Attorneys and their expert witnesses love analogies. Even a casual Internet search reveals dozens of attorney websites that heartily endorse the use of analogies, particularly in jury trials. Not surprisingly, these endorsements often come in the form of analogies. Analogies are described as “the most powerful tool in your toolbox” or “as weapons are to soldiers.” There is even an entire website devoted to finding the ideal analogy for your DUI jury trial, including such rhetorical gems as “the island of the presumed innocent.” But in the midst of all this enthusiasm, a basic question usually goes unasked and unanswered: Do analogies really work at trial?
On the surface, analogies seem tailor-made for jury trials – they replace ambiguous legal concepts or complex technology with simple ideas that are presumably more familiar to the people who serve on juries. Joint-and-several liability among conspirators in an anti-trust case becomes “holding the getaway driver responsible for the bank robbery.” Patent rights become “property rights” (sometimes with a colorful description of a piece of property protected by a barbed-wire fence, particularly for Texas cases). Contributory causation becomes “this drug pushed the plaintiff over the cliff.” And certainly, analogies can sometimes help simplify complex ideas at trial. The property rights analogy, for example, might help jurors understand a patent holder’s right to control what he or she invented. But “Can analogies simplify complex concepts?” is obviously not the ultimate question for trial. The question for trial is “Do analogies help attorneys persuade jurors?” Based on our jury research, even well crafted and well-intentioned analogies rarely achieve this goal.
What and but
In the hundreds of mock deliberations and post-trial interviews we have conducted as trial consultants, we have seen two typical juror reactions to attorneys’ analogies– reactions we call “what” and “but.”
What? By far the most common juror reaction to attorney analogies is “what?” – jurors don’t discuss the analogy in their deliberations and, when asked, they don’t remember it. All of the attorney’s careful crafting is lost.
But… If jurors remember the analogy, they often pick it apart (e.g., “but that bank robbery example didn’t make any sense; this isn’t a criminal case and I don’t think the getaway driver should have to take all the blame anyway). Jurors are adept at pinpointing how analogies don’t “fit” the facts of a case and skilled at using analogies against the side that offered them.
Deliberation dead ends
Jurors’ discussions of attorney analogies, if they happen at all, frequently lead to deliberation dead ends. During deliberations, a juror picks apart a lawyer’s analogy and then offers the group an idiosyncratic analogy of his own (e.g., I don’t think “putting wheels on a chair” is a good analogy for this patent case; I think “installing a turbocharger on an engine” is a better analogy). Other jurors struggle to make sense of this new analogy or offer their own. Deliberations drift away from the facts of the case and grind to a halt. After a few awkward moments, someone points out that the jury has gotten off-task and the group returns to more case-relevant discussions. In the entire debate over the lawyer’s original analogy, no juror has changed his mind; no juror has been persuaded.
No expert witness wants to be seen as evasive, but this is exactly how jurors can see experts who lean heavily on analogies to answer questions at deposition or trial. Jurors want straightforward and preferably short answers from experts; analogy-based answers can be complex and drawn-out. In the midst of a long-winded analogy from an expert witness, jurors can begin to wonder if he or she is truly answering the question or just using an analogy to avoid giving a straight answer.
Explaining the obvious
The most dangerous analogy for attorneys and expert witnesses is the one used to explain a concept jurors already believe is obvious. Using an analogy in this way can offend jurors, as it implies that they are not smart enough to understand the concept without a crutch.
More powerful techniques
So what’s an attorney (or an expert witness) to do? Trials invariably present tough persuasion problems (How can I convince jurors to use a gross negligence standard instead of a simple negligence standard? How can I convince jurors that my invention was unique and not invalidated by the prior art? How can I talk about the concept of risk/benefit for this medication? How can I convince jurors that they should adopt my damage model?) The temptation to “solve” these problems with simple analogies can be strong, but analogies should really be considered second-tier strategies. Other more powerful persuasion techniques deserve a closer look first. Rather than running immediately to an analogy, stick more closely to the case facts and:
Consider a visual: Showing jurors a visual distinction between gross negligence and simple negligence, then discussing the types of company conduct that would fall into each “bucket,” is often a more memorable and more persuasive strategy than analogizing gross negligence to something less closely linked to the case (i.e., intentionally backing up your car without looking first for pedestrians). Similarly, watching an expert witness work through a visual about osteoporosis is more engaging to jurors than hearing that same expert offer a long-winded analogy about how osteoporosis is like waves eroding the foundation of a house built next to the ocean. Rather than offering jurors a drawn-out analogy about how the defendant company is “robbing Peter to pay Paul” on its balance sheets, consider a simple graphic like the one below that shows jurors how company assets and liabilities are being moved around.
(Graphic courtesy of Suann Ingle Communications, www.suanningle.com)
Jurors remember visuals better than analogies and they rarely pick visuals apart. Consider a visual before you consider an analogy.
Consider an example: Rather than using a “getaway driver responsible for the bank robbery” analogy to explain joint-and-several liability, consider using an example or hypothetical that is closely linked to the facts of the case (e.g., Why is Company X fully responsible for the entire conspiracy, even though other companies were also involved? Think about what would happen if Company X had chosen not to participate in the conspiracy. Company X could have undercut the conspiracy’s prices and broken the conspiracy apart. Because Company X participated, Company X kept the conspiracy alive.) Keeping a hypothetical close to the facts of the case helps prevent jurors from dismissing it as irrelevant, as they do with many analogies.
If you must…
If an analogy still seems like the only viable strategy, don’t use it to try to “swim against the current” of jurors’ beliefs. Analogies are best suited to issues that are jury-neutral or jury-friendly, not for issues that are likely to provoke jury resistance. Thus, for example, “the drug pushed the plaintiff over the cliff” has a better chance of being effective because many jurors believe that every exposure to a chemical has an impact on the human body. The “cliff” analogy just gives jurors a way of talking about a belief that many already hold. In contrast, comparing a patent-holder to a “land grabber” is less likely to be effective, as this analogy “swims against” the substantial respect most jurors have for patent holders and the patent process.
*For the purposes of this post, we defined “analogy” as a metaphor or simile that usually requires attorneys to offer jurors additional explanation.