10.2.3 Providing Context with Legal Backstory and a Roadmap

When one of my daughters was in the fourth grade, she wrote a paper on the Ottawa people. Her teacher told her she had to begin with an introduction, so she wrote, “Hello, here is my paper on the Ottawa people.” The introductory material that you provide in a brief to a court is not as simple, but it should be almost as direct.

Professor Linda Edwards has used the term umbrella paragraphs to describe the combination of introductory material and roadmap paragraphs that appear — or should appear — at the beginning of most arguments.⁷In introductory material, the writer should include any information that is needed to provide context, that is common to all of the subpoints, or that will connect the subpoints to the writer’s thesis. Illustration 10.1 shows the location of the umbrella paragraphs and how the umbrella should relate to the document. Generally, any time you break a section into subsections, you should provide some sort of introduction and roadmap. Sometimes these items can be combined in one paragraph, while at other times you may need two or three paragraphs. Note that it would be extremely unusual to need more than a page for your umbrella.

Many brief writers mistakenly believe — consciously or subconsciously — that they do not need to provide the court with an introduction within the argument. The court knows the law, they believe, and it can read the facts and then figure out how this case fits in the scheme of things. And on one level they are right; the court could figure it out, with enough time. But good legal writing doesn’t make readers figure things out; it provides them with the information they need when they need it. And at the beginning of the argument, legal readers need two kinds of context: They need to know what’s already happened, and they need to know what’s coming.

a. What’s Already Happened: The Legal Backstory “What’s already happened” is not just the facts and the procedure in the case (although certainly, readers do need this information, which you have no doubt supplied in the Fact Statement). I’m talking about what has already happened “in the law.” Where did this issue come from? How has it been spending its time? If the law is a seamless web, what part of the web are we looking at right now? Perhaps, rather than thinking of the law as a seamless web, you should think of it as a complicated movie. Thus, the beginning of any argument can be thought of as the middle of the movie. And the court just came in late, sat down next to you, and whispered, “What’s happened so far?” To explain what has happened “so far,” you need to provide the legal backstory, as succinctly as possible and with citations as appropriate. By doing so, you provide the reader with vital context for the rest of the argument. If you are saying that the defendant did not have a reasonable expectation of privacy, don’t dive into the reasonable expectation of privacy analysis, presuming that the reader knows how it is relevant to the defendant’s rights. Instead, set the argument in the context of the Fourth Amendment. Likewise, if you are arguing that the public policy exception to the employment-at-will doctrine does not apply, make sure that you tell the reader what the employment-at-will doctrine is. Furthermore, if there is a split in the circuits, don’t make the court figure that out five pages later; tell that important detail right away. Broadly stated, the reader should be able to glean four elements from the legal backstory:

1. The question that this part of the document is answering. If you are writing the backstory for the whole argument, you should address the question that the whole document is answering. If you are providing backstory for just one part of the argument, focus on that part alone.

2. The legal rule or standard that is at the root of the issue being addressed in that part of the document. Many legal arguments are about the meaning of a particular word or phrase within a constitutional provision, statute, or legal rule. Even when there is a thick layer of judicial gloss on the original rule — as there is, for example, on the First Amendment — you should still note (or quote) the pertinent part of the First Amendment before moving to the concept of, for example, the existence of a chilling effect in a particular case.

3. How the legal issue in this case (or section of the argument) relates to the rule. After stating the rule that is at the root of your controversy, move from that rule to the rule or sub-rule currently at issue. The concept of the “rule cluster,” which was discussed in Chapter Five, may be appropriate here, as there may be a direct progression from one rule to the next. In contrast, the legal issue in your case may be a subpart of the main rule.

4. The current status of that issue in the relevant jurisdiction, if needed. Although this piece of the umbrella is not always needed, for some cases its inclusion is crucial. Most umbrellas will make evident how the rule operates in general. Include more details about the rule’s status if there are any controversies about this rule that are relevant to your argument. For example, perhaps you are arguing that the court should allow an exception to a particular rule when circumstance C exists. To identify the current status of the rule, you might point out that the court has previously created exceptions for circumstance A and circumstance B. In addition or in the alternative, there might be a split in the circuits as to the issue. If you are writing to a court other than the United States Supreme Court, it might be appropriate to point out that sister states or sister circuits have adopted a particular rule but that your particular jurisdiction has not yet done so.

Be honest in the legal backstory. For example, if there is a split in the circuits, it might be tempting to point out only that certain other courts have decided the case the same way you want the court to decide this one. Your credibility would suffer, however, when the court reads your opponent’s brief and discovers the truth. In contrast, if you begin by laying out the complete backstory, you will do much to help the court and to burnish your own image as an honest dealer.

Note how this writer accurately identifies contrasting authorities in this legal backstory: GOOD EXAMPLE

Gary Kirkby cannot be found individually liable as an employer under Title VII. Title VII defines an employer as “a person engaged in an industry affecting commerce who has fifteen or more employees... and any agent of such a person.” 42 U.S.C. § 2000e(b) (2001). Neither the Supreme Court nor the First Circuit has addressed the specific question of whether a supervisor is an “employer” for purposes of individual liability under Title VII.

Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 444 (1st

Cir. 1997) (declining to consider whether Title VII provides for individual liability); Scarfo v. Cabletron Sys. Inc., 54 F.3d 931, 951-52 (1st Cir. 1995) (because the law on the point of individual liability has not been decided in the First Circuit, the district court did not commit plain error when it held that a supervisor could be liable).

This sentence identifies the question that the document will ultimately answer.

Note the legal rule at the root of the issue.

This sentence tells how the legal issue in the case relates to the legal rule: The issue is about the meaning of the word “employer” as it relates to supervisors. The sentence also begins to tell the reader the current status of the issue in the relevant jurisdiction: The court has not decided it yet.

Differing interpretations of the phrase “and any agent” in the definition of employer have engendered a split in the federal circuits regarding whether Title VII provides for individual liability. E.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (concluding Title VII does not provide for individual liability); Wyss v. General Dynamics Corp., 24 F. Supp. 2d, 202, 206 (D.R.I. 1998) (finding that

individual liability is appropriate under Title VII).

The vast majority of circuits deciding this issue have determined that Title VII was intended only to impose vicarious liability on employers. E.g., Tomka, 66 F.3d at 1313.

Here, the writer provides more information about the current status of the legal issue, noting that there is a split in the circuits.

Although the writer honestly portrays the circuit split, she is appropriately argumentative, and ends by noting that more circuits are on her side. This case is set in the District of Rhode Island; if she were on the other side of the case, she might note that although there is a split in the circuits, courts within the District of Rhode Island are on her side.

The backstory for subsections within the argument may be much shorter. Sometimes, the backstory may require nothing more than a sentence.

Even if this court finds that plaintiff will be able to establish a legal duty, it should dismiss the complaint because the plaintiff will not be able to establish causation. To survive a motion to dismiss as to causation, a complaint must plead sufficient facts for both causation in fact and legal cause. McGuffin v. Restrepo, 426 S.E.2d 802, 804 (Vanita 1993). This complaint has not done so. First.... This sentence tells the reader the question that this part of the document answers. Note how it also shows how this issue connects to the previous issue: These are alternative grounds on which the court can grant the motion.

This sentence tells the reader how the issues under discussion (causation in fact and legal cause) relate to the general rule regarding causation, and how they operate in this context in a motion to dismiss.

At this point, the writer is shifting from backstory to roadmap.

By referring specifically to the causation element (and the legal duty element), the writer has ensured that the reader will be able to understand what rule is at the root of the controversy for this part of the argument. The status of the rule is not controversial, and so the writer merely relates the two parts of her analysis to the causation rule.

Whether your legal backstory is simple or complex, providing it will go a long way toward helping the reader to understand the rest of the argument. b. What’s Coming Next: The Roadmap

Roadmap paragraphs follow the legal backstory. And roadmaps are the opposite of what you whisper to someone who wants to know what’s going on in a movie, because a good roadmap will be full of spoilers; it will tell the reader exactly what’s going to happen in the argument. For purposes of narrative reasoning, roadmaps are important because the backstory has set up a problem: The roadmap literally shows the court how it can solve the problem.⁸

Roadmap paragraphs are important in the template because they help confirm, and sometimes establish, the reader’s expectations for the document. A good roadmap will also reveal the writer’s position on the points to be addressed in the relevant sections or subsections. By writing an effective roadmap, the writer tells the reader how “far” this part of the document extends — how many points does the writer talk about before stopping? In addition, an effective roadmap lays out the document’s large-scale organization by telling the reader the order in which the writer will address the main points. Even a poorly organized document will be easier to understand if the writer has provided a good roadmap.

It is tempting to skip this step, but providing this material makes your brief more effective by reducing the reader’s suspense. If the reader sees a “I” heading, followed immediately by an “A” heading, for example, he or she does not know how many subheadings will follow or how the subheadings connect to the writer’s main point. By writing a backstory and a roadmap, the writer provides “Bacon links” for the reader so that the connections are obvious.

Although many writers are familiar with the law review style of roadmap paragraphs (e.g., “this article will address three issues”), roadmaps in court documents can and should be more sophisticated. A simple technique is to provide the legal backstory and then use the decision maker’s needs as the focus of the roadmap,⁹as in the following example based on Miller v. Albright, 523 U.S. 420 (1998):

GOOD EXAMPLE I. Section 1409(a) Is an Unconstitutional Denial of Equal Protection as Guaranteed by the Fifth Amendment’s Due Process Clause.

The statute at issue in this case, 8 U.S.C. § 1409(a), classifies foreign-born children of a United States citizen and a noncitizen into three groups: (a) those whose parents are married, (b) those whose parents are unmarried and who have a United States citizen for a mother, and (c) those whose parents are unmarried

and who have a United States citizen for a father.

Children in the first two groups — those whose

parents are married and those with a United States citizen mother — are United States citizens by birthright. See 8 U.S.C. § 1401(g). Children in the last group — those whose parents are unmarried and who have United States citizen fathers — may receive their fathers’ citizenship only after clearing several statutory hurdles.

Here is the rule — a statute — that is the root of the controversy.

Here is information about the current status of the legal rule, i.e., how it is currently being interpreted by the Court.

Even when paternity has been established by “clear and convincing evidence,” and even assuming that the father was a United States citizen at the time of the child’s birth, a child in this third group will still be denied citizenship unless (a) the father agrees in writing to support that child until age 18, and (b) the child

is “legitimated” before he or she reaches the age of 18, or the father acknowledges paternity before the child reaches the age of 18, or the father’s paternity is established by adjudication before the child reaches the age of 18.

Here is more information about the status of the legal rule.

Section 1409(a) illegally discriminates against children of United States citizens based on the marital status of their parents and on the sex of their citizen parent. For more than 25 years, this Court has consistently applied a heightened scrutiny to state statutes or state constitutional provisions which have classified persons based on gender. See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 140 (1994) (citing cases). Similarly, for almost 20 years, this Court has applied a heightened scrutiny to those state statutes which have classified persons based on their “legitimacy.” See, e.g., Pickett v. Brown, 426 U.S. 1, 6-9 (1983) (citing cases). In reviewing federal legislation, this Court has also demanded that Congress satisfy a higher standard than the traditionally deferential one for classifications based on either legitimacy, see id. at 8 (quoting Trimble v. Gordon, 430 U.S. 762, 767 (1977)), or based on gender. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 66-70 (1981).

In this paragraph, the writer is identifying a second rule that is at the root of the controversy: the rule about how to interpret statutes that discriminate on the basis of gender.

Because of its questionable classifications, § 1409(a) should be subjected to a heightened scrutiny despite the great deference normally due congressional authority to enact immigration legislation.

Section 1409(a) cannot survive this level of scrutiny because neither its gender-based classifications nor its legitimacy classifications are supported by “exceedingly persuasive” justifications, nor does either classification substantially further an important governmental interest. Part one of the roadmap. Part two of the roadmap.

This roadmap paragraph does not include enumeration but indicates that the writer will first address which test applies and then address the argument that neither classification within the statute — the classification based on gender nor the classification based on legitimacy — can survive the test. Notice how the roadmap foreshadows the points made under the three subheadings within that section of the document:

A. This Court should apply a heightened scrutiny to § 1409(a) consistent with the Fifth Amendment’s equal protection guarantee. B. Section 1409(a) does not survive the heightened scrutiny that this Court has applied to gender-based classifications. C. Section 1409(a) does not survive the heightened scrutiny that this Court has applied to legitimacybased classifications.

Some writers provide a roadmap to the entire argument within the summary of the argument. They then provide mini-roadmaps — as the writer in the previous example has done — to each complex section of the document (i.e., each section of the document that has subparts). The structure of the headings will dictate the structure of the roadmap paragraphs. If there are two main headings, there should be two points in the overall roadmap. If a main heading section contains three subsections with subheadings, then the mini-roadmap that introduces that section should have three points. Do not provide too much detail in a roadmap. For example, if your main roadmap lays out the elements of duty and causation, do not include subparts of the causation issue in the main roadmap; they are properly included in the mini-roadmap to the causation section.

Although the writer in the example above chose not to use enumeration (perhaps because there had been several other sentences with enumeration in the backstory), enumeration almost always makes roadmap paragraphs more effective. The user’s eye is drawn to numbers on a page, and it is easy for the reader to see how the points relate to each other. The previous roadmap paragraph could be enumerated with a few simple changes:

This Court should reverse the decision below for three reasons: (1) because of its questionable classifications, § 1409(a) should be subjected to a heightened scrutiny despite the great deference normally due congressional authority to enact immigration legislation; (2) the gender-based classifications in § 1409(a) cannot survive heightened scrutiny; and (3) the legitimacy-based classifications in § 1409(a) cannot survive heightened scrutiny.

Whether you use enumeration or not, your roadmap should be argumentative. An ineffective roadmap will say, in essence, “this court must decide three issues: (1) whether to rule for or against my client as to issue one....” Because you know how you think the court should come out, make that hoped-for result the premise of your roadmap, as in the previous examples, saying in essence: “This Court should rule in favor of my client for three reasons.” You should also review your headings and roadmaps to make sure that the roadmaps predict exactly the points you will address and echo language that you will use when you address each point. You should not copy and paste your exact headings into the roadmap, but the roadmap should certainly include words and phrases — particularly phrases-that-pay — that appear in the headings. The roadmap will create expectations in the reader; by using similar language in the roadmap and the headings, you can reassure the reader that you are fulfilling those expectations and make it easier for the user to find needed information.