Drawing on recent studies of social cognition, decision making, and analogical processing, this article recommends that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the most accessible knowledge structures are active and available for filtering and framing what we see. So the answer to how to think about this new information arrives automatically and intuitively. Should the answer be an unhelpful one, recent analogy research suggests that novel metaphors and characterizations may be used to prompt or activate various schemas or knowledge structures beyond those that are initially accessible. If initial matches can be made, the resulting online processing of the novel metaphor or characterization resembles the more reflective decision making of System 2, a desirable persuasive result when the immediately accessible schemas yield an unfavorable answer.
The analysis and recommendations in the article rely on two key findings from cognitive researchers who have studied both analogy and metaphor: (1) metaphors follow a career path as they evolve from being new to becoming conventional, and (2) novel metaphors tend to be more capable of generating knowledge while conventional metaphors tend to provide categories into which new information is unthinkingly slotted. Transferred to legal persuasion, these findings support a persuasive method intuitively recognized by lawyers: by shifting the way decision makers perceive and interpret situations involving people and events, novel characterizations and metaphors are sometimes able to compete with entrenched stereotypes and conventional categories. Moreover, the research may provide guidance for lawyers working to craft the right kinds of characterizations and metaphors to meet specific goals.
22 J.L. & Pol’y 147 (2013).
Berger, Linda L., "Metaphor and Analogy: The Sun and Moon of Legal Persuasion" (2013). Scholarly Works. 895.