All the reading and colorcoded briefing

1

• All the reading and color-coded briefing
• that youve been doing isnt going to do
• a thing for you if you dont find
• a concise way to structure it.
• Robert Miller, Law School Confidential 144 (2000).

2
What have you been doing so far?

• To prep for mid-terms?
• Create partial outlines?
• Keeping up with class reading?

3
What has worked well?

• Following syllabus, ToC, comml outline?
• Class notes?
• Tip to identify key parts of each class?
• Study groups?
• On-line sources?
• Able to condense material?
• ???

4
Lets build on thatHow to get from here to there

• Enter the outlining/flowcharting ? exam prep mode
• Everything you do now is aimed toward either
  outline, flowchart, or exam
• Read for class with outline organization in mind
• Start to look at case facts and hypos as
  potential exam questions

5
Outlining/Flowcharting ? Exam Prep?What does
this mean practically?

• Go through your notes and try to connect the
  ideas among cases (outlining).

6

• Make checklists of possible issues to look for in
  an exam and the facts that might raise that issue
  (flowcharting).

7
Practice issue spotting
8
Start to memorize the rules

• Make flashcards to memorize the rules youve
  learned.
• Memorize the rules as articulated in class and by
  your prof - do not rely solely on Emmanuels or
  other generic definitions.

9
Practice application - ask why

• When reading and briefing cases make sure you
  note WHY the court came to its conclusion. Why
  was the plaintiff negligent? Why was the intent
  element of battery met?

10
The Law School Outline

• What is an outline?
• Why should I outline?
• How do I make an outline?
• What should I include in my outline?
• What mistakes should I avoid?
• Created by Ruta Stropus, Assistant Dean of
  Educational Services and Director, Academic
  Support Program, DePaul University College of
  Law Presented and adapted by Clifford Zimmerman,
  Clinical Associate Professor of Law and Director
  of Academic Counseling, Northwestern University
  School of Law

11
What is an outline?

• An outline is your attempt to put together the
  pieces of the puzzle. It is an organization of
  the informa-tion from your
• casebook
• class notes
• outside sources
• into your own personal study aid or
  treatise of the law.

12
Why should I outline?

• By making your own outline you will go through
  the process of learning the law and
  understanding how it is applied in various
  circumstances. Also, you will be better prepared
  for the exam than if you just read someone elses
  outline.

13
How do I make an outline?

• Getting started - the big picture
• refer to table of contents and/or syllabus
• Figuring out the "rules"
• synthesis
• look at cases as a whole, not individually
• Break the rule into component parts
• identify define each element of the rule
• Illustrate the definitions
• include examples of how the rule (and
• each of its elements) is applied from the
• cases and hypos

14
Rules Elements

• All law is made up of rules
• and all rules are made up of
• elements
• Following this maxim, we
• divide law into rules, and
• further divide rules into
• elements.
• The question on the exam
• will be do these facts satisfy
• each and every element of
• the rule?

15
What should I include in my outline?
I. Main topic or issue A. What are the main
policies in this area of law? B. What are
the rules? Include definition and
elements if any. 1. Case examples of when
rule has and has not been violated. 2.
Hypos from class as examples of how the
rule is applied C. When will I see this on
an exam what should I look for? D. More
policy (if applicable) make sure you
focus on what your professor brings up in
class. 1. Do these rule(s) serve the policies of
this area of law? 2. Is this a good rule
or a bad rule? (Will the rule help or hurt
society?) II. (Another) Main topic or issue
16
Sample outline - Criminal Law (policy heavy)
I. Criminal Law and Crimes A. To Be a
Crime 1. Societal Expression 2. Moral
Condemnation 3. Formal and solemn pronouncement
(public trial process) B. Why Do We
Punish 1. Retribution desertthey did
something wrong and deserve to be punished 2.
General Deterrence send a message to society
(Utilitarian perspective, Kant disagrees) 3.
Specific Deterrence teach a lesson to the
criminalreform their behavior so they dont do
it again 4. Incapacitation keep criminals
separate to protect society so we can feel same
and secure. C. See Dudleynone of the four
criteria are clear D. Two Views on
Punishment 1. Utilitarians (Bentham) Have a
forward-facing view. They want to teach a lesson
to society in order to create the most happiness.
But, you cant over punish because if you gave
everyone the death penalty (over-deterring), you
are decreasing the overall happiness in the
world, so you might as well not punish at all.
2. Retributivists (Kantian) Look to the past.
What did D o and what do they deserve for the
crime.
17
Sample outline - Criminal Law, contd
Legality? Fair Notice and Arbitrary Decision
Making . III. Actus Reus (Chapter 4) A. The
physical part of a crime B. In order to
punish C. See Martin v. State (no actus
reuspolice came and pulled a drunk man out of
his house and into the street) D. Do we want
to punish someone who has a moral duty to do
something but doesnt? 1. See Williams Case-
Mens Rea A. a guilty mind a guilty or
wrongful purpose a criminal intent B.
Under old English law, C. Why is mens rea
now a requirement for something to constitute a
crime. 1. Deterrence/utilitarian perspective
2. Retributivist perspective we respect
individuals as autonomous humans, but if we
punish them when they didnt intend to commit the
crimethey didnt exercise autonomy, so why
punish them. What to look for on an exam -
. More policy - Prof.s thoughts - .
18
Sample outline - Criminal Law (elemental)

• INTENTIONALLY INFLICTED HARMS PHYSICAL HARMS
• Introduction
• Prima Facie tort The infliction of intentional
  harm, resulting in damage, without excuse or
  justification, by an act that would otherwise be
  lawful.
• Elements
• Act
• Intent to do the AC NOT to cause the harm
• Intent means ? must either desire such a
  consequence or know with substantial certainty
  that the harm will result from his conduct
• Causation substantially certain to produce the
  injury (direct or indirect)
• Harmful (inflicts pain or injury) or Offensive
  (offends a reasonable persons personal dignity)
• Damages are NOT required
• Restatement
• Minority View requires that the harm from the
  act in addition to the act be intended by ?.
• Battery
• Elements
• Act (voluntary)
• Intent to cause a harmful or offensive contact
• Harmful or offensive contact with ?
• Causation of the harm or offensive contact (by ?)

19
Sample outline - Criminal Law, contd

• Definitions
• ? does NOT have to be conscious to be battered
• Act ?s act must be voluntary (to have intent)
• I.e. not hitting someone when sneeze
• Intent the desire to bring about consequences
  of any or the substantially certain knowledge
  that the consequences will follow from the act.
• CANNOT simply be careless or reckless conduct
  (negligence tort)
• MOTIVE is irrelevant, simply need INTENT to cause
  harmful contact
• i.e. a doctor injecting a patient against her
  will
• Harmful/offensive conduct
• Harmful conduct bring about physical damage
• Offensive conduct offends the person dignity of
  an ordinary person (who is NOT unduly sensitive)
• Use an objective standard to determine what
  conduct is offensive (person who is NOT unduly
  sensitive)
• EXCEPTION when ? knows ? is unduly sensitive
  and still commits offensive conduct
• Vosburg v. Putney 1891

20
Whats the Most Important Thing?

• An outline should be
• instructional, not
• informational
• An outline should walk
• you through the parts
• of the claim
• Look at the example
• of the instructional
• outline to see what we
• mean

21
What mistakes should I avoid?
22
Top Ten Mistakes students make when outlining

• They dont.
• They say outlining is too time consuming and
  spend all their time reading, re-reading and
  re-re-reading the cases.
• They use a commercial outline or someone elses
  outline.
• They start outlining on their own a week before
  final exams.
• They include only the black letter law in their
  outlines.

23
Top Ten Mistakes students make . . . continued

• They incorporate entire case briefs in their
  outline.
• The outline has no relation to the table of
  contents or class notes.
• The outline does not break down the rule into
  elements.
• The outline does not define the element, nor does
  it provide an example of how it works.
• The outline is informational, rather than
  instructional.

24
Creating a Flowchart in 3 easy steps
Brainstorm
Organize
Go with the flow
25
Contracts Sample Brainstorm Sheet
List of Rules/key words/phrasesPromissory
EstoppelOfferContractAcceptanceConsiderationV
oidVoidable Certainty of termsCommitment/promis
eTerminationCommunication - knowledge of offer
Brainstorm
25
26
Contracts Sample organization of rules/key
words/phrases
I. Requirements for contract A. Offer 1. Commi
tment/promise 2. Certainty of
Terms 3. Communication 4. Termination B. Con
sideration C. Acceptance D. Promissory
EstoppelII. Is contract valid? A. Void B.
Voidable
Organize
26
27
Contracts Sample Flowchart 1
Go with the flow
27
28
Contracts Sample Flowchart 2
Step 1 - Is there an offer? Look to see if all
of the following elements exist 1. Commitment/p
romise 2. Certainty of Terms 3. Communication
make sure the offer has not been
terminated! Step 2 - Is there
consideration? Step 3 - Has the offer been
accepted? 1. If yes - we have a contract 2. If
no - try to enforce using promissory
estoppelStep 4 - Make sure the contract is
valid Look to see if it is 1. Automatically
Void and/or 2. Voidable by one of the parties
Go with the flow
28
29
Make your own flowchart - part 1
Steps1. Look at the rules/keywords/phrases
below.2. Organize them into the outline.3. Put
them into the blank spaces in the flowchart where
you think they go.
Key words Lapse Termination Revoked Rejecte
d by offeree Rejected before acceptance
Contracts Outline I. Offer II.
A. B. C. D.
29
30
Make your own flowchart - part 1 Answers
Contracts Outline I. Offer II. Termination of
offer A. Lapse of offer B. Offer revoked C.
Offer rejected by offeree D. Offer rejected
before acceptance
30
31
Make your own flowchart - part 2
Key words Acceptance mailed before
rejection? Did offer specify a time
period? Offeree accept using different
method? Mailbox rule? Did a reasonable time go
by?
Contracts Outline I. Offer II. Termination of
offer A. Lapse of offer 1. 2. B. Offer
revoked C. Offer rejected by offeree 1.
Rejection per se by offeree 2. Difference in
terms 3. Counter offer D. Offer rejected
before acceptance 1. a. 2.
31
32
Make your own flowchart - part 2Answers
Contracts Outline I. Offer II. Termination of
offer A. Lapse of offer 1. By specification
of the offer 2. After a reasonable time B.
Offer revoked C. Offer rejected by offeree 1.
Rejection per se by offeree 2. Difference in
terms 3. Counter offer D. Offer rejected
before acceptance 1. Acceptance mailed before
rejection a. see mailbox rule 2. Offeree
accepted by different method than required
32
33
Sample Flowcharts
CAVEAT - All flowcharts attached may not be
useful for your classes. They may not conform to
the law of your casebook or that of your
professor. Please use these flowcharts as a
guide to creating your own flowcharts.
33
34
Contracts - Sample Flowchart 1
I. Is this UCC or Common Law? A. Is this the
sale of goods? ? UCC B. Is this the sale of
services or land? ? Common law (Lucy v.
Zehmer) C. Is this unclear? 1. Predominant
Purpose test split-up the bill what was
bargained for, what did buyer really
want? 2. Gravamen test where did the problem
arise from the goods or the services?II. Is
there an Offer? Does it confer upon another
the power of acceptance to bind the two
parties? A. Definiteness terms, price,
quantity, time (cts sometimes look elsewhere
Seagram) 33. B. Is this merely an invitation to
negotiate? (Harvey Owen) 1. Who was the offer
address to (General Public/Advertisement (Craft)
or a Specific Person)? 2. Does the Offeree
know of others? (Reasonable Person Test)
(Southworth Dickinson) C. Does offer ask for
acceptance? D. Intent of Offeror 1. Offerees
interpretation of intent (Lucy) Reasonable Person
Test again. 2. Look at wording of the offer.
(rephrase if necessary to understand) 3. Is
this offer illusory? A promise w/no commitment?
77III. If there is an Offer, is it bargaining
for a Promise or Performance? 32IV. Is there
an Acceptance? (Offer indicates how acceptance
is to be made Intl Filter) A. How is
acceptance made (promise or performance)? B. When
was acceptance made? Time Limit? Ever-Tite
Roofing B/F Revocation? 2-206 Any medium
reasonable 63 Mailbox Rule C. Even if offer
bargains for promise, can satisfy by Specific
performance. (White not specific enough).
D. Noticemust be noticew/in a reasonable time
(UCC 2-206), unless waived (Intl Filter) E. Is
this really an acceptance or a counter-offer/rejec
tion w/addl or different terms? 1. CL Mirror
Image rule (38-39) 2. UCC Analysis (2-207)
V. Was the Offer Revoked before Acceptance? 42,
43 (can be inferred by indirect comm.
Dickinson) A. Would a reasonable person assume
this was a revocation? 42 (same exam, i.e.,
phone messages) 1. Language or Actions
sufficient to put someone on notice? (Hoover
Dickinson (3rd party informs) 2. How did the
Offeree react? May indicate success of notice.
B. Means of revocation (notification) to
determine if made before acceptance.VI. Is the
Offer Revocable at all? Is this an Option
K? A. UCC Is this a Merchant (2-205)? (be
careful who is making the offer ? Ever-Tite
Roofing case) B. CL Is there
consideration? 1. Substitute Is the Offeror
inducing Offeree to act to his detriment? 2. Is
only way to avoid injustice to enforce? 87
(option Ks) 90 (gifts). Promissory Estoppel
90
34
35
Contracts - Sample Flowchart 2
35
36
Civil Procedure - Sample Flowchart 1
1) Have you been asked to analyze a complaint?
Look for common flaws including a) short/
plain statement of claim b) demand for
relief c) statement of jurisdiction/venue d)
failure to plead a special matter w/
particularity e) failure to investigate basis of
complaint f) not filed in a timely manner2) A
complaint has been filed and it's the defendant's
turn to respond. Try and see if you can file a
motion. Motions to choose from include a) Lack
of personal jurisdiction b) Lack of subject
matter jurisdiction/venue c) Failure to state a
claim d) insufficiency of process e)
insufficiency of service of process3) Rather
than filing a motion, defendant files an answer.
Two issues to look for a) By filing an answer
instead of a motion, has D waived anything?(make
sure you know which of the above motions are
waived if not raised right away) b) Are there
any problems with the answer? 1) was it filed
in good faith? 2) does it include affirmative
defenses? 3) should d. include a cross, counter
or third-party claim?4) The fact pattern says
something about amending a complaint or an
answer. Be careful! Make sure a) Time limit
for amending hasn't runb) Statute of limitations
for the claim has not run - be very careful of
the dreaded "relation back" issue - Rule 155)
Pleading is over, your off to discoveryhere the
issues relate to scope of discovery and whether
the information sought is protected by privileges
or immunities.6) Discovery is over, are there
any motions you can raise at this point?
Usually, this means a summary judgment motion.
Look for this issue especially if there is a
battle of the affidavits, documents or deposition
transcripts. Discuss burden of movant and
adverse party in a summary judgment
proceeding.7) Trial. A consideration of what
law applies (Erie questions).8) Post Trial.
Includes collateral estoppel, res judicata, jury,
directed verdicts, and jnov.
36
37
Civil Procedure - Sample Flowchart 2
37
38
Torts - Sample Flowchart 1
38
39
Torts - Sample Flowchart 2
Has someone been negligent?Must have 4 things
1) Duty 2) Breach 3) Cause and 4) DamagesDid
someone owe a duty of care to another? - Was
there a duty?Look for 1) an act or an omission
(failure to act) 2) general standard - that of a
reasonable person - applies to all - children,
people with disabilities, etc. 3) what was the
scope of duty? a) ordinary situations -
foreseeability of reasonable person of injury to
another b) special situations i) affirmative
duty to act, i.e. duty to control 3rd persons
(parent-child), duty to protect 3rd persons
(jailer, innkeeper, etc.) ii) duties
imposed by statute, i.e. good Samaritan
laws iii) special duties for owners and
operators of automobiles iv) special duties
for vendors and lessors of land v) special
duties for owners and occupiers of land 1) to
persons outside of land - not to create
unreasonable risk of harm 2) to persons
coming on land - look to see who person is -
different rules for adult trespassers,
children, frequent intruders, licensees, and
inviteesIf there is a duty - was there a
breach? - in light of duty owed - did D act
reasonably?Was the breach the cause of Ps
injuries?Look at 1) Actual cause - but for
test 2) Proximate cause - look at foreseeability
of what occurred and how it occurredDid
plaintiff incur damages?Can defendant raise any
defenses? 1) Was plaintiff contributory
negligent? 2) Did plaintiff assume the risk?
39