Good Legal Writers Use Analogies Well

One method of framing a current legal issue in the context of precedent is through analogical reasoning. “An analogy is a non-identical or non-literal similarity comparison between two things, with a resulting predictive or explanatory effect.”2 Lawyers use analogies to argue that the facts and policies of particular prior opinions require a particular outcome in a current controversy. In this way, the analogy to the prior case justifies the particular conclusion being sought by explaining how the facts of the present case are similar to the facts of a precedential case. Under this reasoning, if the facts are significantly the same, then the result should likewise be the same.

The opposite of analogical reasoning is counter-analogical reasoning, also known as distinguishing cases. In distinguishing cases, it is necessary to point out the factual differences between the present case and the one that came before to explain why that rule should not apply or why, if it does apply, it does not require the same outcome. Lawyers use distinctions to explain that one situation is so different from the other that the results should also be different.

While important to legal analysis, the power of any particular analogy to persuade is uncertain. Determining which facts are important and which facts control the outcome on the key legal issue is not easy and can be subject to much disagreement. Indeed, it could be the source of the disagreement in any particular legal dispute. Nevertheless, because analogies remain a fundamental part of written legal advocacy, strategies for building effective analogies will be discussed below.

Establish Clear Similarities

The first step in properly forming an analogy is to ensure that the legal issue of the precedent case and the case to be decided are the same. The similarity of the issues must be legally significant. That is, the similarity should concern the governing rule or a policy implicated by the rule articulated in the precedent case.3

The more similar the issue, the more relevant the prior opinion. When relying on a specific analogy, if the legal issue is not the same, the case is not only not binding, it is not relevant. However, before discarding an opinion, be sure to consider the issues more abstractly. If either the policy or reasoning of the prior opinion is relevant to the current controversy, then the opinion may still be of some analogical value.4

When the issues of the two cases are the same, start by comparing the key facts of the precedent to the corresponding facts of the undecided case. In comparing (or distinguishing) facts, rely only on those facts that are legally significant with respect to the governing rule at issue or to the policy implicated by the rule. Ignore those facts that are simply coincidences. Instead, focus on those facts that the court relied on in reaching its conclusion.

This is not to suggest that the facts of the two cases must be identical. Literal factual similarity is not necessary for an analogy to be effective. In crafting the key factual comparison, carefully choose the appropriate level of abstraction. Generally, if the precedent is detrimental to the outcome sought, it would be better that the court interpret it narrowly. Thus, any analogy should rely on a very specific, narrow set of facts to try to limit the precedent to its own facts.5 If, on the other hand, the precedent is favorable, then it is preferable to characterize the facts more abstractly so that the precedent is more likely to encompass the current controversy.6

Even if a particular case does not seem factually analogous upon the initial reading, it might still be useful depending on how the facts are characterized. First, consider whether the facts can be read more broadly to encompass the current controversy (or more narrowly to point out a distinction).7 For instance, a specific concrete fact (a case involving a dump truck) could still be useful in a different context (a case involving a bull dozer) if the facts were more abstractly presented (heavy equipment).

Likewise, changing the criteria used to select the analogous facts can lead to comparisons that were not apparent at first blush.8 For instance, if the precedent case involves a dump truck left overnight in an empty parking lot and the undecided case involves a race car left at a school overnight, the facts could be categorized by noting either the types of vehicle involved, their location, or the time of day. In categorizing facts, be sure to focus what it was that made that fact matter to the court before broadening or narrowing the terms.9

Next, craft the analogy so that the comparison is clear to the reader. Because analogies rely on the writer making an inference or argument from one particular set of facts to another particular set of facts, it is essential that analogies be precisely written. Avoid analogizing the totality of the current case to an entire precedential case.10

Instead, fully describe the key facts of the precedent case that are analogous to the undecided case and explain how those legally relevant facts led the court to reach its conclusion. Then, specify the cases’ similarities by comparing the relevant parties and determinative facts in the precedent case to the corresponding relevant parties and facts in the undecided case.11 Use specific facts from the undecided case to make the connection between the precedent and undecided case clear.12

Do not stop with the assertion of factual similarity, however. Go further to explain why the similarities between the two cases matter to the outcome the court should reach. Go beyond an assertion of similarity to include sufficient details explaining the comparison and the application of the law to the facts.13 Discuss why the similarities are important to the particular circumstance. Also, address any key factual differences between the two cases that are relevant to the application of the rule. In doing so, discuss the relative importance of these differences with respect to the similarities to the court’s holding.

Of course, it is rare to find a case that is sufficiently factually similar for a fact-by-fact comparison that can survive every distinction opposing counsel can muster. Thus, analogizing key facts is merely the starting point of the analysis of an issue.

Focus On Underlying Policy

When dealing with a precedent case that is not sufficiently factually similar, abandon the fact-to-fact comparison and focus instead on comparing the rationale or policy underlying the court’s opinion.14 Step back from the specific case and consider why the court did what it did by exploring the court’s rationale or the policies supporting the decision.

A court’s rationale will almost certainly apply to an undecided case when the facts of the two cases are very similar.15 Indeed, for a factual analogy to have full effect, the court’s reasoning in the precedent case must apply to the undecided case’s outcome.16 Nevertheless, in relying on analogies, it is important to be mindful that court decisions are influenced by other considerations, such as policy. Thus, even with a solid fact-to-fact analogy, it is necessary to describe the logical underpinnings supporting the legal rule and to explain how that rationale similarly supports applying the same rule to the undecided case. Making that connection explicit strengthens the analogy and gives greater weight to the advocate’s position.

However, even when the facts are not sufficiently similar for a fact-to-fact analogy, an analogy may still be apt where the undecided case raises an issue that the rule specifically addresses.17 In such circumstances, rather than a focus on factual similarities, compare the legal principles or concepts from the two cases and articulate an analogy based on policies or rationales that would support both outcomes.18

To accomplish this, first explore the reasoning of the precedent case to ascertain whether it supports application of the rule to the undecided case’s facts despite the different context. As in the case of fact-to-fact analogies, rely only on the rationales or policies that implicate the governing rule at issue.19 An analogy based on the case’s reasoning or underlying policy rationales will only work if the reasoning and policies of the precedent case are relevant to the undecided case.20

If the similarity does implicate the rule at issue, explain the comparison by articulating the rationale or policy relied upon by the court in the precedent case. Explain how that policy or rationale determined the outcome.21 Then explain why, despite the factual differences, the policy or reasoning supports the sought in the undecided case.22

In sum, when crafting analogies, do not limit the comparison to the most obvious facts. Brainstorm different factual categories and if the facts do not align, consider whether the overarching policy or rationale can still be analogized to the case before the court.

A Matter Of Style

If you’re drafting legal documents, choose gender-inclusive words.

If you write to persuade, as lawyers do, it’s essential to keep your audience in mind. Increasingly, the audience for legal documents includes women—who now constitute more than half of law school graduates—and an ever-increasing number of business owners or operators. Thus, if you’re drafting legal documents, choose gender-inclusive words.

You can do this in several ways. Try rephrasing a sentence using a plural subject rather than a singular subject, obviating the need to use either “he” or “she.” For example, instead of writing, “A plaintiff must prove that he was injured by the defendant’s negligence,” you can write, “Plaintiffs must prove that they were injured by defendant’s negligence.” However, avoid using a plural pronoun (such as “their”) when referring to a singular person. While the use of “they” as a singular pronoun is gaining acceptance in speech, it has not (yet?) been accepted in formal legal writing.

Another way to avoid resorting to “he” or “she” is to write sentences that avoid pronouns entirely. Rather than writing, “Where a public employee’s speech, in his capacity as a citizen, pertains to a matter of public concern, it is protected by the First Amendment,” write, “Where a public employee speaks as a citizen on matters of public concern, the speech is protected by the First Amendment.” Similarly, it is possible to avoid using pronouns by repeating nouns. For example, instead of writing, “Courts must ensure that a citizen’s fundamental right to free speech is not lost simply because he is a government employee,” write, “Courts must ensure that a citizen’s fundamental right to free speech is not lost simply because the citizen is a government employee.”

Finally, when all else fails, use a double-pronoun construction such as “she or he” or “he or she” where appropriate. If this construction proves too awkward or needlessly lengthens your sentence, use the genders of the parties in your client’s case. Always avoid using the slash construction (such as “s/he” or “he/she”) in formal legal writing.

RESOURCES

For more tips on gender inclusive writing, see Linda H. Edwards, Legal Writing: Process, Analysis, And Organization, Aspen 4th ed. 2006.

FOOTNOTES

1. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 1, 141-42 (2005).

2. Dan Hunter, Teaching and Using Analogy in Law, 2 J. Ass’n Legal Writing Directors 151, 152 (2004).

3. Linda H. Edwards, Legal Writing: Process, Analysis and Organization 106 (4th ed. Aspen Publishers 2006).

4. Helene S. Shapo, Marilyn R. Walter, & Elizabeth Fajans, Writing and Analysis in the Law 64 (5th ed. Found. Press 2008).

5. See id. at 72.

6. Id. at 251, 455.

7. Edwards, supra n. 3, at 107.

8. Id.

9. Id. at 107-08.

10. Mary Beth Beazley, A Practical Guide to Appellate Advocacy 94 (2d ed. Aspen Publishers 2006).

11. Id.

12. Id. at 95.

13. Id.

14. See Shapo et al., supra n. 4, at 74-5.

15. See id. at 74.

16. See id.

17. Edwards, supra n. 3, at 105.

18. See Hunter, supra n. 2, at 156-66.

19. See Shapo et al., supra n. 4, at 63.

20. See id.

21. See id.

22. See id.

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