Improve Analogies For Better Legal Briefs, Paper Says via Law360

Posted on 07-06-2016 by
Tags: LIT , #writinglegally , Catapult Your Career , LWI

The article below has been republished in full courtesy of Law360, written by Dani Meyer.

Law360, New York (June 27, 2016, 4:26 PM ET) -- Analogies are a critical writing device in legal briefs, given the reliance of the U.S. legal system on precedent, but most attorneys aren’t using them to their full potential, according to a paper posted online on Friday on improving the use of analogies in legal arguments.

Marquette University Law School Professor Jacob M. Carpenter argues in his paper titled “Persuading with Precedent: Understanding and Improving Analogies in Legal Argument” that a key skill to effective legal writing is being able to identify and explain relational similarities, or the underlying concept that connects two features.

“Some skills, such as executing accurate grammar, are obvious to most readers. Choosing cases and explaining analogies with a focus on relational similarities are less obvious, but considerably more important, to the success of the brief,” Carpenter said.

He argued that using analogies effectively “goes directly to the substance of the law” and helps an attorney to convince a judge that precedent favors a certain outcome.

According to Carpenter, whose article was posted online on Friday by the Social Science Research Network, many attorneys don’t realize “how far short their analogies fall from reaching their persuasive potential.”

To strengthen their analogies, Carpenter said, attorneys must focus more on relational similarities, such as the potential impact of a case, than on surface similarities, or features that are similar and visible, such as the similar facts in two cases.

“This is especially true when, as often happens, the facts in the precedent cases do not line up perfectly with the facts in the present case being briefed. Persuasive analogies can be drawn between a present case and a precedent case, even when there is little on the surface, factually, that seems similar,” Carpenter said.

He used the example of a person who was arrested for burglary after breaking into a homeless person’s car and stealing a gun. Assuming that the burglary statute requires that person to break into a “dwelling,” Carpenter said that a surface analogy might look at other cases involving people breaking into cars.

But a relational analogy would look at using precedent about houses to show that the car is a dwelling in light of the fact that the car is the homeless person’s primary shelter.

“It is the relational similarities that make the precedent about houses more controlling than the precedent about the car, despite that the precedent about the car may have a more obvious surface similarity. Focusing on and explaining the relational similarity makes the analogy stronger,” Carpenter said.

Carpenter also highlighted the need to fully explain a relational analogy, calling it “dangerous” to assume that readers will focus on the brief and naturally understand the connections an attorney is trying to make.

“When in a hurry, the reader may spot and focus on the surface similarities instead. The surface similarities between cases are often not significant; they often will not support the argument nearly as well as the deeper, relational similarities. Thus, it is important that the writer make the effort to state the relational similarities explicitly for the reader,” Carpenter said.

According to Carpenter, understanding and explaining analogies more thoroughly will help attorneys quickly “become a more effective — and potentially an expert — advocate for his client.”

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