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Synthesis -- Explaining the Conclusion in Briefs
Wayne Scheiss at Legalwriting.net has an interesting post about a common writing defect. He says that that he spends about 40% of his time in his first-year legal-writing course trying to get students to "synthesize."� He says: "Do not merely state a legal principle and then assert a conclusion. Specify how the conclusion derives from the principle in light of the facts of your case."

Lack of synthesis is one of the points that I look for when I proofread and edit my own work. (That's another blog entry -- how to proofread for yourself and for another writer). Here are my thoughts on the cause and remedy for lack of synthesis.

First, when my brief fails to explain how a stated legal principle or opinion supports my position, it usually means that (a) I don't buy my argument; (b) I don't understand my argument; or (c) the argument does not work. In other words, the flaw is generally not my writing, but my thinking. Before I figured this out, I would try simply to re-write or re-arrange the sentences, but that just does not fix the underlying problem. To fix the problem, I have to forget the argument as I have written it, at least temporarily, and go back to the opinions or other legal authorities and my facts. Then I analyze and ponder until I have an argument that makes sense in your mind. This is often a good time to take the dog for a walk or have a glass of wine. Once I have worked through the argument successfully, I am usually ready to write an argument that explains to the reader why the cited legal principles compel a ruling in my client's favor.

Second, when I am having trouble articulating the reasons that a particular opinion supports my argument, this trick sometimes helps. I re-read the opinion and make a rough summary, often in outline form, of the key facts and statements of law that relate to my case. In making this summary, I am forced to identify the essential elements of the court's analysis. I find that, after I have gone through this process of analyzing the opinion and reducing its reasoning to a rough outline, my argument almost jumps out at me. Of course, sometimes the outline shows that I need a new argument altogether.

Third, Bryan Garner addressing this issue in the chapter entitled "Highlight the reasons for the conclusion you're urging" in his book The Winning Brief. He suggests that you try to use this formula: "Because ____, [my position is] _____________." � If you can reduce your reasoning to this formula, you are ready to explain it to the court.

Wayne Scheiss is so right that synethesis is necessary and yet is often absent from briefs.