People speak in pictures. The linguistic picture of a metaphor, in particular, "a figure of speech in which a word or phrase is applied to an object or action to which it is not literally applicable," (1) is one of the most ancient devices in communication spanning back to the oldest recordings of human history. (2) A metaphor arises whenever "one subject is implied to be another [in order to] draw a comparison." (3) Linguists might debate an all-encompassing definition, but, as one author neatly summarized, "[a] metaphor, however defined, seeks essentially to unite two ideas which seemed distinct." (4)
People hear, use, and process metaphors often without even realizing it. Indeed, two Stanford psychologists have suggested that the use of metaphors may be inescapable: Some estimates suggest that one out of every 25 words we encounter is a metaphor[.]
We can't talk about any complex situation ... without using metaphors.... Metaphors aren't just used for flowery speech. They shape the conversation for things we're trying to explain and figure out. And they have consequences for determining what we decide is the right approach to solving problems. (5)
Or, as a writer for The New York Times put it:
Symbols, metaphors, analogies, parables, synecdoche, figures of speech: we understand them. We understand that a captain wants more than just hands when he orders all of them on deck. We understand that Kafka's "Metamorphosis" isn't really about a cockroach.... We grasp that the right piece of cloth can represent a nation and its values.... (6)
Because "we understand them," lawyers use them, frequently and liberally, when trying to explain abstract legal concepts to a jury. (7) In state voir dire proceedings, the process of questioning a group, or "pool," of potential jurors before jury selection, (8) metaphors seem to flourish whenever attorneys broach subjects like burdens of proof, witness credibility, or juror neutrality with a group of prospective jurors. There is the proverbial "half-strike" that a litigant or a witness might face with a juror, the "footrace" where someone holds a step advantage (or disadvantage) before the start of the trial, and, of course, the "scales of justice" tipping one way or another to explain what must be proven in a case.
While these and other metaphors can serve as powerful illustrative tools, they can also become misleading when used in the wrong contexts or without sufficient forethought. This article examines the risks of miscommunication (9) lurking within the hypothetical constructs attorneys sometimes employ when examining a venire of potential jurors. As the old saying goes, a picture can indeed be worth a thousand words. (10) But it's got to be the right picture.
The Purpose of Voir Dire
Voir dire is a crucial part of a jury trial. It represents the only meaningful opportunity for a free exchange of conversation about a case between jurors and trial counsel. Many trial lawyers hew to the belief that a jury trial will be won or lost in voir dire. (11) One lawyer framed voir dire within the context of the ancient pastime of story-telling:
Trials are about stories. The story of our struggle for independence and preserving the right to trial by jury. The story of our legal system and its rules/purpose. The story of these two parties and what has brought them here. The stories that brought these jurors here to this involuntary endeavor and what they brought with them for the job. Story-telling requires three basic elements: a story-teller, a story, and an audience. In voir dire, the roles of the trial lawyers and the jurors are reversed. They are the story-tellers and we are the audience. We pick the topics, but they tell the stories. We act only as facilitators to give birth to information. (12)
This oral tradition of voir dire has always been closely guarded in state court proceedings. Both Fla. R. Civ. P. 1.431(b) and Fla. R. Crim. P. 3.300(b) affirm a party's right "to conduct a reasonable examination of each juror orally." While trial courts may vary the contours of how they conduct voir dire, the overarching imprimaturs and goals remain constant. At bottom, whether the process is short or long, oral or written, complicated or succinct, voir dire is designed to help the litigants select their jurors. By learning information about each individual in the jury pool--about their predispositions and biases, their past experiences with the courts or with law enforcement, their views on controversial issues that may arise during trial, and so forth--a party can decide whether to strike or keep a prospective juror for a case. As the Fourth DCA explained, "A reasonable voir dire examination assists the parties in determining whether a particular juror should be the subject of either a challenge for cause or a peremptory challenge." (13) This, in turn, serves the over-arching purpose of voir dire: to "obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice." (14)
State trial courts have broad discretion in regulating the scope and manner of questioning in voir dire. (15) Within the ambit of that discretion, though, a court must provide sufficient space for counsel to explore potential biases, prejudices, or interests relating to the legal or factual issues of the case. (16) Thus, attorneys enjoy fairly broad discretion as to how they will conduct their voir dire examination in state court proceedings. The order and selection of subjects, the tempo and pacing, voice inflections, which panel members to spend more or less attention on, will all turn on the judgment of the examining attorney. There is a certain freedom of movement, so to speak, built into the voir dire process. (17) That freedom includes, in some measure, what pictures a lawyer may wish to draw upon in order to explain a client's position or to touch upon the law in a case.
Metaphors in Voir Dire: A Case Study
The range of metaphors lawyers have invented for voir dire runs a wide gamut of subjects, situations, and senses. In a murder case, the Mississippi Supreme Court upheld a district attorney's illustration that likened the defendant's presumption of innocence to a block of ice "which melts during trial until the [s]tate has met the burden of proving the defendant guilty." (18) A Tennessee opinion recounted one defense lawyer's use of scripture to demonstrate the same presumption with a metaphor "based on the baptism of Jesus in the Jordan River and the white dove surrounding Jesus in the same manner that a cloak of innocence surrounds the accused." (19) A federal magistrate judge in Texas offered that circumstantial evidence could be likened to wet grass. (20) And the old saw, "where there's smoke, there's fire," has occasionally been used to see if a potential juror might feel inclined to convict a defendant simply because he or she had been charged with a crime. (21) Pictures such as these are indeed vivid, colloquial, and easy to use, which means they carry a mixture of benefits and drawbacks. We can see this more clearly when we dissect the back-and-forth of a transcribed conversation in a civil lawsuit.
In Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. 4th DCA 2004), former Major League Baseball All-Star Cecil Fielder sued an interior designer, Weinstein Design, for the misappropriation of his name in connection with...