“It’s like a scar on a woman’s face.”

A fine art appraiser used this vivid image to get across her view of how badly the rip in the canvas affected its value. The opposing expert, retained by the fine art insurers, used abstract words, while conceding that the “damage” was “visible” from an “oblique” view. When the loss in value controversy arrived in mediation, my real challenge was to overcome the power of plaintiff’s imagery and get the mediator to focus on the actual and quite successful repair to the canvas.

Whether it’s Fine Art or Physical Injury, words, similes and metaphors shape our view of reality. Let’s take some simple examples. Is it a “bruise” or a “hematoma”? Both may be perfectly accurate words under the circumstances. But consider how the choice in description shapes our reaction. Hematoma sounds really bad. A bruise is an everyday occurrence. Same thing with “cut” versus “laceration,” and so on.

Claim professionals and their attorneys, then, must choose their words carefully. Words and image choice have a powerful influence on how a controversy is seen — and, perhaps more important, on how it is resolved. The use of technical, medical or legal jargon often betrays the real message and confuses the fact finder.

For example, I dealt with a multi-million dollar robbery of a gold chain manufacturer that was, in fact, a genuine stick-up. My defense to the ensuing insurance claim was not “set-up,” rather it was fraudulent exaggeration of the amount of loss. I could have opened with highly technical concepts taken from my forensic accountant’s reports — inventory manipulation, roll-forward analysis calculations and the like. Instead, my trial theme was a simple mantra: “All That Glitters Is Not Gold.”

With that old saying as my theme, the jury intuitively grasped my message: The claim was mostly glitter and not gold. That theme made it much easier for the jury to process the later technical analysis put forward by my accountants. But even then, I worked with forensic specialists to translate the vocabulary of finance into a language the jury could understand.

And that’s it for this This and That. If you have any questions or comments on the importance of word or image choice, please call or email Dennis.