- Be able to explain the purpose of headings and when to use them.
- Be able to explain the difference between headings and point headings.
- Be able to write point headings for both major contentions and for sub-issues.
You might use headings to divide topics and help your reader easily navigate a document. Or you might use headings when writing a statement of facts, particularly when the facts are complex and raise separate issues. Headings in a statement of facts simply describe the facts that follow. For example, in a claim for injuries arising from a collision, the statement of facts could be divided by headings “the collision” and “the plaintiff’s injuries” to help the reader easily follow the story.
Similarly, you might choose to use headings to break up a client letter or objective memo covering more than one issue. The headings would identify the issue and your conclusion about it. For example, a memo discussing whether to accept a client with a claim of medical malpractice could be divided by headings “Evidence that the physician departed from the standard of care is weak” and “As a result of the alleged malpractice, the plaintiff lost the use of her left leg.”
In contrast, are headings in briefs that provide readers with a persuasive outline of an argument. They appear in two different places in a brief, in the table of contents, and within the argument. They direct the reader to draw the conclusions that favor the writer’s client, illustrate the relationship between and among the various sections of the argument, and signal to the reader they just finished a point and will now move on to another. These persuasive headings are referred to as point headings.
A point heading in a brief that sets forth a major contention is labeled with a Roman numeral. A major contention stands on its own. Its relevance is not dependent on a broader contention. For example, “The defendant contractor is not negligent as a matter of law because he did not owe the plaintiff a duty.” This contention stands on its own because the court would grant summary judgment if proven.
In contrast is a sub-heading that sets forth a contention dependent on another contention. For example, sub-headings A and B are in the annotated headings below. Even if proven, neither alone would settle an issue before a court.
Generally, when writing a persuasive heading, include either a conclusion, or an action you want the court to take; plus, a reason the court should take the action or agree with your conclusion. Fn»
Headings are full, single sentences, not phrases or multiple sentences.
When you have multiple reasons why a court should accept your major contention those reasons are set forth in sub-headings. However, you should have no sub-headings if you have just one reason. A solitary sub-heading is inappropriate because you cannot divide something into just one sub-section. If you find yourself with an A, but no B, or with a 1, but no 2, either create a B or a 2, or incorporate the substance of A or 1 into the point heading itself.
Beyond this, the format for point headings varies. Check court rules for any required format.
I. Major Contention
When you have major contention, but no sub-headings, include facts in support of your conclusion or request in the heading.
THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE DEFENDANT DRIVER WAS NEGLIGENT BECAUSE SHE SAW THE PLAINTIFF LOSE CONTROL OF HER VEHICLE THIRTY SECONDS BEFORE SHE CROSSED INTO THE DEFENDANT’S LANE OF TRAFFIC
I. THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE DEFENDANT DRIVER WAS NEGLIGENT
A. The Defendant Driver Saw the Plaintiff Begin to Lose Control of Her Vehicle Thirty Seconds Before She Crossed into the Defendant’s Lane of Traffic
Here are two annotated examples of a major contention heading supported by sub-headings:
I. THE DISTRICT COURT’S ORDER REQUIRING DISCLOSURE OF THE FAMILY MEMBERS’ IQ TESTS SHOULD BE AFFIRMED (Explanation)» BECAUSE THE TESTS ARE NONPRIVILEGED ACADEMIC RECORDS AND ARE RELEVANT TO DETERMINING THE CAUSE OF PLAINTIFF’S DEVELOPMENTAL PROBLEMS (Explanation)»
A. The IQ tests are nonprivileged (Explanation)» evidence because they were administered for academic placement and Plaintiff’s family members had no relationship with the school psychologist. (Explanation)»
B. The IQ tests are relevant (Explanation)» because their value in determining whether heredity caused Plaintiff’s developmental problems is greater than the minimal burden imposed on Plaintiff’s family members by the discovery. (Explanation)»
I. THIS COURT SHOULD DENY THE DEFENDANT’S MOTION FOR A PROTECTIVE ORDER (Explanation)» BECAUSE THE COC DOCUMENTS ARE ALREADY ACCESSIBLE AND THE DEFENDANT HAS NO PRIVACY INTEREST IN THEM. (Explanation)»
Question: Label the parts of this example by dragging the labels into the correct boxes. (Label comes after the sentence to which it belongs.)
Headings should be about the case before the court, not abstract pronouncements about the law.
Here is a heading that is weak because it is an abstract pronouncement of the law:
Landlord’s Notice of Chipping Paint May be Proved by Circumstantial Evidence.
This heading is strong because it is about the case before the court:
This Court Should Deny the Defendant Landlord’s Motion for Summary Judgment (Explanation)» Because the Circumstantial Evidence That the Defendant Knew of the Chipping at the Rental Property Creates Questions of Fact (Explanation)»
As you plan your argument think about whether you have more than one reason a court should do what you ask it to do or why it should adopt the conclusion you ask it to adopt. These will be your sub-points. Then ask, whether your sub-points are supported by more than one reason. If so, they will be your sub-sub points.
Question: Write a point heading and sub-headings, if needed, for this brief opposition to summary judgment, 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.
Now that you completed this chapter, you should know the purpose of and be able to write headings for statements of fact and client letters. You should also be able to state the purpose of and write point headings for issues and sub-issues. In the next chapter, you will read about how to write issue statements and questions presented.