Show the Reader you are Right Before you Show Them Why the Other Party is Wrong

A thorough legal argument includes counters to your adversary’s arguments. While it is tempting to take on your opponent’s argument before you make yours, doing so gives readers the impression that you are so overwhelmed by your opponent’s arguments you can’t make your own arguments. So, rebut your opponent’s arguments after you have proved your point by applying a rule to the facts, and perhaps arguing by analogy. Show the reader that you are right before you show them why the other party is wrong.

Here is the annotated CREAC using rule-based reasoning and reasoning by analogy from Chapter 2, with rebuttal added. It is from a brief in opposition to summary judgment filed by a prisoner plaintiff in a civil rights claim. Key terms, which are covered in Chapter 1, are highlighted for illustrative purposes only. (R indicates the writer would insert a cite to the record):

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. ^[1]

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. ^[2] Farmer, 511 U.S. at 837. Although an official “must be both 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. ^[3]

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). ^[4] 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, ^[5]

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, ^[6] 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). ^[7]

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). ^[8] 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. ^[9]

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. ^[10]

Fox’s assault could not have come as a surprise to Rath. But cf., Coronado v. Goord, No. 99 CIV. 1674(RWS), 2000 WL 1372834, at *4-6 (S.D.N.Y. 2000). In Coronado, a prisoner was stabbed in the back by several inmates in the prison yard. Id. at *1. The prisoner claimed he was prone to attack because he had been stabbed ten years prior. Id. The district court dismissed plaintiff’s complaint because he failed to allege the nature of other attacks in the prison yard, arguing that evidence of similar prior attacks would be necessary to establish knowledge. Id. Unlike in Coronado, the nature of the attack in this case demonstrates a similar pattern of violence. Ball had a history of violence against sex offenders, establishing prior, similar incidences of violence that put Fox at risk. Additionally, unlike the defendants in Coronado, Rath and other deputies at the Holding Center were aware of Fox’s victim prone status because they had been telling other inmates about his past sex offense. Furthermore, Rath was aware of a DOJ report that alleged this very behavior at the Holding Center. ^[11]

These facts show a specific threat to sex offenders at the Holding Center and would allow a jury to draw the reasonable inference that Rath knew Fox was at risk for harm. Thus, there are questions of fact about whether Rath knew Fox was at risk of harm. ^[12]

Be Assertive, not Defensive with Rebuttals

Be assertive, not defensive with rebuttals. Be conscious of how you present your argument, so you don’t unwittingly put yourself on the defensive. A frequent problem is to begin a rebuttal with a statement of your opponent’s argument. This defensive style makes your opponent’s arguments the focus of your argument. While it is tempting to introduce a counterargument with a phrase like “the defendant will argue…” don’t do it! ^[13] Instead, as explained below be assertive.

There are two types of rebuttals. The first are those based on facts that support your opponent but hurt you, where you raise and rebut negative facts. The second are those based on law that supports your opponent but hurts you, where you raise and distinguish negative law.

A. Rebutting negative facts

Here is a rebuttal of negative facts that is defensive because it begins with the opponent’s argument that an attack on a prisoner was sudden, and highlights a “bad fact” (the prisoner’s attacker yelled “I bet you didn’t expect this”)

The defendant will argue that the attack was sudden because the prisoner’s attacker yelled “I bet you didn’t expect this” the second before he stabbed him. However, the facts before this Court raise the inference that the attacks were planned and thus not sudden.

To write it assertively acknowledge the bad fact but begin with your point, not your adversary’s. For example:

While the prisoner’s attacker yelled “I bet you didn’t expect this” the second before he stabbed him, the attack was not sudden. To the contrary, the facts before this Court raise the inference that the attacks were planned…

As restated this rebuttal is assertive because it begins with the advocate’s argument (the attack was not sudden), not the adversary’s argument. It also neutralizes the “bad fact” (attacker yelled “I bet you didn’t expect this”) by juxtaposing it with a “good fact” (attack was planned).

B. Rebutting negative law

After you argue that the law supports your position, rebut law that arguably supports your adversary. As with rebuttals of “bad facts,” resist the temptation to begin with your adversary’s position. Here is an example of a rebuttal of negative law, which is defensive because it begins with the opponent’s argument (when a parent knows his child is at risk of injury from exposure to lead-based paint, but does nothing to prevent it, his conduct is actionable); thus highlighting “negative law”:

The Supreme Court in Albany County held that when a parent knows his child is at risk of injury from exposure to lead-based paint, but does nothing to prevent it, his conduct is actionable. Cooper v. Basset. But the present case is distinguishable to the Cooper case. In Cooper (facts). In contrast here (facts).

To write it assertively acknowledge the bad law but begin with your point.

Here is the rebuttal stated assertively, which begins with the advocate’s argument (this is not a case of parents who knew their child was at risk)  and cites “negative law” only to immediately distinguish it. Note the negative law is introduced with a signal that it stands for a position contrary to the main proposition:

This is not a case of parents who know their child is at risk of injury from exposure to lead-based paint but do nothing to prevent it. ^[14] But cf, Cooper v. Basset (holding claim against parents actionable). The facts of the present case are distinguishable from those of the Cooper case. In Cooper (facts). In contrast here (facts).

C. Your final conclusion follows your rebuttal

Your final conclusion follows the rebuttal. You need not begin a new paragraph if the rebuttal is brief, and the conclusion is straight forward. Final conclusions let a reader know you are finished with a single legal argument and show how it fits into the argument as a whole. If it is the conclusion to one of multiple single legal arguments, it signals to the reader that you are about to move onto another legal argument.

For example:

Since there are questions of fact about x, the defendant’s motion must be denied. Even if this Court finds there are no questions of fact about x, as argued in the next section, there are questions of facts about y that preclude summary judgment.

Here’s another example:

As a matter of law x.  And as argued in the next section as a matter of law y, the motion for summary judgment must be granted.

Now that you finished this chapter, you should be able to effectively rebut your opponent’s  factual and legal arguments.

In the next chapter you will learn about how to add policy and equity arguments to a brief.