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Frame of Mind Legal Reasoning The Case Method Class Time 5 Pre-Write Your Exam Test Yourself! Sample Answers
Create an Outline for Each Class


Why Outline When You Can Buy One?
When and What to Outline
How to Outline: 6 Easy Steps


What to Leave Out
Before the Exam - The One-Page Outline


Why Outline When You Can Buy One?

Given the time pressures of law school, many students are left wondering why they should outline at all. Commercial outlines that are written by experts are readily available at cheap prices. Moreover, creating your own outline is time-consuming and difficult.

Statistics show that students who create their own outlines invariably do better on exams than those who rely on commercial outlines.1 It's the process of creating the outline and bringing the material into a cohesive and understandable format that makes the difference. Merely possessing an outline written by the professor or an outstanding student does not guarantee success.

Outlines are simply condensed summaries of the rules of law. The outline serves three primary functions.

First, it helps tremendously in getting you to think like a lawyer. You synthesize your class notes, briefs, reading and secondary sources into one coherent body of law.

Second, you remember the rules better by restating it in your own words. It will help you memorize the material by rewriting and reorganizing it.

Third, the outline is your primary tool in tackling the exam. In the final week before the exam, you out your casebook and class notes on a shelf and concentrate only on your outline. The outline makes you more efficient by giving you focus. Even if your professor allows an open book exam, you'll want to outline in order to be more efficient in using notes during the exam.

There are abundant resources in commercial outlines. However, you won't necessarily succeed by having the best commercial outline or in having an Honors Student's outline from the past. It is the process of outlining that spells the most success for a student. If you do use another student's outline, make sure that she had the same professor as you do. Professors teach their courses differently to emphasize different areas of the law.

1 Michael J. Patton, "The Student, The Situation, and Performance During the First Year of Law School," 21 Journal of Legal Education 10 (1968); Guy R. Loftman, "Study Habits and Their Effectiveness in Legal Education," Journal of Legal Education 418 (1975).

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When and What to Outline

While many students attempt to outline, few know how to do it effectively in the first year. Outlining skills are usually not taught in law school. Also, many students start too late in the semester to take advantage of the process. By the time they start outlining, they've forgotten the nuances of the first half of the course. On the other end of the scale, some students start to outline too early. There's a danger of starting before you really have a grasp on the material. You need to know the material before you start to condense it into an outline.

Outlines should be started when you finish a significant portion of the course, but not beforehand. You can figure out when to start outlining by looking at the table of contents in your casebook and comparing it with the syllabus of the course. Most casebooks are broken into sections in which there are three or four chapters comprising 100 pages or so of material. In the standard first year course, this material might take five or six classes. What follows is an example of a break down of major sections and subsections for a Torts class.

Sample Torts Table of Contents

  1. Intentional Torts
    1. Assault
    2. Battery
    3. False Imprisonment
    4. Intentional Infliction of Emotional Distress
    5. Defense - Self Defense, Consent, Privilege
  2. Negligence
    1. Duty of Care
    2. Breach of Duty
    3. Causation
    4. Defenses - Contributory Negligence, Assumption of Risk, Statute of Limitations
  3. Strict Liability
    1. Trespassory Torts
    2. Nuisance
    3. Products Liability
    4. Defenses

Using the sample above, you would want to start outlining only after you have covered an entire section of material, such as all of the Intentional Torts. Although you may feel that you are ready to outline after covering only Assault and Battery, it would be better to wait until you have also covered False Imprisonment and Emotional Distress. Although the areas do not seem related, those torts all have the underlying element of "intent" in common. To fully understand the concept of intent, the other torts will lend insight. Alternatively, don't wait too long. Be sure to start outlining the material once you've completed a section while it is still fresh.

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How to Outline: 6 Easy Steps

Outlining accomplishes two tasks:

  1. Synthesis
  2. Organization

The outline should not just rehash the book or lecture notes. If you're only regurgitating what the professor said in class or copying what the casebook author wrote, then you are missing the whole point of outlining - to get you to think like a lawyer.

Here are the steps you should take in doing your first outline.


Step-by-Step: How to Outline

Step One: Assemble the Materials
Step Two: Create a Template
Step Three: Organize the Big Picture
Step Four: Synthesize the Rule
Step Five: Illustrate the Analysis
Step Six: Provide Case Summaries


Step One: Assemble the Materials

Although it seems self-evident, you'll want to have a large workspace that is clear of clutter. Gather together every possible book, note, handout or scrap of paper relating to your class. Here's a list of some of the materials that you want to have on hand.


Materials to assemble:

  • Casebook
  • Class notes
  • Case briefs you prepared for class
  • Class handouts
  • Syllabus
  • Secondary sources - e.g. Commercial Outlines, etc.
  • A good word processor with outlining features.


As you move through the material, you'll want to check each one of these sources in order to see if anything adds to the analysis of the rule of law or whether your professor added any insight into how the rule should be applied.

One of the most common mistakes that students make in outlining is to rely on only one source - such as the class notes or the book. It's easy to develop a rhythm by moving through the book and forgot to check your class notes in order to see what was said in class. By having a large surface area to work with, you can spread all of the materials out and better handle the multiple sources and references.

You also need a good word processing program that has an Outline mode. A book could be written on choosing the right word processor (and there are such books). It's really a matter of personal preference. The most common word processor is Microsoft Word. Although it's popular to dislike Microsoft because the company is a corporate giant, the fact is that Word is fast becoming a standard in the legal field. Word Perfect was considered the standard among law firms because it formatted legal documents such as court briefs, but Microsoft Word has eclipsed Word Perfect as the word processor of choice.

Regardless of which program you use, be sure to take the time to learn the outlining features of your word processor. The outline mode automatically justifies and indents subheadings. Many students make the mistake of indenting by using tabs. However, using tabs only works well for the first line. If your sentences go to a second line (and they will) the word processor will re-justify to the left margin thus making the document hard to read. Take the time to learn the outline mode. You'll save a lot of time in the long run.

Step Two: Create a Template

A key part to getting started is to create a structure or template. The template is merely a format that you adopt in order to "fill in the blanks" as you move through the material. The standard template organizes the material according to IRAC. The template keeps the structure consistent as you jump back and forth between different issues.

The template should have preset headings for the material that you want to gather. By having a clear understanding of where the elements go, you will move through the material more quickly. Create the template in your word processor and leave a copy of it at the top of bottom of your document so that you can easily copy and paste the template as you come to a new issue. It will save you time in the long run.


SAMPLE TEMPLATE

  1. Legal Principle
    1. Issue / Scope

Issue: The scope of what's covered under this heading helps you organize and scan your outline when studying.

    1. Rule
      1. Common Law Rule:
      2. Restatement:
      3. Model Code:
      4. Dissenting Rules:
      5. Policy:

Rule: A restatement of the rule in your own words broken down into elements. Include variations on the rule such as the Common Law, Restatement, etc.

    1. Analysis
      1. Reasoning by Analogy:
      2. Factor Balancing:
      3. Judicial Tests:
      4. Policy Arguments:

Analysis: Use the four primary forms of proving the rule to give examples that illustrate the use of the rule in real life.

    1. Case Summaries

Cases: Write one or two sentences describing the cases you've read. These summaries are just meant to jog your memory of the case. Emphasize the facts and holding.


Although you have a set structure defined for creating the outline, it should not be rigid. Feel free to modify or leave out elements that don't make sense for a particular legal principle. For the most part, however, this method gives first year students the structure they need to learn the elements of legal reasoning.

The template should also be defined as to the outline style you use - i.e. roman numerals vs. legal outlining style (e.g. 1.1, 1.2, 1.3, 1.3.1, etc.). Most word processors will let you use either approach or a hybrid. What matters in choosing a system is that it makes the most organizational sense to you. Choose a system that will facilitate instant recall and understanding of the material. Don't use someone else's approach if it doesn't make sense. Outlining can be as idiosyncratic as you like so long as it aids you in the exam.

The outline structure used here is very similar to IRAC, and the methods used to restate and analyze the rule. The structure allows you to have instant pattern recognition during the exam and it makes it easier to build an outline by plugging items into a set format. If you've followed the advice on briefing cases, you should be able to build an outline with relative ease.

One common mistake that first year students make is to organize their outlines by case. It's natural for students to want to have major heading according to case names since this is how the material was taught. However, this type of organization will not help you on the exam. The exam requires that you recognize issues and then analyze the facts. The IRAC outline breaks rules out according to issue, thereby helping you study for the exam. While your classes have emphasized cases, you need to emphasize analysis in your outline.

We'll step through each of the major headings to see what's necessary in each. See the Appendix for an example of a fully outlined legal principle.

Step Three: Organize the Big Picture

Another pitfall that students make is jumping into the first issue before they get the big picture. Get a sense of the overall structure of your outline before diving into the first case. Know your destination before you start to go there. You'll save a lot of time and frustration by spending ten to fifteen minutes paging through all of your materials to reacquaint yourself with cases and class notes. Just flip through every page of your casebook that you plan to cover and jot down the big picture items. This helps lend a structure to your outline, so that you know what your major headings are going to be. This process is similar to the pre-reading exercise. By looking over the material and getting the gist of it, you will be able to move through it faster and not get bogged down in unnecessary details.

In this first step of getting the big picture, you'll only be filling in the Legal Principles noted by the Roman Numerals. The Roman Numerals might correlate to the headings we saw under the major section headings above for tort. Thus, the intentional torts section of your outline might be organized as follows:

  1. Battery
  2. Assault
  3. False Imprisonment
  4. Intentional Infliction of Emotional Distress
  5. Defense - Self Defense, Consent, Privilege

You may want to use broad headings such as Intentional Torts and Negligence to separate out the different sections. However, keep the particular torts or ideas as main headings even though they seem to be subheadings of a broader category. Otherwise, you will soon be indenting into sub-sub-subheadings.

Organize it in a way that makes sense to you and which correlates to how your course was taught. At this point, it would be a good idea to compare your organization to the Syllabus that the professor used in the course and to the table of contents in the book.

By using the right methods from the start, you have cut down on the time used to put this material in a useful format.

Step Four: Synthesize the Rule

If you've prepared case briefs and class notes in the IRAC style, then the substance of your outlining should flow naturally from those materials. The big difference is that instead of listing a different rule for each case, you want to synthesize the rules into one principle.

Rules build upon one another and your goal in outlining is to come up with one general rule that combines the related rules from specific cases. Despite the need to illustrate differences, you want one primary rule that governs the jurisdiction that you think your professor will test you on. The synthesized, or primary base line rule, is the one that you will work with in the exam. It is the rule that either your professor adopted in class as the better rule of law or the one that is used in your jurisdiction. Professor Bob Berring at University of California, Berkeley Boalt Hall School of Law calls this "the one perfect sentence" rule. Berring tells students to write "one perfect sentence" that summarizes each major rule of law. Student can then automatically spit out this sentence whenever the issue arises on the exam.

From that base line rule, you can then note distinctions about the rule from other jurisdiction. The jurisdiction could be the state in which your law school resides or it could be the general common law. Ask your professor what she wants you to emphasize before attempting to outline.

In order to synthesize the rule, take advantage of the structure of the casebook. The format for casebooks usually has one principal case that states the primary rule and then several squib cases that have refined the rule or give a different interpretation on a different set of facts. A squib case is a supplementary case that may be edited by the author of the casebook to only bring out certain principles.

To synthesize a rule, you have to start with the base line rule and restate it. Be sure to break the rule into elements that form terms of art. Although the squib cases illustrate distinctions, they can also help you form a general principle. For instance, you might have a principal case that illustrates the old common law and more modern cases that have revised the rule. The base line rule should take into account how the squib cases have modified the common law.

If the difference between the squib cases and the principal case is merely one of language and not substance - i.e. the rule is stated differently but the effect is the same - then just choose the language that best suits you. Don't clutter your outline with unnecessary restatements of the same principle.

After you have the base line rule, you want to list similar rules that illustrate different treatments of the same principles. This will help you in the analysis section of the exam. For instance, you want to be able to see the distinction between the following sources:

State the rule once as common law, once as the uniform statute, once as the Restatement. Note the differences that the different methods illustrate. There won't always be different rules for each type. However, if there are, then it's likely that a different result may happen with a given set of facts if a different rule were applied. Your professor is trying to see if you can catch these nuances, so be sure to make the distinction in your outline.

Finally, like the rules of law, these instructions are just guidelines. You will inevitably find some rule that doesn't fit neatly into the procedure illustrated above. Be flexible and state the proposition in a way that makes sense to you.

Step Five: Illustrate the Analysis

Analysis is the most important element of the outline. Your exam primarily tests your ability to analyze and issue-spot. Consequently, this area of the outline needs to be fleshed out with examples on how to apply the rule. There are four primary ways to prove the elements of a rule of law. You look at the terms of art in the rule and prove it by:

One mistake that students make in outlining is to integrate the analysis into the statement of the rule. These tests are so integrated with the rule that they seem to belong as part of it. However, it helps clarify the analysis to keep the rule and tests used to prove the rule separate.

From an organizational point of view, you need to step through the proving of a rule according to each of the rule's elements. Since each individual element is often a term of art, you can use the element as a heading for proof purposes. Underneath the element heading, you then list one of the four ways to prove the rule. See the sample outline that illustrates this principle.

Step Six: Provide Case Summaries

The last step in outlining is to provide case summaries. List every case that you have read including the squib cases with a one or two line description that will jog your memory as to the specifics and holding. This one or two-liner should state sketchy facts of the case and what the case stands for. Include some facts because professors often draw upon case law fact patterns in order to create hypotheticals.

Case summaries give you an edge not only as a way to illustrate the examples for reasoning by analogy, but also to provide a quick overview of a case-by-case organization of the legal principle. By scanning this list, you remember how you learned the material. It's a chronological view into the material. Typically, it will also serve as a way to look at the development of the law, since casebooks often start with a principle case followed by cases that have distinguished that principle.

For purposes of the outline, the case summaries are much more condensed than the case brief. Most of the details are eliminated altogether. There's a real danger of putting in too much material. The point is to get you to recall rather than to have all of the facts. You will rarely need more than two or three sentences.

If a famous judge wrote the case - such as Holmes, Brandeis, or Cardozo - then note that as well. Being able to cite a judge for a certain principle is one of the ways to distinguish yourself from the crowd in an exam. It won't win you a top grade by itself - for that you need stellar analysis. But it does allow you to show that you understand the importance of the opinion by showing its source.

Some other elements to include would be the page number in your casebook so that you can quickly reference it if necessary.

Here's an example of the right way and wrong way to summarize a case for purposes of the outline.

Too Much
Palsgraf v. Long Island Railroad. 248 N.Y. 339, 162 N.E. 99. Judge Cardozo. Railroad guard pushes a man from behind in order to help him get on moving train. Man drops package wrapped in newspaper that contains fireworks. Fireworks explode. Explosions cause scales to fall on platform which harm plaintiff. Court finds that action by guard was not foreseeable as to the harm that was caused to the plaintiff. Harm caused must be apparent to the ordinary person in order for liability to attach. If the harm is unintentional then it must be natural or probable to occur in order for there to be negligence. Too remote in proximate cause theory for there to be a tort against plaintiff.

Too Little
Palsgraf. Fireworks case. Explains proximate cause.

About Right
Palsgraf v. Long Island Railroad. p. ___. Cardozo. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.

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What to Leave Out

Not everything that you have in your class notes or case briefs is relevant to the outline. It's as important to know what to leave out as what to put in. For instance, unless your class is Civil Procedure, Criminal Procedure or Evidence, you probably don't need the procedural information (i.e. what happened in the lower courts and how this case came to be appealed) in your outline. Nine times out of ten, this material is irrelevant to your outline.

A clear understanding of procedure might be tangentially important in the exam. In other words, you should be able to talk the talk of procedure in an exam. In fact, your professor may have grilled students on the procedural elements in order to get them to use the artful language of lawyering. But the procedural nuances of the cases are not as important as the nuances of the rule for the body of law you're studying.

As with everything in the study of law, there is probably an exception in your material where procedure is important. In those cases, the rule integrates with some sort of procedural issue and this should be apparent. In general, however, you can leave procedure out of an outline.

Stumbling Blocks

A big stumbling block in outlining is pure fear of not getting it right. Because law students don't get much feedback except for the final exam, there is a tendency to always wonder whether you are doing something correctly. This fear often causes first year students to freeze up and not move forward. In other words, they waste time fretting about getting it right. It's easy to fall into the trap that if you don't get the outline right, you won't get the exam right. This is where you can use secondary sources such as commercial outline to verify whether you've gotten the material down correctly. Then you can move forward with more confidence.

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Before the Exam - The One-Page Outline

In the final week before the exam, if not before, you should condense your outline into one page. This page - known as an attack outline - serves as a checklist of issues as you read the exam. The attack outline helps you organize your answer, remind you of key points and to make sure that you haven't missed an issue. The attack outline transforms good students into outstanding students.

The attack outline does two things:

To build the attack outline, figure out how you would analyze a problem that tackled every issue in the course. Where would you start out? Build a framework that works logically from one issue to the next if there were a hypothetical that encompassed every conceivable issue.

For instance, in contracts, you wouldn't start out by analyzing what the damages from a breach of contract were. Furthermore, you wouldn't start at the point of breach. First you would need to establish that there was a valid contract, then discuss the breach, potential defenses and then move onto damages. By figuring out how to analyze an issue - that is the sequence - it helps prepare you to answer a question before you even step into the exam.

Once you have the list of issues and the order in which you would analyze them, then develop shorthand for the major elements or tests that will form the bulk of the analysis. Use this shorthand on your attack outline so that you don't forget to hit on the elements in the analysis. Shorthand and a condensed format will make for a highly idiosyncratic one pager that will probably be understandable to no one but you. That doesn't matter. You're the only person who needs to understand the one pager. If done properly, the attack outline transforms good students into outstanding students.

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