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

While all legal analysis and argument relies on rule-based reasoning, 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. Generally, pleadings do not include reasoning by analogy.

There are two reasons why you might add a rule illustration. The first is that rule-based reasoning has a shortcoming, because humans do not think effectively in terms of abstract principles, rather we are better able to understand principles when they are expressed in the form of stories. ^[1] So legal writers clarify rules by taking the key terms and through precedent showing how those terms have been applied to real life situations. These are the same key terms writers then apply to the facts of the case before the court  in the application.

The other reason legal writers add rule illustrations is to set up reasoning by analogy. When 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 first should yield the same result applied to the second. This is reasoning by analogy.

Here is a rule-based legal argument with reasoning by analogy added. It is an excerpt from a brief in opposition to summary judgment filed by a prisoner plaintiff in a civil rights claim (references to R indicate that the writer would cite to a page in the record to support a factual statement):

The evidence before this Court raises genuine issues of material fact as to whether the defendant guard knew that the plaintiff prisoner was at a substantial risk of serious harm. ^[3]

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. ^[4] Farmer, 511 U.S. at 837. Although an official “must both 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. 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. ^[5]

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. ^[6]

Plaintiffs that fit into a unique class of prisoners known to be victim prone raise the inference that prison officials must have known they were at a substantial risk of serious harm, even if advance notice was never given. See Farmer, 511 U.S. at 843. In Farmer, the petitioner prisoner, a transsexual who possessed feminine characteristics, was incarcerated, and 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 raped by another inmate. Id. at 830. Finding questions of fact, the Supreme Court reversed the lower court’s dismissal on 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, ^[7] see also Corbett, 2000 WL 1335749, at *4-5 (finding a genuine issue of fact about whether prison officials knew a prisoner identified in intake sheet as “victim prone” was at substantial risk of harm). ^[8]

Looking at the evidence in the light most favorable to Fox raises the inference Rath knew that Fox was at a substantial risk of serious harm for two reasons. First, Rath knew that Ball posed a risk to Fox. And two, Rath knew that as a convicted sex offender Fox was victim prone.

Rath knew about Ball’s longstanding well-documented history of violent behavior towards sex offenders and he knew that Fox was a convicted sex offender. 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). Rath admitted he had read the intake sheet. Moreover, Rath knew Ball was ordered to stay away from other prisoners. Ball had assaulted another prisoner earlier in the same day he assaulted Fox, and was therefore classified as a security risk. (R.53, 55). Rath even heard Ball threaten that prisoner hours before he assaulted Fox. (R.29, 53, 56). ^[9] Ball calling Fox a “pervert,” as he beat him to death, all serve as a factual basis from which a jury could rationally infer that Rath was on notice that Fox faced a substantial risk of harm. ^[10]

Like the plaintiff prisoner in Farmer, Fox’s status placed him in a unique class of prisoners who are victim prone. The Farmer plaintiff prisoner was a transsexual person, and Fox was a convicted sex offender. Both are classes of prisoners targeted by other prisoners for violence. And like the defendant prison officials in Farmer who knew the plaintiff was transsexual, Rath admitted that he knew Fox was a convicted sex offender (R.43, 58). He 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 prisoner’s status was sufficient to raise questions of fact about the defendant 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. ^[11]

These facts would allow a jury to draw the reasonable inference that Rath knew Fox was at risk for harm.  ^[12]

Rule Illustrations can be Written as Parentheticals or In-text

Use in-text illustrations when the key term controls the outcome of the issue before the court, and whenever you intend to make an analogy between the facts of precedent and your facts in order 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. 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 in-text or parenthetical the ingredients of a rule illustration are (1) disposition, (2) issue, (3) trigger facts (those material to the issue) and (4) reasoning. These four parts sometimes overlap. ^[13] A parenthetical will have three or four of the parts when it is combined with preceding text. Focus on the facts and reasoning of the precedent that are material to the issue and use language effectively. Provide only the information the reader needs.

1. Writing parenthetical illustrations

Parenthetical case illustrations follow the parenthetical identifying date of the opinion. When the opinion is cited using short form, they follow the end of the cite. ^[14] 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 one 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, rather prisoner and guard, or driver and pedestrian.

Here is example of a parenthetical illustrating the meaning of a key-term in a discovery dispute:

Concerns about confusing a jury are no bar to discovery of  IQ tests. 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 presented by plaintiff insurance company 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. Hayes, 84 F.3d at 620 (finding 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, 476 F. Supp. 2d at 411 (finding prison officials failed to take reasonable measures to protect prisoners because they failed to act despite knowing that assaults and stabbings regularly took place in the prison yard).

You can use parentheticals for purposes in addition to case illustrations. For example, here are parentheticals that show several courts in different jurisdictions have adopted the principle that perpetrators for sex-related crimes are vulnerable to attack in prison:

Courts have recognized that sex offenders are a particularly vulnerable group of inmates. See Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (“We can hardly conceive of a state’s action bearing more stigmatizing consequences than the labeling of a prison inmate as a sex offender”); Arnold v. Cnty. of Nassau, 89 F. Supp. 2d 285, 289 (E.D.N.Y. 2000) (reasoning that inmates charged with sex-related crimes are more likely to be victims of violence by other inmates); Chandler v. Williams, No. 3:08–CV–00962–ST, 2013 WL 2489139, at *17 (D. Or. June 7, 2013) (“The stigmatizing nature of being classified as a sex offender is undeniable”).

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 in 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 comprised solely of facts.

Writing hooks is difficult. But the hook often distinguishes excellent legal writing and analysis from merely serviceable legal writing and analysis. Try to write your hooks using concrete subjects rather than abstract subjects, even though it is tempting to use as a subject the key term you illustrate, and most key terms are abstractions. In contrast, concrete subjects are real people, things, or places that readers can visualize. For example “long-arm-jurisdiction” is an abstraction, and thus not a good subject for a hook. In contrast, out-of-state defendants 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.

For help writing good hooks, read about choosing concrete subjects for your sentences in Chapter 11.

Here are strong hooks.

The Court of Appeals held that a defendant reasonably believed his liberty had been restrained when officers blocked his vehicle. C. v. D.

The use of excessive physical force against a prisoner may violate his constitutional rights even though the prisoner does not suffer serious injury. E. v. F.

Here are the strong hooks, rewritten as weak hooks because they do not include both the key term and facts or reasoning.

The C. v. D. defendant testified that officers blocked his vehicle.

In E. v. F., the court considered whether the plaintiff reasonably believed that his liberty had been restrained.

In E. v. F.,the prisoner plaintiff did not sustain serious injuries.

In-text rule illustrations should include trigger facts, which are those that are key to the court’s holding. Include them in your illustration, and add additional facts only to the extent the reader needs them to understand the trigger facts – these are the supporting facts. If you support your rule application with an analogy to the rule illustration precedent, include in the rule illustration all the facts needed to make that analogy.

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

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 are two effective analogies:

Analogies must be based on facts relevant to the outcome of the precedent. Do not analogize a fact to an entire case. ^[26]

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 people to people, and things to their specific counterparts, for example property owners to property owners.

Strong – Like the property owner in Jackson, the defendant property owner in the present action regularly read a periodical that included information about the hazards of lead paint exposure posed to young children.

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Cases are distinguished in rebuttal, since the point is “the facts of my case are unlike those of precedent, so this court should not reach the same conclusion.”

For more on writing rebuttals see Chapter 5 Writing Rebuttals Assertively.

Now that you completed this chapter you should know why, and be able to add reasoning by analogy to your rule-based analysis or argument. This includes writing in-text and parenthetical rule illustrations, and writing analogies.

In the next chapter, you will read about writing umbrella paragraphs, which introduce your reader to analysis or argument that is divided into sub-issues.