The Five Step Analogy Format 1 I.

Step 1 of the Analogy Format: Topic Sentence Each paragraph should begin with a topic sentence. See the Begin Paragraphs with Ideas handout posted on the Course Webpage. Example: (Note: P refers to plaintiff in the present case. Likewise, D refers to defendant in the present case.) A court will likely find D liable for battery because he struck P with an umbrella. Step 2 of the Analogy Format: Establishing the Point of Comparison Identify the topic/point of comparison that you have laid out in the precedent cases as an important factor courts consider. Example: A court will likely find D liable for battery because he struck P with an umbrella. The umbrella D used to inflict harm on P is analogous to the cane defendant used to inflict harm in Smith. Step 3 of the Analogy Format: Proving that Your Facts are Similar to the Facts of the Controlling Case Analogies must be inherently explicit and obvious. Do not force them. If you cannot make a narrow, direct one-to-one fact comparison, focus on broader comparisons (characteristics, commonalities). You must give the reader enough information to demonstrate that your case really is comparable to the precedent case. Be sure you are comparing key facts. Irrelevant facts did not lead to the outcome of the controlling case, and they will not lead to the outcome of your case, either. For distinctions, do the same thing, but show the differences instead of the similarities. Illustration: In which example below can you tell what analogy the attorney is trying to prove to the court?

II.

III.

Modified from material obtained courtesy of Stephanie Hartung and Shailini George, Suffolk University Law School. This exercise is based on materials from Legal Analysis: The Fundamental Skill (Carolina Academic Press 1998), David S. Romantz & Kathleen Elliot Vinson, and Associate Professor of Legal Writing, Julie Baker.

(a) A court will likely find D liable for battery because he struck P with an umbrella. The umbrella D used to inflict harm on P is analogous to the cane defendant used to inflict harm in Smith. Like the defendant in Smith, who was liable when he harmed the plaintiff, D also harmed the plaintiff. (b) A court will likely find D liable for battery because he struck P with an umbrella. The umbrella D used to inflict harm on P is analogous to the cane defendant used to inflict harm in Smith. Like the defendant in Smith, who was held liable for hitting the plaintiff with a cane, D also hit the plaintiff, but with an umbrella. Hint: (b) is the better option. Do you see why? IV. Step 4 of the Analogy Format: Applying the Reasoning of the Controlling Case to Your Case Doing Step 3 is good, but youre not done yet. If you stopped there, the reader would be left saying, So what? Next, show the reader why the comparison matters what will it require the Court to do in your case? You do this by taking the reasoning from the precedent case (which you explained earlier in Rule Explanation) and applying it to the facts of your case. Illustration: In which example below has the attorney applied the reasoning from the controlling case to lead the reader to the predicted result? (a) A court will likely find D liable for battery because he struck P with an umbrella. The umbrella D used to inflict harm on P is analogous to the cane defendant used to inflict harm in Smith. Like the defendant in Smith, who was held liable for hitting the plaintiff with a cane, D also hit the plaintiff, but with an umbrella. Like in Smith, this Court should reason that an umbrella is also an extension of the bearers arm and within his direct control. (b) A court will likely find D liable for battery because he struck P with an umbrella. The umbrella D used to inflict harm on P is analogous to the cane defendant used to inflict harm in Smith. Like the defendant in Smith, who was held liable for hitting the plaintiff with a cane, D also hit the plaintiff, but with an umbrella. The Smith court reasoned that an instrumentality within the direct control of a defendant can form the basis of common-law battery when that 2

instrumentality is an extension of the bearers arm. An umbrella, like a cane, is an extension of the bearers arm and within his direct control. Hint: Again, (b) is the better option. Do you see why? V. Step 5 of the Analogy Format: Concluding the Analogy This can often be combined with Step 4. You may want one conclusion at the end of the paragraph, wrapping up all the analogies/distinctions on the topic of that paragraph.

Example (all five steps): A court will likely find D liable for battery because he struck P with an umbrella. The umbrella D used to inflict harm on P is analogous to the cane defendant used to inflict harm in Smith. Like the defendant in Smith, who was held liable for hitting the plaintiff with a cane, D also hit the plaintiff, but with an umbrella. The Smith court reasoned that an instrumentality within the direct control of a defendant can form the basis of common-law battery when that instrumentality is an extension of the bearers arm. An umbrella, like a cane, is an extension of the bearers arm and within his direct control. Accordingly, the court should hold that D is liable for common law battery. Consider how you would distinguish the Smith case, if necessary. A court is not likely to find D liable for battery for striking P with an umbrella. The instrumentality of harm in Smith is not analogous to the instrumentality of harm in this case. Unlike the defendant in the Smith case, who was liable when he hit the plaintiff with a cane, the defendant in the present case hit the plaintiff with an umbrella. The Smith court reasoned that an instrumentality within the direct control of a defendant can form the basis of common-law battery when that instrumentality is an extension of the bearers arm. While a cane is within the direct control of the bearer, an umbrella is not. Unlike a cane, an umbrella is susceptible to the forces of rain and wind. Thus, the Court should not hold D liable for common-law battery.