Metaphors and persuasion.

• Author: Van Patten, Jonathan K.
• Position: How metaphors work as compact stories and their effectiveness in legal persuasion

1. INTRODUCTION

   Persuasion is not a completely rational process. Some would say that, in many instances, it is mostly non-rational. (1) This is why stories are so important in the process of persuasion. (2) Stories connect with the subconscious mind in ways that a strictly rational argument can never touch. (3) Stories speak directly to the listener's deeply embedded values; they resonate with and shape the listener's moral infrastructure. (4) Stories help to make sense of things in a way that invites the listener to affirm the truth of the story and its application to present circumstances. (5) In addition to stories, there is another, often more common and efficient way to reach the same level where decisions are made--metaphors. Metaphors are compact stories.

   A good story usually takes some time to set up. The storyteller sets the scene, introduces the characters, directs the action from problem to resolution, and may comment on the meaning of the story. Metaphors (6) can make a point in a single phrase or sentence. In its compact version, it may take the listener by surprise. The point works swiftly, before the listener has a chance to set up defenses. An effective metaphor's humor and insight has a way of getting past the normal resistance of a listener. Brevity, humor, creativity, and insight provide great camouflage for the true nature of metaphor, which is argument. A skillfully delivered metaphor does not feel like argument. It is like the soft-sell. It reaches down to the subconscious without seeming to lecture or demand.

   In his book, The Culture Code, Clotaire Rapaille discusses the process of tapping into the subconscious mind by focusing on cultural imprints or meanings associated with products or relationships. (7) These meanings are not found in what people say, at least not initially. (8) They are found through exploring impressions, expressed after a substantial time spent in digging through memories stretching back to early childhood. (9) In other words, it takes time to break through the rational level to reach the emotional level to discover what people really value. From this process, Rapaille formulates "culture codes" that provide access to these fundamental imprints. (10) In somewhat the same way, metaphors provide access to these imprints, meanings, and values.

   Metaphors are an important part of the language of popular discourse. They are used in almost every context. Whether in politics 4(e.g., Inaugural Addresses (11)), advertisements, (12) preaching, (13) or sports talk, (14) metaphors are commonly used to express ideas in terms of common values. Metaphors are effective because they speak to a common level of understanding. They utilize material from everyday life and invite the listener to participate in a non-threatening manner, i.e., internally and privately. Compare, for example, the use of metaphor, which invites silent agreement in the mind of the listener, with the more public and demonstrative use of: "How many of you would agree with the statement that there are too many lawsuits these days? Raise your hands, please." The latter part, a staple of voir dire, seems, to this reserved Dutch person, as overly intrusive or invasive, thereby generating discomfort and possible resistance, whereas the former allows for agreement without bullying or group pressure. (15)

   Metaphors can also take the extended form of a story, such as a parable or allegory. Because there is a greater length of time required to complete the story, it is important to start strong in order to bring the listener in. The use of humor, a point of interest, or a story within a story may serve this purpose. The storyteller should not abuse the position as speaker and assume agreement, even when "preaching to the choir." (16) Members of a "captive audience" can generate resistance to the speaker's message on that fact alone. Extended metaphors can be powerful because they build along the way as each reference point, often a metaphor itself, solicits agreement that will lead to the ultimate conclusion.

   Because metaphors are widely used in the law, there is already a substantial amount of discussion of metaphor in legal scholarship. (17) The focus of this Article will be on how metaphors work, what makes them more or less effective, how to avoid some of the common mistakes that diminish their power, where to find sources for the creation of new comparisons that further the argument, and, finally, some particularly outstanding examples of metaphor. Properly understood and executed, metaphors are a powerful tool in the advocate's repertoire.

2. THE STRUCTURE OF METAPHOR

   "The essence of metaphor is understanding and experiencing one kind of a thing in terms of another." (18) It provides an alternative way of describing a subject or action, often done for emphasis, humor, explanation, reiteration, insight, creativity, or some combination thereof. Within a narrative framework that moves forward--with subject, verb, and object--metaphor represents a slowdown, a change of pace, which provides a different view. The slowdown may be a slight hesitation in the form of a simile (e.g., "catlike") or a longer diversion in the form of an extended metaphor (e.g., the parable of the "Good Samaritan" as a metaphorical answer to the question: "Who is my neighbor?"). (19) The persuasive pull of the metaphor comes from the comparison of the matter asserted with another thing whose attributes are already known or, at least, partially known.

   The use of metaphor requires care and restraint. Every virtue has a dark side. As Bryan Garner observes: "Skillful use of metaphor is one of the highest attainments of writing; graceless and even aesthetically offensive use of metaphors is one of the common scourges in writing, and especially of legal writing...." (20) The problems seem to come from 'inexperience and misuse. "With great power comes great responsibility." (21) The key is restraint. "Writers should use metaphors sparingly, should wait for the aptest moments, elsewhere using a more straightforward style." (22) When it is the moment, "[k]now your audience and the parameters of good taste." (23)

   One common use of the metaphor is to give emphasis, especially as a superlative, such as "hotter than hell" or "colder than a brass toilet seat." (24) A person might describe his or her mood as "happy as a clam." This wry description is both nicely understated and playfully ambiguous. (25) When asked during the preparation of this Article how it was coming, I would reply that I was "happier than a witch in a broom factory," which is several notches up from clam bliss. (26) Other examples of giving emphasis through metaphors include "when hell freezes over," to indicate the unlikeliness of some event happening (or "when pigs fly"), "longer than a Sunday sermon on NFL Sunday," and "Hell hath no fury like a woman scorned." (27)

   The meaning of the metaphor should be grounded in what the audience knows. The comparison runs from what is known to what is in issue. If the audience doesn't understand the context of the comparison, it will fall flat. With a general audience, the references should be to what nearly everyone would be familiar with. Thus, a great metaphor, such as "truth is toxic, like water to witches" will work only if the audience understands the reference to the Wizard of Oz and its outstanding visual of the water causing the witch to melt. The invitation to the audience to participate in the application of the metaphor will be lost if it does not catch the reference.

   This does not mean that one always plays to the general audience. If you are writing (or arguing) to a more specific group, you have more freedom to use references that would otherwise make no sense to those outside the group. One of my favorites is from Bill Simmons, who is known for his metaphors tying popular culture to sports:

   If Bill Belichick arrived at practice in a Ferrari Enzo one day, everyone would assume the Patriots coach was battling a severe midlife crisis. But seeing him trade a fourth-rounder for Randy Moss? Nobody knows how to react. Every Patriots fan I know was legitimately speechless after the trade. We'd heard the rumors for weeks but never believed this thing would, you know, happen. Maybe Moss isn't a brand-new Enzo, but he's definitely a Ferrari--one of those with about 75,000 miles on it that you'd buy from a rapper who's going bankrupt. You're not exactly sure what condition it's in. It might be more trouble than it's worth. You have to keep it covered almost all the time. The parts are expensive. At the same time, it's a Ferrari and you're getting it at a discount, right? If you have the money and you always wanted a car like that, you have to make the deal. (28) If you understand the reference, this is an amazing metaphor--humorous, creative, and memorable. This almost certainly cannot work in a legal brief, but it is included to give a sense of how metaphors allow for extraordinary creativity and have a great potential to work with a more narrowly focused audience.

   There are times when the metaphor does not require full knowledge of the audience with respect to the reference in order to work. In fact, the lack of knowledge might be a part of the metaphor. Consider this example:

   You used to be able to fix a carburetor with a screwdriver and a basic knowledge of how carburetors in general work. Now cars are more efficient while they work, but their system operating characteristics are embedded in sophisticated electronics and you have no hope of diagnosing without both a computer and a lot of very detailed knowledge about the programmed error codes, etc. In other words they work great until suddenly they don't work at all, and as soon as they don't work you have a hard problem on your hands instead of an easy one. This is what we have done to our financial systems, in the name of efficiency. They have more sophisticated electronics...