The legal research process has some basic rules. I have often articulated the analysis part of the legal research process as this:
- Your job is to answer a question
- Filter your analysis through the potential avenues of Tort, Contract, Equity, Unjust enrichment
- Make sure you look at the “bad for your client” materials and include them
- If you can’t find anything on point, make an analogy
Today’s Tip is about analogies.
How do you make an analogy? Brainstorm (alone or with a team), use a thesaurus to spark ideas, think about your past work (at the heart of it, isn’t this issue a bit like…), ask yourself what the opposite of your client’s desired outcome is and frame your research from that perspective, get creative with your legal reasoning.
Analogy is an important tool for legal reasoning. As Professor Lloyd Weinreb states in his text, Legal Reason, The Use of Analogy in Legal Argument (Cambridge University Press, 2004):
There is something distinctive about legal reasoning, which is its reliance on analogy. Leaving more precise definition for later, an analogical argument can be described as reasoning by example: finding the solution to a problem by reference to another similar problem and its solution.