Thinking Like a Lawyer: The Heuristics of Case Synthesis
Texas Tech Law Review, Vol. 40, 2007
37 Pages Posted: 7 Sep 2007
In a common law system where cases play such an important role in legal problem-solving, lawyers must be able to synthesize ideas from groups of cases to figure out a jurisdiction's law at a particular point in time; in reality, however, many lawyers aren't able to do so well enough for sophisticated law practice. Some lawyers understand and use this skill intuitively, but do not consciously think about the steps they actually take. Those in this group often do not sufficiently value case synthesis because it seems so obvious, with the result that they don't necessarily use this skill to its full potential. Others don't intuitively understand how to synthesize cases and have never learned a methodology to do so. Lawyers in this situation simply are not able to manipulate case law adequately and consequently fail to produce the necessary depth of analysis to represent clients effectively.
This article's goal is to ensure that lawyers in practice - and teachers in law schools who train future lawyers - have a sufficient understanding of synthesizing cases. To achieve this, the article begins by describing the theory behind this skill as well as a methodology that will generate the subtle nuances of analysis necessary for sophisticated law practice. The article then proceeds to apply this methodology to a group of hypothetical cases that have been designed to demonstrate the complex permutations of actually working with a group of cases to solve a client's problem.
Keywords: legal analysis, analytical skills, legal problem-solving, doctrine of stare decisis, case synthesis, synthesize ideas, explicit reasoning, implicit reasoning, inferred ideas, hypothesize and test back, objective analysis of law, sophisticated law practice
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By Orin S. Kerr