Legal Writing Tip: Create a Nonlinear Outline

Savannah Blackwell, BASF Bulletin Contributor

 

Last month, we discussed the first stage of preparing a legal brief, that is, the period of research and note-taking, of jotting down ideas and points as they come without concern for their strength or order, i.e., letting the “madman” run free, and allowing time for thoughts to percolate.

The second stage of pre-writing is the structural phase, that is, the one governed by the “architect,” who arranges the ideas in a particular order.

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Most of us go directly from reading over notes to organizing the concepts in a traditional, or “linear” outline, i.e., placing Roman numerals next to major points, and letters of the alphabet next to subsidiary or supporting points—beneath the Roman numerals and ordered sequentially.

But some experts say using only a linear or hierarchical outline blocks formulation of new and better ideas and prevents identification of helpful, subsidiary points, or the components of major concepts. They say that creating a nonlinear outline first, by “branching” ideas and thoughts out from other ideas and thoughts allows for a more organic process. Preparing a nonlinear outline makes it easier to figure out how best to organize the points in a linear fashion. It allows the “madman” and the “architect” to collaborate, and helps the latter discern the minor from the major issues and see the interconnections. The process results in a stronger structure for the brief, and often leads to discovery of important themes and ideas that would otherwise have remained hidden.

Here’s how Henriette Anne Klauser put it in Writing on Both Sides of the Brain:

When we move sequentially in the world of ideas, we proceed to the next concept under the assumption that we are finished with the idea before it. The fallacy of this method is believing that the concepts we leave behind have been thoroughly thought out and need no extension… Branching, on the other hand, which starts from the center and radiates outward, is an expansive approach to organizing material. By its very nature it allows you to retrace your steps for easy additions and afterthoughts. And often the afterthoughts are the most valuable aspects.

So what does a “branching” outline look like? Legal writing expert Bryan Garner in The Winning Brief (3d Ed.) calls the type he uses, which resembles the main rotor on a helicopter, a “whirlybird.” To begin, draw a circle roughly the size of a quarter in the middle of the page. Then draw four “gently arcing lines” (or “wings”) from the circle to the edge of the page, with each line ending roughly at the midpoint of the top, bottom, and sides of the page.

In the center of the circle, jot down a shorthand name for your brief, like “Smith-stay of proceedings,” or the general subject area, as in Garner’s example: “ADA-Disability.” Write a major point on each of the “wings.” Then list everything you can think of related to the major points on lines (or “feathers”) branching out from the wings.

As you write out a point or topic on a feather, you might think of subsidiary points or topics. List each of those on a line branching out from the feather. Feel free to add wings if you think of other major concepts or elements.

Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at savannah.blackwell@gmail.com. Follow her on Twitter at @SavannahBinSF.