Outlining for Law School Exams Fall 2016 Why

Outlining for Law School Exams Fall 2016

Why do we make outlines? Do I really need to make my own? When should I outline? What makes a good outline? Is outlining different for an open/closed book exam? Do case briefs go in the outline? How long should an outline be? How do I outline?

The Bottom Line (or yes, you really need to make your own outline) The value of a law school outline is NOT in the product but in the production.

Why do we make outlines? The main purpose of an outline is to organize your understanding and thoughts about the course material into an “attack plan” for use on the exam.

When should I start outlining? Hint: there’s a reason I am holding this workshop in the middle of October.

What makes a good outline? • • • Black Letter Law Cases* Hypothetical Fact Patterns Professor’s Quirks, Theories, and Ideas Policy Arguments/Rationales Anything else that is relevant… including your views on the subject!

Is outlining different for an open/closed book exam? Not really except if you have an open book exam, make sure you create an easy to use table of contents/tab your outline for quick access to key sections.

Do case briefs go in the outline? No, no!

How long should an outline be? Outlines can definitely be too long. What is too long? 100 pages is too long. Most classes have at least one outline floating around that is a transcript of every word ever spoken by a professor. Is that the perfect outline? Generally speaking, no.

How do I outline? Organize your outline around concepts – not cases. Outlining accomplishes two tasks: Synthesis Organization

Getting Started Materials Needed Class Notes Case Briefs Textbook (and any supplements and handouts) Commercial Outline and/or Hornbook

Where to Start I suggest you structure your outline in a manner that reflects the way the professor taught the course, which is reflected in the syllabus.

Integration Taking your cue from the professor’s syllabus, divide the course into segments. Gather up all the materials for the first segment and think about moving to the “exam level. ”

As you outline each segment of the course, ask yourself the following questions… 1. What is section about? 2. What set of concrete problems is presented by the different fact patterns? 3. What set of issues arise out of these problems? 4. What set of rules (and principles) is applied to these problems to “solve” them? 5. What policy rationales are served by these rules (and principles)?

At the end of each segment, ask yourself this set of questions…. 1. Do I understand the key problems and issues here? 2. Do I understand what rules and principles apply and any relevant policy? 3. What are the likely issues to appear on the exam? 4. Can I apply this knowledge to hypothetical problems?

General Framework Think big (skeleton) Put meat on the bones Scale back (trim the fat)

Elkin’s Negligence Outline* Will the Plaintiff prevail? Will the Defendant be liable? Duty Breach Causation Damages Defenses This is not very useful as the end product but it reminds me to start with the elements of the prima facie case and to not forget defenses. The prima facie case is my skeleton.

Example Was there a Duty? Nonfeasance (special relationship) Misfeasance (Palsgraf) Was the Duty breached? What is the standard of care? Is there a statute that establishes the standard of care (negligence per se)? If there is no direct evidence of negligence, is there circumstantial evidence (RIL)? Did the breach of duty (negligent conduct) actually cause the harm? Can I say, “but/for the defendant’s negligent conduct, the harm would not have occurred? ” Was defendant’s conduct was a substantial factor in causing the harm? Were there two (or more) negligent defendants, only one of whom could have caused the caused harm? Did the breach of duty (negligent conduct) legally cause the harm? Was the harm a foreseeable consequence of D’s negligent conduct? Was the harm that occurred w/i the scope of the risk that made D’s conduct negligent to begin with?

Was there a Duty? Nonfeasance (special relationship) 1. 2. 3. 4. Misfeasance What is this section all about? Misfeasance consists of affirmative acts of risk-creating conduct, doing something that a reasonable person would not do. Defendant acted and caused harm. What is the big issue? The issue is whether defendant owed a duty of care to the person harmed. What’s the general rule? Defendant owes a duty to foreseeable plaintiffs; those people who are in the “zone of danger” created by D’s negligent conduct. What are the key cases that illustrate the rule? Palsgraf

Palsgraf (See September 30 th Torts notes). D pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. D’s conduct may have been negligent to the package carrying passenger by pushing him, but it did not involve a foreseeable risk of harm to P, who was standing far away.

5. What is the key principle? The fact that D was negligent toward someone doesn’t mean D’s negligence is tacked on to everyone. 6. What are the policy issues? (1) What is the nature of duty – is it relational or act-centered? (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause? (3) Is court or jury the proper arbiter of foreseeability? At some point, the court must make a public policy decision which operates to limit D’s liability for damages caused by her negligence. J. Cardozo (majority) focused on the foreseeability of harm to a particular plaintiff. J. Andrews (dissent) established a duty of care to the world and focused on the foreseeability of harm caused by D’s conduct.

Negligence per se to illustrate other aspects of my outline Was the Duty breached? What is the standard of care? Is there a statute that establishes the standard of care (negligence per se)? If there is no direct evidence of negligence, is there circumstantial evidence (RIL)? 7. Key Class Hypos Because of damage caused to roads and subsequent cost of road repairs, PA passes a law barring the use of studded snow tires. Elkin did not remove his studded tires because he liked the extra traction they gave him on the snow and ice. Elkin is driving through State College when a metal stud breaks off his rear tire, which flew through the air and struck Houck in the eye. Houck has permanent loss of vision in the eye struck by the stud. He sues Elkin and introduces the statute and evidence of his violation. After presenting evidence of injuries and damages, Houck rests. Elkin moves for a directed verdict. Result?

8. Prof’s focus NPS establishes negligent conduct but not liability for negligence. P must still prove causation and damages to recover. NPS allows P to meet the burden of production (get to the jury; survive a motion for a directed verdict) on the first 2 elements of the prima facie case. Jury may still find for D if P does not meet her burden of persuasion (preponderance) on these elements.

9. My thoughts for exam Don’t ignore ordinary negligence if NPS doesn’t apply. Houck may have a cause of action in simple negligence. For example, the stud may have been loose and I didn’t remove or otherwise fix it despite my awareness. Attorney malpractice to rely solely on NPS? ? Watch out for acceptable excuses to NPS. Acceptable excuses include: a sudden emergency not of the actor's making; compliance would involve greater danger than violation; the actor has some incapacity rendering the violation reasonable; or, after reasonable efforts to comply, the party is unable to do so.

Questions NEXT SESSION: NOVEMBER 11 CRIMINAL LAW PRACTICE EXAM (12: 30 -2: 30, Auditorium)