Here is a question that you will never get on a law school exam: “Please state the facts and holding of Smith v. Jones.” Since you will never get that question, why would you organize your outline in this form?
Smith v. Jones
Most law school exam questions consist of new, hypothetical fact patterns. Some of us pull those patterns out of the news and modify them to suit our purposes the way legal dramas on TV do, and some of us just think them up while showering. Either way, you will not have seen the precise fact-pattern before sitting down to the exam. As a result, the answer is not already in your notes, your outline, an outline created by one of your friends, or the outline sold to you by some publishing company that profits off exam anxiety while providing next to nothing in the way of useful analysis. A commercial outline in particular should be conceptualized as a security blanket. It may reassure you to know it’s there, but there is nothing substantively provided by it.
Most law professors evaluating final exams are looking for the same thing: analysis. Ok? No? So here is a little more explanation:
You read this hypo, it’s maybe 250 words long, and when you first read it, you are instantly and completely overwhelmed. OMG, a thousand things are going on!! How am I going to sort through this? That is exactly the right question.
Got a pen? A piece of paper? Write them down. What are the issues you see? Don’t worry about anything else yet, just identify the issues and write them down.
Which should be settled first? Why? Does the outcome of that one affect the outcome of another one, or whether a court would even reach the next one? Is one logically prior to another? Put them in order. There is a correct order. (There might be more than one correct order, but not just any order will do.)
Start with the first one: what will the plaintiff/prosecutor argue? What will the defendant counter-argue? A good exam answer reads like this “On the one hand… but on the other hand… but then again on the first hand…” It’s an argument you are having with yourself.
Use your facts as you go. What facts work for the plaintiff on the first issue? How do those facts help you make an argument? What fact works for the defendant? How does that fact contribute to the counter-argument? You are not likely to get a hypo that is obviously a winner for one side. The whole idea is that there are strengths and weaknesses to each side’s case and you need to find them.
In many areas of law, there are rules accompanied by exceptions. One party will want the rule to apply, the other party will want it not to apply. Many areas of law are governed by standards rather than rules, meaning there is more discretion in the hands of a judge. What would motivate the judge to use that discretion in one direction or another? Often facts will be crucial to that determination.
Here is where a good outline, whether for studying or for reference during the exam if it is open-book, is helpful. An outline that consists of just facts and holdings won’t help much. What helps are arguments. What argument that you have seen before in a case can be adapted to this new set of facts before you? If you have outlined and studied in a way that highlights the arguments made by the litigants and the rationales offered by the judges, those will help you now.
On to the next issue. Did a possible outcome of the first issue affect how you approach the second issue? Maybe “if the court determined that the plaintiff lacked standing, the court would not then reach the merits of the case.” (But then, analyze the merits anyway.) Repeat the process used on issue one.
That is analysis. It is to be distinguished from reciting doctrine, from reciting the history of the doctrine, from repeating the whole story of the hypo, and from stating your conclusions about what a court will do without making arguments for both sides. Every instructor has individual preferences, but ask any of us whether we want analysis—arguments that use facts on both sides of each issue presented in an organized fashion. Law professors as a group don’t agree on much, but if you get a dissenter on that point, please let me know.
When the exam gets close, take practice exams. Take lots of them. Go over them with a study group. This is the only way to get into the groove described above and the best way to get the sense that you are on the right track.
It’s early in the term, not time for exams yet. If you think about this now, however, the resulting outline will serve you well when the time comes.