Civil Procedure Attack Outline: How to Build One

Your long outline is a storage document. It exists so you can look something up and so that writing it forces you to synthesize. Your attack outline is a retrieval document. It exists to make sure that in minute 12 of a 60-minute essay you notice that the third-party defendant destroyed complete diversity, and that you notice it in the right order.

The formal difference is that every line of an attack outline is phrased as a question with branches, and every branch ends in a conclusion or a next question. "Rule 14 permits impleader of a nonparty who is or may be liable to the defendant for all or part of the claim against it" is a long-outline line. "Is a nonparty derivatively liable to D? → Rule 14(a)(1); leave needed if answer filed more than 14 days earlier → is there supplemental jurisdiction? → §1367(b) bars claims BY plaintiffs against Rule 14 parties in diversity cases → Owen v. Kroger" is an attack-outline line.

Build it after the long outline is substantially done, roughly two to three weeks before the exam, and build it yourself. The value is almost entirely in the compression decisions you make while writing it.

Civil Procedure is the one 1L course with a natural chronology, so use it. Order the outline the way a case moves, and your issue-spotting becomes procedural rather than intuitive. A defensible spine:

Take personal jurisdiction. A long outline recites International Shoe, World-Wide Volkswagen, Burger King, Asahi, McIntyre, Daimler, Bristol-Myers, and Ford. An attack outline asks, in order: Is there a traditional basis — in-state personal service (Burnham), domicile, consent, or a valid forum-selection clause? If not, is the defendant essentially at home (Daimler, Goodyear, BNSF) — for a corporation, state of incorporation or principal place of business, with 'exceptional case' general jurisdiction as a near-dead argument? If not, run specific jurisdiction: (1) purposeful availment or purposeful direction, with the stream-of-commerce split flagged as unresolved between the Asahi opinions and McIntyre; (2) relatedness — does the claim arise out of or relate to the forum contacts, noting that Ford loosened strict causation while Bristol-Myers still bars unconnected plaintiffs; (3) reasonableness under the Burger King factors, as a defense-side argument that rarely wins. Then: does the long-arm statute reach this far, and is Rule 4(k)(1)(A) or 4(k)(2) satisfied?

Write it so each step names the fact that triggers it. Under purposeful availment, note the recurring triggers: contract negotiation and ongoing obligations, a website's interactivity, an in-state distributor, advertising directed at the forum, a single tortious act with in-state effects. Those triggers, not the rule statements, are what let you spot the issue under time pressure.

Do the same for preclusion. Claim preclusion: valid final judgment on the merits (is a Rule 12(b)(6) dismissal on the merits? see Rule 41(b) and Semtek), same claim under the transactional test, same parties or privies (Taylor v. Sturgell's six categories). Issue preclusion: identical issue, actually litigated, actually decided, necessary to the judgment, and — if nonmutual — was preclusion offensive, and would Parklane's fairness factors permit it? Add the §1738 full faith and credit step whenever the first judgment came from a state court.

Erie eats outlines because students try to narrate the case sequence. Reduce it to Hanna's two tracks. Track one: is there a valid Federal Rule of Civil Procedure or federal statute directly on point? If a Rule genuinely covers the question, apply it unless it exceeds the Rules Enabling Act — and note that no Rule has ever been invalidated on that ground. Flag the Shady Grove split between Scalia's plurality (look only at what the Rule regulates) and Stevens's controlling concurrence (a Rule cannot displace a state procedural rule that is bound up with state substantive rights).

Track two: no Rule on point, so apply the Rules of Decision Act. Ask whether applying federal practice would be outcome-determinative in the Hanna sense — would it encourage forum shopping or cause inequitable administration of the laws — and then weigh countervailing federal interests under Byrd. Keep Gasperini as the example of accommodation and Semtek as the rule that the preclusive effect of a federal diversity judgment is federal common law that ordinarily borrows state law. Statutes of limitations, tolling, and burdens of proof are usually substantive; the classic Hanna facts, service of process, are not.

One page. If your Erie section is three pages, you are still writing a long outline.

Civil Procedure rewards precision about numbers more than any other 1L course, and these are the lines you will otherwise blank on. Put them in a single boxed block at the end so you can find them fast.

The core set: $75,000 exclusive of interest and costs; 90 days to serve under Rule 4(m); 21 days to answer, 60 days if service was waived; 21 days to amend once as of right under Rule 15(a)(1); Rule 11's 21-day safe harbor; 30 days to remove after receipt of the initial pleading, with a one-year outer limit for diversity cases absent bad faith; 30 days to move to remand for any defect other than subject matter jurisdiction; 28 days for Rule 50(b) and Rule 59 motions; one year for Rule 60(b)(1)–(3); 14 days to petition for review of a class certification order under Rule 23(f); 30 days to file a notice of appeal, 60 if the United States is a party.

Also box the Rule 12 waiver map, because it is pure memorization and it is tested constantly: lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process are waived if omitted from a first Rule 12 motion or not raised in the answer; failure to state a claim and failure to join a Rule 19 party survive to trial; subject matter jurisdiction can be raised at any time, including on appeal.

A lot, and you should tailor accordingly. Coverage varies sharply: some Civil Procedure courses spend six weeks on personal jurisdiction and never reach preclusion; others front-load pleadings and joinder and treat Erie lightly; some are one-semester, some two. Build the spine above, then delete every branch your syllabus never reached and expand the two or three units your professor spent the most class hours on. Time on the syllabus is the best available predictor of exam weight.

Format matters too. If the exam is multiple choice or has an MC component, your attack outline should include more bright-line numbers and waiver rules, because MC questions test those. If the exam is a single long fact pattern, invest in the branching logic and in transitions between doctrines — supplemental jurisdiction after joinder, preclusion after judgment. Ask directly whether the professor wants you to address subject matter jurisdiction before personal jurisdiction; courts have discretion to take either first in some circumstances, but many professors have a stated preference.

Open-book status changes the outline less than students expect. An open-book exam still gives you no time to read, so the attack outline should be the same length either way. What changes is the long outline behind it.

Take a past exam under time with only the attack outline in front of you. Then read the professor's model answer or checklist and mark every issue you missed. For each miss, do not add a paragraph of law — add a trigger line at the point in the tree where you should have caught it. If you missed that a permissive counterclaim needs an independent jurisdictional basis, the fix is one line under Rule 13(b), not a new subsection.

Do this three or four times. The outline should shrink slightly each round as you internalize the easy branches and shift the page space toward the traps: §1367(b)'s asymmetry, relation back under Rule 15(c)(1)(C) when a party is changed, the difference between Rule 50 and Rule 59 standards, and whether the Seventh Amendment attaches at all under the historical test in Terry and the Beacon Theatres/Dairy Queen sequencing rule.

By exam day you should be able to reproduce the spine from memory on scratch paper in two minutes. If you can, the paper copy is a safety net rather than a crutch, which is what an attack outline is for.