Tuesday, November 26, 2019
Our discussions of legal education neuromyths has been fun, but let's get back to the main subject of the blog: legal skills. Today, how to synthesize cases.
One of the most important skills that law students need to learn in is how to synthesize rules from cases. Yet, studies have shown that second- and third-year law students are not good at synthesizing rules. I have heard two conference presentations by Professor James Stratman in which he has stated that, while second- and third-year law students are generally proficient at applying a single case to a set of facts, they are poor at synthesizing rules and applying several cases to a set of facts. (see also here at 4) This deficiency has developed because, except for perhaps a half a class in legal writing, synthesizing rules is not usually taught in law schools. To help students develop this skill, first-year professors need to drill this skill, just like they do case analysis.
Synthesizing rules is important because the common law develops on a case-by-case basis. One judge decides case A. Another judge uses that case to decide case B, which is on similar facts. The next judge then relies on cases A and B to determine case C, which becomes a new precedent. In other words, each new case adds to the story of the rule.
Synthesis in the law involves synthesizing rules in connection with a set of facts. "Rule synthesis is the process of integrating a rule or principle from several cases." (Paul Figley, Teaching Rule Synthesis with Real Cases, 61 J. Leg. Educ. 245, 245 (2011)) More specifically, "Lawyers begin this process of synthesis by first identifying the pieces of authority relevant to a legal issue and then fitting these pieces together to determine the overall analytical framework they reasonably support." (Jane Kent Gionfriddo, Thinking Like A Lawyer: The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1, 4 (2007)) Most importantly, "Only in making sense of all of the cases will a lawyer be able to formulate a clear picture of the law to determine an appropriate solution to the legal problem at issue." (Id. at 6)
There is not just one formula for synthesizing a rule. How you synthesize a rule depends on the materials being synthesized. Sometimes the materials will produce a single factor; other times the synthesized rule will comprise two or more factors. Often, one case will provide a framework for the rule with other cases filling in. Other times will you have to combine cases to produce the rule.
Learning case synthesis begins with synthesizing a single-factor rule. First, one must find all the relevant cases on that issue in relation to the facts. This usually means assembling all the mandatory authority from the governing jurisdiction. You must also be able to understand what cases belong together (grouping). Once you have determined the relevant group, you should carefully read the relevant cases, making sure you fully understand their reasoning, both explicit and implicit.
Synthesizing a single factor requires that you blend the cases into a coherent whole. In other words, your synthesis must be consistent with all the case holdings and reasoning. To synthesize a single-factor rule, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcomes.
Synthesizing multiple-factor rules is similar to synthesizing single-factor rules, except you first must determine what factors the cases require to establish a test (there is a preliminary grouping stage into factors). Separate out the different factors. (A chart might help you to do this). Then, for each factor, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcome for that factor.
The final step in a synthesis is to test your synthesis. Have you accounted for all the relevant cases in your synthesis? Are the cases relevant to your facts? Is your synthesis convincing? Is there an alternative synthesis? If so, is the original or alternative synthesis better? Has your synthesis produced a clear rule that can be applied to your facts?
Of course, the above assumes that the law in real life is consistent. It isn’t. You can’t always reconcile all cases on a particular point. Judges sometimes don’t blend in a previous case, and sometimes they miss or misunderstand an earlier case.
There are a number of exercises on synthesizing cases in Chapter Five of my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013).