Saturday, September 1, 2012

Negligent Infliction of Emotional Distress: Outlining

Welcome to Year Two (and let us hope, the final year) of Negligent Infliction of Emotional Distress, the weekly column I write for the BLS Advocate.  This is last week's column, on outlining.  The language taken from a Torts Nutshell is repeated as this is the inaugural column for this year (there was one column posted over the summer, but that was an outlier).  Some people may dispute my decision to include my own content from another website on this blog, but it is my personal belief that my blog is easier to navigate (in terms of archived posts) than the BLS Advocate site.  That is a Wordpress blog.  This is a Blogspot blog, and preferable in my opinion.  

Next week's column is on Exams and Grades.  It has been submitted for editing and is currently being reviewed.  Please enjoy. 

Restatement of Torts, Second, section 46: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”
Comment d:
“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
“Almost all states have adopted the tort of intentional infliction of emotional distress, but only a minority of courts have been willing to recognize an independent cause of action for emotional distress alone against defendants who are no more than negligent.  (Shapo, Principles of Tort Law, 3d ed., 381).

“Have you started outlining?”
After “What kind of law do you want to practice?” this is probably the most annoying question you will hear over the next few weeks. Not only is there a fair amount of disagreement over what constitutes a “good outline,” but the question leads to the Gordian Knot that is the choice to make your own, or use a previous student’s outline who “got an A.”
I tend to side with the “do it yourself” camp. I personally endorse Professor Feldman’s Academic Success Program and its manual on outlining, and I do believe that there is value in creating your own outline. However, a few points deserve commentary:
Tip #1: “Some outlines are as short as 10 or 12 pages; others are 50-60 pages. You should be able to read through your outline in its entirety at least twice in a day.”
I take this tip to mean that those shorter outlines will be used for closed-book exams, and longer ones for open-book exams. But no matter its length, the real question is: how much does your outline affect your grade? Nobody reviews your outline as painstakingly as you will, so no one can tell you definitively that you have a “good outline” or a “bad outline.” But here are my inconsistent findings:

Criminal Law
Outline: Approx 60 pages
Type of Exam: Closed
Self-Grade for Outline: B- (too long for closed book; too much ambiguity on the law)
Final Course Grade: C+
Civil Procedure
Outline: Approx 80 pages
Type of Exam:  Open
Self-Grade for Outline: B+ (too long; multiple misstatements of law)
Final Course Grade: A- 
Outline: 35 pages.
Type of Exam: Closed with 1 page double-sided cheat sheet
Self-Grade for Outline: B
Self-Grade for Cheat Sheet: A
Final Course Grade: B+ (including 20% “C” grade on Midterm)
Outline: 100 pages+
Type of Exam: Open
Self-Grade for Outline: C+ (too long; too much ambiguity on the law)
Final Course Grade: B-
Constitutional Law
Outline: 84 pages (approx.)
Type of Exam: Closed
Self-Grade for Outline: B
Final Course Grade: B
Outline: 100 pages+
Type of Exam: Open
Self-Grade for Outline: C
Final Course Grade: B+

Now, in general, you will see that each of my grades (save Property, in which I only did comparatively well because most of my classmates were just as lost as me) is only 1/3 of a grade off from what I “self-grade” my outline, which of course is a subjective process. For many courses, you will have some idea of how well you did before or after you take the exam. Grading exams is a primarily objective process—but this column is not about exams, only outlining.
However, almost none of my outlines conformed to Tip #1, and when they did, they were not useful (Torts being the exception). In fact, almost none of my outlines from my first year were useful.  Perhaps this is because of the next tip.
Tip #2: “Do not try to do any outlining when a writing assignment is due.”
For 2Ls and 3Ls, it’s not hard to follow this advice. For 1Ls, it is almost impossible. Both semesters have substantial writing assignments that do not become due until about, oh, Thanksgiving, or the end of March. While you may have a little more time to outline in the spring, after you are done with legal writing assignments, you still have to do at least one of the two Moot Court competitions! What a drag.
The key, I guess, for 1Ls, is to outline before you get those initial materials for writing assignments. While you generally don’t need to balance a job during 1L year with reading assignments, the writing assignments kind of moot that point out. It’s not easy to find the time, and I never found the time, and I suffered.
But I did much better my second year. And it wasn’t until that spring semester that I discovered “the secret” to outlining. Now, “the secret” is not applicable to closed-book exams, though you may attempt to practice using it. But, if you have an open-book exam, this method is practically guaranteed to get you at least an A-. What is the method?
You do your outline. And then you take a practice exam from the same professor. You answer each question with a paragraph—the type of paragraph you’d write for an exam answer. You leave blank the “party” (or defendant or creditor or debtor or whatever) and you have the pre-determined issue, the rule, the application, and boom, you are done, and boom, you bring this practice exam in with you, and boom, you connect the dots and you’ve got a stress-free exam.
I knew a 3L last year who swore by the process of collecting old “A” outlines, and just studying off of those from day one. He didn’t believe in making his own, and he apparently did quite well. The problem with law school is that you can work super-duper hard and not get any reward for it, and some people can do almost no work, have the answers in front of them, and essentially “cheat their way through.” Class participation should be factored into classes more heavily for this reason.
I hope to start my outlining around September 25th. Odds are that I’ll have about 5 pages for each course come November 25th, but it’s good to set goals.  It is.

Christopher J. Knorps is a 3L.  He enjoys studying bankruptcy law.  Please e-mail him at if you are interested in participating in MEP or Batman in Brooklyn.  

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