Law Life: Don't make beeline past outline process

By Lisa Healy

Daily Record Newswire

I’ll admit that it’s not often that I find myself quoting U.S. Supreme Court Justice Antonin Scalia. But in writing about how to get started writing, a line from “Making Your Case: The Art of Persuading Judges” (which he co-wrote with Bryan A. Garner) came to mind: “It’s essential to prepare an outline before you begin to write. Eliminating this step is false economy.”

A lot of writers skip the outlining process because it seems much faster to just sit down, open that new document and start typing. But Scalia and Garner are right: That is false economy. The time saved by skipping the outlining process will be spent on writer’s block, editing, deleting and re-organizing. Or the time you save will cost your reader, to whom it will be painfully obvious that your finished product was a stream of consciousness.

Most of us think of outlining as the traditional roman numeral-style list. That is part of the outlining process, but it’s not where you should start. Effective outlining should have three steps: 1) a stream-of-consciousness list; 2) an organized list; and 3) a writing-ready outline.

Step 1
After you are comfortable with the material about which you will be writing (at the very least, your facts and the relevant law), sit down at your computer or with a pad of paper and make a list of whatever comes to mind. Don’t try to control the process or organize the list - just write. My high school writing Bible, “Writing a Research Paper,” suggested doing this on 3 by 5 index cards, with just one idea or issue per card.

Step 2
I still write using the index card method because it makes step 2 so easy. To move from a stream-of-consciousness list to an organized outline using the index card method, put each card on a table (or in my case in high school, on blue shag bedroom carpeting) and then start to organize them into piles by subject. If you are familiar with your material, the piles will organize themselves, because you’ll immediately say, “OK, Commonwealth v. Clark is relevant to reasonable suspicion and belongs in a pile with reasonable suspicion facts/cases.”

If you are just using a written list, look at the list and make a second list of categories, and then move your stream-of-consciousness items into the various categories. If your argument has a prong test, this will be easy because it’s likely that each prong will be a category.

Step 3
Now you are ready to write that traditional outline. Be sure to use enough detail for the outline to be useful. To save time later, I recommend including citations and useful quotes in your step 3 outline. The Clark example above might look like this at this stage:

Absent a traffic violation, an officer cannot stop a vehicle without reasonable suspicion.

Our facts: no traffic violation; defendant picked up passenger and dropped her off two blocks later, no exchange seen by officers, drugs found by officer No. 1 on passenger, no radio call, officer No. 2 stops defendant

Commonwealth v. Clark: no RS in high-crime area where officers did not see exchange but did see suspected seller counting money

Commonwealth v. Skillman: RS where buyer waiting at night in cold, gets in car for one block, exits, officer No. 1 stops buyer and radios officer No. 2

Following these three steps also allows you to continue to hone and think about your arguments or subjects as you outline. And when you sit down to write the text, you’ll find that your grandmother — and Scalia — were right: A stitch in time really does save nine.

Lisa Healy is an associate professor of legal writing at Suffolk University Law School in Boston. She can be contacted at