Outlining from Outlining from ScratchScratch

How to Make How to Make

the Process Meaningfulthe Process Meaningful

How to get grumpyHow to get grumpy

Tell them to outline!Tell them to outline! Tell them it’s important.Tell them it’s important. Remind them that they know how Remind them that they know how

to do it.to do it. When they say they don’t (“we When they say they don’t (“we

never learned it”), give them a never learned it”), give them a sample.sample.

First Sample OutlineFirst Sample Outline I. First rule statedI. First rule stated

A. Case establishing first ruleA. Case establishing first rule 1. Facts of case1. Facts of case 2. Holding of case2. Holding of case 3. Court’s rationale3. Court’s rationale

B. Case following first ruleB. Case following first rule 1. Facts of case1. Facts of case 2. Holding of case2. Holding of case 3. Court’s rationale3. Court’s rationale

II. Second rule statedII. Second rule stated A. Case establishing second ruleA. Case establishing second rule

1. Facts of case1. Facts of case 2. Holding of case2. Holding of case 3. Court’s rationale3. Court’s rationale

B. Case following second ruleB. Case following second rule 1. Facts of case1. Facts of case 2. Holding of case2. Holding of case 3. Court’s rationale3. Court’s rationale

III. First rule appliedIII. First rule applied A. Review of case establishing ruleA. Review of case establishing rule B. Comparison of client’s case.B. Comparison of client’s case. C. Review of case following ruleC. Review of case following rule D. Comparison of client’s caseD. Comparison of client’s case

IV. Second rule appliedIV. Second rule applied A. Review of case establishing ruleA. Review of case establishing rule B. Comparison of client’s case.B. Comparison of client’s case. C. Review of case following ruleC. Review of case following rule D. Comparison of client’s caseD. Comparison of client’s case

V. ConclusionV. Conclusion

The Great EpiphanyThe Great Epiphany

The Process The Process Generates the Generates the AnalysisAnalysis

Steps in the ProcessSteps in the Process(and the outlines for each step)(and the outlines for each step)

Step One - Conduct structured research Step One - Conduct structured research – –

Create Research OutlineCreate Research Outline Step Two - Apply law to client’s facts – Step Two - Apply law to client’s facts –

Create Application OutlineCreate Application Outline Step Three - Explain law that is relevant Step Three - Explain law that is relevant

to client’s facts – to client’s facts – Create Explanation OutlineCreate Explanation Outline

Step Four - Establish CREAC approach Step Four - Establish CREAC approach to the memo – to the memo – Combine Explanation and Application Combine Explanation and Application Outlines (the Writing Template)Outlines (the Writing Template)

Step Five - Write the text of the memo – Step Five - Write the text of the memo – Convert the Writing Template to legal Convert the Writing Template to legal proseprose

The two approaches to legal The two approaches to legal researchresearch

The needle in the haystack The needle in the haystack approach –approach –

Plug in a few key words and see Plug in a few key words and see what comes up.what comes up.

The treasure hunt –The treasure hunt – Identify relevant rules and flesh Identify relevant rules and flesh

them out with cases.them out with cases.

Sample fact patternSample fact pattern A right-of-way easement across Blackacre A right-of-way easement across Blackacre

from Whiteacre to access a lakefront beach from Whiteacre to access a lakefront beach was created in 1910. By the express terms of was created in 1910. By the express terms of the grant deed that created it, runs with the the grant deed that created it, runs with the land. At the time of the grant, both lots land. At the time of the grant, both lots contained single-family residences on large contained single-family residences on large parcels of land. But now, one hundred years parcels of land. But now, one hundred years later, the character of the surrounding land later, the character of the surrounding land has changed. The new owner of Whiteacre has changed. The new owner of Whiteacre wants to build a hotel on it and then allow his wants to build a hotel on it and then allow his patrons to use the easement across Blackacre patrons to use the easement across Blackacre to get to the beach. The owner of Blackacre, to get to the beach. The owner of Blackacre, still a single-family residence, obviously still a single-family residence, obviously objects to the idea of possibly hundreds of objects to the idea of possibly hundreds of hotel patrons traipsing across his property.hotel patrons traipsing across his property.

Our issueOur issue

Can the easement be terminated Can the easement be terminated by the changed circumstances by the changed circumstances that have occurred since the that have occurred since the original grant?original grant?

What our initial research What our initial research revealsreveals

CA Civil Code 811 – CA Civil Code 811 – An easement may be An easement may be

extinguished if it is either extinguished if it is either misused or excessively used.misused or excessively used.

How that initial rule might be How that initial rule might be outlinedoutlined

An easement will be extinguished An easement will be extinguished if it is:if it is:

MisusedMisused Excessively usedExcessively used

What the case law reveals – What the case law reveals – The Research OutlineThe Research Outline

An easement will be extinguished if it is subjected toAn easement will be extinguished if it is subjected to MisuseMisuse Crimmins v. GouldCrimmins v. Gould, citation (private right-of-, citation (private right-of-

way extended to public highway; held: extinguished.)way extended to public highway; held: extinguished.) Reichardt v. HoffmanReichardt v. Hoffman, citation (private right-, citation (private right-

of-way intended for both servient and dominant tenement of-way intended for both servient and dominant tenement blocked by dominant tenant; held: no extinguishment, only blocked by dominant tenant; held: no extinguishment, only an injunction against blockage.)an injunction against blockage.)

Rationale of Rationale of ReichardtReichardt indicates indicates extinguishment not appropriate when offending use can be extinguishment not appropriate when offending use can be curtailed through injunction.curtailed through injunction.

Dicta in Dicta in CrimminsCrimmins makes same point. makes same point. Excessive useExcessive use Bartholomew v. StaheliBartholomew v. Staheli, citation (dominant , citation (dominant

tenement converted from farm to nudist colony resulting tenement converted from farm to nudist colony resulting in dramatic increase in use of right-of-way; held: in dramatic increase in use of right-of-way; held: extinguished.)extinguished.)

Wall v. RudolphWall v. Rudolph, citation (dominant tenement , citation (dominant tenement converted from farm to oil sump with much damage to converted from farm to oil sump with much damage to servient tenement resulting from oil spillage onto servient tenement resulting from oil spillage onto property; held: no extinguishment, only an injunction property; held: no extinguishment, only an injunction against use as oil sump.)against use as oil sump.)

Benefits of the Research Benefits of the Research OutlineOutline

1. The acquisition of real substantive 1. The acquisition of real substantive expertise through the systematized expertise through the systematized approach outlining provides.approach outlining provides.

2. An early understanding of the analysis 2. An early understanding of the analysis that will be required to resolve the client’s that will be required to resolve the client’s issue.issue.

Remember, the process generates the Remember, the process generates the analysis.analysis.

When completed, the Research Outline will When completed, the Research Outline will represent the body of authority needed to represent the body of authority needed to develop an analysis of the client’s issue.develop an analysis of the client’s issue.

Developing the Application Developing the Application OutlineOutline

Using the Research Outline, consider Using the Research Outline, consider point by point (case by case), how point by point (case by case), how each part of the outline might affect each part of the outline might affect the issue in the client’s case.the issue in the client’s case.

In other words, apply each distinct In other words, apply each distinct rule, as defined by the case that rule, as defined by the case that identifies it, to the client’s facts.identifies it, to the client’s facts.

Develop the Application Outline Develop the Application Outline through this point by point/case by through this point by point/case by case process.case process.

Remember, the process generates Remember, the process generates the analysis.the analysis.

Misuse (from our Misuse (from our example)example)

Consider the Consider the CrimminsCrimmins case – case – Probably no misuse by Probably no misuse by

comparing the facts.comparing the facts. Consider the Consider the Reichardt Reichardt case –case – Probably not relevant on its Probably not relevant on its

facts, but rationale may have facts, but rationale may have relevance.relevance.

Outline the analysesOutline the analyses I.I. Easement will not be extinguished by misuseEasement will not be extinguished by misuse A.A. Crimmins v. GouldCrimmins v. Gould, citation (private right-, citation (private right-

of-way extended to public highway; held: extinguished)of-way extended to public highway; held: extinguished) 1.1. Our case (private right-of-way Our case (private right-of-way

maintained as such; no extension to public maintained as such; no extension to public thoroughfare).thoroughfare).

2.2. Change of dominant tenement from Change of dominant tenement from residence to hotel is not basis for misuse under residence to hotel is not basis for misuse under CrimminsCrimmins..

B.B. Reichardt v. HoffmanReichardt v. Hoffman, citation (private , citation (private right-of-way intended for both servient and dominant right-of-way intended for both servient and dominant tenement blocked by dominant tenant; held: no tenement blocked by dominant tenant; held: no extinguishment, only an injunction against blockage).extinguishment, only an injunction against blockage).

1.1. Our case (no effort by dominant Our case (no effort by dominant tenement to block servient’s use of his property).tenement to block servient’s use of his property).

2.2. Added traffic on servient’s property Added traffic on servient’s property is not basis for injunction for misuse, because it is not is not basis for injunction for misuse, because it is not offensive to intended use of easement as was the case offensive to intended use of easement as was the case in in ReichardtReichardt..

Consider the excessive use Consider the excessive use casescases

The The BartholomewBartholomew case appears analogous (at least case appears analogous (at least at first blush). There the dominant tenement was at first blush). There the dominant tenement was changed from a farm to a nudist colony. As a changed from a farm to a nudist colony. As a result, traffic on the easement increased result, traffic on the easement increased considerably. We do have a similar situation in considerably. We do have a similar situation in our case, suggesting an extinguishment would be our case, suggesting an extinguishment would be appropriate.appropriate.

The The WallWall case also appears analogous. There, the case also appears analogous. There, the dominant tenement was converted from a farm to dominant tenement was converted from a farm to an oil sump with much damage to the servient an oil sump with much damage to the servient tenement resulting from the new kind of traffic tenement resulting from the new kind of traffic that used the easement. The client’s property may that used the easement. The client’s property may also be seeing a new kind of traffic, but the also be seeing a new kind of traffic, but the difference may not be as dramatic as in Wall. Still difference may not be as dramatic as in Wall. Still we might argue that hundreds of hotel patrons we might argue that hundreds of hotel patrons traipsing across Blackacre will create far more traipsing across Blackacre will create far more damage (trash accumulation, loss of grass and damage (trash accumulation, loss of grass and plants) than would be expected from a single-plants) than would be expected from a single-family residence.family residence.

Outline the analysesOutline the analyses II.II. The easement may be extinguished by excessive use or its The easement may be extinguished by excessive use or its

current use enjoined.current use enjoined. A.A. Bartholomew v. StaheliBartholomew v. Staheli, citation (dominant tenement , citation (dominant tenement

converted from farm to nudist colony resulting in dramatic increase in converted from farm to nudist colony resulting in dramatic increase in use of right-of-way; held: extinguished).use of right-of-way; held: extinguished).

1.1. Similarly in our case the dominant tenement Similarly in our case the dominant tenement was converted from a single-family residence to a commercial hotel was converted from a single-family residence to a commercial hotel resulting in a dramatic increase in the use of the right-of-way.resulting in a dramatic increase in the use of the right-of-way.

2.2. BartholomewBartholomew notes that the degree of notes that the degree of difference in the dominant tenement need not be dramatic; only the difference in the dominant tenement need not be dramatic; only the result of the change need be. result of the change need be. 3.3. Thus, Thus, the easement would be extinguished by application of the rule from the easement would be extinguished by application of the rule from BartholomewBartholomew through an analogy to that case. through an analogy to that case.

B.B. Wall v. RudolphWall v. Rudolph, citation (dominant tenement , citation (dominant tenement converted from farm to oil sump with much damage to servient converted from farm to oil sump with much damage to servient tenement resulting from oil spillage onto property; held: no tenement resulting from oil spillage onto property; held: no extinguishment, only an injunction against use as oil sump).extinguishment, only an injunction against use as oil sump).

1.1. Change in use not as severe in our case in Change in use not as severe in our case in terms of damage, but possible change in nature of traffic (from single-terms of damage, but possible change in nature of traffic (from single-family residents who are regular neighbors to hotel patrons who have family residents who are regular neighbors to hotel patrons who have no continuing connection to the property.no continuing connection to the property.

2.2. Amount of damage likely to Blackacre will be Amount of damage likely to Blackacre will be dramatic as compared to previous use (littered food and trash, worn-dramatic as compared to previous use (littered food and trash, worn-down grass and injured plants).down grass and injured plants).

3.3. Thus, an injunction against use of dominant as Thus, an injunction against use of dominant as a hotel could be obtained.a hotel could be obtained.

Why do we “work Why do we “work backwards”?backwards”?

Application before Explanation, Application before Explanation, because we have to figure out what we because we have to figure out what we are going to apply before we figure out are going to apply before we figure out what to explain.what to explain.

Put another way, by working Put another way, by working backwards, we maintain the integrity backwards, we maintain the integrity of the paradigm, i.e., of the paradigm, i.e.,

Never apply anything that hasn’t first Never apply anything that hasn’t first been explained, and only explain that been explained, and only explain that which will be applied.which will be applied.

Developing the Explanation Developing the Explanation Outline –Outline –

The “mirror-image” approachThe “mirror-image” approach Using the Application Outline as Using the Application Outline as

a guide, we now explain those a guide, we now explain those rules that we will apply by rules that we will apply by referring specifically and only to referring specifically and only to those parts of the cases we use in those parts of the cases we use in our application.our application.

Thus, the explanations are tightly Thus, the explanations are tightly constructed to mirror the uses of constructed to mirror the uses of the rules (and cases) in the the rules (and cases) in the application part of the paradigm.application part of the paradigm.

The Explanation OutlineThe Explanation Outline I.I. An easement can be extinguished if it is misused.An easement can be extinguished if it is misused. A.A. Crimmins v. GouldCrimmins v. Gould 1.1. Private right-of-way extended to public highway, with Private right-of-way extended to public highway, with

result of easement now used by public instead of being limited to private use.result of easement now used by public instead of being limited to private use. 2.2. Extinguishment ordered by court because public use Extinguishment ordered by court because public use

changed intended use of easement, and the changed use could not be enjoined.changed intended use of easement, and the changed use could not be enjoined. B.B. Reichardt v. HoffmanReichardt v. Hoffman 1.1. Private right-of-way intended for co-use by dominant Private right-of-way intended for co-use by dominant

and servient tenements; dominant tenant blocked use to servient tenant.and servient tenements; dominant tenant blocked use to servient tenant. 2.2. This “misuse” insufficient in quality to justify This “misuse” insufficient in quality to justify

extinguishment of easement.extinguishment of easement. 3.3. Dominant tenant instead enjoined from blocking use Dominant tenant instead enjoined from blocking use

by servient tenant.by servient tenant. II.II. An easement can be extinguished if it is used excessivelyAn easement can be extinguished if it is used excessively A.A. Bartholomew v. StaheliBartholomew v. Staheli 1.1. Dominant tenement converted from farm to nudist Dominant tenement converted from farm to nudist

colony with right-of-way easement experiencing dramatic increase in use as colony with right-of-way easement experiencing dramatic increase in use as result.result.

2.2. Excessive use of easement, leading to increased Excessive use of easement, leading to increased damage to the servient tenement justified extinguishment by the court.damage to the servient tenement justified extinguishment by the court.

B.B. Wall v. RudolphWall v. Rudolph 1.1. Dominant tenement converted from farm to oil sump Dominant tenement converted from farm to oil sump

with greatly increased damage to servient estate resulting from dramatic with greatly increased damage to servient estate resulting from dramatic increase in use (and in type of use) made of easement right-of-way.increase in use (and in type of use) made of easement right-of-way.

2.2. Court enjoined the use for oil sump purposes rather Court enjoined the use for oil sump purposes rather than granting an extinguishment of the entire easement.than granting an extinguishment of the entire easement.

The side-by-side The side-by-side comparisoncomparison

The Explanation and Application Outlines The Explanation and Application Outlines should literally mirror each other.should literally mirror each other.

Students should be able to place the two next Students should be able to place the two next to each other and compare them, entry by to each other and compare them, entry by entry.entry.

The purpose of this exercise would be to make The purpose of this exercise would be to make sure all substantive points used in the sure all substantive points used in the Application Outline are identified in the Application Outline are identified in the Explanation Outline.Explanation Outline.

And, to assure that no extraneous points (not And, to assure that no extraneous points (not referred to in the Application Outline) are referred to in the Application Outline) are raised in the Explanation Outline).raised in the Explanation Outline).

This check allows students to tighten their This check allows students to tighten their memos before they write them and requires memos before they write them and requires careful consideration of such things as what careful consideration of such things as what facts from a case to include and how to use facts from a case to include and how to use them.them.

The completed outlineThe completed outline

It now becomes the template from which to It now becomes the template from which to write the main (Discussion) section of the write the main (Discussion) section of the predictive memo. predictive memo.

As the heavy lifting has been completed (the As the heavy lifting has been completed (the “brain sweat” part of the work), the only “brain sweat” part of the work), the only remaining task is the mechanical conversion remaining task is the mechanical conversion of the outline to legal prose.of the outline to legal prose.

Now, instead of trying to figure out what Now, instead of trying to figure out what should go where and how certain points should go where and how certain points should be made, all the student has to do is should be made, all the student has to do is craft the legal prose with careful attention craft the legal prose with careful attention to grammar, spelling, punctuation, and all to grammar, spelling, punctuation, and all the other “mechanics” of writing.the other “mechanics” of writing.

Final thoughtsFinal thoughts

We outline the research to gain We outline the research to gain meaningful substantive expertise.meaningful substantive expertise.

We outline the application of that We outline the application of that research to identify our analysis of the research to identify our analysis of the issue(s).issue(s).

We outline our explanation of the relevant We outline our explanation of the relevant rules to provide the basis for the analysis rules to provide the basis for the analysis that follows.that follows.

We outline to systematize the process, We outline to systematize the process, because –because –

The Process Generates the Analysis.The Process Generates the Analysis.

Systematized outlining Systematized outlining works because …works because …

The final product (the combined The final product (the combined Explanation and Application Outlines) Explanation and Application Outlines) provides the template from which the provides the template from which the memo can be written.memo can be written.

The memo will then reflect the substantive The memo will then reflect the substantive expertise gained from the research and expertise gained from the research and the legal analysis that results when that the legal analysis that results when that expertise is applied to the client’s issue.expertise is applied to the client’s issue.

And, instead of a poorly organized, And, instead of a poorly organized, sloppily written and indefinitely analyzed sloppily written and indefinitely analyzed memo, the final product will provide one memo, the final product will provide one less reason to be grumpy.less reason to be grumpy.