When working on trial strategy with a client, it is almost inevitable that he or she will ask, “What analogy can I use to help the jury understand X?” Then, the trial attorneys, in-house counsel, and anyone else in the room will begin tossing around various analogies – most of which sound like great ideas at the time. Clients love it even more when jurors come up with their own analogies, which we often hear while observing deliberations during a mock trial.
Yet, as much as attorneys love using them, analogies can be dangerous tools. Time and time again, we’ll see an analogy broken down or turned around and used against the very party that offered it. So, before we discuss the ways in which analogies might be used to strengthen your position, let’s first examine the reasons why so many analogies fall flat.
Analogies Can Always Be Busted
Even the best analogies have an inherent flaw: No analogy is so perfect that it exactly mirrors the situation or argument you are attempting to make. Although jurors appreciate their own analogies (because they came up with them), they are quick to tear apart analogies used by an attorney they disagree with. When a lawyer uses an analogy to argue his or her case, we almost always hear the dissenting jurors “poke holes” in it and explain how it’s “nothing like” the situation it’s being compared to. Moreover, a creative opposing counsel who is paying attention can easily do the same.
For example, in one medical malpractice case, the plaintiff alleged that the hospital should have admitted the pregnant patient – who was not experiencing distress – for observation merely because she had a history of spontaneous miscarriage. One of the defense themes was “Hospitals don’t admit based on history alone” and counsel tried to argue this by saying, “Your doctor wouldn’t order you a knee replacement just because you have a history of knee pain.” However, jurors commented that admitting a patient for observation – with little effort or cost – is nothing like an invasive and expensive knee surgery, so the comparison was ineffective.
Similarly, defense counsel in a transportation case tried to argue that there must have been enough daylight to see the defendant’s trailer blocking the roadway (without reflectors) in the 30 minutes before sunrise because hunters are permitted to hunt during that timeframe, and they must be able to see the deer. Plaintiff counsel was easily able to turn this around and use it against the defense by pointing out that deer eyes act as “reflectors” and shine brightly when spotlights shine on them in the dark, allowing hunters to see them; therefore, if the truck had its own proper reflectors, the plaintiff would have seen it in time to stop his vehicle before impact.
Before you use an analogy to argue a point, think hard about whether it is a fair comparison and whether there are aspects of the analogy that could be used against you, as we have yet to find an analogy that can’t be busted.
Analogies Can Offend Jurors
If not carefully contemplated, some analogies can even offend your audience. In the medical malpractice example offered above, some jurors were also put off that the attorney had compared knee pain to the loss of a child, which seemed to minimize the devastation of the latter. Indeed, most of the issues in legal disputes involve serious or tragic events, so when an attorney uses a simple analogy to demonstrate a point, it can have the unintended effect of trivializing the event, which may offend the jury. Thus, keeping in line with our advice above, consider whether the analogy is comparing a serious event to an everyday occurrence, and if so, it’s probably better to leave that one alone.
Along the same lines, simple analogies can also offend jurors by coming across as patronizing. Although the attorney may believe he or she is helping the jury to understand a complex transaction, making an analogy to something too simplistic – like a purchase at a lemonade stand – can insult the jury’s intelligence.
Lastly, there are some topics that should be avoided entirely because certain jurors may take offense to the subject matter. For example, biblical analogies are often frowned upon; as one juror commented, “I didn’t come here for a sermon.” Attempts at humor can also offend some jurors, even if it works well with most. For example, one attorney would explain to jurors in voir dire that it wasn’t good enough to “try to be fair,” because if he told his wife he’d “try to be faithful” on a boys’ trip to Vegas, she wouldn’t allow him to go. Although this garners a chuckle from most jurors, there have been a few in post-trial interviews who found it offensive that the attorney would joke about adultery.
Analogies Can Create Unintended Imagery
It’s well established that people often think in pictures, and when details are left out of a party’s story of the case, jurors will fill in those details with their own mental imagery of the story. When analogies are used, jurors create mental images of the event, and those images can spill into the case facts.
Here’s an example: Defense counsel likened his explaining of documents to cleaning up after his child, stating, “Plaintiff counsel has shown snippets of documents, and it’s going to take me a lot longer to explain them for you to see they’ve been taken out of context. It’s just like when my three-year-old eats spaghetti; it takes a lot longer for me to clean up the mess than it took for him to make it.” It’s a seemingly innocuous analogy, but unfortunately, to many jurors, it created the impression that defense counsel was trying to “clean up the mess” the defendant company had made, which was certainly not the intended message. Nevertheless, the imagery of him cleaning up after his child caused jurors to picture counsel trying to clean up the mess his client had made and “explain away” the bad documents.
When Can Analogies Be Effective?
Given all these potential ways that analogies can go wrong, we generally try to steer our clients away from them. Yet, in a few instances, analogies are necessary to help explain very complex transactions or mechanisms. In these instances, analogies may be helpful to explain, but not argue. That is, we advise against using an analogy to try to demonstrate a point, but an analogy might be helpful to explain – in a neutral fashion – how a particular mechanism works or how a transaction occurred.
For example, it might be helpful to explain how corticosteroid injections increase flexibility by talking about joints as “hinges” that work better when friction is reduced. In this instance, the analogy is not being used to argue, but to explain, and therefore has less likelihood of being used against you.
In our experience, the take-home message is to use analogies sparingly, if at all. If you are searching for ways to simplify your arguments or to increase juror comprehension and retention, consider instead creating graphics and animations that will hold jurors’ attention, keep mental imagery to the issues in the case, and stay true to the case facts.
By: Christina Marinakis, J.D., Psy.D. – Director – Jury Research