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.