This article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. It proposes the thesis that because people respond - instinctively and intuitively - to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients' goals by subtly portraying their individual clients as heroes on a particular life path. This strategy is not merely a device to make the story more interesting but provides a scaffold to influence the judge at the unconscious level by providing a metaphor for universal themes of struggle and growth.
Download the article from SSRN at the link.
In her article Professor Robbins discusses the use of metaphor of the popular hero (today's popular hero often being a magical being such as Harry Potter, Frodo Baggins, or Luke Skywalker) to engage the factfinder. Says Professor Robbins,
This strategy is not merely a device to make the story more interesting but provides a scaffold to influence the judge at the unconscious level by providing a metaphor for universal themes of struggle and growth. Folklore and mythology are already part of the doctrine in other disciplines that rely on persuasive techniques, such as screenplays, political campaigning, and advertising. These disciplines have absorbed the lessons of heroic archetypes because we respond viscerally to certain story patterns unconsciously. We respond regardless of age; for example, toddlers react to the classic animated Disney movies. Adults respond similarly to the narratives of their religious texts. Thus, the use of the metaphoric hero's journey provides one potential and powerful option in the arsenal of lawyers' persuasive techniques.
I find this use of magical beings to achieve "magical" results really interesting. That is, what a lawyer might do is create an imaginary story about an imaginary being who has imaginary powers to induce a listener to have a particular reaction--to identify with the lawyer's client (who is nothing like the imaginary being), and then to rule in the client's favor. Granted, the lawyer should have some law and some evidence to support the narrative. And I'm not suggesting that there's anything unethical about this approach--it is after all argument and not evidence. But from a law and magic perspective it's so intriguing!