Judicial Facts and Figures is a set of tables containing historical caseload data primarily for the fiscal years from 1990, 1995, 2000 and 2004 through 2008. The tables include data on the U.S. Courts of Appeals, the U.S. District Courts, and the U.S. Bankruptcy Courts.

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I often call discovery “the central battleground of the case.” Most civil lawsuits in federal court end before trial, either by pretrial settlement or on dispositive motion. In either case, the fruits of discovery can be critical to the outcome. The need for analytical and strategic guidance on problems in discovery is heightened by the fact that much of it is handled by relatively inexperienced lawyers. Anyone who aspires to be a competent civil litigator must master the rules of pretrial discovery taking into account the new amendments surrounding electronic discovery.

When a listener believes he or she has come to a conclusion independently, your argument and case theory become more acceptable. When you use a figurative analogy, it is important that you relate the facts of your case to the analogy’s elements. Frequently, analogies are left undeveloped; hence, their full effectiveness is lost. There are a number of tried-and-true figurative analogies passed among trial attorneys. Don’t be shy in using such material. As defense counsel, I relied on one familiar analogy in a recent criminal case (See Anatomy of a Trial for further details) to illustrate the concept of reasonable doubt and bring up the subject of holes in the government’s case:

"Let’s assume you go home tonight and you have a box, and you put a cat in the box and a mouse. You close the lid. You come back an hour later, the mouse is gone. One could firmly believe that the cat ate the mouse. What if you come back later and you put the same – it has to be the same cat this time. You put the cat in a box and the mouse, close the lid, come back an hour later again, and there are holes in the box. No longer would you firmly believe the cat ate the mouse.

And I want to talk to you now about some of the holes in the government’s case, about the burden they failed to meet.”

Such analogies can hold the jury’s attention and encourage your audience to envision the case in terms that are favorable to your client. The parallels between the case and the analogy may surprise the jurors and cast the decision in a new light. A figurative analogy is a general comparison, a broad-brush image of the case that will remain in the jurors’ minds and hopefully shape the decision in your favor.

When used effectively, figurative language, which might seem trivial or window dressing (such as the repetition of a metaphor), when combined with a strong grasp of tone, style and language, can be very persuasive. In a closing argument, reliance on vivid language powerfully and effectively communicates the message you want your listener to receive. Give consideration to the arrangement of your works, developing a rhythm and injecting appropriate similes and metaphors to help enrich your style. We remember best what we hear first and last.