Outlining then becomes a must: it is not written as a series of abbreviated case briefs. Rather, an outline is a compilation of definitions, rules, case blurbs and other important information that functions as your private roadmap for the class. In fact, you can think of an outline as a comprehensive road map that tells you about the important sites, warns you about the dangers ahead, gives you choices on where to proceed, and hopefully leads you to your final destination - a good grade. This outline need not be an outline at all - you can use a flowchart or any other method to visualize the course content. But primarily you need to realize several things before you begin your outline:
A recent graduate gave me some suggestions regarding what an outline is not:
So what is an outline? It is a compilation of definitions, rules, case blurbs and other important information that functions as your private roadmap for the class. Moreover, a good outline is unique to you and reflective of how you study - visual, short & sweet, perfectly organized outline? It's up to you. Therefore, there is no magic outline out there - you just need something to visualize the course content. Moreover, you need something that will assist you in learning the material. So, this outline can't be hard to follow for you. So use flowcharts, ABC outlines, charts - let it work for you. This outline is, in essence, the law of a course, according to professor X.
Your first step: need to make sure that you have a clear vision of what the course is about. To quote a cliché, you need to first find the forest - then move on to decide about the individual trees. Therefore, wait until you finish a particular section in the course or until you are not confused about the information. In the interim, use that time to understand what the rules, exceptions, and policies are, how to apply different facts to these rules. Read treatises, ask questions, and look over other outlines if necessary. Sooner or later, you will begin to "get it." At that point, start outlining.
Moreover, you need to make sure that the ideas about the law are the most significant. So, your basic goals of outlining are concept oriented so that in the end you know what the big ten or so issues were in the class. Equally importantly, you need to decide what the relationships are between the various concepts because the exam won't be single issue questions - but ones that mixed the various issues together. To accomplish both, you will need to synthesize cases and hypos by taking a step back to look at the similarities and distinctions, as well as the unique aspects regarding the rules.
Step one of this getting the big picture - should be relatively easy step except for those who really like details - this might be the hardest step. So, look for a beginning. Refer to your syllabus - and if it isn't very helpful, look at the table of contents in your casebook to get an idea of the big picture. Look at commercial outline - like Emanual, Gilberts, Roadmap with established outlines. Your goal is to establish the overall structure of the outline. You can fill in the details afterwards.
Or, ask yourself: What set of problems are presented by the cases in this section? How were the problems resolved in the cases? What do the case notes add to your understanding of this section? What buzzwords were used in this section - and what does the professor say they are? These questions set the stage. They help you put the topic in context and see the big picture. Sometimes it is obvious - intentional vs. negligent torts, with a subsequent breakdown of battery & assault, trespass, etc.
This initial stage also includes knowing characteristics shared by a number of concepts. Again, looking at intentional torts - it's knowing what makes an intentional tort just that. Similarly, it's knowing that all crimes have mens reas & actus reas.
But you are probably not finished. Some concepts don't share common concepts - or have additional ones. So, you will also then need to ask yourself what else defines those concepts: What makes murder 1 equal murder 1 under MPC? What about the highest degree under common law? The same goes for the rest of your classes. Therefore, knowing that there is a wide range of rules is not the same as knowing what each case represents. Now that you have the basic divisions, you need to know what to do with them - or, what are the rules - and how do I recognize them? You need to decide this because you need to know more than just a quick definition - you need to know how to recognize the rule of law or issue in a future exam problem.
So, you need to be about to figure out what characteristics the rule has. This requires synthesis. So what is synthesis? It is the process of harmonizing cases from your casebook so that you can develop a systematic set of rules, definitions, exceptions and limitations. Remember, the subsequent cases that you read will typically be redefining, adding, or clarifying the rule. Thus, you will need to combine the holdings in a way that provides overall clarity to the issue. Your task, then, is to take the holdings you have found in each individual case and combine it with other cases to make the necessary connections and combinations of the elements that make up the rule. In other words, you are providing the boundaries of the rules for that area or topic of law.
To clarify before we go to how to come up with rules, let's first define what I mean. A rule, in this context, is an abstract or general statement of what the law permits or requires of classes of persons in classes of circumstances. Rules don't just apply to one person at one point of time: unlike court holdings (or judgments or orders) that decide based only on the facts before the court, a ruling operates as a generality.
In contrast, in a case, the court examines a mini-story to decide how the rules will apply in this instance. Thus, as you review and discuss these cases (generally from appellate courts), ask yourself how they fit within the general holding. In law school, the issue is further confused because the students often don't (initially) understand what the rule is. So the dilemma occurs: how can a student first decide what a rule is based only on the application of that rule to one set of facts in any particular case. That is where the problem begins.
Thus part of the student's goal is to first decide the rule based on the total number of cases in the casebook. Only by reading all the examples (for that is really what a case is - an example of the application of that rule to that set of facts) can a student work backwards and decide what the rule is, and how each case may add/limit the parameters of the rule's application.
Before you list them, you will need to take the intermediate step of synthesizing cases into rules. It's important to synthesize groups of related cases by deciding why a case was related to the rest of those cases in a section, and how it added to the overall establishment of the rules. This process of synthesizing is the groundwork for outlining because unless you are able to see relationships between related cases in a subject, you will not be about to make the next jump to how that series of cases fit within the entire framework of the course. To do this you will need to:
Let's look at another way to explain synthesis and rule-making. First, you need to go back to the first few cases in a section and decide what the rule is. Once you have more than one case on a legal topic (e.g. in a section in your casebook), ask yourself: what is the inherited rule or rule from the prior cases. Make sure you look at what the court says about the established rule. Now look at that explanation of the rule that typically happens before the court applies the rule to the facts. This information provides the most basic new information on the rule. Then look at the current case, and look at the relevant facts. Think about the new information regarding the rule and how the court applies the law to the facts in this new case. The court might change the rule, add an exception, or give us new information about what the rule means or how it is to be applied. It is this application of law to facts that leads you to the holding, and ultimately to the new reformulated rule. Implicit with this process may be the court's decision to limit or expand the application of the inherited rule. Make sure you also note how and if the court did not apply the rule to determine if there are any new limitations to the rule.
An example of this process could be the following. In a contracts case, the initial rule might be something like: "an effective offer must include all the essential terms of the proposed contract." In a subsequent case you read, you get the additional facts that a plaintiff's communication did not include a price and the parties had no prior course of dealing or other standard that would help to determine the price. The court's rule was that there could not be an effective offer. This tells you that price is an essential term of a valid contract. Further, because of the material facts also stated that there were no past dealings or accepted standards, you can determine that price must be:
In essence, then, the beginning couple of steps are vital to a successful outline. Unlike case briefs, which focus on the holding under a set of facts - application or rules to those facts, outlines focus on an ordered system of all the rules in an area of law. Therefore your strategy is to best decide how the rules of law are related - which follow which. In other words, you need to decide how, during an exam, you need to examine the various rules.
While you are working with these basic rules, don't forget to expand basic rules to include the elements. Make sure you always note when the elements are OR, AND. Note limitations and expansion with "BUT IF, THEN...." Highlight, use arrows, make some sort of signs to show the interrelated nature of the elements. If you don't divide rules properly and with attention to the detail that is needed you will end up not giving the necessary depth to your exam question. Remember, outlining is not just about transcribing your notes or even condensing them: it is organizing in such a way to effectively help you study for and answer exam questions.
Now, you get to the third step, inserting cases and hypotheticals. Once you have the rules and elements, demonstrate how each is applied through hypos and cases. These will give you the touchstones regarding what these rules and elements mean. You only need a brief summary of cases to demonstrate how that case is applied to that element or rule. To do that, make sure to include the relevant facts to aid in an explanation. In addition, and equally important, you need to make sure that the divided rules only list hypos/cases regarding that specific element, limitation, expansion. Now, I do have one caveat to this suggestion: if the professor in a particular case wants cases in your exam discussion, add all necessary information.
Similarly, add the hypotheticals that professor discussed. The point of a hypothetical is to help you "see" where the element/rule is expanded or limited or otherwise in the "gray" zone. But more importantly, it tells you how the professor thinks. Does she tend to look at policy issues? Are the questions more philosophical in nature? Do the questions tend to push the envelope regarding what facts make sense to help you focus on when and where the rules are applied? So while adding these hypotheticals to your outline, also ask yourself how the professor uses these problems.
Finally, in the last step, add reasons/explanation and policy. Note how you would argue for/against the use of the rule. Add applicable policy if this professor discusses it. You might notice that some professors have different approaches regarding different parts of the substantive area. For example, the more philosophical and theoretical the discussions tend to be, the more policy you will probably see. Trust yourself to adjust to those sorts of changes and make a note of it: if a professor likes philosophical questions, perhaps he might expect policy as part of the answer on an exam. This section may include:
In addition, some substantive courses emphasize case names, Restatement sections or statutory sections or rules. You need to make sure that you have included them in the outline. For example, in Civil Procedure, you will undoubtedly need to know the Federal Rules of Civil Procedure that apply to the section you are covering. Civil Procedure also emphasizes some "black letter" cases which represent certain rules. Similarly, you may note that Torts and Contracts refer at times to Restatement sections. On the other hand, Torts does not seem to have any lead cases. You need to be cautious, however, and take your cues from your professor. If he or she likes cases added in the analysis - you need to include them in your outline. Again, add what the professor emphasizes.
It is also important to go back and "connect the dots" - noting when new topics relate to past subject matter. Find relationships among terms. Make sure that when you are constructing an outline, you stop to think about the relationship between and among terms. Ask yourself: What is the relationship between duty and breach? Should duty come before causation? Why? Unless you know how each piece of your legal puzzle is connected, your outline will not bring you maximum results. Think about where each piece of the puzzle goes and how and why it belongs here and not there.
Outlines are all well and fine - but some people don't like them that much. Happily, outlines don't have to always look the same. Flowchart, charts, visual boxes, and lines to separate the important from the less significant can also be used to help you picture the law.
Finally you need to create an exam strategy. After your outline, after you figured out what the law is, you need to take yet another step and figure out how to apply it. So by flowchart, outline, series of questions, whatever, you need to figure out how to answer a question on the exam. Therefore, in exam strategy, the focus is on the questions needed to be answered before you can decide how to solve the issue. Obviously you can't do this section until you really know and understand the law. So work through outline first; add exam strategy as you learn and understand each part of the subject.
Turning to open book examination, this type of test is somewhat of a different animal than closed book. Often there are statutory codes that realistically can't be memorized. Other times, the professor is of the belief that if you create it, you can bring it. Don't be misled, however, into having the biggest outline in the world for your open book examination. Rather, you need a workable outline and some additional notes. For example, you need to have a great table of contents that organizes the material for you. Use tabs to indicate where the information on a particular statutory section is covered. And most of all, you need to know the material and where to find it. You can't waste time looking through your outline to help you figure out an answer. In other words, if you can't effectively organize - you are better off studying as if it were closed.
Once the outline is up to date, test how well your outline works as a study tool. Review the outline with your notes to make sure it all makes sense. If you have any parts missing or something does not make sense, ask your study group, the professor, or other students for help. You may even need a commercial outline to make certain portions clear. You will also need to test yourself with hypotheticals from your professor's lectures, old examination questions, or ones that you create. If you analyze the problem using your outline and exam strategy, this suggests that your outline is a useful device to help you on your examination. If not, you need to rework the portions that don't help you. Again, these potential holes in your outline suggest you might want to get some further assistance from students and professors.
In the end, you want an outline that helps you learn, understand, and use the course material in a way that will help you perform well on your examination. Questions? See Professor Herleth for help!
Copyright 2009 Joyce Savio Herleth