In medias res: Let’s look at some examples of arguments in which lawyers can use metaphoric re-framing to shift readers’ understanding of their arguments and smooth the way toward conclusions favorable to their clients. First, suppose a lawyer wants to help a client maintain primary custody of Melissa, a child in changed circumstances: the client has a full-time, but low-paying, job, requiring Melissa to be cared for during the day by other caregivers. The more affluent former spouse has remarried and re-formed a “family” the word “family” in this case a metaphor for the traditional “nuclear” family that includes a married husband and wife, one or more children, and a division of responsibility between wage earning and care giving. In contrast, the lawyer’s client and child, a single parent family, will appear to be an incomplete or insufficient “family,” and they will lose the beneath-the-surface contest of images.
To combat this, the lawyer can bring the metaphoric nature of the nuclear “family” to the surface, reminding the decision-maker that the traditional nuclear family is a fiction for a majority of families today. But that’s not enough. The lawyer must also persuade the decision maker that other images of parent-child relationships are more salient for example, that Melissa is growing up within a family network consisting of parent, child, extended family members, friends, and neighbors; and that Melissa’s family is not a closed unit but a living system marked by the length and the strength of the bonds between parent, child, and others in the family network. These symbols and images can be woven implicitly throughout the arguments and testimony:
“Melissa’s mother cares for her family’s needs by working . . . .”
“Melissa’s family cares for Melissa . . . . ”
“Melissa’s family, including her aunt, cousins, and grandmother . . . . .”
“Melissa spends her days with another mother in a home filled with children.”
“Family members and family friends pitch in . . . .”
At another extreme, consider the criminal defendant who is depicted as possessing an object called “free will.” How can the defense lawyer re-frame this metaphor in a way that will keep the jury from inferring that all the defendant’s choices were voluntary? First, it probably will not be helpful to point out the metaphoric nature of this image. Instead, the lawyer can envision another metaphor and use it to shape arguments; for example, free will might be thought of not as an equally sized container that is given to everyone, but as a seed that is planted in a small child and grows only when nurtured. Squashed, uprooted or deprived of water and nutrients, free will shrivels, rots, and eventually dies. Again, this metaphoric image should not be explicitly stated, but used to shape arguments:
“The range of Roger’s choices began to narrow early . . . .”
“While growing up, Roger had very little say about . . . .”
“During Roger’s childhood, his father demanded that he . . . .”
“Among his friends, Roger was required to . . . .”
“As time went on, Roger had fewer opportunities to choose. . . .”
Conceptual metaphors underlie not only our characterizations of the people and objects involved in legal stories; they also are at work in legal rules and processes. It is only metaphorically that we understand such concepts as the “weight of the evidence,” a “balancing test,” and a “slippery slope.” If an advocate can describe the applicable rule as a balancing test, it may seem more attractive simply because of the common-sense yet metaphoric view that when things are in balance, we are all better off. If the lawyer can deride an argument as constituting a slippery slope, the audience may picture the consequences at the bottom of the hill.
Talking about metaphor reminds us of the familiar warning by Justice Cardozo that “metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”Because metaphor is both powerful and unavoidable and can mislead as well as illuminate we need to study it more rather than use it less.
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FOOTNOTES
1. For more discussion of this concept, see Stephanie A. Gore, “A Rose by Any Other Name”: Judicial Use of Metaphors for New Technologies, 2003 U. Ill. J. L. Tech. & Policy 403; Robert Reilly, Mapping Legal Metaphors in Cyberspace: Evolving the Underlying Paradigm, 16 John Marshall J. Computer & Info. L. 579 (1998).
2. See George Lakoff & Mark Johnson, Philosophy in the Flesh: The Embodied Mind and its Challenge to Western Thought (1999) for a comprehensive explanation.
3. George Lakoff, Don’t Think of an Elephant: Know Your Values and Frame the Debate – The Essential Guide for Progressives (2004).
4. Linda L. Berger, What is the Sound of a Corporation Speaking? How the Cognitive Theory of Metaphor Can Help Lawyers Shape the Law, 2 J. ALWD 169 (2004).5. Berky v. Third Ave. Ry. Co., 155 N.E. 58 (1926)
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