Persuasive Analogies in Legal Writing

By Josh Lange, May 2021

 

Analogous Logic

In ordinary moral deliberation, analogies are used to argue that – where the merits are clear – one disputed situation cannot be distinguished from another situation. People are often more confident in their judgements about various concrete cases than they are about abstract theories that attempt to account for their judgements, and so regard analogies as a better way to approach a question (see Sunstein 1993, 775–7). Readers can decide:

• (a) that the case is indeed indistinguishable since the same rationale applies to both;
• (b) that the case is distinguishable; or
• (c) that the case is indistinguishable, but upon reflection the assessment of the original case was mistaken.

The general logical reasoning of analogies can be written like this:

P and Q are similar in respect to properties a, b, and c.

P has been observed to have further property x.

Therefore, Q probably has property x also.

Notice the term “probably.”  This makes an analogy different than a metaphor or similie, because we are not saying X is Y or X is like Y, we are making an analogy that if one X has Y, then another thing that has Y probably has further similarities.

Use in Law

The use of analogies is particularly relevant to common law. Whereas Precedent involves an earlier decision being followed in a later case because both cases are the same, Analogy involves an earlier decision being followed in a later case because the later case is similar to the earlier one.

In statutory law analogy is used in order to fill the so-called “lacunas” or gaps or loopholes.

• First, a gap arises when a specific case or legal issue is not explicitly dealt with in written law. (extra legem)
• Second, a gap comes into being when there is a statutory provision which applies to the case at hand but this provision leads in this case to an unwanted outcome. (contra legem)
• Third, a gap occurs when there is a statutory provision which regulates the case at hand, but this provision is vague or equivocal. (Intra legem)

The main philosophical problems raised by precedent and analogy are these:

(1) when are two cases the ‘same’ for the purposes of precedent?

(2) when are two cases ‘similar’ for the purposes of analogy?

(3) in both situations, why should the decision in the earlier case affect the decision in the later case?

 

Strengths and Weaknesses of Analogy

Several factors affect the strength and weakness of an argument from analogy:

• The relevance (positive or negative) of the known similarities to the similarity inferred in the conclusion.
• The degree of relevant similarity (or dissimilarity) between the two objects.
• The amount and variety of instances that form the basis of the analogy.

• Although arguments from precedent are extremely common in many institutional and quasi-institutional settings, not merely the law, there is no consensus on the rational basis for their force, nor indeed on whether such arguments have any rational force;
• Some theorists argue that the use of analogies in law is not a form of ‘reasoning’ at all; and finally,
• Even if there is an intelligible form of analogical reasoning, it is unclear why the similarity between two situations provides a reason for treating them both in the same manner.

 

Linguistic Styles in Written English

These are the most common words and phrases lawyers can use to spot or use analogies:

“like”

“comparable to”

“similar to”

“as if”

“akin to”

“much the same as”

“parallel to”

“resembling”

“not unlike”

“not far from”

“in the manner of”

“would be the same as”

“would be like”

“Consider”

“Assume that”

“Suppose”

For example, Supreme Court Justice John Roberts (Alaska vs. EPA):

Determining the “best” control technology is like asking different people to pick the “best” car. Mario Andretti may select a Ferrari; a college student may choose a Volkswagen Beetle; a family of six a mini-van. A Minnesotan’s choice will doubtless have four-wheel drive; a Floridian’s might well be a convertible. The choices would turn on how the decision maker weighed competing priorities such as cost, mileage, safety, cargo space, speed, handling, and so on.

Or Barak Obama (Tyler vs. Bosley):

Consider a city in which whites are 50% of the total population…and blacks are 50% of the population. Also assume that the city council is comprised of 50 single-member districts of equal population. Twenty five (50%) white-majority wards…presumptively treat the two groups equally…

 

Checklist – Create a Strong Analogy in Court

Using the Alaska vs. EPA example from above, let’s see how the following six linguistic aspects help lawyers make the case:

• Familiarity – various consumer groups of car owner, everyone can relate to this phenomenon they see on the street every day and on the television.
• Assumptions and biases – Roberts plays on the biases and stereotypes of the general American. He doesn’t need to actually believe this himself to use the reader’s bias to garner support. Floridians in convertibles…don’t they all have them?
• Visual-emotional connection – family of six, etc. are concrete examples of “real life” stereotyped people, and they are a family of six we need to think about those kids in the future without clean air!
• Relevance – The expert writer makes a relevant connection, which improves his believability and leads the reader to think it could be true after all, in the form of: Clean Air = less motor emissions.
• Rhetoric – notice the ellipsis in Robert’s “minivan”, removing the verb and article in order to create effect on the reader, so by the time the reader gets to the last item in the list the reader is already convinced.
• Caution – Roberts uses the language of hedging to ensure that his audience is clear he is connecting a story to reality with “might well be” “may be”

These six things can form a checklist for lawyers to construct a great linguistic analogy.  If your argument lacks any of these features, it could have the opposite effect that you desire and your reader can lose trust.

Summary

Analogies take us into the moment and present us with a parallel example. They can be used to support or challenge claims. Courts in common law accept analogical reasoning. If the analogy does not include certain linguistic aspects, it will fall apart in the mind of the reader (low weight). And if the analogy includes certain linguistic aspects, it can persuade the reader better than the facts of the case (high weight).  Next time you think about using an analogy, it will probably be like creating a short story or poem, and it may win the case.