By Dr. Ken Broda Bahm:
It’s Christmas as I write this, so how about some seasonally appropriate social science. There is a study (Merckelbach & van de Venezuela, 2001), a little old at this point, but quite interesting in its implications. Participants came into a lab in order to listen to white noise over headphones. They were told to press a button if and when they heard Bing Crosby singing “White Christmas.” About a third of the participants pressed the button at least once. However — you guessed it — there really was no Bing: It was just white noise with no “White Christmas.” So, how did people get a specific song and singer out of just the fuzzy static sound that you hear during a bench conference in front a a jury? Through the power of suggestion. So there is one implication if you are presenting something like a surveillance tape, a photo, or an audio recording to a jury: People, to some extent at least, are going to see or hear what they expect to see or hear.
That’s common knowledge, not always remembered in practice, but still familiar. But the other finding of the study is more intriguing. The tendency to hear Bing Crosby singing “White Christmas” was most pronounced among those who were measured to be high in “fantasy proneness.” Yes, there’s a scale for that, and it measures what seems to be a lifelong trait of creating, preferring, and involving oneself in fantasy. So this trait, the one that teachers and parents will sometimes see as an “overactive imagination,” creates a predisposition to experience something, even when it isn’t quite there. Knowing that predisposition is helpful to the persuader, not just in guarding against the power of suggestion, but also in reminding us that many in the target audience don’t just want to hear it, they want to experience it. And they experience it when you make it vivid.
The language quality of vividness refers to the capacity of your words to evoke a more powerful and sensory experience in the listeners. It’s not the goal for them to just understand your content, you want them to feel it and to experience it in a vicarious way. That means adding details that increase the likelihood that they’ll see it in their minds’ eyes. That is especially important for the fantasy-prone juror, because it taps into that need to construct an experience. But that approach is going to be more effective for just about any juror, or judge for that matter, because it is going to be more involving.
Of course, that detail isn’t always “relevant,” but that’s not the point. Outside the narrow limits of what the law considers probative, the language that helps your listeners experience your story is critical. It isn’t offered for proof, it is offered for communication. And communication is a precondition for attending to and comprehending the proof.
So, when you’re unwinding a story that’s important to your case, focus on the material facts and the evidence that supports them, yes, but also focus on the picture that is being drawn in the mind: The more they can visualize, the more they’ll be motivated to follow and understand.
Consider this simple contrast:
Without Vividness
Both parties had signed the deal. Mr. Smith relied on the belief that Mr. Jones would hold up his end of the deal. Unfortunately he didn’t. Soon after signing, Mr. Jones stopped communicating and began meeting with a competitor of Mr. Smith’s.
With Vividness (in Bold)
Both parties had signed the deal: Sitting together in a coffee shop, they shared the same thick black Sharpie in order to ink the deal. Mr. Smith relied on the belief that Mr. Jones would hold up his end of the deal. After all the meetings, the dinners, and even the tennis games, Mr. Smith felt he knew Mr. Jones. Unfortunately he didn’t. Soon after signing, Mr. Jones stopped communicating. The sixteen calls from Mr. Smith went straight to voice mail, and when he came to the office in person, Mr. Jones was ‘too busy’ to even say hello. But he wasn’t too busy to begin meeting with a competitor of Mr. Smith’s: more meetings, more dinners, even more tennis with his next target.
Other Posts on Language:
Merckelbach, H., & van de Ven, V. (2001). Another White Christmas: fantasy proneness and reports of ‘hallucinatory experiences’ in undergraduate students. Journal of Behavior Therapy and Experimental Psychiatry, 32(3), 137-144.