Attorneys’ Analogies Are A Lot Like My In-laws Dancing At Weddings (Or, Your “Metaphor” Is Actually A Simile)

wedding dancing

 

 

 

 

 

 

 

 

 

By Thomas M. O’Toole, Ph.D.

My aunt-in-law Josephine, a resident of a small town in southern Missouri (or “Missourah” as they say) that no one has heard of, loves weddings. The readings, the nuptials, the kiss…blah, blah, blah; who cares? But the dancing? Now we’re talking. Nobody gets as excited about the Electric Slide, YMCA, and Kool & The Gang’s “Celebration” as Josephine. When “it’s electric!” is finally shouted over the DJ’s speakers, Josephine takes to the floor showing all of those leadership skills that go unappreciated at the local hardware store where she works part-time. The pride puts a special gleam in her eye when she gets to show a newcomer (usually some sugared-up toddler) the dance’s routine. This is her glorious moment…she will repeatedly tell friends the same ole stories about this night (much to their dismay) until the next wedding comes along. Family members will watch and laugh, happily cheering her on, excited to see another happy soul living in the moment. Fortunately, for Josephine, the family has a heart: no one has ever broken the devastating news to her that she is a terrible dancer who “makes my feet sad” as Ralph from The Simpsons might say. But that’s the great thing about weddings: everyone is so happy (and/or drunk) that bad dancing flies under the radar.

If only jurors could be as happy (and/or drunk) during trial, attorneys’ metaphors and analogies (and similes…but for some reason, no attorney has ever said, “I think I have a good simile!”) might achieve the same glorious status. Instead, these analogies often lead to the same awkward and cringing silence as the friend who has a piece of food stuck in his teeth.

I should be up front with readers: I am not a fan of analogies and metaphors (I like similes only because they are, by title, the underdog). I tend to concur with Jack Nicholson who famously said, “people who speak in metaphor should shampoo my crotch.” If people’s use of metaphors and analogies were put on trial, I would be the venire member who should be excused for cause (although the judge would probably leave me on because I said “I think I can be fair” after a long rant about how much I hate people who use them).

I’ve never understood the seductive allure of the analogy. It’s like texting while driving: it’s distracting and dangerous, yet everyone does it. Analogies are supposed to simplify complex issues, yet they often fail in this category. For example, if your analogy takes longer to explain than it would take to explain the actual issue, that’s a red flag. But even where they succeed, they can still fail in deliberations since the analogous understanding of an issue makes it difficult for jurors to translate it into the framework set forth by the verdict form and jury instructions. Over ten years of jury research involving hundreds of mock juries has shown me how quickly analogies and metaphors break down in deliberations. They make sense for the first 15 seconds, but then the explanation turns into nonsense and a key advocate quickly loses credibility. Or even worse, the analogy is turned against the advocate…co-opted by the other side to shift the momentum of deliberations. This highlights a common danger of analogies, metaphors, and similes: while they may simplify your theory of the case, they may also present opportunities to the other side to simplify their case.

If there is a complex issue that jurors need to understand, I’m a fan of identifying communication strategies that help jurors understand the issue directly, rather than understanding what the issue is “kind of like.” Visual communication should always be the first resort in this scenario. Graphics can simplify an issue much more effectively than analogies and can often do so in a more persuasive manner, while avoiding the risks that analogies and metaphors present. A graphic is not just a pretty picture; it is visual advocacy. Effective graphics break an issue down into understandable parts, capture the logical flow of the issue, and show jurors how it fits perfectly within the legal framework of the case. This is where the slideshow style of PowerPoint can be particularly helpful. It’s not just one picture but a progressive series of pictures that tie multiple items together in a simple and persuasive manner that both motivates and arms jurors to be effective advocates on complex issues during deliberations.

Bottom line, it’s time to put the brakes on the use of analogies and metaphors by attorneys at trial. My aunt-in-law Josephine’s dancing is amusing because we only have to witness it every few years. The same can be said about attorneys’ use of metaphors and analogies: they are best when used sparingly or not at all.  There are many better routes to persuasion that metaphors, and each one starts with visual communication.