By Dr. Ken Broda Bahm:
Whatever you think of Republican Presidential contender and former pizza magnate Herman Cain, you’ve got to give him credit for creating a theme using only three digits… and a theme about tax policy, no less. Mr. Cain has been ascendant recently in the race for the GOP nomination, largely based on the strength of a simple idea: a 9 percent business flat tax, a 9 percent individual flat tax, and a 9 percent national sales tax. Even voters who wouldn’t otherwise favor the candidate can see a certain appeal in its simplicity and apparent fairness, with fully 56 percent of likely GOP voters and 36 percent of unaffiliated voters saying that they support “9-9-9.” The tax plan is getting closer scrutiny now as the candidate’s star is rising, and much of that scrutiny is negative. For example, Michelle Bachman has cogently pointed out that if you flip it over, it is the number of the beast. To be fair, she used that as a springboard for noting that “the devil is in the details,” which is itself a good mnemonic for the argument that most Americans would see increased taxes from “9-9-9.”
But one fact that legal communicators should take heed of is the power of a simple mnemonic expression. If the plan lacked that easy handle, then chances are that it would be just one of the many policy positions that politicians cart around, and the public would not be talking about it. In this post, I take a look at some of the research and experience on what makes a good mnemonic, and how litigators should apply that knowledge in creating your trial themes.
What is a Mnemonic?
A mnemonic device is a tool for learning that works by appealing directly to the memory. For example, many of us figure out how many days there are in a month by repeating that rhyme, “thirty days hath September…” and even though for me at least, the rhyme breaks down miserably by the time you get to February, it still works and serves its purpose. More topically, jurors might remember to keep Liability, Cause, and Damages on their screen by remembering “LCD.”
Mnemonic devices can come in a number of forms, from acronyms to rhymes, to simple conciseness like “9-9-9,” but the common idea is to make something unfamiliar by linking it to to something that is more familiar or more likely to be remembered. To the ancient Greeks, the role of these memory devices in public speaking was considered so important that Aristotle made it one of his “five canons,” along with content, structure, language and delivery. It makes sense that memory would occupy such a central place for the lawyers and politicians of the day, who presented long orations often without the aid of notes, but it potentially carries even more importance in our age, where technology, multitasking, and personalized media have reduced our attention span, requiring any message to cut through a lot of clutter before it is even noticed, much less remembered.
In that case, professional communicators, including litigators, can take a lesson from Cain’s dogged emphasis on “9-9-9.” Just as the politician found a need to pick a central position, boil it down to the shortest possible expression and repeat it endlessly, litigators face a parallel need in the courtroom.
Does it Work?
In a word, yes. There is a long line of research in education and public health showing that messages that are accompanied by simple mnemonic devices significantly aid comprehension and recollection. The classic study (Miller, 1967) showed that research participants who relied on mnemonic devices were able to perform and recall by 77 percent. More recently, a group of Australian researchers (Lim et al., 2011) looked at the role played by the “catchiness” of the message when providing young people with text messages on safe sexual behavior. Messages were chosen not primarily to educate, but to stick in the mind (example: “Chlymidea, hard to spell, but easy to catch. Use a condom.”). Participants receiving this kind of message were significantly more likely to be tested for sexually transmitted infections, to speak to a doctor or clinician about their sexual health. So if the message is catchy, it is more likely to influence attitudes and behaviors.
How Should You Use Mnemonics in Themes?
Themes are an important part of legal messaging, and I’ve written on them in the past. For example a 2008 article entitled “Getting Beyond the Catchy Phrase and Creating a Trial Theme that Truly Works” looks into some of the cognitive reasons why themes work as well as some of the practical implications for using them. But the title of that article aside, catchiness is an important part of themes after all. A good theme should be very easy to use and memorable: It should roll off the tongue and stick in the mind (that is my theme on themes). Without repeating the analysis in that article, let me take my own advice on brevity, and bottom line a few notions on the mnemonic nature of themes. As you create a trial theme, ask yourself:
Is it short? It should be a short sentence (Knowledge means responsibility), or even just a phrase (Greed over gratitude).
How is it memorable? Your theme may perfectly boil down your case, but if it isn’t remembered, then it is no use. Memorability need not mean rhyming (though, we must admit, “if it doesn’t fit, you must acquit” did seem to work), but here is my quick list of what other techniques make language attention-getting and memorable:
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Repetition (Broken promises, broken regulations, and broken lives)
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Metaphor (In developing this product, the defendant drove through stop light after stop light)
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Alliteration (Deception, delay, and denial)
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Assonance (repeated vowel sounds: It is about practical needs, and personal responsibility)
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Visual cues (If you see this case as a map, there are some clear borders on what is relevant)
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Play on familiar sayings (They say ‘a stitch in time, saves nine’ and in this case, a stitch in time would have saved lives)
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Reference to familiar objects (Plaintiff’s case is like a three-legged stool…if you doubt any of the legs, it topples)
One tricky part of the theme is this: While it needs to be effective, it should not call attention to itself in the sense of saying, “Hey, I’m using a rhetorical technique!” Jurors and judges want to base decisions on evidence and law, not on style. While style is important in making your message memorable, if it ever feels like you are getting too cute for your decision makers, then you proboably are. If Herman Cain had called his plan the “Cain, no-pain, plain and sane tax” then that might be over the line. The nice thing about “9-9-9” is that it is substantive, not just stylistic: it describes the essential elements of the plan. Litigators generating a theme have the same challenge: to boil down their position in a way that is substantive yet simple and memorable.
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Lim MS, Hocking JS, Aitken CK, Fairley CK, Jordan L, Lewis JA, & Hellard ME (2011). Impact of text and email messaging on the sexual health of young people: a randomised controlled trial. Journal of epidemiology and community healthPMID: 21415232
Photo Credit: John Trainor, Flickr Creative Commons