by Ken Lopez
The task of a trial lawyer is to convince a judge or jury to believe in the truth of a client’s case. However, in many complex trials, the underlying facts are not as easily understood by the fact-finder as they would be in, say, a murder case or a traffic accident. A case, especially the type of litigation that we are involved in, often turns on complex issues of science, medicine, engineering, or some other subject that jurors and many judges are not well versed in.
How does a lawyer move from the arcane to the everyday and get jurors to follow along? Enter the metaphor, simile, or idiom.
We use these “figures of speech” all the time in conversation, often without realizing we are doing so. Whenever we say we need to “level the playing field” or “push the envelope” or “draw a line in the sand,” we are using a metaphor. When we say something is “as dull as dishwater” or “as slow as molasses,” we are using a simile. When we tell a friend to “break a leg” for good luck, we are using an idiom.
Briefly, a metaphor is a figure of speech that uses one thing to refer to another as a means of making a comparison between the two. A simile actually makes the comparison between two dissimilar things directly with the use of the word “like” or “as.” An idiom is an expression that is more than the sum of its parts (think “raining cats and dogs” or “spill the beans”); it is usually based on a metaphor, though the metaphor may be a bit “buried” after centuries of use. These figures of speech have one thing in common: They are all used as analogies, to compare one thing to another.
In a trial, a lawyer can use a metaphor to show the jury how something works or how an event occurred, based on an analogy to another thing or process that jurors know well from their everyday lives. For example, in an antitrust case, when describing how a group of competitors squeezed another company out of the market by denying it the opportunity to buy a needed product, the lawyer might tell the jury that the conspirators choked the life out of the other company as if they had denied it the air it needed to breathe.
Ray Moses of the Center for Criminal Justice Advocacy, a Texas-based nonpartisan, grassroots training resource that helps lawyers become competent criminal trial practitioners, writes well about analogies and metaphors.
“Jurors remember facts and concepts that are familiar to them or that can be analogized to familiar subjects,” Moses writes. “Those who aspire to be effective communicators and persuaders must learn to argue by analogy and to explain by stories. This is particularly true when we are seeking to clarify and tie together complex facts, abstract ideas, or legal concepts. If facts or legal issues become overcomplicated, jurors become overwhelmed. It is here that an appropriate analogy may assist the jury in comprehending the import of the evidence that has been dished out during testimony, assessing the credibility of the sources of evidence, and/or understanding the application of law to facts that are found to be true.”
Below are a number of websites that are useful in finding the best analogy, metaphor, simile or idiom to use in your case:
- Metaphors & Similes
- [pdf] A Downloadable Metaphor List
- An interesting book for lawyers on the topic
- A list of idioms
- A second list of idioms
- A third idiom list
- A list of similes
- Have another List? Please leave the link in the comments!!!
Below are some additional resources on the A2L Consulting site:
- Using Visual Metaphors and Analogies
- Teaching Science to a Jury
- Improving Storytelling Skills as a Lawyer
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