Walking Through A Scratch Paper Outline

For many bar takers, outlining an answer before writing is a commonly skipped but crucial step to developing a successful answer.

Maybe it made sense for you to ignore pre-answer outlining in law school. Law school issue spotters can feel like frantic exercises in spaghetti-throwing: write as much as you can in three hours and see what sticks. Considering the one-hour-per-essay time limit, the bar exam may have that same frantic feeling, but it’s actually a much more precise and planned out process. In fact, the essays themselves, (with the exception of Evidence), are meant to be written in just 45 minutes. Planning time is built into the writing process.

This is why outlining is such an important tool for guiding your answers. It gives you a chance to put your attack plans into action by 1) slapping down the answer structures you have committed to memory, 2) prioritizing issues and assessing time allocation, 3) and building out IRAC.

Slapping Down Answer Structures

Almost as important as memorizing the law is memorizing how you’ll be writing about it. For example, you always want to structure your Negligence answer pretty much the same way. The same goes for a 5^th Amendment discussion, or a Contract formation question. The examples go on and on, because every topic has its ‘slapdowns;’ the cluster of issues that you will be writing on autopilot, because they get written the same way every single time.

Of course, you can’t bring past answers into the bar exam with you to use as templates. The next best thing is your pre-answer outline. Once you recognize that a fact pattern is triggering one of your go-to slapdowns, you want to get those issues down on paper. Of course, you want to include all the issues you’ve spotted in your facts, but having those templates memorized as a foundation will help you incorporate remaining issues around and within it. So, if I have a Negligence question in front of me, the first thing I’m doing is quickly writing out:

Negligence 

Duty, Breach, Causation, Damages

Duty

Cardozo – foreseeable P, ‘zone of danger’/ Andrews – owed to all

Standard of Care

Breach

Did breach of SOC – injury

Causation

Actual – but for

Proximate –foreseeable

Damages

Defenses

Contributory Negligence

Assumption of Risk

I haven’t filled in facts yet, and I also have not included the applicable standards of care yet. I’ve left space to add those in based on the facts. But first, I’m getting these basics down. If you have this structure memorized, it should only take seconds to write this all out, and having this roadmap as a reference point will actually save you time later on as you’re writing.

Prioritizing Issues and Assessing Time Allocation

Let’s continue with this Negligence example as it relates to prioritizing other issues. Let’s say I’m working on the February 2008 Torts question. I know, based on my issue spotting, that I’ll be writing up two causes of action: Negligence and Strict Liability, specifically, Ultrahazardous Activity. I know, from all my practicing, that Negligence is a hefty issue, with at least half a dozen sub-issues nested within it. I also know that Ultrahazardous Activity has, depending on how you break it up, three major elements: (1) the defendant is engaged in an inherently dangerous activity, (2) that is uncommon to the community, (3) and cannot be made safer, regardless of how much care is taken.

Based on this, I know that even though there may be ambiguity within the Strict Liability discussion that will require some robust counterarguing, it will not be as long as the Negligence discussion. This means that, looking at my outline below, I now have a visual of how my time will be allocated. Out of the 45 minutes I have left after outlining, I’ll aim to spend 25-30 on Negligence, which will leave 15-20 for Strict Liability. You don’t need to write these times down, but doing so may help keep you accountable to the time limits. In a perfect world, I will stay on the low end for each issue, which will give me a few minutes at the end to proofread, or at least take some deep breaths before moving on to the next essay.

I. Negligence (25-30 mins)

Duty, Breach, Causation, Damages

Duty

Cardozo – foreseeable P, ‘zone of danger’/ Andrews – owed to all

Standard of Care

Anticipated Trespasser

Reasonable Care of Property

Duty to Warn of Dangerous Artificial Condition

Attractive Nuisance 

Dangerous artificial condition

Knows/should know children likely to frequent  

Child unlikely to appreciate risk 

Risk of harm vs. Cost of safety  

No reasonable care 

Breach

Did breach of SOC à injury

Causation

Actual – but for

Proximate – foreseeable

Damages

Defenses

Contributory Negligence

Assumption of Risk

II. Ultrahazardous Activity (15-20 mins)

Inherently Dangerous

Uncommon to Community

Cannot Be Made Safer

Building Your IRAC

Finally, my outline will not only serve as a roadmap for my issues but, to throw in another metaphor, it will also be the bones of my IRAC. The Header (e.g. “Duty,”) is my “I.” The rule (e.g. “Cardozo + foreseeable P/Andrews + owed to all”) is my “R.” The legally significant facts I plug in will inform my “A,” and, when appropriate, I’ll even note a possible conclusion. So, at the end, using the same Torts question as an example, the ‘duty’ part of my Negligence outline will look like this:

I. Negligence (25-30 mins) [Overall I]

Duty, Breach, Causation, Damages [Overall R]

Duty [I]

Cardozo – foreseeable P, ‘zone of danger’ / Andrews – owed to all [R]

• P’s home is ‘adjacent’ to substation, playing in field (Cardozo) [A]
• P is part of ‘all’ (Andrews) [A]

Conclusion: PLC owed P duty of care. [C]

Feel free to pull up this Torts question, and see if you can fill out the rest!