Good as Gold: Using Analogies and Short Stories in Summation
In their Trial Advocacy feature, Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf and Evan Torgan of Torgan & Cooper discuss how implementing oratory tools such as analogies, metaphors, memorable phrases and short stories during a summation can, if properly used, work to help a jury reach an intended verdict.
Ben Rubinowitz and Evan Torgan
The task for trial lawyers in delivering a powerful summation requires them to find a way to captivate the jurors’ attention and compel them to vote in your favor. Too often, lawyers merely recite the facts that the jurors have heard ad nauseam without any regard to meaningful advocacy. The summation is the time to make the argument come alive. It is the time to persuade. It is the time to give the jurors ammunition to support your position during their deliberations. Some of the most effective tools to achieve this goal are analogies, metaphors, memorable phrases and short stories. These devices can, if properly used, not only take the presentation from mundane to magnificent, but can work to help the jury reach the right verdict for the right reason.
The power of an analogy or metaphor is simple: It compares a highly contested, complex set of issues, such as a trial, to a readily understandable situation in which the virtues of the good and the failings of the evil are readily discernable. Moreover, if successfully delivered, all of these techniques allow the jurors to view your case in terms that are more familiar to them.
A downside to using these devices does, however, exist. That potential pitfall depends upon two factors: the order of presentation and the logical sway of the comparison. In state court, the plaintiff sums up last. For any defense lawyer considering the use of such a technique, careful consideration must be given to the opposing lawyer’s advocacy skills and ability to think on his feet. Before utilizing any analogy, metaphor, phrase or story, a defense lawyer must calculate its vulnerability to attack by the opposing lawyer. If it can be attacked and turned against the lawyer who sums up first, it should never be used.
Additionally, the device must be appropriate for the specific issue involved in the claim. It must be a fair and logical comparison that can stand up to scrutiny and testing by the jurors. Simply put, before any one of these advocacy devices is used, it must be vetted from all sides.
For example, defense lawyers often attempt to discredit the plaintiff’s damages claims by comparing the trial to a person buying a lottery ticket: “Look at what’s going on in this case. The plaintiff hasn’t worked since this accident occurred. He thinks you’re his meal ticket. He wants to hit the jackpot. He’s here to win a lottery, and he’s expecting you to provide the payout.”
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