Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Amid the chaos this week in the British Parliament, Prime Minister Boris Johnson referred to opposition leader Jeremy Corbyn, calling him a “chlorinated chicken” and, oddly, “a great big girl’s blouse.” While certainly original, the meaning of these particular metaphors might be lost, particularly to us on the Western side of the pond. The use of metaphors in courtroom communication, in contrast, is driven by a desire to make yourself understandable. By relating the new to the known, the metaphor serves as a kind of bridge connecting something that is new and unfamiliar to something that is simple and already understood.

That’s why metaphors are useful. Some attorneys will eschew metaphors, believing that no comparison is going to be perfect. That’s true, but given that the metaphor-making process is inevitable once jurors begin discussing it, I think the right perspective is to say that it’s better to play a role in that process. With the stakes as high as they are in trial, however, it is critical to choose your metaphors with strategy and care, and make sure it is really functioning as a metaphor. A recent article in Psychology Today by University of Pennsylvania neurology professor Annan Chatterjee makes the argument that in order to do their best work, metaphors need to be novel. Instead of using a familiar metaphor that is no longer working as a metaphor, press yourself to come up with something new, fresh picked just for your case. This article will focus a bit on why you need to be novel, and include some thoughts on how you can come up with the right metaphor for your case.

Why You Need a Fresh-Picked Metaphor 

When we reuse metaphors, they start to lose their punch because they no longer require the cognitive effort of drawing a comparison. Chatterjee explains, “The primary reason metaphors fly under our radar is that most metaphoric expressions are not new to our ears. Familiarity changes how we understand them.” Familiarity tends to be the rule rather than the exception as the well-worn metaphors become the first that we think of. Chatterjee continues, “Most metaphors we encounter each day are long-term, dedicated employees, so reliable that we take for granted their meaningful work.”

For example, when we hear about not judging a book by its cover, touching base, seeing coins as having two sides, an uphill battle, or some low-hanging fruit, we tend to understand those immediately in their intended ways without processing, or necessarily even noticing, its metaphoric content. Good writers know this, you might say that authors try to avoid cliches…not like the plague, but like gas station sushi. As George Orwell wrote, “Never use a metaphor, simile, or other figure of speech if you are used to seeing it in print.”

Structurally and grammatically they may still be metaphors, but functionally and cognitively, they’re not. That is why litigators should not just latch on to an overused turn of phrase, but should instead put in the work to find a fitting and novel metaphor for their case. As professor Chatterjee notes, “A newly coined metaphor is more salient because it requires different cognitive work to derive its meaning.” You want the metaphor to serve that cognitive function, so novelty helps.

    • Instead of talking about a “blank slate,” talk about a “freshly-shaken etch-a-sketch”
    • Instead of saying you checked “every nook and cranny,” note that your investigation “was like a full-body scan, followed by an invasive pat down.”
    • Instead of arguing that the contract’s termination provision was “iron clad,” say that “this was a building with just one exit.”

How You Come Up With One 

See Where the Bridges Are Out. Note all of the points where you suspect that there could be a gap in understanding. Make a list.

Throw All the Paint on the Wall. Consider as many ideas as you can, and don’t just go with your first thought or with the more technical ideas that you’ve been using within your team.

See If Your Mock Jurors Will Leave a Tip. If you have a chance to conduct pretrial research, pay close attention to how mock jurors describe the case to themselves and others. They’ll give you some of the best ideas for novel metaphors.

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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now


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Other Posts on Metaphor: 

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