Question and Answer Period of Symposium Participants

• Citation: Vol. 58 No. 3
• Publication year: 2007

Using Metaphor in Legal Analysis and Communication

A Symposium of the Mercer Law Review Friday, November 10, 2006

Question and Answer Period

PROFESSOR RITCHIE: We have left some time this afternoon for people to ask questions of any of our panelists. If you do have questions, please identify which person you would like to answer your question.

AUDIENCE: I would particularly direct my question to Professor Smith, but also ask all of the panelists to respond. Is there such a thing as a separate category for metaphors that are purely stylistic as opposed to metaphors that would also fit in some of the other categories that Professor Smith has identified? It seems to me that all metaphors are more than stylistic, and that the examples in category, is it four, Professor Smith, that you have identified are, in fact, doing meaning making for us? They happen to be lovely stylistic devices as well, but they are, in fact, constraining, structuring our thought about those topics.

PROFESSOR SMITH: It may have been a poor choice of words to call it stylistic because in my presentation I tried to allude to the fact that they are serving many functions. They are serving a logos function, or a logic function, by providing an analogy. They serve ethos functions by establishing credibility on behalf of the writer. They are serving pathos functions by evoking substantive emotion, as well as emotion about the writing. And, so, I only mean it is stylistic in the sense that it did not exist before the writer wrote it as opposed to doctrinal metaphors, which may start out as stylistic metaphors but have been adopted as the rule for that area.

I think absolutely metaphors make meaning. The only difference between, for example, a doctrinal metaphor is someone made that meaning previously and now it is being used as the rule that lawyers are asked to argue under. And a stylistic metaphor can become a doctrinal metaphor if the court agrees with that metaphor and decides that it is going to empower the metaphor with the power of the state and make that the rule that attorneys are going to argue under. So, by stylistic, I do not mean merely stylistic. I meant creative.

Professor Winter pointed out to me that some of the examples were not necessarily original to those authors, but someone originated them; and, so, it may be a problem with the examples, not the problem with the concept. I know in my advanced persuasion class my students have to create original metaphors in a piece of persuasive writing. And, so, what I mean by that category is not arguing within an existing metaphor, but being the one who creates that connection between two dissimilar things and offering it up as a metaphor to serve all the functions that are served. But unless the court adopts the metaphor as a representation of a doctrinal rule, it is not a doctrinal metaphor. It was more of a rhetorical device that was used by an advocate that could become a doctrinal metaphor.

PROFESSOR WINTER: The great comedian Lenny Bruce said, "I'm not original. The only guy who is original is the guy who invented the English language." I think Wittgenstein made the same point about the impossibility of a private language.

There probably is no such thing as an original metaphor because, if there really were, you would not understand it. It has to refer to something you understand for it to work. As Stanley Fish says: "The gun at your head is your head." The thing that is compelling would not be compelling unless there were something inside you that experienced it as compelling. I will just give you one example. I mean they are all great metaphors, and I think they are creative. But I would not call them original. This one I think was the last one of Michael's examples: "Each oppressive practice is one wire in a birdcage." It comes from an article that talks about equality. I presume it is an article about equality. But that is a reference to a metaphor we all know. It is very conventional, the "bird in the gilded cage" metaphor. It is an important metaphor in feminist theory: that you can be imprisoned by nice, by good treatment, as well as by bad. I mean that is part of the power of that metaphor, even that phrase. It refers to another metaphor that is antecedent and carries a lot with it.

Part of what I was trying to show with the marketplace of ideas metaphor is that it works precisely because it is not free form. It is referring to and drawing together things, understandings, that you already have.

So, I think the short answer to your question is, yes, I agree with the premise of your question. I think that, from a practical standpoint—and given the tenor of my talk and most of my work, you probably do not think of me as a practical person; but I was a practicing lawyer for almost ten years and I tried a lot of cases—the important points are, and these have been made by others on the panel, the role that these devices can play in persuasion, in getting the decisionmaker, whether it is the jury or the judge, to think about the case in a way that you want.

I think that the most powerful are framing effects, which you can do lots of ways. First, a metaphor can be used to build a frame. Second, a story can be used. A frontier metaphor can be used to build a frame that already starts you thinking about things in certain terms. Good rhetoricians know this. Almost any Stanley Fish piece will have them. I do not know why I am talking about Stanley Fish so much today. One of the reasons is because he is brilliant. I have learned a lot from him.

When I wrote an article criticizing Stanley Fish, I did Fish to him. You tell a story first that seems to have nothing to do with what you're talking about. He starts an article about jurisprudence with a story about baseball in Dennis Martinez and The Uses of Theory. But the point is that his point is already in the story. The story has already created a schema for thinking about the point he is trying to make and he already has your brain processing things and filing them, to use an incorrect but conventional metaphor, in precisely the space he wants.

I will give you one concrete story. The most brilliant brief I ever read—and it was not by me—was written by Jay Topkis who was a partner at the Paul Weiss litigation firm in New York. This was back when I was at the Legal Defense Fund, where I worked for many years. There was a point in the late 1970s when the NAACP sued the NAACP Legal Defense Fund to get their name back. The NAACP Legal Defense Fund, as many of you know or may not recognize, was Thurgood Marshall's organization that argued Brown v. Board of Education. It goes back to 1939. It was an offshoot of the NAACP, mostly for tax purposes. But by the late 1970s, I won't go into the political details, they trademarked the letters NAACP and they sued us for infringement of their trademark. We...