3.5 Analogies

The role of analogy or storytelling can help capture the theme and make it particularly memorable. One of the most interesting concerns in trial practice today is the use of analogies in making arguments to juries.

In a teaching program, demonstrating closing arguments, Jim Jeans provided an instructive example of the use of an analogy. A wonderful trial advocate and trial teacher, Jeans, stood up to speak in defense of Dr. John Madden, a heart surgeon accused of committing malpractice during a heart transplant operation. The plaintiff had made out a very sympathetic case concerning children who lost their best friend, their father. The case against the doctor was largely circumstantial and depended, in large part, on the doctor’s mental and physical condition going into the operation. The doctor had worked long days and gotten little sleep. In addition, the day before the operation the doctor’s wife of many years had thrown him out of the house and told him she was filing for divorce.

Evidence from the autopsy showed that the suture had come apart at the point of connection of the new heart to the old artery. The actual suture, however, had been lost. Plaintiff claimed that the defendant surgeon either had nicked, cut, or burned the suture or had not tied the knot properly. (The plaintiff also sued the suture manufacturer claiming the suture was defective.) Plaintiff’s lawyer, Dave Malone, finished his closing argument by emphasizing the loss to the widow and children.

Jeans then faced a hushed room, and told the following story. Speaking in a deep and controlled voice, he carried the audience back to “when I was a boy growing up in the Midwest in the 1930s.” In summary, this is what he said:

As a boy I rooted for the St.

Jeans then paused, moved and changed the pace and pitch of his voice just slightly.

That night Alexander really celebrated. He stayed up most of the night and in the process consumed a large quantity of alcohol. After all, he expected that the next day all he would have to do was watch. Rumor has it that the next day Alexander was—if not drunk—at the very least, still very badly hung over. With two out in the seventh inning and with the bases loaded the manager called on him to preserve a narrow lead and save the series for the Cardinals. Alexander took off his warm-up and shuffled out to the mound. Can’t you just see it? He gathered himself together and turned and faced the batter, Tony Lazuri, one of the Yankees best ball players. He reared back, threw a strike, and the crowd went wild. Grover Cleveland Alexander then proceeded to throw two more strikes to strike out Lazuri and end the inning. In the 8th and 9th innings, Grover Cleveland Alexander continued to pitch flawlessly, throwing strike after strike until he had struck out the side in each inning. He was magnificent, and saved the series for the Cardinals.

Jeans, after pausing to let the story sink in, argued that the issue before the jury was Dr. Madden’s performance, not his condition before the operation.

There were many reasons to find Jeans’ analogy persuasive. The imagery is memorable: the All American, tall, and triumphant baseball hero who helped the home team win the World Series. The point of the analogy is persuasive: professionals are trained to perform, and that at the time of their performance they are able to concentrate at a tremendous level, whether because of practice, adrenalin, their competitiveness, or their caring nature. It is consistent with the listeners’ experience that there are people who, when the team needs them, step up, withstand the pressure, and do their best. Listeners also like a happy ending.

The analogy draws listeners to identify with the hero, and then the doctor. No one “directed” or “commanded” them, nor did Jeans constantly remind them he was a lawyer by “submitting” things to them or inviting them to consider such and such an argument. In other words, arguments made by the force of the lawyer’s personality seldom go down very well, if at all. Jeans had framed the issue. Performance, not condition, was key to a verdict for the defendant. Also, and perhaps most importantly, the listeners now could identify emotionally with the defendant. Until closing argument many might have identified with the defendant only as an intellectual exercise. They knew that a defense for the doctor could be made on the basis that he was an expert heart surgeon, highly skilled, and technically proficient, but they had not thought much of the doctor as a human being and how to relate the doctor’s fears and feelings to the jury.

Yet use of analogies presents some very real risks. For instance, analogies present dangerous possibilities for rebuttal.

In addition, the analogy might invite the jury to put themselves in the shoes of the plaintiff’s counsel, to make the arguments about how the doctor was not like the hero. The jurors could have easily become advocates against the doctor as they considered the analogy’s weaknesses. The analogy might be fatally flawed in that it overstated the ability of anyone to judge the performance of the doctor. To illustrate, the witnesses had viewed the operation off and on and were only able to say that they hadn’t seen the doctor make a mistake. One might ask whether, if a vendor in the stadium turned from a pretzel sale and saw a batter lying at home plate, and knew that the pitcher was hung over before he began to pitch, wouldn’t the vendor be reasonable in concluding that “one must have gotten away from the pitcher?” If jurors start to make these types of arguments isn’t it all over for the doctor?

Yet on balance, there are other reasons that tip the scale in favor of analogies. Jurors may be naturally sympathetic to the plaintiff anyway, and analogies gave the defendant a real chance at turning the sympathies around. This analogy allowed the defendant to get emotional without getting emotional. The characters in the story and intensity of the story provided the emotion. Real identification with the defendant’s argument was possible. The story may make jurors really hear, for the first time, the traditional defendant’s argument; that society needs its performers to be risk takers in order for communities to excel and become all that they were capable of becoming. The defendant doctor had finally been personified.

Analogies are powerful. They tend to dominate the discussions after the closing arguments. To the extent that juries remember the story, it is also more likely that they will remember the point, and be persuaded by it. Analogies need to be used with care, especially where a responding attorney might turn the analogy around. An analogy needs to be edited with care, especially where it might overstate the storyteller’s case, or over emotionalize it. Analogies standing alone (contrary to the impression left by the movie, The Verdict) seldom are persuasive. Had Jeans stopped speaking after telling the story, the jury would have felt that the story was an attempt to cover the arguer’s lack of evidence. Analogies must be supported by enough detailed factual arguments to be truly persuasive.

An important side issue is also worth discussing. Analogies have to be examined with the particular sensitivities of the jurors in mind. If, for example, a Baptist preacher was on the jury who was sensitive to the use of strong drink as a way of celebrating, then Jean’s analogy might be troublesome. Older women or certain foreign-born or first-generation people in the audience could be offended by the baseball analogy in that baseball is beyond their experience and is a typical male-oriented story. In this case, the baseball analogy probably is low risk because the non-baseball people can identify with the story either because they are baseball fans, or because they have had other team experiences that allowed them to appreciate the story. 3.5.1 A Caveat About Using Analogy

Finally, what about concerns over whether an individual lawyer has the skill to both select and tell a good story? Analogies might be rejected by a particular lawyer on the grounds that telling stories was not “his style;” that to tell the story would violate the advice given by many experienced trial lawyers that the key to successful argument was for the lawyer to “be yourself.” Yet whether to use analogies is not a question of personality style. These lawyers are confusing questions of style with fears about how to select a story that they can both tell sincerely and that gets at the heart of their client’s case.

Lawyers who hear the advice “be yourself,” often interpret it in one of three negative ways. Many inexperienced and insecure lawyers say to themselves, “If I am myself. I’m sure to lose.” Others take the “be yourself” advice as a way for the advisor to get out of telling the audience the secret of the speaker’s success. Advisees have grumbled that the advisor seemed to be saying that either you had the talent to be a trial lawyer, or you didn’t, and they guessed they did not.

Yet the “be yourself” advice, when offered in good faith and received in good faith, means something quite different and is crucial to understanding that using analogies is not a matter of personality type. The “be yourself” advice, for instance, certainly doesn’t mean a trial lawyer can forgo finding and arguing the case law most applicable to their case. “Be yourself” means that the speaker needs to first discover the areas of concern shared by the court and the client, and find cases that allow this concern to come through. The lawyer then needs to organize his presentation so that the case authority is heard, understood, and believed.

Similarly, the advocate needs to first select an appropriate analogy. The attorney needs to put himself in the shoes of the client and consider both the rational syllogistic legal arguments that can be made and also consider the emotions shared by the client and the jury which are at the heart of the case. Once the case theory has been established, the world of stories becomes the lawyer’s “case law of life.” Whether the stories are taken from the traditional classics, folk literature, trial lawyer literature, or from personal experience, if the story speaks to the human condition in a deep and moving way, the story will help personify the client to the jury.

Once the appropriate story is selected, the teller needs to adopt the delivery which communicates their authentic caring position. At the heart of this process is the individual’s ability to shed the images he has of what he is supposed to look like and sound like, in order that his natural caring and concern can come through. When a lawyer does this centering, the lawyer will use a voice tuned to be heard rather than to fill the space. The individual will care whether people listen and understand, and will critique their practice performances so that he will speak at a pace which people can listen to, and vary the pitch, pace, tone and volume, so that people can continue to listen to him. This is not a matter of personality type, it is a matter of communication fundamentals.

All trial lawyers can peel these layers of insincerity if they prepare well and think clearly about the strengths of the client’s case. They can further help the process of “being themselves” if they can identify, in their own emotional makeup, with both the clients and the juror’s emotional makeup.

In the process of selecting an analogy, then, the lawyer gets an excellent opportunity to think carefully about his theory of the case and also about the emotions in the case, both his client’s and his own. The analogy then becomes a way for the lawyer to be himself for his clients. The experienced lawyer’s advice does not forbid using analogies; it encourages authentic telling and individualized selection of analogies. The advocate gets a chance to show himself in selecting and telling the story. Telling the story allows the lawyer to show himself as a person with a history, with heros, and thereby identify himself more closely with the jury.

For example, the analogy Jeans used seemed to work both because it fit his theory of the case well and also because it fit him. It was authentic to the storyteller and was told authentically. For example, his apparent age seemed to make him old enough to have been around in the 1920s, in order to have seen the Yankees and Cardinals play in the World Series. The fact that he is a Midwesterner and lives on a farm, and the fact that he is a third generation Cardinal baseball fan, all help to make this story authentic to him. He could speak as an admiring baseball fan. He was able to identify, sincerely, with the human tendency to want to celebrate exuberantly after a victory. He also shared with the jury from personal experience that there are those people, when called, who repeatedly live up to people’s highest expectations, even when they are given short notice. They perform particularly ably when the needs are the greatest. The story was also told sincerely, it wasn’t hyped or overdone. It was spoken simply and clearly, with the story teller’s pause for the introduction of a new subject or heightening of the natural drama of the story. While Jeans’ story might not be for everyone, in every case, the way he told the story is for every trial lawyer.

While, admittedly, there is some art in telling a story, the art of telling a story can be learned; that with some practice and self critique, most any trial lawyer can tell a story competently. Remember how effectively most parents are in reading a story to their children? And think of the images this question invokes: the memory of a caring parent, in a warm, safe, and comfortable setting. The selection of the story, and fit between the story and the case are much more important to the telling of the story than the particular personality of the teller.

In watching different people read to children, it is easy to observe that the reader seemed to know with very little effort that if the reader is overly dramatic, too affected, is bored, or speaks too fast, the child will lose interest in the story. A reader’s voice becomes warm and modulating when given a story to read to a child. Their voices warm naturally when they are describing things that they care about to people about whom they care. Fears about style often relate to self centered concerns that have been elevated over the speakers concern for the listener and the story. They typically pass as the teller gets into the story and is lost in the telling.

The benefits of analogies outweigh the risks, and most trial lawyers should be able to tell stories well. This does not mean that any analogy is good. There are certain pitfalls that need to be avoided. If the analogy teller uses a fact in the story that the jury knows is not true or that distracts the listener, for instance that the lawyer “was there,” when he couldn’t have been, or that the lawyer was the hero, the analogy doesn’t work. If the listener feels misled, or feels that you are trying to distract him from the problem he has to solve, rather than helping him solve the problem, then the story does not work. If the story teller is obviously trying to be someone else the analogy doesn’t work. Also, if there is nothing good that can be said on behalf of a client, then there is nothing to say in a story that will overcome this fact.

Assuming, however, that the case is at trial because there is real disagreement about what ought to be the fair resolution of the case, the client needs to be personified for the jury in order for the jury to really hear the client’s side of the case. Analogies drawn from what the story teller really cares about, told authentically, and offered as a way of explaining a more difficult and subtle point because the teller wants to help the jury hear the story of the client, persuade more than dissuade. Whether or not to use analogies should not be the issue. The issue should be what analogies to use. When analogies are drawn from the lawyer’s experience, are authentic to the lawyer in that the lawyer cares about the story, and tells the story sincerely, and when the lawyer is motivated to tell the story in order to truly help the jury see the plight of the lawyer’s client, then as a tool for persuasion, analogies can’t be beat.

Well, we have gone pretty far a field from fact investigation planning if we are talking about analogies. Aren’t we getting ahead of ourselves? The answer is no, because without an idea of what to look for, lawyers will be less effective fact investigators and story tellers. A good fact investigator must both be open to “what’s out there” and yet never lose sight of the end game. In the end, he will be a storyteller, persuader, and producer of a play, that will have a factual theory that fits and legal theory, and a theme. As Abraham Lincoln purportedly said, “If I can free this case from technicalities and get it properly swung to the jury, I’ll win it.”

The role of focus groups in helping you determine the persuasive themes and their effect on likely jurors should not be understated. In fact, focus groups are often a great source of persuasive themes. Consider the Dr. Kervorkian cases.⁷ In an early focus group, a elderly member is reported to have commented, “If we agree that it is okay to put a suffering animal to sleep, say an old dog, or a horse, shouldn’t we at least consider it might be all right for people?” Such an analogy, or experience based decision, can then form the basis of jury voir dire, or jury questionnaires. It might help the lawyers better predict whether a case theme will resonate with an experience many jurors may share.