Persuasive Punch? There’s Nothing Like a Metaphor
by Scott Wood
(County Bar Update, August 2007, Vol. 27, No. 7)

 

Persuasive Punch? There’s Nothing Like a Metaphor

 

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

 

One picture is worth a thousand words, but one metaphor is worth a thousand pictures.1 Here’s writer Burkhard Bilger’s elegant analogy explaining how high quality guitars improve with age:

A new guitar is like a novice choir: a gathering of disparate parts, held together under pressure, straining to carry the same tune. The more it’s played, the more it settles into its true voice. The neck and body, joints and braces, bridge and fingerboard stop fighting one another and start to sing in unison.2

In persuasive legal writing, a fresh metaphor or simile makes an advocate’s theme unforgettable. As legal scholar and professor Karl Llewellyn taught, the first art is framing the issue so that if your framing is accepted, the case comes out your way. A thematic metaphor will, in Llewellyn’s words, “not only capture the Court but...will stick your capture into the Court’s head so that it can’t forget it.”

 

Why creative comparisons persuade. Just the right metaphor persuades on every level: logical, emotional, and ethical. First, it distills a complex, usually abstract theory into a concrete image. It penetrates to the core. Here’s Chief Justice William Rehnquist hitting home: “After you have brushed the foam off the beer, the plaintiff’s argument concerns only one item—money.”3

 

Second, the right comparison carries emotional punch. It presents the reader with an intriguing puzzle that, when solved, produces intellectual satisfaction along with a sense of the truth. It feels right. Thus, in Edwards v. California, Justice Robert Jackson’s comparison captures the emotion:

Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.4

As readers, we feel the citizen-heir’s crashing disappointment.

 

Third, creative metaphors and similes enhance the advocate’s credibility. As Michael R. Smith explains, “[E]loquent language, including metaphors, can enhance a reader’s impression of a writer’s intelligence. As Aristotle said, the skill of constructing effective metaphors ‘is, in itself, a sign of genius.’”5

 

Here’s a brilliant comparison that reduces the opponent’s argument to an absurdity:

The fear of losing cable service cannot constitute “compulsion” or “coercion.” With all due respect to both client and country, it is inconceivable—even in America today—that threatening to cut off cable television service constitutes duress. MTV and ESPN are not inalienable rights. Losing Nickelodeon and Cartoon Network is not like losing electricity in the winter.6

A well-wrought thematic image pops a core argument into the catcher’s glove and sticks.

 

A few caveats. Avoid easy clichés, especially the worn-out expressions that litter too many briefs and motions. Stay off the slippery slope, evade the fatal flaw, don’t fight with straw men, stop grinding the wheels of justice. While you are conjuring images, beware the mixed metaphors:

The defendant’s argument is nothing more than a red herring that will not fly.7

A careful reading of the contract reveals a loophole that we can hang our hat on.8

The comparison must be apt and fresh because most judges and their clerks are wary readers. They agree with Justice Benjamin Cardozo: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”9

 

How to write original thematic metaphors. The most effective metaphors capture the entire theme of the argument. They neither liberate nor enslave the reader. They gently but cleverly guide to a conclusion. Writing them entails more perspiration than inspiration plus some patient pondering.

 

Rarely, an original metaphor springs from your mind like Athena being born from the head of Zeus. Usually, the metaphor emerges after a slow birth and long labor. To ease the metaphor’s arrival, begin with a sentence that distills your position in plain language, the essence of your argument. Then convert that prosaic statement into a metaphor. That conversion could take hours, days, or even weeks. Let your imagination work.

 

Here’s the approach: A civil action based on a novel legal theory is thrown out when the trial court sustains a demurrer without leave to amend. On appeal, the court embraces the novel theory, reverses the judgment of dismissal, and remands. The complaint is refiled, but the defendant stubbornly demurs again. Plaintiff’s opposition to the demurrer, in plain English, is that defendant is simply repeating the same argument that it lost in the court of appeal. After some birth pangs, plaintiff’s counsel finds a devastating metaphor. This is the first sentence in his argument: “Defense counsel is still trying to ride the horse that died under him in the court of appeal.” This example comes from a case I handled about 30 years ago. I was the one trying to ride the horse. The metaphor still sticks, a burr under my saddle.

 

1 Technically, a metaphor and a simile are distinct figures of speech. Although both compare seemingly unlike things, a simile states the comparison explicitly with “like” or “as.” See Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 179-222 (2002).

 

2 Burkhard Bilger, Struts and Frets, The New Yorker, May 14, 2007, at 85.

 

3 Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 483 (1982).

 

4 Edwards v. California, 314 U.S. 160, 186 (1941) (concurring).

 

5 Smith, supra note 1, at 206.

 

6 Jane N. Richmond, Legal Writing: Form & Function 118 (2002).

 

7 Smith, supra note 1, at 208.

 

8 Id.

 

9 Berkey v. Third Ave. R.R., 155 N.E. 58, 61 (N.Y. 1926).

 

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