Persuading with Precedent: Understanding and Improving Analogies in Legal Argument

• Author: Jacob M. Carpenter
• Position: 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 ...
• Pages: 461-506

462 CAPITAL UNIVERSITY LAW REVIEW [44:461

excellent, it is not sufficient to properly understand how to best draft case-

based analogies. Unfortunately, legal analogies have been surprisingly

understudied despite their critical role in persuasive legal briefs. Not

surprisingly, many attorneys are unaware of how far short their analogies

fall from reaching their persuasive potential.

7

Cass Sunstein explored the role analogies play in legal reasoning.

8

He

focused on the role of analogies in shaping the law and developing legal

principles, and he compared analogical reasoning to other forms of

reasoning, such as economic analysis of law.

9

He did not examine analogies

from a cognitive science perspective, nor did he examine practicing

attorneys’ use of analogies in brief writing.

10

A decade later, professor of legal studies Dan Hunter and professor of

psychology Barbara Spellman each examined legal analogies in their

respective articles.

11

Professor Hunter’s and Professor Spellman’s articles

considered analogies in terms of cognitive science and what may make one

analogy more effective than another.

12

These articles reached some

interesting conclusions and are an excellent starting point to advance this

topic. However, it has now been over a decade since those articles were

published, and in-depth examination of legal analogies, especially based on

substantive and doctrinal underpinnings, have not been continued. This

Article seeks to change that, to restart the conversation, and to advance the

analysis in more depth, especially focusing on applying the information

learned in other disciplines to legal writing in practical and concrete ways.

Although legal scholars have not sufficiently studied analogies in

persuasive briefs, scientists have extensively studied analogies in non-legal

contexts.

13

This Article explores what studies in other disciplines can teach

legal minds about how judges and attorneys process analogies, connecting

existing science in concrete ways to the legal context of brief writing. Part

II provides cognitive scientists’ descriptions of how people learn through

analogies. Learning about these concepts allows attorneys to understand

7

See David L. Lee, Analogizing Your Case to a Precedent, L. OFFS. DAVID L. LEE (2016),

http://www.davidleelaw.com/articles/caselawana.html.

8

See Cass Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 74 1, 742 (1993).

9

Id.

10

See generally id.

11

See generally Hunter, supra note 3; Barbara Spellman, Judges, Expertise, and Analogy,

in THE PSYCHOLOGY OF JUDICIAL DECISION MAKING (David Klein & Gregor y Mitchell eds.,

2010).

12

Hunter, supra note 3, at 152; Spellman, supr a note 11, at 1189.

13

Donald R. Kretz & Daniel C. Krawczyk, Expert Analogy Use in a Naturalistic Setting,

5 FRONT. PSYCHOL. 1, 1 (2014).

2016] PERSUADING WITH PRECEDENT 463

how a reader’s brain processes analogical information. After explaining

how information provided through metaphors and analogies is processed

similarly, this Article focuses on the differences between metaphors and

analogies in legal writing. Understanding the differences will allow

attorneys to think more strategically about what they want to accomplish

when employing a metaphor or an analogy.

After discussing the differences between metaphors and analogies, the

remainder of the Article focuses on case-based analogies. Part III discusses

studies conducted by scholars in other disciplines that focus on what people

perceive when provided with an analogy. Following the description of each

study, this Article connects the theory, studies, and conclusions about

analogies to the realm of legal analysis, reasoning, and persuasion.

14

This

information will allow attorneys to get the maximum effect out of their

analogies to help the reader see the analogical strength in the same way that

the writer, who is much more familiar with the precedent, perceives it.

Finally, Part IV provides several examples of effective and ineffective

case-based analogies based on the insight explained in Part III. By exploring

the results and conclusions from the experiments in other disciplines and

applying it to the realm of legal analysis, this Article explores how attorneys

can become more conscious of their approach to crafting analogies. As a

result, attorneys can greatly improve their skills as brief writers and

advocates.

II. UNDERSTANDING ANALOGIES AND METAPHORS THROUGH

COGNITIVE SCIENCE

Trial and appellate briefs routinely involve facts that fall into gray areas

of the law. When this occurs, attorneys often use comparisons as the main

tool to persuade judges to rule in their clients’ favor.

15

These comparisons

consist primarily of either metaphors or case-based analogies.

16

First, by

examining cognitive science, this Part explains how humans process

information presented in metaphorical and analogical formats. Second, this

Part explains the different uses of metaphors compared to case-based

analogies in briefs. Thus, this Part demonstrates that although metaphors

and analogies are two tools attorneys use in their briefs to help explain

14

See infra text accompanying note 187–203.

15

Gerald Lebovits, Persuading the Judge Through Writing: How to Win, NYSBA J., Feb.

2009, at 64, 57, http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=55008.

16

See Ken Lopez, List of Analogies, Metaphors and Idioms for Lawyers, A2L

CONSULTING (Mar. 16, 2012), http://www.a2lc.com/blog/bid/54079/Lists-of-Analogies-

Metaphors-and-Idioms-for-Lawyers.

464 CAPITAL UNIVERSITY LAW REVIEW [44:461

concepts and educate readers, they play significantly different roles in briefs.

What makes a metaphor effective in a brief is very different from what

makes an analogy effective. These differences help demonstrate why case-

based analogies must be studied as carefully as metaphors have been.

A. The Cognitive Scientist’s Explanation of How Humans Process

Information Provided as a Metaphor or Analogy

A metaphor is “an implied comparison between two things of unlike

nature that yet have something in common.”

17

An analogy is “a non-

identical or non-literal similarity comparison between two things, with a

resulting predictive or explanatory effect.”

18

Through the cognitive science

lens, metaphors and analogies are largely alike. They both involve

comparing a new, abstract concept to an old, understood concept to help the

reader understand the new concept in a certain way—the way in which the

attorney wants the judge to understand it.

19

Cognitive scientists state that

comparisons are the “primary vehicle of cognition”: the unknown, the new,

the unclear, and the remote are understood by one’s perception of the

familiar.

20

As Professor Linda Berger wrote, “When we consciously use

metaphor[s] . . . , we provide concrete images that make it easier to think

about and manage abstract or unfamiliar concepts.”

21

This understanding,

studied extensively by modern cognitive scientists, was noted over two

thousand years ago when Aristotle proclaimed that analogies “give names to

nameless things.”

22

When an attorney drafts a metaphor, the “concrete image” is a concept

that is familiar to the judge (such as a highway system), and the “abstract or

unfamiliar concept” is something about which the judge may not be

knowledgeable (such as how the internet works).

23

When an attorney drafts

17

SMITH, supra note 2, at 199.

18

Hunter, supra note 3, at 152.

19

See id.; SMITH, supra note 2, at 199.

20

See Stephanie A. Gore, “A Rose By Any Other Name”: Judicial Use of Metaphors for

New Technologies, 2003 U. ILL. J.L. TECH & POL’Y 403, 411 (2003).

21

Linda L. Berger, The Lady, or the Tiger? A Field Guide to Metaphor and Narrative,

50 WASHBURN L.J. 275, 278–79 (2011).

22

SMITH, supr a note 2, at 199 (citing LANE COOPER, THE RHETORIC OF ARISTOTLE 188

(1932)).

23

Gore, supra note 20, at 425. The prevalence of metaphors to help explain computers

and the internet will be discussed in more length later in this section. See infra notes 57–63

and accompanying text.