Rule-Based Writing and CREAC, adding Analogies

Much of the material below is adapted from Nan L. Haynes, Legal Writing Handbook for Clinical Students, published by CALI eLangdell® Press, CC BY-NC-SA 4.0 license. CALI® and eLangdell® are United States federally registered trademarks owned by The Center for Computer-Assisted Legal Instruction.

Other material is adapted from Jean Mangan, et. al., Legal Writing Manual, 3d ed, CC BY-NC-SA 4.10 license.

---

When and Why to Add Rule Illustrations and Analogy-based Reasoning

Remember that all legal analysis and argument relies on rule-based reasoning. But you may want to add reasoning by analogy when you write a brief or objective memo in order to help your reader understand a key term. You may also include reasoning by analogy when you write a client letter if you think your client might not understand or accept your conclusion in its absence.

People are better able to understand principles when they are expressed in the form of stories rather than abstract ideas. So legal writers clarify rules by taking the key terms showing how, through precedent, those terms have been applied to real-life situations in the past that inform what should be done in the present. When legal writers make an analogy between the facts of precedent and the facts of their case, they argue that since the two situations are parallel, the reasoning that decided the precedent case should yield the same result applied to their case. That is reasoning by analogy.

Reasoning by disanalogy is the opposite. Sometimes, a legal writer will show that the facts of a precedent case are meaningful UNlike the facts of their case, so the reasoning that decided the first case should not yield the same result applied to this case.

CREAC Example: Rule-Based Writing with Analogy

Let's see what this looks like in a fleshed-out legal argument. Below is a color-coded CREAC argument combining rule-based writing and analogizing. It is an excerpt from the same brief filed by a prisoner who is opposing the government’s attempt to defeat his civil rights case via summary judgment that you read in the previous section.

The first parts of the example are identical to the previous version, but note the added part where the writer analogizes a precedent case, Farmer, to their client's case.

(Again, don’t worry if you don’t understand the format of legal citations. You will learn about that in later sections. For now, just read this color-coded example as a good illustration of CREAC writing combining rule-based writing and analogies. References to R indicate citations to particular pages in the record to support a factual statement.)

CREAC Organization

(Refer to this chart often) C - initial statement of conclusion

R - the legal element or rule at issue

E – rule explained through key terms

A – application of the key phrases from the rule explanation to the facts of this case, in the same order that they appear in the rule explanation

C – final statement of conclusion

The evidence raises genuine issues of material fact as to whether the defendant guard, Officer Rath, knew that the plaintiff prisoner, Mr. Fox, was at a substantial risk of serious harm from other inmates, particularly Mr. Ball.

Prison officials meet the knowledge prong of a deliberate indifference claim when they are subjectively aware of a substantial risk of serious harm to prisoners. Farmer v. Brennan, 511 U.S. 825, 837 (1994).Although an official “must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference,” a claimant can demonstrate that an official had knowledge if a risk is obvious. Id., at 837, 844. An obvious risk can be shown by evidence that prison assaults were “longstanding, pervasive, well-documented, or expressly noted by prison officials” because these circumstances suggest an official must have known. Id., at 842-43.

Whether a prison official is subjectively aware of a substantial risk of serious harm “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id., at 842. Advance notice is not necessary to establish knowledge if a prisoner falls into a victim-prone category. Id., at 843; Corbett v. Kelly, No. 97-CV-0682 E, 2000 WL 1335749, at *4 (W.D.N.Y. Sept. 13, 2000). Thus, a prison official may be put on notice that a prisoner faces a substantial risk of serious harm if there is a similar history of violence at the prison.

One circumstance that can give rise to knowledge of an obvious risk is if there are classes of victim-prone prisoners whom officials know are more susceptible to attack. See Farmer, 511 U.S. at 843. In Farmer, the petitioner prisoner, a transsexual who possessed feminine characteristics, was allowed to be in the general population at a penitentiary with a history of violence. Id. at 829-30. Within weeks, the prisoner was beaten and sexually assaulted by another inmate. Id. at 830. Finding that material questions of fact existed, the Supreme Court reversed the lower court’s summary judgment despite the fact that the prisoner failed to notify prisoner officials of a risk of harm, holding that “the failure to make advance notice is not dispositive” when an inmate’s victim prone status may have made the prison officials subjectively aware of a risk of harm. Id. at 849.

Examining the evidence in the light most favorable to Fox raises the inference that Rath knew that Fox was at a substantial risk of serious harm for two reasons. First, Rath knew that as a convicted sex offender Fox was victim-prone. After all, Rath admitted he knew that the DOJ found sex offenders at the Holding Center were targeted, and he knew that Fox was a convicted sex offender. (R.30).

Second, Rath knew about Ball’s well-documented history of violent behavior towards sex offenders. (R.30). Rath also knew that Ball was a security risk who was ordered to stay away from other prisoners. (R.32). Ball had a well-documented history of violent offenses on his intake sheet, including an assault on a convicted sex offender at the Holding Center. (R.29). Because Ball had assaulted another prisoner earlier in the same day he assaulted Fox, he was classified as a security risk and ordered not to commingle with other prisoners (R.53, 55). Rath heard Ball threaten that prisoner hours before he assaulted Fox. (R.33). And Rath admitted he had read both Ball’s Intake Sheet and the order that classified Ball as a security risk. (R.29, 53, 56). Indeed, Ball's taunting of Fox as a “pervert” while he beat and kicked Fox (R.34) underscores that a jury could rationally infer that Rath was on notice that Fox faced a substantial risk of harm.

[HERE IS THE NEW MATERIAL, WITH THE ANALOGY] Like the plaintiff prisoner in Farmer, Fox’s status placed him in a unique class of prisoners who are victim-prone. The Farmer plaintiff was a transsexual person, and Fox was a convicted sex offender. Both are classes of prisoners commonly targeted by other prisoners for violence. And like the defendant prison officials in Farmer who knew that the plaintiff was transsexual, Rath admitted that he knew that Fox was a convicted sex offender (R.43, 58). Rath had also read the DOJ report alleging that prison officials condoned assaults on sex offenders at the Holding Center. (R.49). Since the evidence of the Farmer plaintiff's status was sufficient to raise questions of fact about the prison official’s notice that he was at risk of harm, so too should the evidence of Fox’s status raise questions of fact about Rath’s notice that Fox was at risk of substantial harm.

These facts all would allow a jury to draw the reasonable inference that Rath knew Fox was at risk of harm. Thus, there are genuine questions of material fact, making summary judgment inappropriate.

Rule Illustrations can be Written as Parentheticals or in the Text

Use in-text illustrations when the key term controls the outcome of the issue and whenever you intend to make an analogy between the facts of precedent and your facts to support your rule application.

If the key term does not control the outcome, you can use a parenthetical as long as the key term can be illustrated in a single sentence. As a writer, your choice is affected by a certain tension: the tension is between the need for brevity and the need to explain abstractions by showing how they have been applied to facts in real life.

Whether it appears in-text or as a parenthetical, the four ingredients of a rule illustration are:

1. disposition

2. issue

3. trigger facts (facts material to the issue—those that affected the outcome) and

4. reasoning.

These four parts sometimes overlap. A parenthetical will have three or four of those parts when it is combined with the preceding text. Focus on the facts and reasoning of the precedent that are material to the issue and provide only the information that the reader needs.

1. Writing parenthetical illustrations

Parenthetical case illustrations follow the parenthetical identifying the date of the opinion. When the opinion is cited using the short form, they follow the end of the citation.

Parentheticals begin with a present participle beginning with a lower-case letter; that is, a verb ending in “ing,” or they consist of a quote from the statute or opinion they illustrate. They are a single sentence or a one-sentence fragment. Include facts in general terms that will help a reader unfamiliar with the case understand it. For example, not plaintiff and defendant, but rather prisoner and guard, or driver and pedestrian.

Some examples follow.

Here is an example of a parenthetical illustrating the meaning of a key term in a discovery dispute: Concerns about confusing the jury do not prohibit the discovery of IQ test results. Juries routinely hear complicated cases where the opposing parties present competing theories of causation. E.g., Blue Cross and Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 344 F.3d 211, 226-27 (2d Cir. 2003) (holding the jury could consider statistics and models to show causation of cancer in a suit by insurance companies against tobacco companies).

Here are two parentheticals that show a key term that has been applied in several similar fact patterns:

A prison official disregards a substantial risk of serious harm by failing to take reasonable measures to abate it. Nebula v. Thanos, 84 F.3d 600, 620 (1996) (finding that prison official failed to take reasonable measures because he did not transfer or escort a prisoner whose life was threatened and who was a security risk); Warren v. Goord, 476 F. Supp. 2d 407, 411 (2007)(finding that prison officials failed to take reasonable measures to protect prisoners because they failed to act despite knowing that the prison yard was an area where assaults and stabbings regularly happened).

2. Writing in-text case illustrations

Unlike parentheticals, in-text rule illustrations should include a hook.

The hook is the first sentence of the illustration and should tell the reader why you chose to include the illustration by focusing on the key term from the rule that the precedent illustrates. Concentrate on what the court held or reasoned, not what the case involved, or concerned. Include the key term that the precedent illustrates, with a key fact or two, or the court’s reasoning. A hook is never just a recital of facts.

Writing hooks can be challenging. But the hook often distinguishes effective legal writing and analysis from merely serviceable legal writing.

Write your hooks using concrete subjects rather than abstract subjects, even though it is tempting to use the key term you illustrate as a subject, and most key terms are abstractions. Concrete subjects are real people, things, or places that readers can visualize.

For example, the legal concept of “long-arm-jurisdiction” is an abstraction, and thus not a good subject for a hook. But "out-of-state defendant" is a concrete subject that is a good subject for a hook. So, when writing a hook to begin an illustration of “long-arm jurisdiction”:

Do this (concrete subject): Out-of-state defendants are subject to a state’s long-arm-jurisdiction when they do business in that state.

Not this (abstract subject): Long-arm-jurisdiction exists over out-of-state defendants who do business in that state.

---

Here are some weak hooks, rewritten as strong hooks:

Weak Version: In [citation to case], the defendant testified that officers blocked his vehicle.

Stronger Version: The Court of Appeals held that a defendant reasonably believed that his liberty had been restrained when officers blocked his vehicle. [citation to case].

Weak Versions:

In [citation to case], the court considered whether the plaintiff reasonably believed that his liberty had been restrained.

In [citation to case], the prisoner plaintiff did not sustain serious injuries.

Stronger Version:

The use of excessive physical force against a prisoner may violate his constitutional rights even though the prisoner does not suffer serious injury. [citation to case].

---

In-text rule illustrations must include trigger facts, which are those facts that are key to the court’s holding. Include them in your illustration, and add supporting facts only to the extent that the reader needs them to understand the trigger facts.

If you support your rule application with an analogy, include in the rule illustration all the facts that you need to make that analogy.

Here are some examples of effective in-text rule illustrations:

The Southern District of New York held that a lay principal of a Catholic school was a minister because principals have a duty to establish a climate that nurtures students in the Catholic faith, which is essential to fulfilling its mission. Fratello v. Roman Catholic Archdiocese of N.Y., No. 12-CV-7359, 2016 U.S. Dist. LEXIS 41483, at *6-7 (S.D.N.Y Mar. 29, 2016). The lay principal led prayers, attended mass with his students, and was obligated to follow an Administrative Manual requiring him to engage students in the pursuit of spiritual development. Id. at 6-30. Although the principal performed mainly secular duties related solely to education, he actively conveyed the church’s mission, and the court reasoned that this performance of the mission carried more weight when comparing secular versus religious duties. Id. at 30-38.

The plaintiff in a claim arising from exposure to lead-based paint raises a triable issue of fact as to a landlord’s constructive notice of a dangerous condition if they provide evidence from which it may be inferred that the landlord knew that lead paint was chipping or peeling on the premises. Jackson v. Brown, 26 A.D.3d 804, 805 (4th Dept. 2006). In Brown, the court reasoned that while the plaintiff failed to directly inform her landlord of the chipping and peeling paint, the peeling paint was in plain sight and visible to the landlord, who entered the apartment frequently. Id. at 806. Thus, the evidence was sufficient for a jury to infer that the landlord knew of the chipping and peeling lead paint condition. Id.

Writing Analogies

Effective analogies have three parts:

1. A sentence that tells your reader the key phrase common to both the precedent and the case before the court;

2. A fact comparison establishing a similarity to a prior case; and

3. An explanation of why the comparison matters.

Here an example of an effective analogy:

Stark’s role in conveying Holy Trinity’s mission, like that of the principal in Fratello, weighs heavily in favor of the ministerial exception. Like the principal in Fratello, Stark led prayers, participated in mass with her students, enhanced her students’ appreciation of religious topics, and signed an agreement to promote the mission of the school. Though Stark performed secular duties, including teaching her students to use PowerPoint, time spent on secular duties does not carry much weight. After all, the principal in Fratello performed mainly secular duties, but the court held in favor of the ministerial exception. Here too, this Court should hold that Stark was a minister because she led prayers, enhanced her students’ religious knowledge, and agreed to promote the mission of the Church.

Analogies must be based on facts relevant to the outcome of the precedent. Do not analogize a fact to an entire case.

Weak: Like Jackson, the defendant property owner regularly read a periodical that included information about the hazards of lead paint exposure posed to young children.

This is ineffective because a person (the defendant property owner) cannot be compared to a published legal opinion (Jackson). Instead, make your analogy or distinction fact-specific. "Compare apples to apples": people to people, and things to their specific counterparts; for example, compare property owners to property owners.

Stronger: Like the property owner in Jackson, here the defendant property owner regularly read a periodical that included information about the hazards to children of lead paint exposure.

---