- Be able to explain the difference between an issue statement and a question presented.
- Be able to write
- Issue statements; and
- Questions presented
Issue Statements/Questions Presented
Issue statements objectively identify the issue addressed in an objective memo, while questions presented persuasively frame the issue before the court.
The elements of both sub-headings are 1. the law, 2. the question itself (the issue), and 3. legally significant facts.  The difference lies in the way you state each part. Each part is stated objectively in an issue statement, since the purpose is merely to give readers the information needed to resolve an issue. In contrast, each part is stated persuasively in a question presented, since the purpose is to suggest to readers the conclusion advocated.
There are two formulas. One is “Under (law with brief explanation) does (question itself aka issue) when (legally significant facts)?”  For example, here is an objective issue statement stated in the formula:
Under the New York State’s Freedom of Information Law, which provides government agencies shall make available for public inspection and copying all records, except those they may deny access to (law with brief objective explanation) must the government release the video (issue stated objectively) of an interaction between a prisoner and some guards ( facts stated objectively)?
Restated as a persuasive question presented, the law, the issue, and the facts are stated in a manner designed to invoke an answer that favors one party. Here is the issue statement restated as a question presented:
Under New York State’s Freedom of Information Law, whose purpose is to provide government transparency (law with brief explanation), may the State or any of its subdivisions or agencies suppress a videotape recording (this is the issue) containing scenes of jail guards beating a handcuffed detainee (these are the legally significant facts)?
The other format is “Whether (the question itself/issue) under (law & simple explanation) when (key facts)?” 
Here is the question presented above in the under, when, does formula, restated in the whether, under, when formula:
Whether the State or any of its subdivisions or agencies may suppress a videotape recording (issue) under the New York State’s Freedom of Information Law, whose purpose is to provide government transparency (law with brief explanation), when the recording contains scenes of jail guards beating a handcuffed detainee (legally significant facts)?
Instructions: The last two questions presented are written from the position of the party who wants disclosure. Here is the question presented from the position of the party who does not want disclosure.
Advance through the pages below to complete the exercise.
Question 1: Identify the elements in the following question presented by dragging the labels into the correct boxes. (Label comes after the phrase to which it belongs.)
Question 2: Now rewrite the question presented using the “Under (law w/brief explanation) does (question itself aka issue) when (legally significant facts)” format.
Instructions: There are a few frequent problems to avoid when writing your question presented. Advance through the pages below to learn how to identify and address them.
Question: Write a question presented for the following brief opposition to summary judgment first introduced in Chapter 7, then compare your answer with the sample answer provided.
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, 511 U.S. at 837. 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.
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 831; see also Corbett, 2000 WL 1335749, at *4-5 (finding a genuine issue of fact about whether prison officials knew a prisoner identified in the intake sheet as “victim prone” was at substantial risk of harm).
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. One, 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).
Two, Rath knew about Ball’s longstanding well-documented history of violent behavior towards sex offenders, and he knew Ball was a security risk, ordered to stay away from other prisoners. 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 the same day he assaulted Fox, he was classified as a security risk and ordered not to comingle with other prisoners (R.53, 55). Rath heard Ball threaten that prisoner hours before he assaulted Fox. And Rath admitted he had read both Ball’s intake sheet and the order that classified Ball as a security risk. (R.29, 53). Ball called 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.
Like the plaintiff prisoner in Farmer, Fox’s status placed him in a unique class of prisoners at substantial risk of serious harm because they are victim prone. The Farmer plaintiff prisoner was a transsexual person, and Fox was a convicted sex offender. Both classes of prisoners are targeted by other prisoners for violence. And like the defendant prison officials in Farmer who knew the plaintiff was transsexual, Rath knew that Fox was a convicted sex offender. Rath admitted that he knew Fox was a convicted sex offender (Rath EBT at x). He had also read the DOJ report alleging that prison officials condoned assaults on sex offenders at the Holding Center. (Rath EBT at x) 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.
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 the earlier attack in the prison yard, reasoning 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 where there was no evidence of the reason for the attack, 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. 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.
Having completed this chapter you should be able to write objective issue statements and persuasive questions presented.