In Memory of Professor Michael Distelhorst: Legal Education

• Author: Capital University Law Review
• Pages: 460-460

PERSUADING WITH PRECEDENT:

UNDERSTANDING AND IMPROVING ANALOGIES

IN LEGAL ARGUMENT

JACOB M. CARPENTER*

I. INTRODUCTION

When writing persuasive briefs, attorneys use comparisons—metaphors

or case-based analogies—to help explain their analyses and support their

positions.

1

Cognitive science shows that readers process information both

by metaphor and by analogy in much the same way.

2

But attorneys use the

two types of comparisons for very different purposes.

3

Metaphors

occasionally can be helpful in certain briefs, but case-based analogies are

critical in most briefs

4

because of the American legal system’s reliance on

precedent and stare decisis.

5

Several legal scholars have explored how attorneys use metaphors in

their legal writing.

6

Although the existing scholarship on legal metaphors is

Copyright © 2016, Jacob M. Carpenter.

* Associate Professor of Legal Writing, Marquette University Law School. I would like

to thank Professor Michael Smith, University of Wyoming School of Law, for encouraging

me to write this Article when I first discussed the topic with him; Professor Linda Edwards,

University of Nevada Las Vegas School of Law, for her constant support; and the Marquette

University Law School administration for their support of this Article.

1

GEORGETOWN UNIV. WRITING CTR., WHAT DO YOU MEAN “THERE’S MORE THAN ONE

WAY TO DO IT”? SELECTING METHODS OF LEGAL AN ALYSIS THAT WORK BEST 1 (2004),

https://www.law.georgetown.edu/academics/academic-programs/legal-writing-

scholarship/writing-center/upload/legalanalysismethods.pdf.

2

See MICHAEL R. SMITH, ADVANCED LEGAL WRITING: THEORIES AND STRATEGIES IN

PERSUASIVE WRITING 199 (2d ed. 2008) (quoting EDWARD P.J. CORBETT & ROBERT J.

CONNORS, CLASSICAL RHETORIC FOR THE MODERN STUDENT 396 (4th ed. 1999)).

3

See id. at 206–18; Dan Hunter, Teaching and Using Analogy in Law, 2 J. ASS’N LEGAL

WRITING DIRECTORS 151, 155 (2004).

4

See Hunter, supra note 3, at 152–53.

5

Stare decisis is defined as “[t]he doctrine of precedent, under which a court must follow

earlier judicial decisions when the same points arise again in litigation.” Stare Decisis,

BLACK’S LAW DICTIONARY (10th ed. 2014). See Frederick Schauer, Precedent, 39 STAN. L.

REV. 571, 572 (1987) (“Reliance on precedent is part of life in general.”).

6

In fact, Professor Michael R. Smith began a 2007 article by stating, “The role of

metaphor in the law has been a hot topic among legal scholars in recent years.” Michael R.

Smith, Levels of Metaphor in Persua sive Legal Writing, 58 MERCER L. REV. 919, 919 (2007).