Property -- Fall 2024 -- Outline and Exam Writing Advice

Property — Outline and Exam Writing Advice

Fall 2024
Professor Schnably
Office, Office Hours, and Faculty Assistant

Writing an Outline

Time:
- For Practice Question 1, spend 15-20 minutes writing an outline of your answer.
- For other Practice Questions, I strongly recommend you spend roughly that time outlining your answers before your begin to write.
- For the final exam, I strongly recommend you outline before you begin to write your answers, but in the end that is up to you. I will not collect or read your outlines.
Why outline? Learning how to outline your answer in advance is critical to writing good answers to exam questions. The purpose of doing an outline is to give yourself notes on what you’ll need to cover in your answer. More specifically, writing an outline accomplishes several things:
- It helps make sure you cover everything. Reading through a question you will doubtless see many issues. Even if you think you have all of them in your mind when you start to write your answer, as you get immersed in writing your analysis of particular issues, there’s a real danger that you’ll forget one of the other issues you still need to address. This won’t happen if you have an outline.
- It helps organize your answer. As you read over the question, you’ll think of the issues you need to analyze. There’s no guarantee that the issues you need to discuss will come to you in the most logical order in which to answer them. An outline also helps makes sure that when you’re at the point of addressing a particular issue, you discuss everything relevant then. That helps avoid situations where you have to go back later in your answer and add something. Of course, you can do this relatively easily if you use a laptop, but keep in mind that starting out and writing what comes first to mind, with the idea that you can cut and paste and move things around, still isn’t likely to be a good idea; it will take more time than it would to do an outline and then write your answer in some organized fashion.
- It helps you allocate your time properly in writing an answer. In most cases there will be some issues that are more complicated or difficult than others. The more complicated or difficult answers should be discussed at greater length than the simpler ones. If you don’t have an outline and the first issue you start to discuss is a relatively simple one, there’s a real chance that you’ll spend too much time on it solely because it was the first issue you began to address. The result is that you’ll have less time within the time allotted for the answer to address the most important issues.
By “outline,” I mean something along these lines, using Roman numerals, letters and numbers, as follows:

Writing an Answer:

Time
- For Practice Question 1, spend 40-45 minutes writing your answer (so that the total time comes to 60 minutes).
- For other Practice Questions you do, and on the final exam, spend whatever time is remaining after you outline on writing the answer.
There are certain things you should keep in mind, which I list below, followed by a description of what I am looking for when I read exam answers, and what can go wrong.
1. Follow the instructions. Pay attention to all the instructions.
2. Make sure you respond to the question.
  - What I’m looking for: Does the answer address the issue or issues that the question raised? Did the writer get basic facts wrong? Ignore important facts? Are there significant legal questions raised by the facts that the answer simply doesn’t address?
  - What can go wrong:
    - Sometimes people are in such a hurry to start writing that they rush through reading the question, noticing only a few key words and then figuring they must know what’s being asked. Make sure you read the question carefully -- read it over once, and then go back over it.
    - Sometimes people think it’s important to write down everything they know about the subject. It’s not. You need to thinking about and discussing how the rules (common law or statutory) could apply to these particular facts in a way that would best serve the underlying policies -- “policies” being the reason it would make sense to have the rule in the first place.
    - Sometimes people fail to respond to everything that’s being asked. If the question asks what the arguments would be in favor of a particular individual, and also asks you how you think the court should rule, remember to address both.
    - Sometimes people simply miss issues because they didn’t notice all the facts. How much missing an issue will count against you depends on how important the issue is; obviously, the more important the issue the more detrimental it will be to omit any mention of it. Avoiding this problem is mainly a matter of reading the question carefully and thinking about it. One thing you might do, after you’ve written your outline, is take another quick look at the question. Are there facts mentioned in the question that play no role in your analysis? Sometimes facts may be included in a fact hypothetical just for background, but typically fact hypotheticals are written to raise issues on a particular set of facts. If the answer you are planning on writing will pay no heed to a particular fact (particularly something prominent), you should just spend a moment to make sure that you really think there are no associated legal issues. It may be that there aren’t; I’m just saying it doesn’t hurt to double-check.
    - Sometimes people change the facts in the question and then analyze what the result would be under the new circumstances. Answering a question you’ve rewritten is almost always going to be a problem, especially if it detracts from a thorough analysis of the question that has in fact been asked.
3. Determine what the issues are and analyze them in an appropriate degree of thoroughness.
  - What I’m looking for: Does the writer identify the major and important minor issues? Does the writer seem to allocate his or her time properly? Is a disproportionate amount of time spent on less important issues, and not enough time on more important issues? As to any given issue, does the writer argue for his or her position, or simply assert it? How insightful is the analysis? Does the writer integrate the facts and the law in an analysis that takes policy considerations into account -- or does the writer just restate the facts from the exam, summarily state the “black letter” law, and then assert that one side or the other would prevail?
  - What can go wrong:
    - Sometimes people think they need to get to the point -- to say that “A owns Blackacre,” for example. What I’m looking for mainly, though, is your analysis -- how you get there and why. Keep in mind that I have no way of knowing whether you’ve mastered the material other than by what you write. There are different types of exam answers:
      1. answers written by people who understand the material well and explain their reasoning well;
      2. answers written by people who understand the material well and leave out their reasoning;
      3. answers written by people who do not understand the material well and therefore leave out their reasoning;
      4. answers written by people who do not understand the material well and explain their reasoning poorly.
      Obviously, exams of the 1st type will do the best, and of the third and fourth types, the worst. What may not be so obvious is that when I read an exam answer, answers of type 2 and 3 may end up looking very similar as I read them. People in the second category therefore receive the same (lower) grade as people in the third, even though they know the material as well as people in the first, who receive higher grades.
    - Sometimes people start out an answer by recounting all the facts. That’s a waste of time. I’m not looking for a repetition of the facts. You do need to mention the relevant facts, but the way to do that is to work specific facts into your analysis where they are relevant.
    - Sometimes people think it’s important to state the rules in their entirety at the outset, in the abstract. They may then follow this by recounting the facts and then asserting a conclusion. That is not the same as analyzing the facts -- once again, discussing how the rules could apply to the particular facts in a way that would best serve the underlying policies.
    - Sometimes people are too one-sided, and sometimes people mistakenly treat everything as equally subject to a counter-argument. If you’re arguing for (say) a caveat emptor standard, you can’t just ignore the arguments for a duty to disclose. You need to take note of the arguments for a duty to disclose and then state why you find them unpersuasive. On the other hand, while (as you should have seen from class) there is often a lot of room to argue, you still need to exercise some judgment. Not every conceivable argument is worth spending time on.
4. Organize your answer and write clearly. The way to achieve organization is to outline your answer before you begin to write.
  - What I’m looking for: How good is the writing? Do the steps in the analysis flow logically? How good is the paragraph structure? Is the answer simply a collection of sentences with no particular organization? Is it repetitive? Are there problems with grammar, run-on sentences, and the like? I don’t specifically grade for how well written the answer is, but if the writing problems are severe enough, it may be difficult for me to follow what the writer is saying.
    - An essay answer should be a series of paragraphs in logical order. Ideally, each paragraph should have a topic sentence. A topic sentence is what the paragraph is about. Everything that relates to that topic sentence should be in the paragraph, and anything that does not relate to that topic sentence should not be in that paragraph. The paragraphs should also flow logically, so it’s evident when you move from one paragraph to the next why what follows comes after (as opposed to having been addressed earlier or much later).
  - What can go wrong:
    - Sometimes people organize their answer by whatever comes to mind as they think through the question. If this is what you’re doing, you are very likely to leave something out, be repetitive, and hard to follow.
    - Sometimes people first write all the arguments for one side or one party, then write all the arguments for the other side. This makes it very hard to read; you shouldn’t write your answer as if you’re first writing a brief for one side, then another for the other. There are several problems with doing this:
      - It makes it very hard for me to see what you believe the arguments are on both sides as to a particular issue, because I have to find the arguments on that issue in two different places.
      - There is a big risk that for a given issue, when you write it up for side A, you’ll accidentally forget to respond to and it give the other side when you’re writing up the arguments for side B.
      - If I’ve asked you to say who has the stronger argument as to each issue, you’ll have to address each issue a third time, this time giving your assessment. This makes it even more repetitive and hard to follow.
    - Sometimes people organize everything as an alternating sequence of “on the one hand,” “on the other hand,” sentence by sentence. This is very hard to follow. You need to organize your answer by topic. This includes analyzing the counter-arguments to your position, but that needs to be done in an organized way.
    - Sometimes people don’t put any paragraphs in. This is almost always a sign of lack of organization. Of course, you don’t want to randomly hit the return (on a laptop) or insert an indent (in a bluebook); your paragraphs need to be organized and flow logically. But if you’re not putting in paragraph breaks (or doing so only every couple of pages in a bluebook), something is going wrong.
  - A note on IRAC, CREAC, or similar prescribed organizational structures:
    - Drafting an analysis of the legal issues posed by a set of facts is always challenging. It can be especially challenging if you haven’t had a lot of writing experience before coming to law school. Even if you have, there can be a different challenge: legal writing is not necessarily the same as writing in other professional or creative endeavors. But neither is legal writing utterly different from other forms of writing. Clarity in expression; depth of thought; concreteness; relevance; logical organization -- these are important across most if not all forms of writing, and certainly are important in legal writing.
    - Writing an answer to an exam question is different from writing a legal memo or a brief. You have very limited time to review the question, outline your answer, and write it. While legal memoranda, briefs, motions, client letters, and the like may well have deadlines, and you may be pressed for time in writing them, in most cases you still have more time than you will for a typical law school exam question. This means that you are much better off not spending your time writing things that don’t advance your legal analysis. This is why the two “C’s” in CREAC are particularly not helpful. Simply repeating anything in a time-pressured law school exam is generally not going to get you more credit. You may want to put specific conclusions to specific questions you are addressing at the end of the segment of your answer that covers one of the issues. It is more pertinent to do that in connection with that discussion of that issue than to save it for the end of the answer.
    - Another thing to keep in mind that is usually law school exam questions raise more than one issue. Yet sometimes people assume there must be an issue -- one issue only -- in a question. This can especially happen with people who adhere too rigidly to some method like “IRAC” (“Issue, Rule, Analysis, and Conclusion”) or CREAC (Conclusion, Rule, Explanation, Application, Conclusion). People may feel the need to state “the issue” right at the outset. The problem is that there will almost always be a variety of issues. In general, you want to keep in mind that you should aim to write answers that are clearly written and logically organized, and which address the question or questions asked; attempting to adhere too closely to any particular method touted as good for law school exams in particular can easily undermine that aim.
    - Suppose you believe you have significant challenges in organizing your an essay (and it is entirely possible to be a successful law student and lawyer if you do -- it’s just something you need to work on, and as to which you will improve if you put the time and effort into it). It is possible that using a method like IRAC or CREAC for now may be better than nothing. But I would try to avoid it, if possible. My own sense in having read many exam answers over the years is that IRAC or CREAC or similar structures are not well suited to the exam questions I write.
    - Keep in mind that none of this advice necessarily applies to your other courses, including LComm. You may get different advice from other faculty members, and you should pay close attention to their advice for their courses.
5. Other: If you refer to specific legal sources such as cases in writing your answer, there is no need to provide formal case or statutory citations, or even cites to the Casebook or Supplement pages, though it’s fine if you want to. But I am not looking for citations. In future practice or exam questions, if you are basing your answer on a statute or administrative regulation, on the other hand, I will expect that you cite the provision in some form that identifies which provision you are dealing with. Even here, however, there is no need to worry about formal bluebook citation form or to provide the page in the Casebook or Supplement where it can be found. Futher, keep in mind that I am primarily interested in your analysis. It can be very helpful at times to point to specific language in a case, for example, but there is no need for extended quotations.