By Dr. Ken Broda-Bahm:
There’s a movie currently in the theaters called “Inside Out.” In the animated film, pyschological drives are personified as characters – joy, anger, disgust, fear, and sadness – all in charge of navigating the mental experiences of the main character, an 11-year-old girl. Beyond being a bit of entertainment for children, the movie is being credited with popularizing an important way of thinking about emotions and childhood development. Personifying those emotions as distinct, competing and cooperating characters, also shows the power of metaphor. The ability to say “this is like that” often plays an important role in explanations and arguments in trial as well. In a recent piece in the publication Aeon, a professional “metaphor designer” suggests that metaphors can be more strategic than we think. As noted in some of the comments, Michael Erard’s piece is not quite a how-to, nor an argument on the extent to which metaphors can be designed for particular effects, but the author does provide some wide-ranging and provocative thoughts on the subject.
Litigators sometimes have uneasy relationship with the metaphor. On the one hand, the metaphorical mindset is naturally at odds with the lawyer’s analytical, precise and descriptive sense: Rather than the facts and claims being “like something else,” litigators might be more drawn to that tautology of all tautologies, “It is what it is.” On the other hand, there are strong reasons to believe that we learn the new through the lens of the familiar, and metaphors cannot be avoided: ignore them in your opening and jurors will just supply their own. In an early post, I shared three questions to help you decide whether your metaphor helps or hurts your case: is it simple, is it a good fit, and does it hold its own against creative mischief. In this post, I wanted to draw from Erard’s piece to share some additional thoughts and examples of metaphors doing work for litigators.