7.5 – Checklist and Outline


Checklist and Outline

(1) Spot all issues and make checklist, (2) build an outline of your answer

We've read the question carefully but we're actually not quite done looking at the question. There's still a little bit more to do. Now I want to go back over the question. We've got a sense of what it's asking but I want to look at it now with issue spotting in mind. Maybe you would have done that the very first time you went through, you would have seen things that jump out at you. Gosh, that looks a lot like a case we read, but now I want you to do that a little bit more consciously, a little bit more explicitly.

In an ideal world, if this were a real class situation, what you would have done is you would have developed an outline and you would have processed that outline and turned it into something that looks like a checklist. That includes all the possible issues that might come up on an issue-spotter exam. You would hold that issue spotter up either literally in your hand, or at least in your mind, and look at all the possible issues and make sure you're not missing anything. You won't really have done that for our purposes here but that's the gold standard of the way to approach a question like this, but here, let's go through it. As you go through the exam this last time, just take a look at things that jump out at you.

One thing that really should jump out at you, even if you had read a bunch more cases for this class, is there seems to be some willful blindness issue in this case because the fact pattern reminds us of the Jewell case, where we have a defendant who's carrying something but doesn't really know what's in there, but maybe has reason to be suspicious that there's something in there that shouldn't be in there that's illegal.

You might say, really circle that and be like, willful blindness. Then you look at the statutory text and you see a couple of things. Let's look at this first statute, look at Section 716 and you see it has this word "knowingly." If you remember studying willful blindness, you'll recall that willful blindness is really about when is something knowing or when does failure to learn about something rise to the level of knowledge? A light bulb might go off and say, "Okay, I see how this is going to tie in to our willful blindness issue. It's going to be relevant there."

Then you look at this second statute and you look at that, it says, "Whoever possesses more than one ounce of methamphetamine is guilty of a first-degree misdemeanor." You might think, "Maybe there's not a willful blindness issue with this statute because I don't see anything about knowledge," but you might, if you thought about the class and what you studied carefully, you might see a different issue there. You might actually see a strict liability issue, and that's the problem of what to do with a statute that doesn't seem to have any mental state required, statutes that someone could be found guilty of without having any mens rea or without any guilty mind. That's another issue you might want to spot there.

Now, with a real-life issue spotter, with a link to your fact pattern, you're going to want to repeat that process, going through a much longer fact pattern in the margins. Make sure you're flagging every issue you see and then using your checklist of all the issues you've studied to make sure there's nothing in there that you missed. Don't leave any points on the table. Go back through your checklist and say, "Oh, look, I see we studied mens rea. We studied this issue. I didn't think about this. Let me just think about it. Oh, I do see, it's in that fact pattern, let me get that."

You've gone through and you spotted your issues. You've read through it again pretty carefully. What's next? Should you just start writing? Not exactly. My view, the next thing you should do is build an outline of your answer. You spotted the issues, you know what the question is asking you because you've read it, at this point, a couple of times, at least. Let's build an outline, and actually, this is going to take a little bit of thought to do carefully. The reason I want you to do this is because sometimes it's actually tricky to figure out the right way to structure an exam answer so that you are able to hit all the issues.

Also, I think you're going to write more persuasively if you have the whole thing figured out on the front end. If you just start writing, you're expecting to figure out the legal issues as you go. That's not going to lead to writing that's as clear. You could just say, "The first issue is this," and you write, write, write, write, until you get to the end. Then by that point, you've got the issue clear in your head and you can answer it. But if you take a few more minutes, and I know that you're nervous because the clock is running, but if you take a few more minutes to think and really build a plan of attack, you're going to end up with a more persuasive answer here.

Let's go back and remember, we're being asked to figure out what's going to happen under two different statutes, Section 716 and Section 731[b]. That's two things, and then we're also being asked to figure out two other things, how common law rules would apply and then also how the Model Penal Code might apply. That's two more things, and we have to multiply those things across because for each statute now, there's actually two questions. What is the common law approach to Section 716 and what is the Model Penal Code approach? Then the same question as applied to section 731[b]. Your outline should figure out how to do that.

One way you could say is, "I'm going to go statute by statute. I'm going to go first Model Penal Code, then common law, or vice versa, then I'm going to the next statute and then one and then the other," or you could go, "I'm going to do the Model Penal Code, apply that to both statutes. I'm going to do the common law, apply it to both statutes." It honestly doesn't matter. As the professor, I'm sitting there with my rubric, and my rubric is going to have points for Section 716 common law, Section 716 Model Penal Code, Section 731 common law, Section 731 Model Penal Code.

As long as you hit them in whatever order, you're going to get the points, but you do need to hit them and you need to signal that you're hitting them. Those two things are not exactly the same. First of all, you need to actually hit them. Part of the reason I'm asking you to outline is because if you don't, you're going to forget to do this. I've seen so many law school exams, I've graded dozens of law school exams that have fact patterns like this, that start off by digging into, say, Model Penal Code and common law for the first statute.

Then they just totally forget there's a second statute, or they get really deep into the common law distinctions between the statutes, and they forget that they are asked to even answer anything about the Model Penal Code. The way to avoid that is to have an outline up front that shows you what you need to fill in. It's not enough just to have it clear in your mind, you do need to also signal to the reader, to the professor who's grading it, "Here's what I'm doing now," because I've read other exams where it was not totally clear whether the person was really transitioning from one issue to the other because they didn't have any signposts that said, "Now I'm going to answer, I'm going to address this question."

To the extent it seemed like a fair inference that they were trying to answer a question they didn't quite signal, I would still give some points, but it's a lot easier for me to give those points and to give full points if the writer is really, really clear. Ideally, what you'd say when you actually start writing this, you'd have an opening paragraph. You'd say, "Here my conclusions are, first, defendant will be found guilty under this approach for this statute, but not this approach for this statute, and this approach for this statute," or whatever.

Whatever it is, "I'm going to get into the actual answer in a little bit." You basically just lay out your answers up front, make clear your conclusions, and also make clear basically the order in which you're going to address the issues. Outlining is really going to help you do that. In the course of outlining, I want you to not just tee up the issues but really think about what your answers to those issues are so you can hit the ground running and really start writing. Then the next step is to figure out how to actually write the exam answer, now that we have this outline in place.

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