i’ve synthesized the rule – now, how do i explain it? or another tool for your swiss army knife...

I’ve Synthesized the Rule – I’ve Synthesized the Rule – Now, How Do I Explain It?Now, How Do I Explain It?

ororAnother Tool for Your Swiss Army KnifeAnother Tool for Your Swiss Army Knife11

The Background The Background The Question The Question The HypotheticalThe Hypothetical Some Current Methodologies & Some Current Methodologies &

Typical 1L ResponsesTypical 1L Responses A Process to Identify Thesis Points A Process to Identify Thesis Points for a for a Legal Argument Legal Argument

1 Accord Tracy McGaugh, The Synthesis Chart: Swiss Army Knife of Legal Writing, 9 Perspectives: Teaching Legal Research and Writing 80 (Winter 2001).

Background – Background – Terms & ConceptsTerms & Concepts22

CRAC / IRAC / CREACCRAC / IRAC / CREAC

Synthesize a rule Synthesize a rule

Rule Explanation Rule Explanation

Rule Application Rule Application

2 The principal text for the Emory LWRA Program is Linda H. Edwards, Legal Writing: Process, Analysis and Organization (3d ed., Aspen L. & Bus. 2002).

Background – Background – The Swiss Army KnifeThe Swiss Army Knife

The synthesis chart described in Tracy The synthesis chart described in Tracy McGaugh’s article (noted on the title McGaugh’s article (noted on the title page) provides students with a visual page) provides students with a visual representation of the thought representation of the thought processes necessary to synthesize a processes necessary to synthesize a legal rule from multiple cases. The legal rule from multiple cases. The additional purpose, which Tracy additional purpose, which Tracy described as her “aha moment,” described as her “aha moment,” provides a visual display that assists provides a visual display that assists students with fact-to-fact comparisons students with fact-to-fact comparisons needed in rule application.needed in rule application.

The QuestionThe Question

I have determined the legal rule for I have determined the legal rule for my client’s issue, and I have a my client’s issue, and I have a spreadsheet that lets me see what spreadsheet that lets me see what facts could / should be compared for facts could / should be compared for each element, but how do I organize each element, but how do I organize my discussion or argument so a my discussion or argument so a legally trained reader will follow the legally trained reader will follow the logic of my analysis?logic of my analysis?

i.e., How do I organize the i.e., How do I organize the explanation of the legal rule? explanation of the legal rule?

Rule explanation describes what the rule is, Rule explanation describes what the rule is, why the rule is what it is, and how it works.” why the rule is what it is, and how it works.” Rule explanation “proves”Rule explanation “proves”22 the rule by the rule by demonstrating the reasoning that a court demonstrating the reasoning that a court used when it applied the rule in a new case. used when it applied the rule in a new case. Rule explanation also lays the groundwork Rule explanation also lays the groundwork for your rule application; in an effective rule for your rule application; in an effective rule explanation, the reader will start to explanation, the reader will start to anticipate and agree with your conclusions anticipate and agree with your conclusions before reaching them.before reaching them.

2 Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure Strategy and Style ch. 10 (5th ed. 2005) (describing this part of IRAC as “rule proof”)

To answer the question, let’s use a To answer the question, let’s use a hypothetical:hypothetical:**

A Professor Emeritus at a prestigious Texas A Professor Emeritus at a prestigious Texas university dies and leaves the bulk of her estate to university dies and leaves the bulk of her estate to the university. She never married and had no the university. She never married and had no children; she has only a half-brother. The half-children; she has only a half-brother. The half-brother challenges the will on several grounds, one brother challenges the will on several grounds, one of which centers on a letter the professor wrote to of which centers on a letter the professor wrote to her investment broker shortly before she made her her investment broker shortly before she made her will. In the letter, the professor tells the broker will. In the letter, the professor tells the broker which institutions will get each of her investments. which institutions will get each of her investments. One item in the will references the letter to the One item in the will references the letter to the broker, but does not explicitly state the broker, but does not explicitly state the distributions. The half-brother argues that the distributions. The half-brother argues that the letter cannot be made a part of the will, and thus letter cannot be made a part of the will, and thus the investments go to him through the residuary the investments go to him through the residuary clause in the will. clause in the will.

* Taken from the Emory LWRAP closed memo problem, which was adapted from a 2002 submission to the LWI idea bank.

Hypothetical cont’d – Hypothetical cont’d – Body of letter to brokerBody of letter to broker

Our conversation the other day set me to thinking. I Our conversation the other day set me to thinking. I will soon be making my will. I don’t plan to do a lot more will soon be making my will. I don’t plan to do a lot more buying and selling of stocks and bonds; I’m going to let my buying and selling of stocks and bonds; I’m going to let my investments sit. I plan to dispose of them in my will as investments sit. I plan to dispose of them in my will as follows:follows:

All stocks: _____________ University, for development All stocks: _____________ University, for development of the of the

graduate program in ______________.graduate program in ______________.

All municipal bonds: ____________, Texas Public All municipal bonds: ____________, Texas Public Library, for Library, for buildingbuilding expansionexpansion

All federal bonds: _____________, Texas Public School All federal bonds: _____________, Texas Public School System, for development of computer System, for development of computer

technology in technology in the middle and high schoolsthe middle and high schools

So, that’s what you can expect when I pass on. Until So, that’s what you can expect when I pass on. Until then, I’m going to stop playing the market and devote what then, I’m going to stop playing the market and devote what energy I have left to other matters.energy I have left to other matters.

Hypothetical cont’d – Hypothetical cont’d – Relevant Item in WillRelevant Item in Will

I authorize and direct my Executor to I authorize and direct my Executor to distribute the stocks and bonds of distribute the stocks and bonds of which I am possessed at my death to which I am possessed at my death to the three institutions named, and in the three institutions named, and in the manner I have set forth, in my the manner I have set forth, in my [DATE], letter to my broker, [BROKER [DATE], letter to my broker, [BROKER NAME]. NAME].

Sample: Synthesis Chart – Legal Sample: Synthesis Chart – Legal RuleRule

CaseCases s

Element Element 11

Element Element 22

Element Element 33

Result Result

CASECASE1 1

Document "must Document "must be so clearly be so clearly identified as to identified as to preclude all preclude all reasonable reasonable probability of probability of mistake as to the mistake as to the instrument instrument referred to.”referred to.”

Document must Document must exist when will is exist when will is executed. "Rule executed. "Rule is one of identity is one of identity & certainty." & certainty." Thus, reduced to Thus, reduced to writing is writing is sufficient.sufficient.

Element is not Element is not explicitly explicitly discussed, but discussed, but facts imply that facts imply that element would element would have been have been satisfied if satisfied if addressed.addressed.

Incorporation Incorporation by reference by reference = OK= OK

CASECASE22

Document must be Document must be identified in the identified in the will so as to leave will so as to leave T's intent T's intent reasonably free reasonably free from doubt. There from doubt. There is also a public is also a public policy argument policy argument for clear for clear identification identification presented in this presented in this casecase

Same rule as Same rule as CASE1CASE1

Intent to Intent to incorporate must incorporate must be free from be free from doubt; unclear in doubt; unclear in this case whether this case whether this is distinct this is distinct element from element from identificationidentification

Incorporation Incorporation by reference by reference not OK not OK because ID because ID was unclearwas unclear

Sample: Synthesis Chart – Legal Sample: Synthesis Chart – Legal Rule -2Rule -2CaseCase

s s Element Element

11Element Element

22Element Element

33Result Result

CASECASE3 3

Document "must Document "must be so clearly be so clearly identified as to identified as to preclude all preclude all probability of probability of mistake as to the mistake as to the instrument instrument referred to." referred to." (omitted (omitted "reasonable") "reasonable") Reiterates CASE2 Reiterates CASE2 public policypublic policy

Same rule as in Same rule as in CASE1CASE1

Intent treated as Intent treated as a separate a separate element. “Intent element. “Intent [to incorporate by [to incorporate by reference] must reference] must be clearly be clearly expressed in the expressed in the will.”will.”

Incorporation Incorporation by reference by reference not OK not OK because because identification identification was unclear was unclear and no clear and no clear intent to intent to incorporate incorporate was stated in was stated in will.will.

CASECASE44

Referenced Referenced document must be document must be capable of capable of identificationidentification

Not discussed Not discussed T’s intent to T’s intent to incorporate the incorporate the document must document must be clearly be clearly expressed in the expressed in the willwill

Incorporation Incorporation by reference by reference not OK not OK because because identification identification was unclear was unclear and no clear and no clear intent to intent to incorporate incorporate was stated in was stated in will.will.

Synthesized Rule for Synthesized Rule for HypotheticalHypothetical

CasesCases

____________________

SynthesizeSynthesized Rule to d Rule to use in your use in your client’s client’s casecase

Element Element 11Identification**Identification**

__________________________

Document Document must be so must be so clearly clearly identified in identified in the will as to the will as to preclude all preclude all reasonable reasonable probability of probability of mistakemistake

Element Element 22

Existence**Existence**

________________________

Document Document must be in must be in existence existence prior to the prior to the execution of execution of the will the will

Element Element 33

Intent**Intent**

______________________

Intent to Intent to incorporate incorporate the the document document must be must be clearly clearly expressed expressed in the will in the will

PossiblPossible Result e Result ____________________

Professor’s Professor’s letter to letter to broker broker possibly possibly can be can be incorporatincorporated by ed by reference reference into her into her willwill

** Terms are added after rule is synthesized for ease of discussion.

Synthesis Chart – Fact Synthesis Chart – Fact Comparisons - 1Comparisons - 1CaseCase

s s Element Element

11IdentificationIdentification

Element Element 22

ExistenceExistence

Element Element 33

IntentIntent

Result Result

CASECASE1 1

Document was a Document was a contract & contract & included party included party names, execution names, execution date, & name of date, & name of notary attesting notary attesting the contractthe contract

Will & contract Will & contract were reviewed & were reviewed & executed in same executed in same meeting; will meeting; will signed first; this signed first; this was simultaneous was simultaneous execution, but execution, but contract was “in contract was “in existence” existence”

Not discussed, but Not discussed, but will stated, "I will stated, "I expressly will, expressly will, declare and direct declare and direct that the that the instrument . . . instrument . . . shall be in all shall be in all respects adhered respects adhered to, observed and to, observed and carried out.”carried out.”

Contract was Contract was incorporated incorporated by referenceby reference

CASECASE22

Documents were Documents were deeds; will did not deeds; will did not have dates of have dates of deeds or deeds or description of any description of any property; court property; court extrapolates to extrapolates to documents documents generally for generally for policy re general policy re general scheme of T’s scheme of T’s property property distributiondistribution

Dates of the Dates of the deeds were prior deeds were prior to the date of the to the date of the will’s execution; will’s execution; court said court said existence element existence element was satisfiedwas satisfied

Discussion of Discussion of intent muddled intent muddled with analysis of with analysis of identification, but identification, but court did state court did state that a sentence in that a sentence in the will indicated the will indicated intent was for intent was for property to pass property to pass by deed and not by deed and not by willby will

Deeds not Deeds not incorporated incorporated by reference by reference because no because no clear clear identificationidentification

Synthesis Chart – Fact Synthesis Chart – Fact Comparisons - 2Comparisons - 2CaseCase

s s Element Element

11Element Element

22Element Element

33Result Result

CASECASE3 3

"Attached" not "Attached" not sufficient ID; also, sufficient ID; also, will mentions 1 will mentions 1 doc., but there doc., but there were actually were actually several several documents documents offered for offered for incorporationincorporation

No dispute that No dispute that docs. were in docs. were in existence - dates existence - dates on docs. were on docs. were prior to execution prior to execution datedate

"attached" not "attached" not sufficient to show sufficient to show intent; also, logic intent; also, logic does not support does not support intent b/c docs. intent b/c docs. provide that T provide that T would run the would run the hospital - but hospital - but impossible since impossible since he was deadhe was dead

No No incorporation incorporation by reference by reference because ID because ID insufficient insufficient and intent to and intent to incorporate incorporate not clearnot clear

CASECASE44

"Pursuant to" "Pursuant to" reference is reference is insufficient to insufficient to adequately adequately describe describe document to document to avoid confusionavoid confusion

Not discussedNot discussed "Pursuant to" "Pursuant to" does not show does not show intent to intent to incorporateincorporate

No No incorporation incorporation by reference by reference because ID because ID insufficient insufficient and intent to and intent to incorporate incorporate not clearnot clear

Synthesis Chart – Fact Synthesis Chart – Fact Comparisons - 3Comparisons - 3

CasesCases

____________________

Facts from Facts from your your client’s client’s casecase

Element Element 11Identification**Identification**

______________________

Language in Language in will that will that describes describes letter letter includes includes date of date of letter, letter, addressee, addressee, and and description description of letter’s of letter’s contentscontents

Element Element 22

Existence**Existence**

________________________

Letter dated Letter dated & mailed & mailed prior to date prior to date will will executed; executed; copy with copy with date is on date is on professor’s professor’s computer; computer; original letter original letter can be can be producedproduced

Element Element 33

Intent**Intent**

______________________

Will provides, Will provides, “I authorize “I authorize and direct and direct my Executor my Executor to distribute to distribute the stocks the stocks and bonds . . and bonds . . . to the three . to the three inst’ns inst’ns named, and named, and in the in the manner I manner I have set have set forth in [the forth in [the letter.]”letter.]”

PossiblPossible Result e Result ____________________

Professor’s Professor’s letter to letter to broker broker likely can likely can be be incorporatincorporated by ed by reference reference into her into her willwill

** Terms are added after rule is synthesized for ease of discussion.

The QuestionThe Question

I’ve got the rule and the facts, I’ve got the rule and the facts, but what is a logical organization but what is a logical organization for my analysis? for my analysis?

Alternative 1 – Identify the legally Alternative 1 – Identify the legally relevant facts relevant facts33

Analyze each case and determine the legally Analyze each case and determine the legally relevant (or outcome determinative) facts. relevant (or outcome determinative) facts. The explanation of the rule should illustrate The explanation of the rule should illustrate (i.e., explain) how the courts have used these (i.e., explain) how the courts have used these facts in reaching the results in each case you facts in reaching the results in each case you will use in your analysis. Each paragraph in will use in your analysis. Each paragraph in the RE might explain one case, which sets up the RE might explain one case, which sets up the corresponding RA paragraph, in which the corresponding RA paragraph, in which these legally relevant facts will be compared these legally relevant facts will be compared to legally relevant facts from your client’s to legally relevant facts from your client’s case.case.

3 Linda H. Edwards, Legal Writing: Process, Analysis and Organization (3d ed., Aspen L. & Bus. 2002); Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure Strategy and Style ch. 17 (5th ed. 2005).

Alternative 1 – Potential 1L Alternative 1 – Potential 1L responseresponse

Many 1L’s, particularly in their first Many 1L’s, particularly in their first semester of law school, will understand this semester of law school, will understand this to mean they should present a series of case to mean they should present a series of case descriptions. EXAMPLES:descriptions. EXAMPLES:

In In CASE1CASE1, the court held that the contract , the court held that the contract was clearly identified in the will because the was clearly identified in the will because the description included the party names and the description included the party names and the date of the contract. date of the contract.

In CASE2, the court held that the deeds were In CASE2, the court held that the deeds were not sufficiently identified because the not sufficiently identified because the description in the will did not include the description in the will did not include the dates of the deeds or any descriptions of the dates of the deeds or any descriptions of the property in the deeds.property in the deeds.

Alternative 2 – Identify the Alternative 2 – Identify the “Phrase that Pays” “Phrase that Pays”44

One or two terms or phrases may be One or two terms or phrases may be at the “heart” of the rule for the at the “heart” of the rule for the element you are discussing. Rule element you are discussing. Rule explanation requires that you define explanation requires that you define this “phrase that pays” or that you this “phrase that pays” or that you show how it has / has not been applied show how it has / has not been applied in precedent cases. in precedent cases.

4 Mary Beth Beazley, A Practical Guide to Appellate Advocacy, § 5.1.3 (2002).

Alternative 2 – Identify the Alternative 2 – Identify the “Phrase that Pays” “Phrase that Pays”

(cont’d)(cont’d)

One method to identify a/the “phrase One method to identify a/the “phrase that pays” is to rewrite your rule as that pays” is to rewrite your rule as an “if-then” statement: an “if-then” statement:

If [legal condition] exists, then [a If [legal condition] exists, then [a certain legal status] results. certain legal status] results.

The legal condition is the “phrase The legal condition is the “phrase that pays.”that pays.”

Alternative 2 – Potential 1L Alternative 2 – Potential 1L responseresponse

Many 1L’s perceive this to mean Many 1L’s perceive this to mean the rule statement itself is a/the only the rule statement itself is a/the only thesis point. If there is more than one thesis point. If there is more than one legally relevant fact for the element at legally relevant fact for the element at issue, the rule explanation could issue, the rule explanation could become a series of paragraphs, each become a series of paragraphs, each addressing one or more determinative addressing one or more determinative facts, and each starting with a facts, and each starting with a sentence that includes the same sentence that includes the same phrase that pays.phrase that pays.

Alternative 2 – Sample 1L Alternative 2 – Sample 1L responseresponse To be incorporated by reference into To be incorporated by reference into

a will, an extraneous document must be a will, an extraneous document must be “so clearly identified [that] it precludes “so clearly identified [that] it precludes reasonable probability of mistake.” . . . reasonable probability of mistake.” . . .

A document cannot be incorporated A document cannot be incorporated into a will when it is not “so clearly into a will when it is not “so clearly identified [that] it precludes reasonable identified [that] it precludes reasonable probability of mistake.” . . . probability of mistake.” . . .

A Process to Identify Thesis A Process to Identify Thesis Points Points

for a Legal Argumentfor a Legal ArgumentWhy do we need a different approach? Why do we need a different approach?

No assurance that a rule explanation will No assurance that a rule explanation will focus on rule-based points that will focus on rule-based points that will foreshadow the application of the rule to foreshadow the application of the rule to your client’s case. your client’s case.

No direct means to write a rule-based No direct means to write a rule-based thesis sentence to avoid a rule thesis sentence to avoid a rule explanation that sounds formulaic.explanation that sounds formulaic.

A Process to Identify Thesis Points A Process to Identify Thesis Points for a Legal Argument -2for a Legal Argument -2

By adapting the synthesis chart form, we By adapting the synthesis chart form, we use a familiar organizational scheme to use a familiar organizational scheme to

walk the students through the mental walk the students through the mental processes to identify rule-based points and processes to identify rule-based points and write the corresponding thesis sentences for write the corresponding thesis sentences for these points. these points.

capture the points identified both by capture the points identified both by examining the determinative facts and by examining the determinative facts and by using the “phrase that pays,” in addition to using the “phrase that pays,” in addition to other points that may not be as obvious.other points that may not be as obvious.

A Process to Identify Thesis Points A Process to Identify Thesis Points for a Legal Argument - 3for a Legal Argument - 3

Ask yourself Ask yourself these questionsthese questions

Your thought Your thought process for the process for the ______ element______ element

Written Written

Product Product

GROUP IGROUP I of your of your cases: Do you have cases: Do you have case(s) whose case(s) whose outcome satisfies the outcome satisfies the element at issue? element at issue?

If so, If so, look closely at look closely at each caseeach case and ask and ask yourself the questions yourself the questions listed below: listed below:

If the outcome for a case is the same as the likely / desired outcome for your client’s case, you will analogize; if the outcomes are different, then you must distinguish your client’s case.

At this point, no At this point, no written product written product is required. is required.

Thesis Point Process - 4Thesis Point Process - 4

For each case, For each case, what did the what did the court court saysay about about the rule and why the rule and why it reached the it reached the conclusion it did? conclusion it did?

Think about how the Think about how the court developed the court developed the rule it used – Did it use rule it used – Did it use the rule from a the rule from a precedent case without precedent case without any change? Did the any change? Did the court “process” the court “process” the rule in any way? While rule in any way? While your RE should not your RE should not describe this change describe this change for any of the cases, it for any of the cases, it is important when you is important when you synthesize the legal synthesize the legal rule for you to rule for you to understand if/how a understand if/how a rule may have evolved. rule may have evolved.

No written No written product yetproduct yet


For each case, For each case, what did the what did the court actually court actually dodo in applying the in applying the rule, regardless of rule, regardless of what the court what the court may have said may have said about its about its reasoning? reasoning?

Are the Are the holding/findings in the holding/findings in the case consistent with case consistent with the court’s analysis or the court’s analysis or discussion of the legal discussion of the legal rule? Or did the court rule? Or did the court seem to “say” one seem to “say” one thing in its thing in its discussion/analysis and discussion/analysis and then conclude then conclude something different? something different?



For each case, are For each case, are there any other there any other statements or statements or discussions (e.g., policy discussions (e.g., policy rationales) that inform rationales) that inform you how the court you how the court decided whether this decided whether this element was satisfied? element was satisfied?

Remember that policy Remember that policy arguments will go arguments will go beyond only the beyond only the facts/parties in a case facts/parties in a case and examine whether and examine whether the result in the case the result in the case would benefit society would benefit society as a whole. as a whole.


Look at each of the bases Look at each of the bases you have identified that you have identified that the courts have used to the courts have used to reach the results they did. reach the results they did. How can you How can you characterize the courts’ characterize the courts’ reasons? reasons? (If you have (If you have more than one case, more than one case, you should determine you should determine whether there are whether there are common themes or common themes or analytical principles analytical principles across the cases.)across the cases.)

Can each of these Can each of these characterizations or characterizations or themes be discussed themes be discussed “on its own,” “on its own,” i.e.i.e., in a , in a paragraph discussing paragraph discussing only that one point as only that one point as a means to help you a means to help you explain this element? explain this element? You have now You have now identified a “thesis identified a “thesis point.”point.”



Now you are Now you are ready to write. ready to write. State your thesis State your thesis sentence as a sentence as a simple declarative simple declarative sentence. sentence.

Look carefully at the Look carefully at the case(s) that rely on that case(s) that rely on that point: Do any of the point: Do any of the courts provide a definition courts provide a definition or description for any of or description for any of these points? Perhaps these points? Perhaps you can use this to help you can use this to help you craft a thesis you craft a thesis sentence. sentence. Quoting language for a thesis sentence can be effective, but it is not required.

Written Written product can be product can be drafted here.drafted here.

Now use the legally Now use the legally relevant facts and relevant facts and details from each details from each case to support case to support (explain / illustrate) (explain / illustrate) these thesis these thesis sentences. sentences.

Do this using your own words; do not merely quote or only slightly paraphrase the court’s analysis. Also, do not state merely the results or conclusions of the court’s analysis.



GROUP II GROUP II of your cases: of your cases: Now look at cases in Now look at cases in which the element at which the element at

issue was not satisfied.issue was not satisfied.

Repeat the steps listed above for your GROUP I cases.


As one final check to As one final check to ensure you have ensure you have identified the key turning identified the key turning points in the analysis, points in the analysis, think about the facts of think about the facts of your client’s case. Are your client’s case. Are there any additional there any additional facts that should be facts that should be covered in rule covered in rule application? If so, application? If so, develop and support develop and support appropriate thesis appropriate thesis sentences in the rule sentences in the rule explanation, which sets explanation, which sets up the context for your up the context for your rule application. rule application.

Do not address your client’s facts yet. You are not actually writing rule application here, but rather just setting up the ideas that you will apply later.


CONCLUSION CONCLUSION

A copy of this chart is provided in the on-line handouts for this presentation.

In addition, a corresponding chart to assist students in drafting the rule application that corresponds to the rule explanation is also provided as a handout.

ACKNOWLEDGMENTS & ACKNOWLEDGMENTS & BIBLIOGRAPHY BIBLIOGRAPHY

Special thanks to my colleague Jennifer Murphy Romig, who was my principal sounding board and who provided valuable feedback and suggestions as I worked to develop and enhance this idea.

Bibliography 1. Mary Beth Beazley, A Practical Guide to Appellate

Advocacy, § 5.1.3 (Aspen L. & Bus. 2002). 2. Linda H. Edwards, Legal Writing: Process, Analysis and

Organization (3d ed., Aspen L. & Bus. 2002). 3. Tracy McGaugh, The Synthesis Chart: Swiss Army Knife of

Legal Writing, 9 Perspectives: Teaching Legal Research and Writing, 80 (Winter 2001).

4. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style, chs. 3, 17, 18 (5th ed.

Aspen L. & Bus. 2005).