Legal Analysis: CREAC vs. IRAC

My whole 1L year, I heard nothing but IRAC so that's what I did. It's how I briefed my cases and how I tackled my essay responses on my finals and it worked just fine for me. But then my 2L year I had a professor explain to us at the beginning of the year that he preferred CREAC so that's what we practiced all semester so we'd be ready for his final. He went to Syracuse and apparently the New York Bar prefers CREAC and that's where he got this from. So head's up NY students— this post will be helpful! 

Related: An example of IRAC

Basically what CREAC is Conclusion, Rule, Explanation of rule, Analysis, and Conclusion. The best way to explain how to use CREAC is to just show you an example. Just like with IRAC, you can use this method for both briefing cases to be prepared for class and for answering essay questions on your tests. FYI, what I'm going to do is a very watered down and simple answer just because no one wants to read a full on answer (they usually can take up a few pages). 

Related: How to tackle practice essays

Hypothetical

Paul sues Dan, saying that Dan was negligent. Paul works for Dan as a painter and one day Paul fell off of the ladder. Paul claims Dan knew that the ladder was in bad shape and about to break at any moment, but still let Paul use it. Is Dan liable to Paul?

Conclusion

Because Dan had a duty to Paul, Dan breached his duty to Paul, Dan's breach of duty caused Paul's harm, and Paul has actual damages from the harm, Dan is liable for his negligence against Paul.

Rule

Usually the R and E can be combined into one paragraph. 

To be held liable for negligence, a party must have breached his duty. 

Explanation of rule

There are four elements to negligence: duty, breach of duty, causation, and damages (and then explain what each of these are).

Analysis 

Pro tip: spend the majority of your time on the analysis! It's where most of your points will come from so try to make it your longest section.

Dan employed Paul, and Paul was within the scope of his employment when he fell, so Dan had a duty as Paul's employer to warn Paul of dangers that he knew about. Dan had commented to his secretary the day before Paul's accident that he had noticed that the ladder had some cracks in the side and some screws loose, but he was too lazy to replace it. When Dan knew that the ladder was faulty but still allowed Paul to use it while painting houses, Dan breached his duty to Paul to warn Paul of any danger that he knew about on the job. Paul's accident was a result of Dan's negligence; if Dan had warned Paul, no one would have been hurt. Paul did nothing wrong here and was only hurt because of Dan's failure to warn. Paul has a $8,000 hospital bill from his broken leg that resulted from falling off the ladder. Because all four of the elements of negligence have been met here, Dan was negligent.

Conclusion

Dan had a duty to Paul, which he breached when he let Paul use a ladder that he knew wasn't in working condition. Because Dan breached his duty to Paul and therefore was the cause of Paul's injury, he was negligent and is liable for Paul's harm.

Other tips

In your CREAC, the Conclusions are the least important and can be the shortest. Just make sure that your Conclusion isn't half-empty. A lot of people will lose points because they'll just have a conclusion that says Dan is liable. A good tip to keep you from falling into this trap is use the word because. Using because will help make sure that you're giving a complete answer. 

When it comes to the Rule and Explanation part, write as much as you can remember about the rule. Are there elements or factors to consider? Write those. Is there a majority and a minority rule? Add that. Same for if there is a common law rule and a statutory rule. Or if there's a traditional rule and a modern rule. Sometimes there's even an English rule and an American rule. Another common thing that almost all rules have are exceptions, so make sure you mention those as well.

For the analysis, make sure that every single thing you put in the R and E part are talked about here again. If there's three exceptions but none of them apply, don't just skip these! That's how you can end up losing points to your classmates. A simple sentence or two reiterating that there are exceptions and quickly explaining why each don't apply here can get you major points! Another thing, you might notice that I used a lot of names and not a lot of pronouns. This is because you want to make it super clear to your professor who you're talking about. If I had accidentally somehow made it seem like Paul was the one who had a duty to Dan, this obviously would've been wrong and could've been counted against me. In a final, you'll most likely be strapped for time. A lot of professors understand this so they're totally okay with you using P for Paul or D for Dan if you just start out by saying Paul (P) so that they can know your code. You can even use it for more than just names and say negligence (neg) the first time and neg every other time after that.

If your fact pattern is more complex, then your CREAC will be a little different. If it's 3 different employees all suing Dan for 3 different reasons, then each one of these cases will get its own CREAC. But if Dan did multiple things that made him liable to Paul, besides just not warning him about the faulty ladder, then you also could do C (for overall), REA (for first bad thing Dan did), REA (for second bad thing Dan did), REA (for third bad thing Dan did), C (for all 3). 

You don't always have to make each letter a separate paragraph. So don't worry about squishing a rule, explanation, and analysis all together in one paragraph. If it helps your reader (professor) follow your arguments better, this is totally okay! Good luck out there my little 1L's!!

How to Read a Law School Casebook

Hello lovelies! So I'm sure lots of you have been sitting for hours on end at your orientation listening to some professor or academic advisor or dean talk about how to read for class. That's fine and all, but I thought I'd give you a more peer-to-peer perspective. 

The reason why I decided to write this post is because I sat by one of my friends during orientation when they went over how to write a brief, but then that evening she started to get frustrated because she still felt like she was doing something wrong. My first instinct was to pull up that same case on Quimbee and have her see what their brief said. This only confused her more so when I went to help her again, I realized that all of her confusion was because she wasn't reading the case the correct way.

TL;DR, I hope this post helps you better understand how to read a case so that you know what's going on and what to put in your brief.

So probably your school has told you that you need to brief or make an IRAC about your case. That's great, but you need to know where to find this information in the case!

Procedural History and Facts

Ok so this can be tricky to separate. First things first, find in your case where there is a capital name followed by a j, like BOYD, J. (FYI: j stands for judge or justice). Anything BEFORE this you can consider a prologue to the case. This before section should never be in your holding or reasoning. This is background info that the authors of your casebook had to include so you'd know what was going on in the actual excerpts from the case. Usually this is where you can find the history and facts. But also to be tricky sometimes they discuss the history and the facts later on throughout the case so your author didn't need to talk about it here.

Procedural History is this:

• Trial Court 
• who sued who and under what legal theory (why)
• ex. Joe sues Dave for battery
• NOT Joe sues Dave because Dave beat him with a bat (these are the facts)
• who won and why
• If the case was appealed already, then repeat the above information again for the 2nd trial

That's pretty much all the procedural history will be. Most of the rest that you'll want to put here are actually facts. People in class will always blab too much on the facts and get cut off my an annoyed professor during the first weeks. Be better than them and cut to the chase. See how above all I had to say was Dave beat Joe with a bat? I didn't have to go on to describe irrelevant details like where they were or what kind of bat it was or list all of Joe's injuries. 

What's tricky at first is deciding what is relevant and what is not. The easiest way to do this is fill in your facts for your brief last. If the whole case was whether Dave can be held liable because he is a minor, then yes their ages matter. If the case centered on Joe's wife being emotionally damaged from watching the beating first hand, then yes who was there matters. But if the case is about whether or not Dave actually even touched Joe, then their ages and the audience does not matter. If you don't mention a fact that your professor wanted from you, he'll ask you about it and then you can talk about it. Don't feel like leaving out details makes it seem like you're unprepared!

Issue

Ok now after the BOYD, J., this is where the actual case is. As you're reading a case, keep an eye out for the term "whether." This is usually a good indication that the judge is about to state the issue. An example of this is "the court must decide whether the defendant either willingly or knowingly violated the statute."

What the issue is NOT is should the plaintiff win/did the previous court err in their finding.  Sounds obvious but on my first day people actually raised their hands and confidently stated that that was the issue.

If you ever read the case and cannot for the love of God decide what they're even debating on, then again leave this blank and come back when you've finished with the holding and reasoning. The holding will be the answer to the question so by logic if you know the answer you should be able to figure out the question. 

An example of this would be if the judge says that the court is ruling in the defendant's favor because he did not willingly trespass. In this case, the issue might be whether or not the defendant trespassed.

Rule

The rule can also be tricky to find because sometimes the judge just doesn't say it outright (which would be black letter law) so you have to infer what the rule is. Typically if a case doesn't state the rule, then your professor will ask about that during the Socratic Method. 

Let me take a quick detour to explain the difference between a rule and elements.

Rule: $10 pizza special
Elements: 1.medium sized pizzas only 2.one topping pizzas only 3.carryout pizzas only

In your brief, the $10 pizza special would go in the Rule section and the elements would go in the Analysis section. This is because the reasoning for why the rule applies is that the elements are met. But when it comes time to make your outline, both the rules and the elements should be included.

Analysis 

Lol just explained that! Legal analysis is fairly easy to find and put in your brief. If all else fails just read the verdict and ask yourself either how the judge came to that answer or why he did. 

What you need to do when you come to this part is pay attention. You know what where your grades are gonna come from on your finals? YOUR ABILITY TO ANALYZE DA LAW. When I judge says we rule with A because of... rule B... elements C, D, E of rule B are met...  possible exceptions F, G, H don't apply because... so rule B applies here...That is a fantastic essay answer!! 

I'm not saying kill yourself and memorize judge's analysis, but I am saying don't skim through this just because it's an easy part of your brief. If you get in the habit of noting how and/or why something happened, you're naturally going to be better on answering your finals.

Conclusion

This would be your holding. If you don't know who won the case then for real don't even show up to class because your professor will be like wtf. It's almost always at the very end but sometimes they'll just start right off the bat and say we overturn the previous court and then dive in to the background, the rule, and the analysis. The holding is the easiest to find and really can be short. As far a (probably) acceptable answer could be for your professor: X wins under Y rule.

After the conclusion you might see like SMITH, J. You can consider this the epilogue to the case. This second judge is either a concurring or a dissenting judge. You'll need to know what they said for class, but usually what they say won't be tested over (unless your professor points out how their opinion is now the law). DO NOT skip this part just because it's after the case. Your professor will burn holes through your face with the look they give you after they realize that you didn't read this. It's still technically part of the case and the author of your book thought it was important enough not to edit out, so read it. 

But also know that this shouldn't be included in your holding or reasoning because it is not the actual case's holding or reasoning. Just remember that prologues/epilogues don't go in the Issue, Reasoning, Analysis, or Conclusion.

Ok I hope this helps! If you're still confused about anything, send me an email and I'll try to help you!

Using Quimbee to Help Understand Law School Subjects

I've been getting a lot of questions from nervous readers wanting me to explain more in detail some of the tools that I've recommended based off my experience as a 1L, so I thought I'd start with this post to explain why I like Quimbee. As far as study materials goes, Quimbee is kinda pricey, but I personally use it almost every day. It gives really good summaries of the cases in your book and the quizzes are pretty spot on.

I was introduced to this site by a 2L who said that it was the only "study guide" he used. We were talking about this during a lunch break, so we had time for him to pull it up and show me it on his computer so I could play around with it. I'll admit, at first I thought that I could make it through without using a supplement, and I especially didn't want to pay for a supplement; but, I started to notice a lot of my classmates were using it and it seemed like it had everything I needed. 

So eventually I broke down and made the commitment to pay the monthly fee for the Gold plan, which is the most inclusive. I decided to go all-in at least for my first year because they have material covering Civil Procedure, Constitutional Law, Contracts, Criminal Law, Property, and Torts (so basically all of your 1L classes). I figured I could at least get the biggest plan as a crutch my first year and then as I figure things out, I could change down to a cheaper plan later. 

It turned out that they had all of my books except for my Contracts book (which is now being added because enough people requested it) and my Torts book (which was written by a professor at my school so it's not a common Torts book). What you do is click on which class you're taking, and there they have all of the casebooks on that subject, with case briefs (or IRACs) for each one. 

Here's an example of a brief I did in Property for class before I had Quimbee, and what they have. Theirs is a little more extensive than mine so I had to take two screenshots for y'all to see it, so sorry it looks all weird. 

 

Obviously theirs is much more detailed than mine. This is why I stopped writing case briefs after I read, because I had already highlighted in the book as I was reading it and they did a much better job than me. I know that if academic support were reading this they'd be like "doing your own briefs helps you learn," but I just didn't feel like me writing out the facts of the case instead of Quimbee was actually going to help me come test day. But to each their own.

Another thing that I liked about Quimbee is that they have videos for everything. Some are animated that explains a topic, but my personal favorites were when they had an instructor just sitting there kinda making a YouTube video to explain a concept. I would watch these videos whenever I saw them pop up by a brief and also when I was studying before finals. If you're curious what these videos are like, they have clips on YouTube for free. What I like to do is at the end of the semester I'll pull up my outline while I watch the videos and then if there's anything that is mentioned on the video but I just forgot to put in my outline, I'll be able to fill the holes in as I go.

When I was studying for finals, I would take a quiz after studying for a bit to test myself. They break down each book into sections, and then have like 5-7 subsections. There's a quiz for each subsection and then a "final quiz" for each section. With the classes that spanned two semesters, it'd typically work out to where like only 3 sections or so applied to what we had learned that semester. The quizzes range from easy true/false to whole paragraphs. The paragraphs seem a little ridiculous because they're so long just for one easy question, but that actually was how my professor's questions would be on the final. Here's what a question and then explanation look like.

 

As you can probably tell, after I started using Quimbee I was in love. I felt like it helped make law school a tad easier, and that made it worth the price for me. I'm not going to say it helped me get the grades I did, because those grades were earned through lots o' studying, but it definitely helped me be better prepared for class. Usually what I would do is a split screen on my computer with Quimbee on one side having the case we're going over pulled up, with Evernote on the right for me to add notes, and my book out in front of me as a reference for my highlights. Sounds like a lot going on, but it really was a good system for me.

Right after finals I decided to take a leap of faith and ask this major company if they'd be willing to work with a baby blogger, and to my surprise they were super nice and excited to work with me too! So from now until September 30th, you can use the code BRAZEN and get 10% off your first month! If you're not sure you'll like it, they also have a free trial that you could use to test out, and here's a post with my suggestion on how to optimize that. 

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Writing An Appellate Brief in Law School

For my LRW class this semester, we had to write an appellate brief over the same topic as our memos from last semester. What was nice about that was that I had already done some research and had a good start. But that doesn't mean that this assignment was necessarily easier. It was basically the only thing we did in LRW this semester and the week before it was due, a LOT of people started skipping class to work on it.

Related: How to write a law school memo

The Brief

This brief was hypothetically for a case that had gone to the District Court, been appealed to the Appellate Court, and had certiorari granted by the US Supreme Court. We had to read a hypothetical 38 page court record for this case and summarize it, find between 14-18 relevant cases to cite, and then write our best arguments. My arguments in all ended up being around 10 pages long.

Most of what we went over in class was the best way to make the summary of the record be in our favor. This included little things like downplaying facts that didn't help our client and reiterating the ones that did. My professor also taught us about keeping our client in the reader's mind by consistently using his name while always referring to the other party simply as Petitioner to depersonalize him. 

My professor had our briefs be their strongest by having us organize them in a way that supported our client while systematically destroying our opponent. My layout was paragraph about a case that I wanted to use followed by another paragraph of legal analysis of applying the law from that case to my client's case. I arranged my arguments to put my strongest argument first, then told my cases so that each argument related on the last, then I addressed my opponent's strongest cases, and finally summarized what all of the cases together meant for my client. 

Researching

This assignment was 100% of my grade and all that I did for LRW this semester, so it was a big project. It was very research heavy and I ended up getting a folder to put everything in. Being able to flip through and highlight in the record was pretty convenient and then I was able to use the pockets in the front and back to keep up with all of the rough drafts that my professor gave me and any cases that I printed out. 

Legal research is a painstaking process. I spent over 6 hours one Sunday on Lexis just reading case after case trying to get really good rules of law that I could use in my case. This is because once you find a case that has a really good rule, you can either follow the cases cited within this case as a lead or Shepardize your case and check the cases that cite this case to see if they've got anything good. You basically end up going in circles and it can be hard to keep track of which cases cite which and the order of when they cases were decided and also which courts were deciding these cases. 

What's nice about Lexis is that when you find a great line in a case, you can highlight it and save the case in a folder. I had a folder for cases that supported my client and cases that my opponent might use. Since you can add notes about your highlights, I could click on my client's folder and see all of the cases that I wanted to use for him with little summaries about what I had highlighted. Also, when you highlight something it will give you the citation for that quote. Write that down and now you don't have to worry about figuring out what page of the case your own or any other annoying things that you have to put in your citation!

Not only are you doing this wild goose chase just trying to find cases that support your argument, but you also have to think of what your opponent's best arguments are. You have to find a few of the cases that you know they are going to use and either figure out a way to make them distinct from your case or see if maybe a rule from their case could actually support your argument. I only spent maybe an hour or two on this, but reading all of these cases is still pretty burdensome.

Related: Legal research and writing tips

Writing

As for writing the brief itself, that wasn't too bad because I made myself an outline first and just wrote according to my outline. The easiest thing to do is come up with sub-arguments and use these as a theme when you're writing and keep reiterating this theme throughout your arguments to really make them seem strong. So my outline was:

• Argument for Court's 1st Question
• Argument I
• Sub-argument A
• Sub-argument B
• Sub-argument C
• Argument II
• A
• B
• C
• Argument for 2nd Question
• Argument I
• A
• B
• C
• Argument II
• A
• B
• C
• Conclusion
• Summary of 1st argument 
• Summary of 2nd argument

I also printed a numbered list of all of the cases that I wanted to use before and labeled each one for the arguments that I wanted to use it for so that I didn't forget to use a case. I put each case number in my outline so that before I started writing I knew when each case was going to be brought up and in which paragraphs for which arguments. My case list looked like this:

1. Case name

• argument and sub-argument when I wanted to use it (ex. II B)
• rule from the case that I wanted to apply
• what level the court was (district, appellate, Supreme Court)

This made writing the brief really easy because I didn't have to pull up the actual case to talk about it; instead I could just look at my case list and know exactly what I wanted to say about each case. This also turned out to be really helpful when I had to make my Table of Authorities. 

Final Thoughts

The hardest part was just the amount of time it took to prepare to even begin writing. I think the students who skipped class to work on this kinda got their priorities mixed up because law school classes are not the kind where you can skip and be okay. I still haven't gotten my paper back yet, but I'm now done with LRW so that's one last class I have to stress about :) I've heard that a good number of students are using their briefs as writing samples to try to get on different law journals, so it's definitely worth it to try to write one really killer paper. Overall, this brief was a bitch and now I see why lawyers are willing to pay paralegals to do most of this grunt work but it wasn't the worst thing that I've had to do! 

Lessons of Law School

Women's Law Association

We had our and WLA meeting, and this time it was a panel of three women lawyers. The classes they said that helped them the most were writing intensive classes that prepared you for the motions and memos that you'll have to write and mock trial/moot court that prepares you for public speaking in the legal field. They also touched on how as a young and single female lawyer, you will have people being prejudiced against you such as confusing you as a court reporter or opposing council trying to personally attack and intimidate you. They how mentioned how unsure of yourself you'll fell until you win your first first case. Their advice on balancing children and a work life was to scale back at work initially, and then don't be hard on yourself if you have to hire help to make sure that your kids get the attention they need.

Cases on cases

I loved HTGAWM before I came to law school, and I still do but I definitely feel like it's not realistic at all. My professors spend a good majority of the time going over the cases that were assigned and the main rules of law they want us to know for their tests, like in Legally Blonde when the professors were always discussing the cases with their class. And there's no way I'm believing that these guys have time to get their readings done while covering up murders. 

Related: A day in the life of a law student

This got me thinking, so I counted how many cases I've had to read  just in my two short months here. Granted some where only half a page, but others were several pages long. So far I've read 29 Contracts cases, 26 Civ Pro cases, 62 Torts cases, 31 Property cases, and 14 cases for LR&W. That's 162 cases so far. I still laugh at my undergrad self for sliding by barely opening the books.

Related: How to manage your time in law school 

Section C love

While waiting to get my fingerprints scanned for the Dec ($10 more to this stupid thing) I met a lot of people outside of my section. I haven't really been clicking with anyone in my section, and the ironic part is that when I met them they were talking about how my section wasn't that close. This was confirmed when 10 minutes later a woman from my section stood in line right behind me and when I talked about our Civ Pro professor she asked if I had him too and I was like Yeah I'm in your section.... 

Everyone I met from Section C was very friendly and they all seemed to really get along. After chatting with them while we had to wait for a whole damn hour, they went so far as to add me to their section's Facebook group because apparently they all hang out a lot. I'm glad I met them because they're really so much nicer than the people in my section and I'm glad to have more friends here. 

Law School Keyboard Shortcuts

1L Week 2 - if only reading burned calories 

52 pages just for Civ Pro and another 22 pages and those briefs for Property. And a research assignment and case briefs for Legal Research & Writing. All due tomorrow. Yeah my life revolves around reading, highlighting, and briefing cases. That's it. I think when people say that law school is hard, what they really are saying is that law school is very time consuming and requires more dedication than you'd like to put into school. 

In undergrad I got A's in without even opening my book, or only opening it the night before a test or two days before a final. In law school, you can't get around this because just like in Legally Blonde and The Paper Chase, a professor will usually just pick a name and have you talk about what the reading was about so there's no way to BS your way out when they're asking you stuff like "what was the plaintiff's defense, and what was the defendant's argument against that? 

Faster notes

I've found that I like book briefing/ highlighting better because it's easier for me to just highlight as I go instead of rewriting and paraphrasing what the book says. If my professor asks what's the plaintiff's defense, I just look for what I underlined in pink. And for the defendant's argument, I look for what's underlined in baby blue. This is easier than awkwardly skimming through my note's for what I wrote about them.

I can't tell if I'm getting more innovative or just more lazy, but I'm really working to streamline my note-taking process because when you have this many pages to read on a Wednesday you kinda have to get a system down so that you don't waste hours writing down what you just read. I've fallen victim to the Apple cult, and it's really helpful to have my laptop and phone on the same page. What I did was on my phone go to Settings > General > Keyboard > Text Replacement and set up some shortcuts that sync to my laptop. Or on your laptop, go to System Preferences > Keyboard > Text and add them there. All I have to do now is type the shortcut and press space and my word pops up. And although I have "dd" to say defendant, if I type a word that has that in it like "add," it won't do it. It's the little things that really help. I'm sure I'll add lots more, but here's what I have so far:

ac - appellate court
amt - Amendment 
atty - attorney
bc - because
bt - between 
cl - common law
cm - criminal
cn - Congress 

cr - copyright
cv - civil

dd - defendant
fed - federal
exec - executive
gr - general rule

gov - government

hs - hearsay
info - information
jd - judicial
jt - judgment 
jx - jurisdiction 
kk - contract
litg - litigation 
lege - legislature
mgr - majority rule
mnr - minority rule
neg - negligence
njc - injunction
pj - personal jurisdiction
rap - rule against perpetuities

reg - regulation
rs - Restatement Second
sc- Supreme Court
sg - something

sof - Statute of Frauds
sol - statute of limitations
st - state
sm - statement

smj - subject matter jurisdiction  
tc - trial court
tt - testator
wt - witness

also, here's some built-in shortcuts
∆ - option + J on a Mac/alt + 8710 on a PC
π - option + p on a Mac/alt + 227 on a PC
 § - option + 6 on a Mac/alt + 0167 on a PC

The Bar has an expensive cover charge

Yesterday, we had people from the Texas Bar come talk to us about submitting a Declaration of Intention to Study Law. I didn't expect to be filling this out so early, but the way they explained it to us is that they do this so that if you have any problems you can get them fixed before you apply for the bar. The application seems pretty daunting considering that you need rec letters and everything. Oh and it costs a nice $190 so that's cute that I have a month to come up with that. I know I keep going on about money, but I swear that every time you turn around in law school there's another fee for something somewhere. 

2 week milestone!

But hey, it's ok because I've made it a full two weeks and only cried once! And that was because I was homesick and missing my old school. Luckily though, this weekend is a 4-day weekend and just so happens to be the weekend before I turn 23, so that's enough for my best friend to come visit me so I'm super excited. Having four-day school weeks is really nice because I get done with my Tuesday classes and realize that I'm halfway done for the week. Then I get done with my Wednesday classes and just have one more day left. Any I spend all day Thursday telling myself that I just have to make it until 2 and then I'm home free :D

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An Example of IRAC

I have a friend who just started at her law school, and she was posting on Facebook about being confused about briefs. Apparently her school didn't spend a full week drilling this into her brain. So just for clarity, here's a made up example that we went over in my property class:

Mitzul v. Mitzul

Supreme Court of the State of Denizen

Opinion delivered on February 1, 1979

This case comes to us on appeal from the Court of Appeals of the State of Denizen and concerns the following facts, as set forth in the record established in the court below.

Alyosha Mitzul and Ivan Mitzul are brothers who have lived next to each other, in adjacent single family homes located in Tooele County, Denizen, since 1950.  For most of this time, the brothers seemed to enjoy a good relationship, and much of their mutual goodwill appeared to revolve around their shared interest in gardening.

In particular, the brothers both participated in the caring for a large sycamore tree, which straddled the boundary line between their separate properties and which is now hundreds of years old.  The Mitzul brothers developed proprietary plant foods and treatments and nourished the tree into a towering example of excellent gardening.  This tree won many prizes and gained quite a reputation within the relatively small Denizen gardening community.  Indeed, many times over the years, third parties offered the Mitzul brothers large sums of money for an ownership interest in the tree, the buying and selling of interests in prize-winning plants apparently being a common occurrence in that same community.  For years, the brothers resisted these offers.  In December 1977, however, they received an offer they could not resist, and therein lies the genesis of the dispute at the heart of this case.

The offer, $100,000 for a 50% ownership interest in the tree, would have been easy to split in half, with each brother taking $50,000 and retaining a 25% interest, but Alyosha (hereinafter referred to as the defendant) was not amenable to this scenario.  After considering the offer, Alyosha carefully measured the tree and established that 60% of its circumference was on his property.  As such, he demanded a proportionate share of the proceeds of any sale.  Ivan (hereinafter referred to as the plaintiff) resisted.  Plaintiff contended that the precise measurements were irrelevant and that what mattered was the fact that the tree was, to any extent, partially on both brothers’ properties.  

Not being able to come to an agreement, plaintiff sued, requesting in the trial court a declaration that each brother owned half the tree and so was entitled to half the proceeds.  The trial court below found for defendant, ruling that Alyosha was entitled to full ownership of the Sycamore tree.  The Court of Appeals affirmed.  We now reverse.

There is no question that, under normal circumstances, and under well known property law principles, plaintiff would prevail.  Generally speaking, adjoining landowners equally own any vegetation that falls upon the adjoining land, regardless of the dimensions or measurements of such overlap.  See, e.g., Jesse Dukeminier et al., Property 190 (4th ed. 1969); Locke’s Two Treatises on Property Theory (Legal Classics Library, Division of Grypon Editions 1952).  

There is, however, an exception to the equal ownership rule, which exception is equally well established under the law.  This exception, colloquially known as the “Blond Giant” exception, holds that, if a controversy surrounding the ownership of vegetation on adjoining parcels arises, as in the instant case, any party that has blond hair and that stands over six feet tall will succeed to full ownership of such vegetation.  See, e.g., U.S. v. Peters, 5 Cranch 115, 136 (1809).  The reasoning for this rule runneth to a time where memory reacheth not and is so well-established that we need not repeat it here.  See id.

The trial court applied this exception to hold in favor of defendant because Alyosha is blond and stands in excess of six feet tall.  Normally, we would agree and affirm.  Here, however, the undisputed testimony below establishes that Alyosha is not a natural blond.  Uncontroverted evidence below shows that Alyosha has naturally brown hair but that he regularly dyes his hair.  The trial court, and the court of appeals in its affirming opinion, held that this distinction makes no difference and that defendant wins under the Blond Giant exception.  We disagree.

The ancient authorities are admittedly less than clear, but, to the extent they discuss the issue, they indicate that a Blond Giant exists, if at all, at birth.  See, e.g., Sir Frederick Pollock, English Law Before the Norman Conquest, Essays I, p. 104.  Indeed, no less an authority than Barbyrac states as follows, in explicating the rule: “That whensoever a blond child is born, then shall such child have preference to shared flora when he doth grow to a great stature.”  Laurence Fontaine, L’Économie Morale: Pauvréte, Créddit et Confiance Dans L’Europe Preindustrielle (1975) (citing 3 Barbyrac on Property Naturalis, § 771.45 (1583)); see also P.R.O, C.39/24, Muschamp v. Stoakes (1598) (holding the same).  Similarly, the ancient case of Muschamp, cited immediately above, indicates that “the blond emblem of birth confers the [relevant] privilege [and so invokes the exception].”  Muschamp v. Stoakes.

These authorities cumulatively indicate, then, that any claimant to the Blond Giant exception must be blond at birth.  Here, defendant was both over six feet tall and blond at the time of trial.  He was not, however, blond at birth.  As such, he was not entitled to the benefit of the Blond Giant exception.  Accordingly, we reverse the holdings below and direct the trial court below to enter an order declaring that plaintiff and defendant equally own the Sycamore tree in question.

And here is a proper IRAC: 

Mitzul v. Mitzul

made up citation

Deciding Court: Supreme Court of the State of Denizen

Parties: I. Mitzul (plaintiff, appellee), A. Mitzul (defendant, appellant)

Procedural History: Plaintiff sued, requesting each brother is entitled to half of the proceeds of the tree equally. Trial and appeal courts found full ownership of the tree to defendant. Trial court applied BG rule and ruled in favor of defendant even though he dyes his hair, saying it doesn’t matter.  

Facts: Someone offered to buy a tree that sits on the property line of the plaintiff and defendant's two houses. Defendant estimates 60% of the tree is on his side and suggests splitting the proceeds proportionately. Plaintiff suggests splitting it evenly because the tree is on both sides. 

Issue:  Who owns vegetation when it straddles property line? 

Rule: Blond Giant exception. If a controversy over ownership of shared vegetation, party with blond hair and over 6’ wins ownership. 

Analysis: Because defendant dyes his hair, he is unable to win under the BG rule because it states that you must be a natural blond. Since neither brother follow under the exception, judge refers back to the original rule that if there is a dispute between shared vegetation, it is shared equally. 

Holding: Judge agrees with original rule of equal sharing and not the exception for the rule because it does not apply here. Judge reverses, declaring that the plaintiff and defendant equally own the tree. 

Related: How to find the parts of an IRAC in your casebook