Example 4.8

Takeaway point 4.8: When you have few favorable authorities, invoke helpful principles that arose in analogous situations.

Good lawyers are creative — especially when little law addresses (or supports) the exact issues raised by their client’s case.

You need to look for something analogous. For instance, you might cite cases involving race discrimination in auctions. Or you might look for other instances in which a woman offered more money than a man but lost out on the opportunity, such as a case in which a property management company was found liable for renting an apartment to a man, even though a woman offered to pay higher rent. Or you might hunt down a case in which a business was found liable for sex discrimination after it hired a male contractor to plow snow, even though a female plow driver offered to do the same job for less money — a different type of auction. And, of course, all of these cases probably would provide valuable supplemental support, even if you found a perfectly germane case (i.e., a favorable case involving sex discrimination during a standard auction).

Reasoning by analogy is a critical part of advocacy, and it can take many forms. Think creatively about the analogous principles and situations that support your client’s position. To illustrate this advice, we return to the Jones case in which the government placed a GPS tracker on a man’s car without obtaining a warrant. The applicable test for whether an unlawful search occurred was whether the car’s owner had an “expectation of privacy” that was violated when the government used a GPS device to monitor his movements.

Source: Car owner’s brief from United States v. Jones, 132 S. Ct. 945 (2012).

This excerpt draws an analogy between the government’s installation and use of a GPS tracking device on Jones’s vehicle and a private individual’s performance of the same action.

Does analogical reasoning matter? Here’s how a concurring opinion summarized the majority’s decision (which held in Jones’s favor): “By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search.” 132 S. Ct. at 957-58 (Alito, J., concurring). Thus, extending an old common law principle to a new technology carried the day in this case.

The brief shows that private individuals have been prosecuted for engaging in the same conduct that the government contends is constitutional.

The absurdity of this idea — letting private individuals track patrol cars twenty-four hours a day — demonstrates how to use simple hypothetical situations to advance your argument. That said, the government can routinely do things that private citizens cannot; the lawyers here are careful not to overstate the strength of this analogy, using the term “certainly not expect” rather than something more definitive like “would be illegal.”

The brief could have gone even further — by listing every state in which attaching a GPS device to a car would be unlawful.

Notice, too, that the brief does not mention whether tracking someone with a GPS would be illegal in the District of Columbia (which is where Jones lived) or in Maryland (which is where the government actually attached the GPS to Jones’s car). Why not? Because discussing these jurisdictions’ laws would lead to an easy counterpoint and would undermine the authorities that Jones cites: the two jurisdictions banned stalking only when it was done to intimidate the victim, so attaching GPS devices secretly could not violate the stalking laws in Washington D.C. or Maryland. Thus, Jones’s lawyers, yet again, showed impressive judgment and restraint by omitting Washington D.C.’s and Maryland’s unhelpful stalking statutes.