Outlining from scratch

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These are the power point slides I used in my Outlining presentation at Marco Island. I will publish the full text of the presentation in the fall issue of Perspectives.
-Ed Telfeyan

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Outlining from scratch

  1. 1. Outlining from Scratch How to Make the Process Meaningful
  2. 2. How to get grumpy <ul><li>Tell them to outline! </li></ul><ul><li>Tell them it’s important. </li></ul><ul><li>Remind them that they know how to do it. </li></ul><ul><li>When they say they don’t (“we never learned it”), give them a sample. </li></ul>
  3. 3. First Sample Outline <ul><li>I. First rule stated </li></ul><ul><ul><li>A. Case establishing first rule </li></ul></ul><ul><ul><ul><li>1. Facts of case </li></ul></ul></ul><ul><ul><ul><li>2. Holding of case </li></ul></ul></ul><ul><ul><ul><li>3. Court’s rationale </li></ul></ul></ul><ul><ul><li>B. Case following first rule </li></ul></ul><ul><ul><ul><li>1. Facts of case </li></ul></ul></ul><ul><ul><ul><li>2. Holding of case </li></ul></ul></ul><ul><ul><ul><li>3. Court’s rationale </li></ul></ul></ul><ul><li>II. Second rule stated </li></ul><ul><ul><li>A. Case establishing second rule </li></ul></ul><ul><ul><ul><li>1. Facts of case </li></ul></ul></ul><ul><ul><ul><li>2. Holding of case </li></ul></ul></ul><ul><ul><ul><li>3. Court’s rationale </li></ul></ul></ul><ul><ul><li>B. Case following second rule </li></ul></ul><ul><ul><ul><li>1. Facts of case </li></ul></ul></ul><ul><ul><ul><li>2. Holding of case </li></ul></ul></ul><ul><ul><ul><li>3. Court’s rationale </li></ul></ul></ul><ul><li>III. First rule applied </li></ul><ul><ul><li>A. Review of case establishing rule </li></ul></ul><ul><ul><li>B. Comparison of client’s case. </li></ul></ul><ul><ul><li>C. Review of case following rule </li></ul></ul><ul><ul><li>D. Comparison of client’s case </li></ul></ul><ul><li>IV. Second rule applied </li></ul><ul><ul><li>A. Review of case establishing rule </li></ul></ul><ul><ul><li>B. Comparison of client’s case. </li></ul></ul><ul><ul><li>C. Review of case following rule </li></ul></ul><ul><ul><li>D. Comparison of client’s case </li></ul></ul><ul><li>V. Conclusion </li></ul>
  4. 4. The Great Epiphany <ul><li>The Process Generates the Analysis </li></ul>
  5. 5. Steps in the Process (and the outlines for each step) <ul><li>Step One - Conduct structured research – </li></ul><ul><li>Create Research Outline </li></ul><ul><li>Step Two - Apply law to client’s facts – </li></ul><ul><li>Create Application Outline </li></ul><ul><li>Step Three - Explain law that is relevant to client’s facts – </li></ul><ul><li>Create Explanation Outline </li></ul><ul><li>Step Four - Establish CREAC approach to the memo – </li></ul><ul><li>Combine Explanation and Application Outlines (the Writing Template) </li></ul><ul><li>Step Five - Write the text of the memo – </li></ul><ul><li>Convert the Writing Template to legal prose </li></ul>
  6. 6. The two approaches to legal research <ul><li>The needle in the haystack approach – </li></ul><ul><li>Plug in a few key words and see what comes up. </li></ul><ul><li>The treasure hunt – </li></ul><ul><li>Identify relevant rules and flesh them out with cases. </li></ul>
  7. 7. Sample fact pattern <ul><li>A right-of-way easement across Blackacre from Whiteacre to access a lakefront beach was created in 1910. By the express terms of the grant deed that created it, runs with the land. At the time of the grant, both lots contained single-family residences on large parcels of land. But now, one hundred years later, the character of the surrounding land has changed. The new owner of Whiteacre wants to build a hotel on it and then allow his patrons to use the easement across Blackacre to get to the beach. The owner of Blackacre, still a single-family residence, obviously objects to the idea of possibly hundreds of hotel patrons traipsing across his property. </li></ul>
  8. 8. Our issue <ul><li>Can the easement be terminated by the changed circumstances that have occurred since the original grant? </li></ul>
  9. 9. What our initial research reveals <ul><li>CA Civil Code 811 – </li></ul><ul><li>An easement may be extinguished if it is either misused or excessively used. </li></ul>
  10. 10. How that initial rule might be outlined <ul><li>An easement will be extinguished if it is: </li></ul><ul><li>Misused </li></ul><ul><li>Excessively used </li></ul>
  11. 11. What the case law reveals – The Research Outline <ul><li>An easement will be extinguished if it is subjected to </li></ul><ul><li>Misuse </li></ul><ul><li>Crimmins v. Gould , citation (private right-of-way extended to public highway; held: extinguished.) </li></ul><ul><li>Reichardt v. Hoffman , citation (private right-of-way intended for both servient and dominant tenement blocked by dominant tenant; held: no extinguishment, only an injunction against blockage.) </li></ul><ul><li>Rationale of Reichardt indicates extinguishment not appropriate when offending use can be curtailed through injunction. </li></ul><ul><li>Dicta in Crimmins makes same point. </li></ul><ul><li>Excessive use </li></ul><ul><li>Bartholomew v. Staheli , citation (dominant tenement converted from farm to nudist colony resulting in dramatic increase in use of right-of-way; held: extinguished.) </li></ul><ul><li>Wall v. Rudolph , citation (dominant tenement converted from farm to oil sump with much damage to servient tenement resulting from oil spillage onto property; held: no extinguishment, only an injunction against use as oil sump.) </li></ul>
  12. 12. Benefits of the Research Outline <ul><li>1. The acquisition of real substantive expertise through the systematized approach outlining provides. </li></ul><ul><li>2. An early understanding of the analysis that will be required to resolve the client’s issue. </li></ul><ul><li>Remember, the process generates the analysis. </li></ul><ul><li>When completed, the Research Outline will represent the body of authority needed to develop an analysis of the client’s issue. </li></ul>
  13. 13. Developing the Application Outline <ul><li>Using the Research Outline, consider point by point (case by case), how each part of the outline might affect the issue in the client’s case. </li></ul><ul><li>In other words, apply each distinct rule, as defined by the case that identifies it, to the client’s facts. </li></ul><ul><li>Develop the Application Outline through this point by point/case by case process. </li></ul><ul><li>Remember, the process generates the analysis. </li></ul>
  14. 14. Misuse (from our example) <ul><li>Consider the Crimmins case – </li></ul><ul><li>Probably no misuse by comparing the facts. </li></ul><ul><li>Consider the Reichardt case – </li></ul><ul><li>Probably not relevant on its facts, but rationale may have relevance. </li></ul>
  15. 15. Outline the analyses <ul><li>I. Easement will not be extinguished by misuse </li></ul><ul><li>A. Crimmins v. Gould , citation (private right-of-way extended to public highway; held: extinguished) </li></ul><ul><li>1. Our case (private right-of-way maintained as such; no extension to public thoroughfare). </li></ul><ul><li>2. Change of dominant tenement from residence to hotel is not basis for misuse under Crimmins . </li></ul><ul><li>B. Reichardt v. Hoffman , citation (private right-of-way intended for both servient and dominant tenement blocked by dominant tenant; held: no extinguishment, only an injunction against blockage). </li></ul><ul><li>1. Our case (no effort by dominant tenement to block servient’s use of his property). </li></ul><ul><li>2. Added traffic on servient’s property is not basis for injunction for misuse, because it is not offensive to intended use of easement as was the case in Reichardt . </li></ul>
  16. 16. Consider the excessive use cases <ul><li>The Bartholomew case appears analogous (at least at first blush). There the dominant tenement was changed from a farm to a nudist colony. As a result, traffic on the easement increased considerably. We do have a similar situation in our case, suggesting an extinguishment would be appropriate. </li></ul><ul><li>The Wall case also appears analogous. There, the dominant tenement was converted from a farm to an oil sump with much damage to the servient tenement resulting from the new kind of traffic that used the easement. The client’s property may also be seeing a new kind of traffic, but the difference may not be as dramatic as in Wall. Still we might argue that hundreds of hotel patrons traipsing across Blackacre will create far more damage (trash accumulation, loss of grass and plants) than would be expected from a single-family residence. </li></ul>
  17. 17. Outline the analyses <ul><li>II. The easement may be extinguished by excessive use or its current use enjoined. </li></ul><ul><li>A. Bartholomew v. Staheli , citation (dominant tenement converted from farm to nudist colony resulting in dramatic increase in use of right-of-way; held: extinguished). </li></ul><ul><li>1. Similarly in our case the dominant tenement was converted from a single-family residence to a commercial hotel resulting in a dramatic increase in the use of the right-of-way. </li></ul><ul><li>2. Bartholomew notes that the degree of difference in the dominant tenement need not be dramatic; only the result of the change need be. 3. Thus, the easement would be extinguished by application of the rule from Bartholomew through an analogy to that case. </li></ul><ul><li>B. Wall v. Rudolph , citation (dominant tenement converted from farm to oil sump with much damage to servient tenement resulting from oil spillage onto property; held: no extinguishment, only an injunction against use as oil sump). </li></ul><ul><li>1. Change in use not as severe in our case in terms of damage, but possible change in nature of traffic (from single-family residents who are regular neighbors to hotel patrons who have no continuing connection to the property. </li></ul><ul><li>2. Amount of damage likely to Blackacre will be dramatic as compared to previous use (littered food and trash, worn-down grass and injured plants). </li></ul><ul><li>3. Thus, an injunction against use of dominant as a hotel could be obtained. </li></ul>
  18. 18. Why do we “work backwards”? <ul><li>Application before Explanation, because we have to figure out what we are going to apply before we figure out what to explain. </li></ul><ul><li>Put another way, by working backwards, we maintain the integrity of the paradigm, i.e., </li></ul><ul><li>Never apply anything that hasn’t first been explained, and only explain that which will be applied. </li></ul>
  19. 19. Developing the Explanation Outline – The “mirror-image” approach <ul><li>Using the Application Outline as a guide, we now explain those rules that we will apply by referring specifically and only to those parts of the cases we use in our application. </li></ul><ul><li>Thus, the explanations are tightly constructed to mirror the uses of the rules (and cases) in the application part of the paradigm. </li></ul>
  20. 20. The Explanation Outline <ul><li>I. An easement can be extinguished if it is misused. </li></ul><ul><li>A. Crimmins v. Gould </li></ul><ul><li>1. Private right-of-way extended to public highway, with result of easement now used by public instead of being limited to private use. </li></ul><ul><li>2. Extinguishment ordered by court because public use changed intended use of easement, and the changed use could not be enjoined. </li></ul><ul><li>B. Reichardt v. Hoffman </li></ul><ul><li>1. Private right-of-way intended for co-use by dominant and servient tenements; dominant tenant blocked use to servient tenant. </li></ul><ul><li>2. This “misuse” insufficient in quality to justify extinguishment of easement. </li></ul><ul><li>3. Dominant tenant instead enjoined from blocking use by servient tenant. </li></ul><ul><li>II. An easement can be extinguished if it is used excessively </li></ul><ul><li>A. Bartholomew v. Staheli </li></ul><ul><li>1. Dominant tenement converted from farm to nudist colony with right-of-way easement experiencing dramatic increase in use as result. </li></ul><ul><li>2. Excessive use of easement, leading to increased damage to the servient tenement justified extinguishment by the court. </li></ul><ul><li>B. Wall v. Rudolph </li></ul><ul><li>1. Dominant tenement converted from farm to oil sump with greatly increased damage to servient estate resulting from dramatic increase in use (and in type of use) made of easement right-of-way. </li></ul><ul><li>2. Court enjoined the use for oil sump purposes rather than granting an extinguishment of the entire easement. </li></ul>
  21. 21. The side-by-side comparison <ul><li>The Explanation and Application Outlines should literally mirror each other. </li></ul><ul><li>Students should be able to place the two next to each other and compare them, entry by entry. </li></ul><ul><li>The purpose of this exercise would be to make sure all substantive points used in the Application Outline are identified in the Explanation Outline. </li></ul><ul><li>And, to assure that no extraneous points (not referred to in the Application Outline) are raised in the Explanation Outline). </li></ul><ul><li>This check allows students to tighten their memos before they write them and requires careful consideration of such things as what facts from a case to include and how to use them. </li></ul>
  22. 22. The completed outline <ul><li>It now becomes the template from which to write the main (Discussion) section of the predictive memo. </li></ul><ul><li>As the heavy lifting has been completed (the “brain sweat” part of the work), the only remaining task is the mechanical conversion of the outline to legal prose. </li></ul><ul><li>Now, instead of trying to figure out what should go where and how certain points should be made, all the student has to do is craft the legal prose with careful attention to grammar, spelling, punctuation, and all the other “mechanics” of writing. </li></ul>
  23. 23. Final thoughts <ul><li>We outline the research to gain meaningful substantive expertise. </li></ul><ul><li>We outline the application of that research to identify our analysis of the issue(s). </li></ul><ul><li>We outline our explanation of the relevant rules to provide the basis for the analysis that follows. </li></ul><ul><li>We outline to systematize the process, because – </li></ul><ul><li>The Process Generates the Analysis. </li></ul>
  24. 24. Systematized outlining works because … <ul><li>The final product (the combined Explanation and Application Outlines) provides the template from which the memo can be written. </li></ul><ul><li>The memo will then reflect the substantive expertise gained from the research and the legal analysis that results when that expertise is applied to the client’s issue. </li></ul><ul><li>And, instead of a poorly organized, sloppily written and indefinitely analyzed memo, the final product will provide one less reason to be grumpy. </li></ul>

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