1 Women Hold Up Half the Sky Metaphor & Narrative as Embedded Knowledge Structures that Persuade Audiences Through Identification Linda Berger & Jennifer Sheppard Mercer University School of Law 1021 Georgia Ave. Macon, GA
3 In this presentation, we will explore some of the ways in which the images and stories we acquire through our culture and experience become embedded knowledge structures. These knowledge structures then frame our understanding of the world and our approach to resolving problems. When a lawyer s arguments accord with what is already there in the reader s or listener s mind, less is needed to move the audience toward agreement; instead, the result follows as the night follows the day. Embedded images and stories induce an audience to identify with the speaker and the message by providing shared frameworks, shared understandings, and shared expectations. To illustrate, the presentation will focus on Buffy the Vampire Slayer and other images of women as murderers, mothers, victims, and avengers.
6 From the Briefs Seeking Refugee Status and Asylum for Rodi Alvarado Peña Rodi Alvarado married Francisco Osorio in 1984, when she was 16 years old. Osorio was a soldier in the Guatemalan army. Alvarado testified that after the marriage, her husband abused her almost daily until she fled Guatemala in According to Alvarado, Osorio was extremely controlling and engaged in acts of extreme physical and sexual abuse. Osorio told her that she belonged to him and he could do anything he wanted to her. Among other things, Osorio insisted that except when he was at work, Alvarado accompany him at all times. Alvarado testified about extreme acts of physical abuse. When Alvarado s menstrual period was 15 days late, Osorio dislocated her jawbone. When she refused to abort a pregnancy, he kicked her violently in the spine. At various times, he dragged her by her hair, nearly pushed out one of her eyes, used her head to break windows and mirrors, whipped her with pistols and electrical cords, and threatened her with knives. Alvarado testified about extreme acts of sexual abuse. Osorio raped her almost daily, beating her at the same time. Once Osorio kicked Alvarado in the genital area so severely that the kick caused internal bleeding and extreme pain. Osorio forcefully sodomized Alvarado. When she protested against the abuse, he said, you re my woman, you do what I say. Alvarado tried to escape. She ran away to her brother s and parents homes, but her husband found her and forced her to return. She escaped with her two children and rented a room on the outskirts of the city, but Osorio found them and beat Alvarado into unconsciousness. Osorio told her she could not leave him or she would suffer much worse. Alvarado testified that he said: If you ever try to leave, I will come find you. And when I find you, I could kill you, but I m not going to do that. I will break your legs. I will cripple you so that you will be in a wheelchair for the rest of your life. I will mark your face so it will be scarred forever, it will be twisted and deformed. When Alvarado reported the abuse to the police, they took no action. They told her that they would not get involved because it was something that should be taken care of at home. One complaint was referred to a judge, but the judge declined to intervene, stating that this was a domestic matter that should be settled at home. Alvarado s husband repeatedly told her that going to the police would be useless because he had military and police friends across the country. Alvarado sought asylum under the following provision: A refugee is someone who is unable or unwilling to return to and avail himself or herself of the protection of his or her home country or, if stateless, country of last habitual residence because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The Board of Immigration Appeals decided that Alvarado was not a member of an eligible particular social group and that the abuse was not on account of her membership in the group because there was no indication her husband would harm any other member of the group.
7 Questions for Discussion 1. What images and stories are already there (emerging from experience or culture) that affect the audience s understanding of the arguments? 2. What related images or stories would better meet your purpose? 3. How can you present the related images or stories so that the audience will accept them as similar enough on the surface with the embedded images and stories? 4. How can you flesh out the related images or stories so that they can structurally support an explanation of an alternative outcome?
8 Women Hold Up Half the Sky Bibliography Collections Metaphor & Narrative, Volume 7, J. ALWD (2010). Best Practices in Persuasion, Volume 6, J. ALWD (2009) (including bibliography). Rhetoric & Argumentation, Volume 3, J. ALWD (2006) (including bibliography). Applied Storytelling Symposium, Volume 14, Leg. Writing (2008). Applied Storytelling Bibliography Metaphor Background reading Andrew Ortony, ed., Metaphor and Thought (2d ed. 1993). George Lakoff & Mark Johnson, Metaphors We Live By (1980). George Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal About the Mind (1987). Mark Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (1987). George Lakoff & Mark Turner, More than Cool Reason: A Field Guide to Poetic Metaphor (1989). Mark Johnson, Moral Imagination: Implications of Cognitive Science for Ethics (1993). George Lakoff & Mark Johnson, Philosophy in the Flesh: The Embodied Mind and its Challenge to Western Thought 128 (1999). Haig Bosmajian, Metaphor and Reason in Judicial Opinions (1992). Steven L. Winter, A Clearing in the Forest: Law, Life, and Mind (2001). Recent & selected articles in peer-edited journals and law reviews (for more comprehensive bibliographies, see Collections above). Linda L. Berger, The Lady, or the Tiger? A Field Guide to Metaphor & Narrative, 50 Washburn L. Rev. 275 (2011). Linda L. Berger, How Embedded Knowledge Structures Affect Judicial Decision Making: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes, 18 S. Cal. Interdisc. L.J. 259 (2009). Linda L. Berger, Of Metaphor, Metonymy, and Corporate Money: Rhetorical Choices in Supreme Court Decisions on Campaign Finance Regulation, 58 Mercer L. Rev. 949 (2007).
9 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). Louis J. Sirico, Jr., Failed Constitutional Metaphors: The Wall of Separation and the Penumbra, 45 U. Rich. L. Rev. 459 (2011). J. Christopher Rideout, Penumbral Thinking Revisited: Metaphor in Legal Argumentation, 7 J. ALWD 155 (2010). Julie A. Oseid, The Power of Metaphor: Thomas Jefferson s Wall of Separation between Church & State, 7 J. ALWD 123 (2010). Michael R. Smith, Levels of Metaphor in Persuasive Legal Writing, 58 Mercer L. Rev. 919 (2007). Steven L. Winter, The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning, 87 Mich. L. Rev (1989). Steven L. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law, 137 U. Pa. L. Rev (1989). Steven L. Winter, The Metaphor of Standing and the Problem of Self- Governance, 40 Stan. L. Rev (1987). Narrative Background reading Martin McQuillan, ed., The Narrative Reader (2000). James Boyd White, The Legal Imagination (1973). Sanford Levinson & Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (1988). David R. Papke, Narrative and the Legal Discourse: A Reader in Storytelling and the Law (1991). Peter Brooks & Paul Gewirtz, eds., Law s Stories: Narrative and Rhetoric in the Law (1996). Peter Brooks, Narrative Transactions Does the Law Need a Narratology? 18 Yale J.L. & Human. 1 (2006). Anthony G. Amsterdam & Jerome Bruner, Minding the Law (2002). Jerome Bruner, Making Stories: Law, Literature, Life (2002). Robert Cover, The Supreme Court, 1982 Term: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). Legal Storytelling (Symposium), 87 Mich. L. Rev (1989). Pedagogy of Narrative (Symposium), 40 J. Leg. Educ (1990).
10 Lawyers as Storytellers & Storytellers as Lawyers: An Interdisciplinary Symposium Exploring the Use of Storytelling in the Practice of Law, 18 Ver. L. Rev. 581 (1994). Recent & selected articles in peer-edited journals and law reviews (for more comprehensive bibliographies, see Collections above). Linda H. Edwards, Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev. 883 (2010). Linda H. Edwards, The Convergence of Analogical and Dialectic Imaginations in Legal Discourse, 20 Legal Studies F. 7 (1996). Carolyn Grose, Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom, 7 J. ALWD 37 (2010). Michael J. Higdon, Something Judicious This Way Comes... The Use of Foreshadowing as a Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev (2010). Steven J. Johansen, Was Colonel Sanders a Terrorist? An Essay on the Ethical Limits of Applied Legal Storytelling, 7 J. ALWD 63 (2010). Derek H. Kiernan-Johnson, Telling Through Type: Typography and Narrative in Legal Briefs, 7 J. ALWD 87 (2010). Jennifer Sheppard, Once Upon a Time, Happily Ever After, and in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda, 46 Willamette L. Rev. 255 (2009). Elizabeth Fajans & Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15 Leg. Writing 3, 18 (2009). Ruth Anne Robbins, An Introduction to Applied Storytelling, 14 Leg. Writing 3 (2008). Ruth Anne Robbins, Harry Potter, Ruby Slippers and Merlin: Telling the Client's Story Using the Characters and Paradigm of the Archetypal Hero's Journey, 29 Seattle U. L. Rev. 767 (2006). Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers On How To Use Fiction Writing Techniques To Write Persuasive Facts Sections, 32 Rutgers L.J. 459 (2001). Kenneth D. Chestek, Judging by the Numbers, An Empirical Study of the Power of Story, 7 J. ALWD 1 (2010). Kenneth D. Chestek, The Plot Thickens: The Appellate Brief as Story, 14 Leg. Writing 127 (2008). J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Leg. Writing 53 (2008).
11 Philip N. Meyer, Retelling the Darkest Story: Mystery, Suspense, and Detectives in a Brief Written on Behalf of a Condemned Inmate, 58 Mercer L. Rev. 665 (2007). Philip N. Meyer, Vignettes From a Narrative Primer, 12 Leg. Writing 229 (2006). Philip N. Meyer, Making the Narrative Move: Observations Based Upon Reading Gerry Spence s Closing Argument in the Estate of Karen Silkwood v. Kerr McGee, Inc., 9 Clin. L. Rev. 229 (2002). Philip N. Meyer, Desperate for Love III: Rethinking Closing Arguments as Stories, 50 S. Car. L. Rev. 715 (1994). Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Legal Ethics 1 (2000). Jane B. Baron & Julia Epstein, Is Law Narrative? 45 Buff. L. Rev. 141 (1997). Richard K. Sherwin, The Narrative Construction of Legal Reality, 18 Vt. L. Rev. 681, 717 (1994). Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993). Sandra Craig McKenzie, Storytelling: A Different Voice for Legal Education, 41 U. Kan. L. Rev. 251 (1992). Gerald P. Lopez, Lay Lawyering, 32 UCLA L. Rev. 1 (1984). Persuasion, generally Kathryn Stanchi, Persuasion: An Annotated Bibliography, 6 J. ALWD 75 (2009). Kathryn Stanchi, The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev Kathryn Stanchi, Playing with Fire: The Science of Confronting Adverse Material in Legal Advocacy, 60 Rutgers L. Rev 381 (2008). Kathryn Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 809 Oregon L. Rev. 305 (2010). Rhetoric, generally Background reading Edward P.J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student (1999). Sonja K. Foss, Karen A. Foss, Robert Trapp, Contemporary Perspectives on Rhetoric (2002). Lloyd F. Bitzer, The Rhetorical Situation, 1 Phil. & Rhetoric 1 (1968).
12 James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684 (1985). Gerald Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 Va. L. Rev (1990). Austin Sarat & Thomas R. Kearns eds., The Rhetoric of Law (1994). Michael R. Smith, Rhetoric Theory and Legal Writing: An Annotated Bibliography, 3 J. ALWD 129 (2006). Application of classical legal rhetoric to legal writing Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage (2005). Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2d ed. 2008). Kristen Konrad Robbins Tiscione, Rhetoric for Legal Writers: The Theory and Practice of Analysis and Persuasion (2009). Recent & selected examples of application of contemporary rhetorical analysis to legal writing Kirsten K. Davis, Legal Forms as Rhetorical Transaction: Competency in the Context of Information and Efficiency, 70 UMKC L. Rev. 667 (2011). Karen J. Sneddon, Speaking for the Dead: Voice in Last Wills and Testaments, 85 St. John's L. Rev. 1 (2010). Kate O Neill, Rhetoric Counts: What We Should Teach When We Teach Posner, 39 Seton Hall L. Rev. 507 (2009). Jessica E. Price, Imagining the Law-Trained Reader: The Faulty Description of the Audience in Legal Writing Textbooks, 16 Widener L.J. 983 (2007). Elizabeth Fajans & Mary R. Falk, Shooting from the Lip: United States v. Dickerson, Role [Im]morality and the Ethics of Legal Rhetoric, 23 U. Haw. L. Rev. 1 (2000). Jack L. Sammons, The Radical Ethics of Legal Rhetoricians, 32 Val. U. L. Rev. 93 (1997). Kurt M. Saunders, Law as Rhetoric, Rhetoric as Argument, 44 J. Legal Educ. 566 (1994). Linda Levine & Kurt M. Saunders, Thinking Like a Rhetor, 43 J. Legal Educ. 108 (1993). Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing Arguments to a Jury, 37 N.Y.L. Sch. L. Rev. 55 (1992).
LL4209V/LL5209V/LL6209V LEGAL ARGUMENT & NARRATIVE Narrative plays a prominent role in the persuasive presentation of facts in common law systems of litigation, but it is also a strong element in legal
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