Legal Writing

“We’re debating metaphors. One colleague maintains they’re comparisons without the words ‘like’ or ‘as.’ I maintain a metaphor is any comparison to an unlikely subject. WHO’S RIGHT?” — Florida Bar Member

UF Law Legal Research and Writing Director Henry Wihnyk and Lecturer Emeritus Gertrude Block respond:

Gertrude: You both are. The narrow definition is what your friend maintains is correct. Thus, “The stock market is a roller coaster” is a metaphor; “The stock market is like a roller coaster” is a simile.

However, in the broader sense, a metaphor includes any figurative language. Metaphors can be effective, tired, mixed or mangled.

Effective metaphors strike with force. My all-time favorites include:
• “A pregnant woman is like a ship in full sail,” by Benjamin Franklin.
• “Russia is a riddle wrapped in a mystery inside an enigma,” Winston Churchill.
• “[This codicil] creates a teasing illusion like a munificent bequest in a pauper’s will,” Supreme Court Justice Robert H. Jackson.

Metaphors — once brilliant — become stale through overuse. Endless repetition has weakened:
• “The bottom line is …”
• “The road to hell is paved with good intentions.”
• “… hit the nail on the head.”

You can no doubt add to the list. The word ‘stonewall’ was originally used in cricket, meaning to play defensively, but Richard Nixon’s metaphor of March 1973, (“I want you to stonewall it, let them plead the Fifth Amendment,”) has become so common it is now listed as standard English. Linguists have said, with some hyperbole but a grain of truth, that dictionaries are merely repositories of dead metaphors.

The consequence of mixing metaphors (unintentionally combining two) is sometimes absurdity. Former first lady Betty Ford combined “a leopard cannot change its spots” and “you can’t teach an old dog new tricks” into “An old dog cannot change its spots.” Another mixture of two (“pull the rug out from under” and “put the skids on”) in a newspaper resulted in, “Business news helped pull the skids from under the stock market.”

A mangled metaphor, on the other hand, uses one inappropriate and sometimes ridiculous metaphor. Judge Wapner, in “The People’s Court,” commented, “The fender dents weren’t visible unless you were looking at them with a fine-tooth comb, so to speak.” Even the Supreme Court sometimes mangle metaphors: In Griswold v. Connecticut, Justice Harlan said, “The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.”

Lawyers and journalists often use metaphors to great effect. But review its use carefully to ensure it doesn’t come back to haunt you.

Henry: There is no question a skillfully phrased metaphor can add eloquence. As Gertrude points out, however, using metaphors can take the writer through a minefield (I couldn’t resist) of problems.

In legal writing — where the goal is to persuade — these problems can distract from the message and diminish the document’s impact. Metaphors should be used carefully and sparingly.

Unfortunately, those used most often in legal writing tend to be stale. Lawyers too often warn courts of “opening the floodgates of litigation,” and of arguments that “take the case down a slippery slope.” Even worse, they refer to opponents’ arguments as “dogs that don’t hunt” or as “red herrings.” (Early in my legal career, an opponent characterized my arguments as red herrings. Too impressed with my own writing ability, I responded that “the only red herrings are those swimming among [my opponent’s] contentions.”

Thankfully, the senior partner caught and redlined this monstrosity.)

Such stale cliches no longer convey the sense of novelty so important to effective use of metaphorical language, make little sense to the reader and add nothing to the document’s persuasiveness (Ed Walters, “Terms of Art: Not-So-Bright Lines,” Green Bag Fall 1999).

Even more harmful than stale metaphors are mixed and mangled ones. At their worst, these make the writer appear foolish. At best, they lead to unintentional humor. Either way, it’s unlikely the reader will get the message or respect the messenger.

When using metaphors in legal writing, be careful not to cross the line between eloquence and purple prose. A well-placed, skillfully crafted metaphor can ignite the reader’s imagination. It resonates with the reader, conveying a point that otherwise defies simple description. On the other-hand, an overwrought metaphor distracts the reader’s attention from the document’s message to the writer’s style. Fight the temptation to call attention to yourself. Keep in mind it’s not your goal for the judge to say, “Wow, what a wonderful writer you are.” You want to hear, “You win.”

In legal writing, it takes a really good metaphor to be better than no metaphor at all.