iThere’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 the past, 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.
One point that Erard makes in his essay is that in thinking of the work that metaphors do, it helps to have a model of what they are: a 'metaphor of metaphors,' so to speak. While Erard shares his own, I would like to offer four possibilities, each highlighting the ways metaphors work as well as their usefulness in trial messages.
Metaphors Are Bridges
Metaphors work most basically by drawing a connection between what is already familiar and the new idea or argument that you would like your audience to adopt. Erard quotes the University of Colorado's Walter Kintsch as saying that these connections can come as a surprise, but "cannot be too much of a surprise." However novel the connection, there must still be a bridge back to a familiar concept. In a construction case, for example, the party who is the property owner might be able to rely on the metaphor of a simple homeowner's reliance on a contractor or on a variety of contractors, drawing upon the familiarity of the home contractor's tendency to try to bid low and schedule quickly, and then to be both overbudget and delayed. By describing that scenario in terms the typical homeowner could recognize, the owner can get some nods of recognition as jurors are able to see the case from that too-familiar perspective.
Metaphors Are Filters
In looking at the value that a metaphor provides, Erard notes that they "aren't supposed to make someone remark: 'That's beautiful.' They're meant to make someone realize that they've only been looking at one side of a thing." In trial, a metaphor can be a good way of getting jurors to look at another side. In a commercial case, for example, one party might describe a business agreement as a kind of combined journey like a marriage. Viewing through that filter emphasizes the human element and the relationship dynamic of care and consideration that the parties should owe to each other. The other party, however, might be more motivated to use the filter of a simple exchange, transaction, or swap. That filter of simply 'getting X in exchange for Y' would provide a much narrower focus, playing down those human elements.
Metaphors Are Maps
Erard relies on the language of Northwestern University psycholinguist Dedre Gentner in describing metaphor as a 'mapping' between two concepts. Recalling the saying from the "general semantics" perspective on human communication that "the map is not the territory," it is good to remember that the metaphor is not, and is not expected to be, the thing it describes. It can be however a very useful guidepost to understanding. A products liability defendant, for example, might want to send the message that the company engages in a very thorough and detailed quality control process in shepherding a product from its conceptualization and design through manufacturing, testing, sales, and post-sales monitoring. Viewing the sequence as a path is helpful in demonstrating that care and giving jurors a sense of place in that process. But viewing it as an obstacle course might be even better, emphasizing that a successful product is one that is able to get past all of the obstacles.
Metaphors Are Mistakes
When trying to find the right metaphor, Erard says, the process often involves planned mistakes that miscategorize the thing you are trying to explain: "The challenge for the designer is to generate lots of pseudo-mistakes, some of which can be used for thinking and that have the power to stick around." That description of a sequence of mistakes is very close to the process of coming up with a good case metaphor. In one patent case , for example, we needed a way to explain a complex circuit relay system. In order to motivate jurors to defend it, they had to understand how it worked. The engineers' first idea was to explain it in terms of a computer. But that was "strike one," because only engineers understand how a computer works. So the second idea was to explain it in terms of Christmas lights where the problem to be solved was the need to replace each bulb in sequence in order to discover the one that was burned out. But that was "strike two" owing to the generational gap in understanding that metaphor -- modern Christmas lights don't have that problem. Then we thought about trying a checklist, but that was "strike three" because it didn't convey the need for sequence with some steps depending on previous steps. After three strikes, we realized we already had our perfect metaphor: baseball. You can't get to second without touching first, and so on. The invention was like an umpire making sure that the prior base had been touched before the runner moves on to the next one.
As I mentioned earlier, Erard has his own 'metaphor of metaphors' and it is this:
"I think of it as a room: the windows and doors frame a view toward the reality outside. Put the windows high, people see only the trees. Put them low, they see the grass. Put the window on the south side, they'll see the sun." He also takes further by talking about the "furniture" in the room, or the devices the communicator uses to make the metaphor more comfortable, more familiar, more understandable, more useable. Now, that's not a bad metaphor for metaphors, but I don't think I could settle for any one -- a metaphor by nature is dynamic. It's not a room that you inhabit as much as it's a perspective you carry with you. After all, the title of what is probably the most influential book on metaphors isn't "Metaphors We Find," or "Metaphors We Use," or even "Metaphors We Design," it is "Metaphors We Live By."
