What is Rule Synthesis?
Understanding Rule Synthesis is so important to legal writing, I should write about nothing else. This is not a "warm-up" before getting to the real stuff. The rule statement is the crux of a persuasive piece. The rule is what makes it persuasive. Rule synthesis is the process by which you combine individual legal rules into one cohesive and strong statement of law. Often, when a court applies a rule, it does so by discussing how close or far away its facts are to the proper facts suggested by the individual rule. In other words, the court states something like "the facts in our case are similar to those in (insert case where rule was created). Or, the court will say, "the facts in our case are similar to (insert case where rule was created), but are different because (insert short analysis of difference). Essentially, when a court applies the rule, the court will consider the language from several cases and explain how that rule controls the interpretation of the facts at hand . This is why it is so important to find the right cases to state your rule. In addition, this is why it is so important to create the rule out of a synthesis of cases. If you just state one, without an explanation, you have no idea if the case still applies to the facts being reviewed. You have no idea if the rule itself is the one that the current court will be looking at to interpret the relevant facts. When you are in law school and you learn the facts of a case while you read the opinion, you are learning generally about what happened. When you become a lawyer in practice, you need to find the rule and apply it to those facts. You need to do that with the proper case in mind. Synthesis will allow you to combine and make sense of the rules created in all of the opinions that case has generated. It allows you to see the rules as a whole, when again, the opinions take up too much time individually.
Steps of Rule Synthesis
Effective rule synthesis typically involves the following steps:
Reading multiple opinions covering a particular legal issue.
Extracting the rules from those opinions.
Organizing the rules into hierarchies.
Refining the hierarchies to enhance effectiveness.
While not universally applicable, the most effective approach to rule synthesis is addressing these steps in a logical progression.
For example, it will be helpful to read at least some of the opinions addressing the relevant issue before extracting the rules. Why? Because when you read the opinions you are likely to begin to appreciate relevant commonalities and differences among the rules that are stated (or that could be stated) in those opinions. Your understanding of commonalities and differences among some of the rules will then help you to determine when it makes sense to: (a) combine multiple rules; (b) break an overly-broad rule into sub-rules; or (c) to create additional sub-rules reflecting the differences between two rules on the same topic.
As a general rule, the more problematic aspects of entry-level legal writing will be avoided by: (a) just getting straight to the point and creating a hierarchy of rules that complies with the best practices discussed above; and (b) carefully developing that hierarchy in a way that is appropriate to the relevant area of the law. That is: creating hierarchies according to principles of effective rule synthesis, while being mindful of any areas of the law that require some distinction from the overall best practices. The extent to which it is appropriate to depart from the overall best practices will depend upon the relevant area of the law, the audience for whom you are writing, and other relevant considerations.
Rule Synthesis Examples
To fully comprehend rule synthesis, it is helpful to review practical examples in a variety of legal contexts. In Lawrence v. Punjab National Bank, the U.S. Bankruptcy Court for the Northern District of Texas considered whether a debtor who filed bankruptcy in a foreign country was entitled to relief from bankruptcy protection in the United States while litigating a tort case against an American bank in India. 460 B.R. 197, 207-08 (Bankr. N.D. Tex. 2011). The court synthesized the conflicting rule statements from Code Section 1504 and Indian Insolvency law and concluded that no exception to bankruptcy protection applied "when the trustee or debtor-in-possession (DIP) attempts to be substituted as a party plaintiff." Id. at 207-08. However, Section 1504’s scope "is limited to trustee or DIP actions for the benefit of the creditors," and not a private suit "where the trustee requested no damages." Id. at 206. Thus, the debtor "did not lose the protection of the automatic stay" as to the Indian litigation. Id. at 206; see also In re Brown, 484 B.R. 453 (Bankr. D. Idaho 2012) (summarizing Section 1504 and its restrictions on a trustee or DIP filing legal actions in the United States while a debtor is overseas).
In Law v. NCAA, the plaintiffs sued the NCAA for injuries sustained prior to January 2005 under Illinois law as a result of concussions incurred while playing college football. 134 F. Supp. 3d 934, 945-46 (N.D. Ill. 2015) (summarizing the class action claims’ allegations). Among other things, the defendants argued that the claims were barred by the applicable statute of limitations. Id. at 945. The plaintiffs disagreed over the proper accrual date of their claims—whether at the time of injury or when they connected the injury with the defendants’ alleged wrongdoing. Id. at 946 (summarizing the parties positions). Although the parties "agree[d] on how to synthesize [California, Kansas, Indiana, Illinois, and Virginia] statutes of limitation with the doctrine of delayed discovery," they disagreed over the effect of the California statute of limitations on plaintiffs’ claims under Illinois law. Id. The court synthesized California and Illinois law of limitations and held that plaintiffs’ claims were barred. Id. at 951. This example highlights the importance of synthesizing the law in an issue to avoid "lawsuit enders" when a quick victory is not possible.
Common Challenges and Pitfalls
Rule synthesis poses several challenges for legal writers. First among these is the problem of unclear authority. Rarely, if ever, will synthesizing authority lead the legal researcher and writer to one "golden" or controlling rule. Courts may be silent on a point and/or inconsistent in their holdings and analyses. Scholars may disagree on the application of a given legal principle or its relative weight among competing principles. Practitioners may have contrary opinions about the best way to approach a particular issue. There is no substitute for experience in selecting the most relevant and persuasive authority, and experienced lawyers understand that the quality of legal analysis is only as good as the quality of its supporting authority. Certainly, clear-cut authority will make rule synthesis easier. But attorneys must often act in less than ideal circumstances, and having a firm grasp of rule synthesis will enable you to do just that.
Another challenge commonly faced by legal writers is an incomplete or inaccurate statement of a rule. Many courts and other authorities create a rule in response to a particular case . The court may have only analyzed certain issues, listing them separately, or talking about them together but not linking them into a single cohesive rule. Yet, the lawyer who synthesizes the rule appears to have created it as a neat, logical, hierarchically organized body of doctrinal reasoning when, in fact, the court actually left something out. Further, if the case law is unclear, or the legal writers themselves are not masters of the material, the synthesized rule may lack perfect accuracy. Lawyers can only synthesize the law to the extent that the law itself is clear. Synthesis cannot fill in the gaps when the law is unclear or unreliable. In addition, poorly or imprecisely worded rules may have the opposite effect of what is intended. Lawyers often find that synthesizing the law helps them get a better grasp on it. Yet, if the writer’s synthesis placement is wrong, or the synthesis is not logically persuasive, or the phrasing of the synthesis is less than optimal, the synthesis may help the lawyer only to the extent of understanding how not to do it. But that’s still valuable, and we know that even bad ("negative") cases can be useful!
The Importance of Rule Synthesis in Legal Education
Rule synthesis is introduced in American law schools in the first year Legal Research and Writing (LRW) class and re-visited in upper echelon LRW classes, but is not taught as a stand-alone subject. The value of teaching rule synthesis as its own subject during the first year of law study has long been recognized by at least two University of Washington professors: Thomas Halper and AnLie Brisbois. Of particular note, Professor Halper’s article in the March 2002 issue of Perspectives on Teaching Legal Research & Writing, "Five Steps to Master Rule Synthesis," written by a recognized expert in the field, notes that synthesizing is neither easy nor instinctual. Professor Halper’s article suggests that reasoning and writing instruction teach lawyers to work from the bottom up . This process is time consuming as it requires a lawyer to narrow books upon books of case law and hornbooks filled with legal analysis into a manageable set of legal rules with very limited relevant case law. The "professional" way to approach legal research is to begin with two or three relevant cases, draw out the relevant legal rules and apply them to the facts of the case at hand. Then, the lawyer does the reverse and sees whether the research conducted "at the ground level" supports the rules given in the selected cases. The question is: How does a lawyer know what the "right" cases are? Halper suggests that: If legal reasoning is a matter of moving from the specific to the general, then rule synthesis is the key to logical reasoning. If the failure to synthesize leads lawyers to misapply the law, then lawyers and the public have an interest in where and how students learn the skill of rule synthesis.