By Dr. Ken Broda Bahm:
If you’ve had young children, then you know that at a certain stage, watching the same movie over and over again with your kid comes with the territory. As much as the repetition might annoy you, the kids seem to love the familiarity and comfort of knowing exactly what is going to happen from moment to moment. The repeated exposure makes it more rather than less attractive. Psychology has a name for this phenomenon: the “mere exposure effect.” As Derek Thompson writes in a story in The Atlantic, “We like something more merely because we’ve been previously exposed to it. So there is evidence not only that we replay songs that we like, but also that — up to a certain point! — we like songs the more often that we play them.” If we control for everything else and just vary the exposure, then something that we’ve seen or heard before is usually going to hold greater attractiveness for that reason alone. The fact that we know what to expect means that it requires less cognitive effort and seems to be more “our own” rather than something outside of us. That preconditioning makes us more likely to attend to, remember, trust, and use that information.
The mere exposure effect should work in litigation as well. Information that jurors are exposed to a number of times should be more sticky, and litigators can increase the salience of a piece of information just by returning to it again and again. That would be the simplest trial strategy in the world…but for one important fact: The trial takes place on borrowed time, and we are the ones borrowing that time from the judge and jury. As a result, there is a strong “Don’t waste my time” vibe that is usually coming from the fact finders. Any strategy that calls itself out as being geared toward repetition and nothing else will encourage your audience to tune out and to resent you for thinking so little of them as to believe that repetition will work. But the problem is, repetition does work. If it is a key fact, message, witness, or visual, then jurors shouldn’t be hearing about it just once, they should be hearing about it from start to finish in the trial. Thankfully, it is possible to carefully draw upon the mere exposure effect without exceeding the jury’s patience. This post shares a few thoughts on how to creatively repeat in three areas: demonstrative exhibits, themes, and witnesses.
The Repeated Graphic
A good demonstrative exhibit can give a jury a powerful and immediate grasp of a key point, or provide a good holistic overview of a large body of evidence. Using it once, however, generally isn’t enough. Because the demonstrative typically won’t travel with the jury into the deliberation room, it has to make enough of an impression that it stays top-of-mind for at least a few of the jurors. So repeat it. And a good way to avoid the fatigue of jurors thinking, “Oh, this again…” is to build it as you go by adding information as it comes out in trial. Or better yet, invite witnesses to add pieces of information through their testimony. For example, a timeline, a bullet list, or a flow chart can become more complete as the trial proceeds, giving jurors the repeated exposure but without the message of “repetition.” In addition, in the case of a complicated visual message, repeated incremental exposures allow jurors to process a little at a time instead of all at once.
The Repeated Theme
Your trial message becomes effective when you are able to boil it down into a theme: a simple and memorable expression that, as I’ve described it before, is able to “roll of the tongue and stick in the mind.” I have seen some attorneys, however, who will use that theme exactly once at the beginning of opening statement and expect it to work its magic. That will almost never be effective. To truly be remembered and used by a jury, even a great theme has to be repeated throughout your case: in oral voir dire, several times in opening, at key points in witness testimony, and finally in closing argument. When you are using any expression that much, however, it cannot call attention to itself. You don’t want listeners to feel, “Here comes the theme again.” Instead, the theme needs to just be part of normal language. “Simple” and “clear” will always beat “artistic” or “cute.” That way, your theme can sound and feel natural, and function as a recurring motif without wearing out its welcome
The Repeated Witness
If repeated visuals and language needs to be treated with care to avoid overkill, that is doubly true for the repeated witness. At the same time, when you have a witness that you believe has been credible and useful to the jury, then it can be a great opportunity to use them again on rebuttal, for example, or in your own case after they’ve already been called in the other side’s case. When witnesses get to take a second turn on the stand, they’ve already been introduced and the jury has already gotten a chance to get used to them. That allows the jury to focus immediately on the new information. When the witness is effective, then the mere exposure effect would suggest that the more times jurors are exposed to the witness, the more likely they will be to see the witness as useful, likable, and believable. Of course, there has to be a clear answer to the jury’s implicit question, “Why are we hearing from this person again?” Be explicit about what is new. Remind the jury during questioning, “…previously, you testified…” and then add, “…so now, the question is.”
Lawyers need to be careful to send the message that they would never want to waste the jury’s time or the court’s time. In that context, mindless repetition is a definite no-no: It is actually the most common criticism I hear when I conduct post-verdict interviews. That said, trials are complicated and jurors are not very effective when treated as machines that retain everything they hear. Repetition has a role. So I’ll say it again: If it is a key fact, message, witness, or visual, then jurors shouldn’t be hearing about it just once, they should be hearing about it (with creative variation) from start to finish in the trial.
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Other Posts on Persuasive Tactics:
- Follow the Ten Commandments of Graphics Use in Trial
- Witnesses, Answer in a Full Sentence(10 Reasons)
- Play It Where It Lies: Throughout Trial, Match the Message to the Mindset
- Bad Stuff? Get It Out And Get It Over With
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Photo Credit: Tomás Fano, Flickr Creative Commons (Image of Warhol installation at New York’s MoMA)