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

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
McGaughs 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
clients 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 proves2 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, lets 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 halfbrother 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 contd
Body of letter to broker
Our conversation the other day set me to thinking. I will
soon be making my will. I dont plan to do a lot more buying
and selling of stocks and bonds; Im 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, thats what you can expect when I pass on. Until then,
Im going to stop playing the market and devote what energy
I have left to other matters.

Hypothetical contd
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
Case
s
CASE
1

CASE
2

Element Element Element Result

1
2
3
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

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

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
Case
s
CASE
3

CASE
4

Element Element Element Result

1
2
3

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.

Referenced
document must be
capable of
identification

Not discussed

Ts 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

Synthesized Rule for

Hypothetical
Cases
__________
Synthesize
d Rule to
use in your
clients
case

Element
1
Identification**

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

Element
2
Existence**

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

Element
3
Intent**

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

Possibl
e Result
__________

Professors
letter to
broker
possibly
can be
incorporat
ed by
reference
into her
will

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

Synthesis Chart Fact

Comparisons - 1
Case Element Element
s
1
2

Element Result
3

Identification

Existence

Intent

CASE
1

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

CASE
2

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

Dates of the
deeds were prior
to the date of the
wills 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

Deeds not
incorporated
by reference
because no
clear
identification

Synthesis Chart Fact

Comparisons
2
Case Element -Element
Element
s
CASE
3

CASE
4

Result

"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

"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
Element - Element
Element
__________
Facts from
your
clients
case

Identification**

Existence**

___________
Language in
will that
describes
letter
includes
date of
letter,
addressee,
and
description
of letters
contents

____________
Letter dated
& mailed
prior to date
will
executed;
copy with
date is on
professors
computer;
original letter
can be
produced

Intent**

Possibl
e Result
__________

___________
Professors
Will provides, letter to
broker
I authorize
likely can
and direct
my Executor be
to distribute incorporat
ed by
the stocks
and bonds . . reference
. to the three into her
will
instns
named, and
in the
manner I
have set
forth in [the
** Terms are added after rule is synthesized for
ease of discussion.
letter.]

The Question
Ive 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 clients 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
3

Alternative 1 Potential 1L
response
Many 1Ls, 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 Pays4
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

Alternative 2 Identify the

Phrase that Pays
(contd)

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 1Ls 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 clients 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
Your thought
these questions process for the
______ element
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:

Written
Product

If the outcome for a At this point, no

case is the same as
written product
the likely / desired
is required.
outcome for your
clients case, you will
analogize; if the
outcomes are
different, then you
must distinguish
your clients 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

No written
court developed the
product yet
rule it used 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
No written
holding/findings in the product yet
case consistent with
the courts 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

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

No written
product yet

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

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

Written
case(s) that rely on that
product can be
point: Do any of the
drafted here.
courts provide a 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

Do this using your own

Written
words; do not merely
product can be
quote or only slightly
drafted here.
paraphrase the courts
analysis. Also, do not
state merely the results or

Thesis Point Process - 8

GROUP II of your cases:
Now look at cases in
which the element at
issue was not satisfied.

Repeat the steps

listed above for your
GROUP I cases.

Written
product can be
drafted here.

As one final check to

ensure you have
identified the key turning
points in the analysis,
think about the facts of
your clients 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

Do not address your

clients 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.