I’ve Synthesized the Rule –
Now, How Do I Explain It?
or
Another Tool for Your Swiss Army Knife1
 The Background
 The Question
 The Hypothetical
 Some Current Methodologies &
Typical 1L Responses
 A Process to Identify Thesis Points for a
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 –
Terms & Concepts2
 CRAC / IRAC / CREAC
 Synthesize a rule
 Rule Explanation
 Rule Application
The principal text for the Emory LWRA Program is Linda H. Edwards, Legal
Writing: Process, Analysis and Organization (3d ed., Aspen L. & Bus. 2002).
2
Background –
The Swiss Army Knife
The synthesis chart described in Tracy
McGaugh’s article (noted on the title page)
provides students with a visual
representation of the thought processes
necessary to synthesize a legal rule from
multiple cases. The additional purpose,
which Tracy described as her “aha
moment,” provides a visual display that
assists students with fact-to-fact
comparisons needed in rule application.
The Question
I have determined the legal rule for my
client’s issue, and I have a spreadsheet
that lets me see what facts could / should
be compared for each element, but how
do I organize my discussion or argument
so a legally trained reader will follow the
logic of my analysis?
i.e., How do I organize the
explanation of the legal rule?
Rule explanation describes what the rule is, why
the rule is what it is, and how it works.” Rule
explanation “proves”2 the rule by demonstrating
the reasoning that a court used when it applied
the rule in a new case. Rule explanation also
lays the groundwork for your rule application; in
an effective rule explanation, the reader will
start to anticipate and agree with your
conclusions before reaching them.
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”)
2
To answer the question, let’s use a hypothetical:*
A Professor Emeritus at a prestigious Texas university
dies and leaves the bulk of her estate to the university.
She never married and had no children; she has only a
half-brother. The half-brother challenges the will on
several grounds, one of which centers on a letter the
professor wrote to her investment broker shortly
before she made her will. In the letter, the professor
tells the broker which institutions will get each of her
investments. One item in the will references the letter
to the broker, but does not explicitly state the
distributions. The half-brother argues that the letter
cannot be made a part of the will, and thus the
investments go to him through the residuary 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 –
Body of letter to broker
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 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 follows:
All stocks: _____________ University, for development of the
graduate program in ______________.
All municipal bonds: ____________, Texas Public Library, for
building expansion
All federal bonds: _____________, Texas Public School
System, for development of computer technology in
the middle and high schools
So, that’s what you can expect when I pass on. Until then, I’m
going to stop playing the market and devote what energy I have left
to other matters.
Hypothetical cont’d –
Relevant Item in Will
I authorize and direct my Executor to
distribute the stocks and bonds of which I
am possessed at my death to the three
institutions named, and in the manner I
have set forth, in my [DATE], letter to my
broker, [BROKER NAME].
Sample: Synthesis Chart – Legal Rule
Cases Element 1 Element 2 Element 3
Result
CASE1
Document "must be
so clearly identified
as to preclude all
reasonable
probability of mistake
as to the instrument
referred to.”
Document must
exist when will is
executed. "Rule is
one of identity &
certainty." Thus,
reduced to writing
is sufficient.
Element is not
explicitly discussed,
but facts imply that
element would have
been satisfied if
addressed.
Incorporation
by reference =
OK
CASE2
Document must be
identified in the will
so as to leave T's
intent reasonably free
from doubt. There is
also a public policy
argument for clear
identification
presented in this case
Same rule as CASE1
Intent to incorporate
must be free from
doubt; unclear in
this case whether
this is distinct
element from
identification
Incorporation
by reference
not OK because
ID was unclear
Sample: Synthesis Chart – Legal Rule -2
Cases Element 1 Element 2 Element 3
Result
CASE3
Document "must be
so clearly identified
as to preclude all
probability of mistake
as to the instrument
referred to." (omitted
"reasonable")
Reiterates CASE2
public policy
Same rule as in
CASE1
Intent treated as a
separate element.
“Intent [to
incorporate by
reference] must be
clearly expressed in
the will.”
Incorporation
by reference
not OK because
identification
was unclear
and no clear
intent to
incorporate was
stated in will.
CASE4
Referenced document
must be capable of
identification
Not discussed
T’s intent to
incorporate the
document must be
clearly expressed in
the will
Incorporation
by reference
not OK because
identification
was unclear
and no clear
intent to
incorporate was
stated in will.
Synthesized Rule for Hypothetical
Cases
Element 1
Identification**
__________
Synthesized
Rule to use
in your
client’s case
_____________
Document must
be so clearly
identified in the
will as to
preclude all
reasonable
probability of
mistake
Element 2 Element 3 Possible
Existence**
Intent**
Result
____________
Document
must be in
existence prior
to the
execution of
the will
___________
Intent to
incorporate
the document
must be
clearly
expressed in
the will
** Terms are added after rule is synthesized for ease of discussion.
__________
Professor’s
letter to
broker
possibly can
be
incorporated
by reference
into her will
Synthesis Chart – Fact Comparisons - 1
Cases Element 1 Element 2 Element 3
Identification
Existence
Intent
Result
CASE1
Document was a
contract & included
party names,
execution date, &
name of notary
attesting the
contract
Will & contract were
reviewed & executed
in same meeting;
will signed first; this
was simultaneous
execution, but
contract was “in
existence”
Not discussed, but
will stated, "I
expressly will,
declare and direct
that the instrument .
. . shall be in all
respects adhered to,
observed and carried
out.”
Contract was
incorporated
by reference
CASE2
Documents were
deeds; will did not
have dates of deeds
or description of any
property; court
extrapolates to
documents generally
for policy re general
scheme of T’s
property distribution
Dates of the deeds
were prior to the
date of the will’s
execution; court said
existence element
was satisfied
Discussion of intent
muddled with
analysis of
identification, but
court did state that a
sentence in the will
indicated intent was
for property to pass
by deed and not by
will
Deeds not
incorporated
by reference
because no
clear
identification
Synthesis Chart – Fact Comparisons - 2
Cases Element 1 Element 2 Element 3
Result
CASE3
"Attached" not
sufficient ID; also,
will mentions 1 doc.,
but there were
actually several
documents offered
for incorporation
No dispute that
docs. were in
existence - dates on
docs. were prior to
execution date
"attached" not
sufficient to show
intent; also, logic
does not support
intent b/c docs.
provide that T would
run the hospital but impossible since
he was dead
No
incorporation
by reference
because ID
insufficient and
intent to
incorporate not
clear
CASE4
"Pursuant to"
reference is
insufficient to
adequately describe
document to avoid
confusion
Not discussed
"Pursuant to" does
not show intent to
incorporate
No
incorporation
by reference
because ID
insufficient and
intent to
incorporate not
clear
Synthesis Chart – Fact Comparisons - 3
Cases
__________
Facts from
your client’s
case
Element 1 Element 2 Element 3
Identification**
Existence**
Intent**
___________
Language in
will that
describes
letter includes
date of letter,
addressee,
and
description of
letter’s
contents
____________
Letter dated &
mailed prior to
date will
executed; copy
with date is on
professor’s
computer;
original letter
can be
produced
___________
Will provides,
“I authorize
and direct my
Executor to
distribute the
stocks and
bonds . . . to
the three
inst’ns named,
and in the
manner I have
set forth in
[the letter.]”
** Terms are added after rule is synthesized for ease of discussion.
Possible
Result
__________
Professor’s
letter to
broker likely
can be
incorporated
by reference
into her will
The Question
I’ve got the rule and the facts, but
what is a logical organization for my
analysis?
Alternative 1 – Identify the legally
relevant facts3
Analyze each case and determine the legally
relevant (or outcome determinative) facts. The
explanation of the rule should illustrate (i.e.,
explain) how the courts have used these facts in
reaching the results in each case you will use in
your analysis. Each paragraph in the RE might
explain one case, which sets up the corresponding
RA paragraph, in which these legally relevant
facts will be compared to legally relevant facts
from your client’s case.
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).
3
Alternative 1 – Potential 1L response
Many 1L’s, particularly in their first semester of
law school, will understand this to mean they
should present a series of case descriptions.
EXAMPLES:
In CASE1, the court held that the contract was
clearly identified in the will because the
description included the party names and the date
of the contract.
In CASE2, the court held that the deeds were not
sufficiently identified because the description in
the will did not include the dates of the deeds or
any descriptions of the property in the deeds.
Alternative 2 – Identify the
“Phrase that Pays”4
One or two terms or phrases may be at the
“heart” of the rule for the element you are
discussing. Rule explanation requires that
you define this “phrase that pays” or that
you show how it has / has not been applied
in precedent cases.
4
Mary Beth Beazley, A Practical Guide to Appellate Advocacy, § 5.1.3 (2002).
Alternative 2 – Identify the
“Phrase that Pays”
(cont’d)
One method to identify a/the “phrase that
pays” is to rewrite your rule as an “if-then”
statement:
If [legal condition] exists, then [a
certain legal status] results.
The legal condition is the “phrase that
pays.”
Alternative 2 – Potential 1L response
Many 1L’s perceive this to mean the
rule statement itself is a/the only thesis
point. If there is more than one legally
relevant fact for the element at issue, the
rule explanation could become a series of
paragraphs, each addressing one or more
determinative facts, and each starting with
a sentence that includes the same phrase
that pays.
Alternative 2 – Sample 1L response
To be incorporated by reference into a
will, an extraneous document must be “so
clearly identified [that] it precludes
reasonable probability of mistake.” . . .
A document cannot be incorporated into
a will when it is not “so clearly identified
[that] it precludes reasonable probability
of mistake.” . . .
A Process to Identify Thesis Points
for a Legal Argument
Why do we need a different approach?
No assurance that a rule explanation will
focus on rule-based points that will
foreshadow the application of the rule to your
client’s case.
No direct means to write a rule-based thesis
sentence to avoid a rule explanation that
sounds formulaic.
A Process to Identify Thesis Points
for a Legal Argument -2
By adapting the synthesis chart form, we
 use a familiar organizational scheme to walk
the students through the mental processes to
identify rule-based points and write the
corresponding thesis sentences for these
points.
 capture the points identified both by
examining the determinative facts and by
using the “phrase that pays,” in addition to
other points that may not be as obvious.
A Process to Identify Thesis Points
for a Legal Argument - 3
Ask yourself these
questions
GROUP I of your cases:
Do you have case(s)
whose outcome satisfies
the element at issue?
If so, look closely at
each case and ask
yourself the questions
listed below:
Your thought
process for the
______ element
Written
Product
If the outcome for a
At this point, no
case is the same as the written product is
likely / desired outcome required.
for your client’s case,
you will analogize; if
the outcomes are
different, then you
must distinguish your
client’s case.
Thesis Point Process - 4
For each case, what
did the court say
about the rule and
why it reached the
conclusion it did?
Think about how the court No written
developed the rule it used product yet
– Did it use the rule from
a precedent case without
any change? Did the
court “process” the rule in
any way? While your RE
should not describe this
change for any of the
cases, it is important when
you synthesize the legal
rule for you to understand
if/how a rule may have
evolved.
Thesis Point Process - 5
For each case, what
did the court
actually do in
applying the rule,
regardless of what
the court may have
said about its
reasoning?
Are the holding/findings in No written
the case consistent with
product yet
the court’s analysis or
discussion of the legal
rule? Or did the court
seem to “say” one thing in
its discussion/analysis and
then conclude something
different?
Thesis Point Process - 6
For each case, are there
any other statements or
discussions (e.g., policy
rationales) that inform you
how the court decided
whether this element was
satisfied?
Remember that policy
No written
arguments will go beyond product yet
only the facts/parties in a
case and examine whether
the result in the case
would benefit society as a
whole.
Look at each of the bases
you have identified that the
courts have used to reach the
results they did. How can
you characterize the courts’
reasons? (If you have
more than one case, you
should determine
whether there are
common themes or
analytical principles
across the cases.)
Can each of these
characterizations or
themes be discussed “on
its own,” i.e., in a
paragraph discussing only
that one point as a means
to help you explain this
element? You have now
identified a “thesis point.”
No written
product yet
Thesis Point Process - 7
Now you are ready
to write. State your
thesis sentence as a
simple declarative
sentence.
Look carefully at the case(s)
Written product
that rely on that point: Do
can be drafted
any of the courts provide a
here.
definition or description for
any of these points? Perhaps
you can use this to help you
craft a thesis sentence.
Quoting language for a thesis
sentence can be effective, but
it is not required.
Now use the legally
relevant facts and
details from each case
to support (explain /
illustrate) these thesis
sentences.
Do this using your own
Written product
words; do not merely quote
can be drafted
or only slightly paraphrase
here.
the court’s analysis. Also, do
not state merely the results or
conclusions of the court’s
analysis.
Thesis Point Process - 8
GROUP II of your cases:
Repeat the steps listed Written product
Now look at cases in which
above for your GROUP I can be drafted
the element at issue was not cases.
here.
satisfied.
As one final check to ensure
you have identified the key
turning points in the
analysis, think about the
facts of your client’s case.
Are there any additional
facts that should be covered
in rule application? If so,
develop and support
appropriate thesis sentences
in the rule explanation,
which sets up the context
for your 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.
Written product
can be drafted
here.
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 &
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).