I’ve Synthesized the Rule – Now, How Do I Explain It? or Another Tool for Your Swiss Army Knife 1

1. I’ve Synthesized the Rule – Now, How Do I Explain It?orAnother 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 1Accord Tracy McGaugh, The Synthesis Chart: Swiss Army Knife of Legal Writing, 9 Perspectives: Teaching Legal Research and Writing 80 (Winter 2001).

2. Background – Terms & Concepts2 • CRAC / IRAC / CREAC • Synthesize a rule • Rule Explanation • 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).

3. 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.

4. 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?

5. 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. 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”)

6. 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.

7. 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.

8. 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].

9. Sample: Synthesis Chart – Legal Rule

10. Sample: Synthesis Chart – Legal Rule -2

11. Synthesized Rule for Hypothetical ** Terms are added after rule is synthesized for ease of discussion.

12. Synthesis Chart – Fact Comparisons - 1

13. Synthesis Chart – Fact Comparisons - 2

14. Synthesis Chart – Fact Comparisons - 3 ** Terms are added after rule is synthesized for ease of discussion.

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

16. 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. 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).

17. 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.

18. 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).

19. 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.”

20. 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.

21. 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.” . . .

22. 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.

23. 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.

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

25. Thesis Point Process - 4

26. Thesis Point Process - 5

27. Thesis Point Process - 6

28. Thesis Point Process - 7

29. Thesis Point Process - 8

30. 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.

31. 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).