Jacob Carpenter, Persuading with Precedent: Understanding and Improving Analogies in Legal Argument

Jacob Carpenter, Persuading with Precedent: Understanding and Improving Analogies in Legal Argument (June 23, 2016). Capital University Law Review, Vol. 44, No. 3, 2016; Marquette Law School Legal Studies Paper No. 16-05. Available at SSRN
Abstract:

When writing persuasive briefs, attorneys use comparisons — metaphors or case-based analogies — to help explain their analyses and support their positions. But attorneys use the two types of comparisons for very different purposes. Several legal scholars have explored how attorneys use metaphors in their legal writing. While the existing scholarship on legal metaphors is excellent, it is not sufficient to properly understand how to best draft case-based analogies. Unfortunately, case-based 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.

This Article explores what studies in other disciplines can teach legal minds about how legal readers — judges and attorneys — process analogical information, connecting existing science in concrete ways to the legal context of brief writing. This Article also highlights the differences between metaphors and analogies in legal writing so that attorneys can think more strategically about what they want to accomplish when employing a metaphor or an analogy. Finally, based on the insights examined earlier in the Article, this Article discusses several concrete examples of effective and ineffective case-based analogies. By exploring how the brain processes analogical information and applying that knowledge to the realm of legal analysis, this Article explores how attorneys can become more conscious of their approach to crafting effective analogies. As a result, attorneys can improve their skills as brief writers and advocates.

 

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