Wednesday, January 13, 2010

Finally... an Alternative to Outlining

So, this is one of the posts that I've looked forward to completing for a long time.

On a basic level, we all have different learning styles.  Outlining for law school caters to linear thinking, which is great for linear learners.

Regardless of whether you're a linear learner or a more holistic-type, outlining sucks.  The process sucks.  The time that you put into it sucks.  And, moreover, if you lose part or--heaven forbid--all of it, that REALLY sucks.

For those who find that they learn best from outlining, good for you!  I am happy for you.

For the rest of us who hate it for whatever reason, consider my alternative.

Preface: this method has also worked really well for two of my mentees.  One is in the top 10% at USD; the other is in the top 10% at UCLA.

I suppose I'll call this process "index-carding" only because "falshcarding" sounds too much like pre-made flashcards, which is NOT what my alternative to outlining consists of.

1.  Get a pack of 3" x 5" index cards.  Don't cheat by purchasing the 4" x 6"!

2. Do the following for every major case in your assigned reading:

a. On the front of the card, write the short name of the case the way that you would write it on an exam.  For example, instead of "Roe v. Wade," simply write "Roe" on the front of the card.  The point, here, is to make these index cards work for you as an exam tool, so writing the long name, which you won't want to dedicate time toward during an exam, is a waste.

b. Flip the card over.

c. At the very top, write the main, broad topic of in which the case falls under.  So, for instance, if you're taking Contracts and the topic of the week is Consideration, you would write "Consideration" at the top of the back of the index card.

d. Immediately below the topic, write the sub-topic.  Sticking with the previous example, a subtopic of consideration would include "Illusory Promises."  Or, a popular sub-topic for many main topics is "Exceptions," in which case you should write a dash and the word/phrase that describes the particular exception to the topic.  One example of an exception to consideration, for instance, is Promissory Estoppel.

e. Line 1: FACTS.  Limit yourself to one sentence to describe the facts of the case.  This one-sentence limit really forces you to narrow which facts matter in the case.  I think of this sentence as a sort of newspaper headline (which isn't a full sentence in the grammatical way, but you catch my drift).  Let's get out of Contracts and into another subject to spice things up, shall we?  So, let's pretend that we're in Employment Discrimination (a really great course, by the way).  The facts on one of my cards reads, "Forklift manager continually harassed by company president who joked about her performing sex, asked women employees to fetch coins from his pocket, and called P [plaintiff] as 'dumbass woman'."

I'll admit that I abbreviated most of the above words on my actual index card, but the important thing is that these facts include: (1) The legal significance/positions of the parties.  In other words, I did not just write "plaintiff" and "defendant."  You know who is who by the way I wrote the facts.  Further, often the court's decision turns on the legal position of the parties, so you should know these things. (2) Enough specific facts to jog your memory during an exam.  Also, the facts in my example included things that both the court and the professor discussed.  (3) A verb.  We know who did what to whom and what that action was.  Here, the verb is "harassed," so I automatically know that the legal question here is "When does one harass?"  [See my other blog post on the Legal Question for assistance with this.]

These, my friends, are the essential facts.  We know the legal significance of the parties, we know the verb regarding what happened, and we know the fundamental facts upon which the case turns... or seems to turn.

f. Line 2: HOLDING & RULE.  The holding means different things to different people.  Sometimes, it means the party that the court came out in favor of.  Sometimes, it means the rule.  Sometimes it's both together.  Thus, I place these items together.  Again, this should be very short... as in ONE sentence.  Above all, though, I think the holding is best summed up as the answer to the legal question.  [Again, please feel free to see my other blog about the Legal Question.]

Usually for this section, I write "P" for plaintiff or "D" for defendant, the word "because" and then the rule.  For example, in my Employment Discrimination class, I wrote for that same index card, "P because it's not necessary to prove damage to psyche to satisfy hostile work environment."

Now, I know that this means that the court held in favor of the plaintiff--the forklift manager--and that the issue was whether she needed to prove that the president of the company damaged her psyche in order to recover under the theory of hostile work environment.  Moreover, I know how the court dealt with the issue; it answered with a resounding "No."  P did not have to take that extra step to prove her case or recover damages.

g. Line 3: RATIONALE. By now, you should know what I'm going to say.  And you're right.  ONE sentence!

"But, why, Jessie?" you ask.  I'll tell you why.  Scroll up to a phrase that I highlighted and bolded earlier.  From the beginning of class, you should be focused on the exam.  That is what matters.  The index-card method is a tool.  It is an exam-taking tool.  During an exam, you will not have time to spit up all the extra fluff that students are tempted to place in an outline.  Furthermore, the index-card method assures that you cut out the extra fluff because you only have one sentence per line!  This is important because, on exam day, if you want to analogize to a case, you will be able to do so extremely succinctly and successfully, assuming the information on your card was correct and that you recall the proper case.

Ok, so back to the rationale.  This is the most important part of every case.  I strongly advise that you read my blog entitled Why ask "Why" Twice.  It shows you the way to and through the rationale.  Since I don't want to repeat all of that here, I will trust that you have read that blog or really understand what--precisely--is meant by the rationale as we continue.

The rationale line for my card reads, "Title VII is not about intent; the employer's actions affected job performance and offended Title VII's broad concern of workplace equality."  Technically, that's one sentence.  So what if I had a semi-colon in there?  It worked.

h. Line 4: POLICY or MISC.  Usually, the above lines will get you where you need to go.  However, if there's a dissent that's particularly noteworthy, you might want to mention it in, again, one sentence.  My miscellaneous line said something like "Court considers all circumstances."  Was that necessary for my card?  Hell, I don't remember.  But that extra line is there if you need it.

For those of you who have had difficulty with understanding the difference between rationale and policy, I think of policy as a very broad interest of the court.  "Federalism" would count as a policy concern of the court.  "Child safety" would be another example.  I hope you see where I'm going with this...

The index-card method is so great because you can do it easily throughout the semester.  Or, if you find that you're in deep trouble toward the end of the semester because you feel like you don't know anything or don't have time to weed through all your notes, this works for that.  Even for those who outline, let's face it, if you're in a bind where you just don't have time or have lost all your stuff, this is a good way to go.

If you sit down and get to it, all of the major cases for one class can be done in a day... a very dedicated, long day.  At the end, I like to categorize my cards by topic, then sub-topic.  I also get really large binder clips for the cards for each class.  This way, I can essentially fit all of my courses in one hand, bound by course.

You will learn the course as you go.  By the end of this process, you will know the elements; after all, they are the sub-topics.  You will know the rules.  You will, most importantly, know the rationales.  I've found this to be a great and very holistic way to study and prepare for law exams.  For those of you who take interest in this method, I hope you find that it works just as well for you.


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