By Dr. Ken Broda-Bahm:
If you are like me, you have grown tired of hearing that sublime tautology of a catch phrase, "It is what it is." I want to shout in response, "Of course it is! What else would it be?" But the expression perfectly captures the attitude of some litigators toward analogies. Instead of saying that a defective product is like a trap waiting to spring, or that a securities fraud is like a castle built on clouds, why not describe the thing as it truly is? That will always be more accurate, won't it? The specificity and literal-mindedness that is hammered into every law student engenders a deep and healthy suspicion of analogies. But that suspicion should not lead attorneys, at least not those who need to persuade, to toss the baby out with the bath water.
Analogies can be tricky to be sure, and can foster the false sense that we understand something when we actually don't. But analogies also lie at the core of human comprehension: We grasp the new via the already familiar. Lawyers can no more teach new ideas free of metaphors than fish can travel free of water. The mind swims in metaphors, and persuading that mind requires an advocate to take control of that process instead of foreswearing it. These thoughts were prompted by a recent insightful piece in Psychology Today (Cummins, May 24, 2012), "Your Metaphor is Misleading Me." In this post, I'll apply some of these thoughts to legal persuasion, and look at what can happen when the analogy goes off the rails.
Anyone who has watched mock deliberations knows how quickly a discussion can become dominated by a single idea. Imagine a medical malpractice case, for example, where jurors are suddenly hit with the idea that a medical diagnosis is kind of like a weather forecast - it is based on what is known at the time, and that information can change quickly, and even good predictions can be wrong. While there is some truth to that, there is also a fair amount that is false. So as the jury is off on the path of excusing the doctor's conduct based on the weather analogy, they are missing the point that the doctor's responsibility is to monitor and confirm their diagnosis over time, and not just predict once and leave it at that.
I have previously written about ways to practically assess analogies: Is it simple? Is it a good fit? Does it hold its own against creative mischief by the other side? Those remain good questions for selecting your own analogies. When refuting analogies, however, there are a few additional things to keep in mind.
1. Don't Deride Analogies All Together
If the other side uses an effective analogy, one temptation is to attack the use of the art itself. "What I've offered you, ladies and gentlemen, is evidence. And my adversary responds with...an analogy!" That has some populist appeal, but it is ultimately a short-sighted strategy. Your jury will use analogies. You'll probably use them as well, even without being conscious of them. As Dr. Cummins writes in the Psychology Today piece, analogies are increasingly recognized as playing a key role in how we learn and understand. It isn't just a "technique," it is as Douglas Hofstadter (2009) says, "the core of cognition." So you might score some temporary points for dismissing analogies, but only at the cost of limiting your own effectiveness.
2. Don't Nit-Pick Unimportant Differences
Another impulse upon hearing an analogy is to note the differences between the actual situation and the analogic one. But there is a difference between "a difference" and "an important difference" - and that is an important difference! So one party explains the securities regulation process using the analogy of the game of monopoly. The indignant opposition replies that, "This is not a game!" Right, yes, but that isn't the point. When noting differences between reality and analogy, be sure to take the additional step of emphasizing, "This is an important difference, because it influences the conclusion that opposing counsel is trying to draw."
3. Do Take the Analogy On Its Own Terms
The central example of Dr. Cummins' piece in Psychology Today focuses on an analogy used by Federal Reserve Chief Ben Bernanke comparing the bailout of the banks to a fire department being called to put out a house fire started by your irresponsible neighbor. The neighbor may have it coming, Bernanke reasons, but just letting the house burn will jeopardize the entire neighborhood, including your house. Critics of both the analogy and the bank bailout were quick to point out the limitations of that style of thinking. Michael Hudson of the Centre for Research on Globalization, for example, argued that the banks weren't really our neighbors, but were instead more like the castle on the hill. And bailing them out, Hudson argued, would be more akin to allowing the lords of that castle to go "taking over houses that have not burned down, throwing out their homeowners and occupants, and turning the property over to the culprits who 'burned down their own house.'" That is a little fanciful, and once we enter the world of the analogy, it is always possible to take it too far (for example, if you are mentally adding dragons and knights to the picture, you're going too far). But the advantage in this approach is that it stalks and traps the analogy where it lives. More like judo than boxing, it uses the opponent's force against them.
Of course, cases are and should be won on evidence, not analogies. But these mental comparisons play an important role. As Sigmund Freud has noted, "Analogies prove nothing, but they make us feel right at home." That familiarity is not proof, but it can open the mind up to proof. Ultimately, it is inescapable that "it is what it is," but to the fact finder wading into the unfamiliarity of the case and the law, it can be just as true that "it is what it seems like."
Other Posts on Message Strategy:
- Stop Searching for the Perfect Analogy (but Don’t Surrender a Communication Lifesaver)
- Embrace Positive Messaging
- Create the Conditions for a Creative Trial Strategy
Cummins, Denise (May 24, 2012). Your Metaphor is Misleading Me. Psychology Today, Good Thinking. URL: http://my.psychologytoday.com/blog/good-thinking/201205/your-metaphor-is-misleading-me
Photo Credit: Mathew Venn (mathewvenn), Flickr Creative Commons