by: Dr. Ken Broda Bahm
Sigmund Freud is credited with having said that “analogies prove nothing, but they make us feel right at home.” Among litigators, there are two schools of thought on whether to deploy analogies in the course of legal persuasion. One side argues that the explanatory staying-power of an analogy makes it a vital communication tool. For instance, it isn’t easy to discount an analogy that seems to perfectly boil down the case: “a smoke detector that stops working due to a simple short circuit is like a life preserver that keeps you afloat until it gets wet.” One side, however, is equally insistent that analogies are counterfeit proof, rarely fit the exact situation, and are frequently exploited by the opposition.
It turns out that both sides are right. Analogies are simultaneously weak proof and strong communication. They are simultaneously ill-fitting yet familiar. Like all elements of legal persuasion, success depends on how you use them.
Simply dispensing with analogies, as I’ve heard some attorneys and consultants advocate, is dangerous because it willfully sets aside one of the most powerful tools of communication. As George Lakoff, and Mark Johnson wrote in the aptly-titled, Metaphors We Live By, the analogous situation is not just a handy rhetorical tool, it is a “mechanism of mind,” a way that we cognitively process our experience. We learn the new via the known. Arguably, everything that is new is understood in relation to something that is already familiar. As psychologists are increasingly finding, the analogies embodied in metaphoric language provide not just a logical experience, but a sensory one as well. In other words, jurors are able to both understand and to get a feel for your argument through the analogy.
So if analogous thinking is so important, but analogies themselves are tricky, what should the careful trial lawyer do? In using analogies, trial counsel should ask not “what is my perfect analogy?” but should ask the following three questions:
1. Is it simple? That is, does it minimize the need for explanation? On one defense patent case, for example, counsel wanted to explain the sequence of decisions jurors will need to make by reference to the way a computer circuit board operates. The conversation went something like this:
Me: But…most jurors don’t know how a computer circuit board operates.
Counsel: Well, that is simple enough to explain… and it is the perfect example.
Me: But that misses the point. An analogy should decrease the need for explanation.
Instead, counsel and I settled on a baseball analogy: there are “four bases” that the jurors need to hit in sequence in reaching their decision. Much more familiar.
2. Is it a good fit? Note that I don’t say “perfect,” I say “good.” It won’t be a literal version of your case. If it truly were an exact match then it wouldn’t be an analogy after all. But it should have a loose similarity that will help jurors understand. The question is, does the analogy work to explain the aspect of the case that you need to make clear? In her initial response to the baseball analogy, the counsel in the case mentioned above said, “but this is a bet the company case! Doesn’t a game analogy make it seem trivial?” It could, and we wouldn’t want that message, but the analogy does not force that implication. In fact, via a quick contrasting statement, you can even springboard off the analogy to make the importance of the case to your client all the more clear: “While my baseball example might help you understand your role in this case, make no mistake – this is no game to my clients.”
3. Does it hold its own against creative mischief? For some attorneys, brainstorming on the analogy comes to a halt once it is realized that opposing counsel can put their own spin on it. E.g., “If my opponent is right that this is like baseball, then clearly her invalidity argument is a foul ball.” Of course opposing counsel will do their best to spin the analogy, and probably talk about “stolen bases” as well. But the question isn’t, “will my opponent twist it,” but “will my analogy still serve its function even after my opponent’s twisting?” Clearly, if the riposte would make a better point than the analogy itself, then use something else. But in the case of most creative mischief, an opponent’s effort to mess with a good analogy just succeeds in raising its profile, and guaranteeing that the jury will remember it and use it.
So use analogies, and use them carefully. After all, developing your case without a good analogy is like…well, you get the idea.