d 815, 816-817 (Fla. 1972). The court added that “[w]here a reasonable [person] would believe that a particular result was substantially certain to follow,” intent could be implied. Id. at 817. In Spivey, the court found that the defendant, who tried to touch the plaintiff, would not reasonably believe that his actions would cause partial paralysis to the plaintiff. Id.

By contrast, while the Second District Court of Appeal in McDonald did not specifically define the requisite intent for battery (beyond the battery definition), it added that the absence of consent to a contact was a defining characteristic. 223 So. 2d at 555. In McDonald, the defendant demonstrated hostile intent to harmfully or offensively contact the victim while the victim struggled to get away.

In both cases, intent was used to distinguish intentional torts such as battery from the unintentional tort of negligence. McDonald, 223 So. 2d 553; Spivey, 258 So. 2d 815. The court applied a lower standard for (unintentional) torts in negligence by providing that a defendant may be liable for “reasonably foreseeable” consequences. Spivey, 258 So. 2d at 817.

2

TO: Supervising Attorney

FROM: Henry Stapp

DATE: January 9, 2016

RE: Will of Jeremy Fisher—Undue Influence

ISSUE

Under Cambria law, can a will successfully be challenged on the basis of undue influence when: the deceased was using a powerful pain medication; was frequently left alone with the individual(s) who would benefit from the new will; and where the new will strongly benefited the suspected individual(s)?

SHORT ANSWER

Likely yes. At the time of the second will was executed: (1) Jeremy was susceptible to undue influence because he was physically weak and frequently took powerful pain medication that made him groggy; (2) there were many opportunities to exert undue influence because Edward Brooks and other agents of Piedmont University were constantly present during Jeremy’s final weeks; (3) Piedmont University’s representatives had the disposition to exert influence because there were strong personal and financial incentives to do so; and (

4

) the new will revoked an earlier will that favored his family.

FACTS

Jeremy Fisher had a net worth of approximately ten million dollars at the time of his death, mostly from swimming endorsement contracts he received after the Olympics. In September of 2009, Jeremy wrote a will that left 90% of his estate to his brother, Andrew Fisher. Following the announcement of his diagnosis with terminal brain cancer in late 2012, Jeremy’s swim coach, Edward Brooks, contacted him and began staying at Jeremy’s house. Brooks said that he was taking care of him and keeping him company.

Brooks was Jeremy’s former swim coach at Piedmont University (PU). When Brooks was unable to stay with Jeremy, he would send student-athletes from the PU swim program to be with him. At the time, the PU athletic department was suffering from budget cuts and the swim program was struggling financially. Brooks brought Jeremy materials on leaving money to the university and had discussed the possibility with him on multiple occasions. Brooks also invited the Athletic Director and an Associate Dean of Alumni and Development to visit Jeremy.

Although Jeremy appeared alert until shortly before his death, he began deteriorating physically in March of 2013. The change limited his mobility and confined Jeremy his room. Jeremy also took pain medication that made him groggy and caused him to sleep most of the time. At one point, Brooks prevented Andrew and his family from seeing Jeremy, saying he was in no shape for visitors. After that point, Jeremy was never allowed to visit alone with his family. Following his death, Brooks and Andrew discovered a handwritten will. The new will was drastically different, leaving approximately 98% of his estate to PU and less than 2% to Jeremy’s family. Jeremy’s brother would like to know if he can successfully challenge the new will on the basis of undue influence.

DISCUSSION

Undue influence is defined as “fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.” N.C. Gen Stat. § 24-103(a) (2011). Undue influence consists of four elements: “(1) A person who is subject to influence; (2) An opportunity to exert influence; (3) A disposition to exert influence; and (4) a result indicating undue influence.” N.C. Gen Stat. § 24-103(b) (2011).

The Supreme Court of Cambria has identified seven factors that help determine whether the four essential elements have been met (also known as the Andrews factors):

(1) Old age and physical and mental weakness of the person executing the will;

(2) That the person signing the will is in the home of the beneficiary and subject to his constant association and supervision;

(3) That others have little or no opportunity to see him;

(4) That the will is different and revokes a prior will;

(5) That it is made in favor of one with whom there are no ties of blood;

(6) That it disinherits the deceased’s family;

(7) That the beneficiary has procured its execution.

In re Andrews, 299 N.C. 52, 55 (2002). Other factors may be considered on a case by case basis. In re Will of McDonald, 150 N.C. App. 220, 228 (2003). Furthermore, not every factor needs to be present. Campbell, 155 N.C. App. 448, 456 (2009). Proof of undue influence is usually made up of multiple facts, almost always incapable of establishing the claim alone, that together permit an inference of influence. Jones, 362 N.C. 569 at 576. If the evidence permits a reasonable mind to infer that the will is the result of undue influence, “the case must be submitted to the jury for its decision.” Id. The McDonald court was clear that “circumstantial evidence may be considered,” and that “the more adroit and cunning the person exercising the influence, the more difficult it is to detect . . . .” McDonald, 156 N.C. App. at 229. Therefore, direct evidence, while helpful, is not necessary to prove a case of undue influence.

These seven factors can be grouped into four broader categories that correspond to the four elements. First, any physical and mental weaknesses of the deceased may indicate that a person is subject to influence. Second, regular supervision or exclusion of others from visitation can indicate an opportunity to exert influence. Third, financial incentives of the beneficiaries may show a disposition to exert undue influence. Finally, revocation of prior wills and a lack of family ties of the beneficiaries can be evidence of undue influence. This memo addresses whether these factors, when applied to the current case, contribute to the reasonable inference of undue influence.

(1)
Mental and Physical Weakness

Jeremy’s mental and physical condition would support a reasonable inference of undue influence. The mental condition of the deceased is arguably the factor on which courts put the most emphasis. Campbell, 155 N.C. App. at 457. In Jones, the deceased had brain cancer that made him weak and confused prior to his death. Jones, 362 N.C. 569 at 579. Furthermore, he took pain medication and experienced frequent exhaustion. Id. The court held that these facts could allow a reasonable inference of undue influence. Id.

The deceased’s physical condition can also be used to establish the first Andrews factor, regardless of mental condition. Seagraves v. Seagraves, 206 N.C. App 333, 344 (2010). In Seagraves, the deceased had medical problems, tired easily, and was not “able to get around.” Id. The court held that the first Andrews factor weighed in favor of undue influence, despite the deceased’s mental clarity. Id.

Like the deceased in Jones, Jeremy was on powerful pain medication that frequently left him groggy and caused him to sleep a lot. Furthermore, according to Andrew’s affidavit, Jeremy began deteriorating physically beginning in March. In fact, Jeremy was frequently tired and stayed in his room most of the time. Brooks also stayed by Jeremy’s side, even during visits with family.

Jeremy’s physical weakness and lack of mobility also supports the first factor, as it did with the deceased in Seagraves. Although Jeremy never suffered from chronic confusion, the bouts of medically induced grogginess and tiredness, combined with a lack of mobility, make the first Andrews factor weigh in favor of undue influence.

(2) Constant Supervision and Exclusion of Others

The constant presence of Brooks and other agents of PU would likely contribute to a reasonable inference of undue influence. The second and third Andrews factors address whether the deceased was subject to the constant association and supervision of the accused party and whether others had little opportunity to see him. In McDonald, the beneficiary was present at all meetings with the deceased, and was “wholly involved in [the deceased’s] affairs,” even writing checks from deceased’s account. McDonald, 156 N.C. App. at 230. Furthermore, the beneficiary in McDonald had attempted to exclude a close friend from visiting the deceased. Id. at 225. Similarly in Jones, the beneficiary monitored personal visits and telephone conversations, and blocked access between the deceased and his attorney by screening calls. Jones 362 N.C. 569 at 579. On the other hand, in Seagraves one instance of denied access to the deceased was outweighed by the otherwise “unfettered access to visit with and speak to them.” Seagraves, 206 N.C. App. 333 at 346.

Like the beneficiary in McDonald, Brooks completely inserted himself into Jeremy’s life following the public announcement of Jeremy’s illness. Brooks was a constant presence in Jeremy’s life, even arranging for swim team members to stay with Jeremy when he could not. Brooks also turned Andrew and his family away during one visit in March, saying that Jeremy “was in no shape for visitors.” Like the attorney in Jones, Andrew claims that his family was “never able to be alone with [Jeremy].” However, unlike the beneficiary in Seagraves, Brooks did not screen or otherwise block phone calls. Regardless, the constant supervision could be considered evidence of the presence of undue influence.

(3) Beneficiary Incentives and Procurement of Execution

The evidence regarding the beneficiary’s incentives to exert influence would strongly contribute to a reasonable inference of the presence of undue influence. The disposition to exert influence corresponds to the seventh Andrews factor, which involves the beneficiary’s incentives to exert influence over the deceased. In Jones, the beneficiary was vocal about her displeasure with the original will, and stated her intent to have it changed to leave her everything. Jones, 362 N.C. 569 at 581. Similarly in Buck, the beneficiaries drove the deceased to a lawyer’s office and took part in the deceased’s conference with his attorney about changing his will. Matter of Will of Buck, 130 N.C. App. 408, 415 (1998).

Here, Brooks and the university officials all had strong personal and financial incentives to influence Jeremy’s will. First, Brooks was well aware of Jeremy’s substantial estate. He told Jeremy about ways to leave money to the university and talked to him about doing so multiple times. Second, Brooks admits that he would likely get a large raise as a result of a gift the size of Jeremy’s handwritten will. Finally, the Athletic Director and Associate Dean of Alumni and Development, who had no personal connection with Jeremy, had obvious professional incentives to fund the athletics department and procure donations to the university.

The swimmers that Brooks asked to stay with Jeremy also had multiple incentives to influence him. A gift of that size would ease the swim program’s current financial struggles. It would also strengthen the team by allowing them to update their swim facilities, attract more talented swimmers, and provide more individualized coaching. Most importantly, scholarship money, which most of the students who had visited Jeremy relied upon, was in danger of being cut. These strong incentives all provide additional evidence of undue influence.

(4) Revocation and Lack of Familial Ties

The fourth, fifth, and sixth Andrews factors—that the will revokes a prior will, that it is made in favor of one with no familial ties, and that it disinherits the deceased’s family—weigh in favor of undue influence and are clearly established in this case. The new will expressly revoked the earlier will and strongly favors PU instead of Jeremy’s family. Whereas Jeremy’s 2009 will left 90% of his multi-million dollar estate to his brother Andrew, and just 5% to PU, the new will left all but $150,000 of the estate to PU. Therefore, the new will was clearly made in favor of a non-family beneficiary and disinherits his immediate family. Beyond any doubt, these Andrews factors are satisfied and contribute substantially to a reasonable inference of the presence of undue influence.

CONCLUSION

Jeremy’s brother can likely challenge the will on the basis of undue influence. First, Jeremy’s mental and physical conditions could lead a reasonable person to conclude he was susceptible to undue influence. Second, Jeremy’s constant supervision from March until his death in June, as well as the unusual refusal to let Andrew and his children visit, demonstrate that Brooks and the PU officials had ample opportunity to exert influence. Third, the strong incentives for Brooks, the student-athletes, and the university officials to exert influence over Jeremy all support an inference that they had a disposition to do so. Finally, the new will revokes a prior will and disinherits his family in favor of an unrelated beneficiary.

4