Michael R. Smith 2017-12-07 03:22:39
In October of this year, the owner of the Houston Texans Nflfootball team came under heavy criticism for making an offensive metaphoric statement about his players during an Nflowners meeting. At the meeting, the owners were discussing the controversy over some Nflplayers kneeling during the national anthem as a symbol of protest against racial inequality in the American criminal justice system. While expressing his concern about the players’ form of protest and the negative effects it was having on Nflprofits, Texans owner Bob McNair said, “We can’t have the inmates running the prison.”1 Being generous to Mr. McNair, one may assume that what he meant was that, in his opinion, the Nflowners can’t allow employees to determine company policy. However, by expressing his point in the form of a metaphor, Mr. McNair ended up calling Nflplayers prison inmates. Mr. McNair later said the insulting implications of his metaphor were unintended, and he issued an apology: “I regret that I used that expression. I never meant to off end anyone and I was not referring to our players. I used a figure of speech that was never intended to be taken literally. I would never characterize our players or our league that way and I apologize to anyone who was off ended by it.”2 Mr. McNair’s faux pas made national headlines. Many people evaluated the statement in terms of social and racial politics. Others evaluated it as an example of bad business management. I, however, as a rhetorician, evaluated the statement as an example of a dreadful use of figurative language. If Mr. McNair’s apology is to be believed, then the mistake he made in crafting his “inmate” metaphor was thinking only of the figurative meaning of the statement and neglecting to consider its literal meaning. In the discussion of metaphors in my Advanced Legal Writing textbook, I advise that, “Writers . . . should avoid composing metaphors that may insult or off end their readers. . . . [W]riters must be cognizant of both the literal and figurative meanings of their words so as to avoid inadvertently incorporating insulting metaphors in their arguments.”3 Mr. McNair could have avoided national criticism if only he had heeded this advice. Mr. McNair, however, is by no means alone in his inadvertent use of an insulting metaphor. Many legal writers, including judges, have also become unwitting victims of the insulting literal meaning of well-intended metaphors. Consider, for example, the metaphor crafted by Chief Justice Zimmerman of the Utah Supreme Court in his dissent in State Department of Human Resources v. Irizarry.4 After acknowledging that trial court judges should have substantial discretion in the area of equitable estoppel, Justice Zimmerman included the following metaphor in his argument that there should be limits on that discretion: “There are times when we must expand or contract or more closely define the pasture within which the trial courts roam in the exercise of that discretion: this is one such situation.”5 In figurative terms, Justice Zimmerman has stated that there should be, at times, limits to trial court judges’ discretion in applying equitable estoppel. In literal terms, however, Justice Zimmerman has by this language called the trial court judges of Utah cows! We can see an additional example of an inadvertently insulting metaphor by a legal advocate in the case of In re Fuqua Industries Shareholder Litigation.6 In arguing that the plaintiff’s allegations in the case were groundless, the defense counsel offered the following metaphor: “[These allegations are] a ‘dog’s breakfast,’ an effort by the plaintiff to ‘offer up a bowl of mixed leftovers to a mutt’ as an appetizing meal.”7 I explain the problem with this metaphor in my book: In this statement, the attorney uses metaphoric language to argue that the plaintiff’s allegations, despite the forceful tone with which they are made, are actually insignificant and groundless. However, if the word “leftovers” in this sentence refers to the plaintiff’s allegations, then it follows that the “mutt” to which the leftovers were offered would be the judge. The attorney, caught up in the metaphoric meaning of the statement, lost sight of its literal meaning and inadvertently called the presiding judge a “mutt”—a point not lost on the judge. Fortunately for the attorney, the judge responded to this mistake with humor and humility. Referring to the attorney’s statement, the judge called it a “colorful metaphor, with perhaps an apt reference to my role in this matter.”8 Legal writers cannot assume that all readers will respond to insulting metaphors as graciously as the judge in the Fuqua case did. To be sure, the public did not react lightly to Mr. McNair’s “inmate” gaffe. Thus, in crafting metaphors, legal writers should always consider both the figurative and literal meanings of their words.
Published by Wyoming State Bar . View All Articles.
This page can be found at http://digitaleditions.walsworthprintgroup.com/article/Write+On%21/2957645/459691/article.html.