12B outlining

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Civil Procedure
Professor Terry ([email protected])
Fall 2018
LECTURE NOTES #12B: OUTLINING CIVIL PROCEDURE (& Other Courses)
I. WHY OUTLINE? (Or "What's Your Goal?")
A.
B.
Your goal is to do part of your final exam ahead of time. (Your outline can
identify the universe of possible "I" issues and figure out the "R" parts of "IRAC).
1.
This allows you to do the difficult, active "synthesis" of law ahead of time
when you have leisure to think about it
2.
Outlining maximizes your efficiency (and lessens stress) when studying
for finals because you have much less to study and are only studying the
essentials
3.
Outlining lessens the chance you'll forget something important during the
exam because you've reduced your outline to essentials; it will be easy to
read it through a number of times; and even those people with lousy
memories will invariably memorize a large part of it
My Premises (with which not everyone agrees):
1.
All law school exams are relatively predictable. There are a limited
number of issues covered each semester and each issue has identifiable
principles of law. Thus, you can accurately predict the "I" and "R" parts
of every exam. Your casebook table of contents or course syllabus
identify the issues you are responsible for.
2.
Outlining is worth the investment of time it takes and is preferable to
purchasing a commercial outline and spending the same time reviewing
that commercial material. (I believe that on an exam, you will have to
display the results of "active" learning, rather than passive learning. That
is, you will have to actually reduce that commercial outline to a few
sentences... and that's the tough part. If you make your own outline, you
get a chance to practice doing that.)
3.
It is useful for you to write your exam in an "IRAC" format. And doing
your own outline will greatly increase your ability to use this IRAC format
and will increase the thoroughness of your exam. You'll have the "I" and
"R" parts practically completed, and you can concentrate your energies
during the exam on the "A" part, which is what changes each year.
II.
HOW DOES ONE CREATE AN OUTLINE? (Or "What can you do to make this
less painful?")
A.
Use your casebook table of contents as a starting point. (In Civil Procedure, you
can use the handout I gave you so you don’t have to retype your table of
contents.) What you are trying to do is fill in the topics covered by the casebook.
The items below tell you how to do that "filling in." In other words, under each
item, you are basically asking yourself "what have I learned about this topic?"
B.
Use a standard format so that you don't waste time thinking about how to do the
filling in, but instead, with apologies to Nike, you just do it. (As an aside, at a
recent conference I attended, learning theory experts recommend that you avoid
using all capital letters in your outline.)
C.
I recommend using the following format (unless there's a radical reason to deviate
from it). I would use these titles and copy and paste them into each section or
subsection of your outline:
1.
Overview: (explain the issue you're talking about and perhaps give some
historical background or context). You can have an introductory overview
section and an overview section in each of your subsections if you like.
2.
Rule/Principles of Law: For each topic, you must describe the rule or
competing rules of law that you have identified. If everyone agrees on the
rule but there are competing subrules (interpretations), you can indicate
that as well. Where you have seen competing approaches, you can use
this section as an overview to the issue. Use numbers (1,2,3) as memory
aids to tell you how many different rules of law or approaches you have
seen.
a.
Remember that in law school, we are not trying to train you to
come up with “the” correct" answer because there are often
different and competing views about it is that the law requires. So
if you have seen these “competing” rules of law in class, you want
to include that information in your outline. For each rule of law
that you identify, you should be prepared to do a “yes/no”
application analysis (unless the call of the question instructs you
otherwise). The reason that we want you to be able to recognize
competing rules of law is because we want you to be capable of
representing whichever client hires you. (It's your choice whether
you do so, but we want you to be capable.) Thus, your outline
should not just list the "correct" rule, or the "majority" rule or the
most "recent" rule - it should list all competing rules of law that
you have seen so long as they are still viable.
b.
Look hard for those competing rules of law. Sometimes you see
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them in two cases addressing the same issue; sometimes they show
up in majority and dissenting opinions; sometimes they show up
through the notes following a case; sometimes they show up
through essays; and sometimes they just show up through the
professor's questions in class. (This is one thing you should be
looking for when you take class notes.)
3.
Include in your outline a section entitled "More on the [insert name]
Element or Rule of Law": You should feel free to have more than one
section with this name. In this section, you explain in more detail each of
the approaches listed in item 2, above. This section can also focus on
competing approaches to a single element (or perhaps, as in personal
jurisdiction, how this rule has been applied to certain typical fact patterns.)
4.
Purpose/Policy: In this section, explain the purpose or policies behind each
of the competing rules you identified. You can sometimes incorporate a
"purpose/policy" argument into the "A" section of your final exam. Since
you should be trying to make an application argument each way for every
subrule you identify, one of the parties probably can use that policy to
bolster or enrich their application argument. (Note, however, that you
shouldn’t do this unless you already have a robust application that includes
“Simon Says” words, the word “because” and that shows your work.
5.
Miscellaneous: You can use this section to include anything you have in
your notes that seems important but didn't fit elsewhere. One advantage of
placing this material at the end of the section is that it keeps you focused on
essentials.
III. THINGS YOU DON'T WANT TO DO IN AN OUTLINE
A.
Don't Organize by Cases, as opposed to Concepts! The biggest error I see in
student outlines is outlines organized by cases. When you get a hypo in a final
exam, you cannot proceed by summarizing what happened in a particular case. You
will have to have extracted a principle of law which you think fits, identify that
principle, and then use facts from the fact pattern to make both “yes” and “no”
application arguments in which you explain the arguments about why this particular
rule or subrule does or does not apply to the particular fact pattern. Since you have
to identify the relevant rules and subrules on the exam, why not do it now, in your
outline, when you have some leisure to think about it? If you want to include cases
names in your outline, do so at the end of 'B on the "rule of law" or 'C on "more
on the rule of law" and use the case name as a citation, to refresh your recollection
about where the principle of law you identified came from.
B.
Don't Include Lots of Case Details: I don't think you want to waste your time
including many case facts in your outline. This is true for my course and is true for
many other courses. In most law school exams, you will be given a fact pattern that
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is different than the facts of the cases you read.
1.
You should remember that law school is trying to teach you about both
forests and trees. What we do in class is, quite often, mostly about trees.
We want you to be able to dissect a case (tree) and tell us all about it -its
leaves, branches, veins etc. However, when it comes to exam time, we want
you to tell us about forests - to pull all these principles together, synthesize
them, and apply them to a fact pattern.
2.
You need to know all the case details for your daily class preparation when
we are training you about trees. For the most part, however, you don't need
anywhere near this level of detail in order to synthesize the material and talk
about forests.
3.
There are some exceptions - where, for example, the limits of the rule of
law are defined by a particular case, such as a US Constitutional case, you
may need to know lots of details about the case in order to understand the
parameters of the rule of law.
4.
I would never bother rereading any cases (or even my case briefs) when
studying for an exam. Once you have prepared your outline, this is what
you will use to study. I think everything important can fit into the outline
structure listed above.
5.
WARNING: These comments apply to my class and, I believe, most
others. BUT you should check with your other professors and look at their
old exams, if they are available, to see if you agree.
C.
Don't Be Too Cryptic in Your Outline: Your outline should be completely selfcontained so that you don't need to look at anything else to study. Moreover, you
don't want to be so cryptic that 10 weeks from now, you won't remember what
you meant. (Remember, during exam time, you're trying to juggle lots of
information, and you're nervous.) Don't expect yourself to be able to really
remember anything that you haven't written down.
D.
Don't Omit Anything Listed in 'II, above, unless you've got a great Reason to Do
so.
IV. To COPY and PASTE:
1. Overview:
2. Rule of Law:
3a. More on the [__element] in the Rule of Law:
3b. More on the [__element] in the Rule of Law:
4. Purpose/Policy:
5. Miscellaneous
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