By Thomas M. O’Toole, Ph.D.
The value of repetition as a simple and practical strategy for persuasion at trial cannot be overstated. However, despite the fact that I repeatedly emphasize this point on repetition to clients at trial, the level of repetition is often insufficient. I have found that it is not uncommon for an attorney to believe that he or she is using repetitive language to make a point, but when reviewing transcripts, the use of this language is fairly limited. Saying something a couple of times over trial simply does not cut it. If a particular message is important, jurors need to hear it over and over again. In fact, the right amount of repetition usually exceeds attorneys’ comfort level, leaving attorneys feeling as if they are repeating arguments too much.
Sometimes, the repetition needs to be forced or creative. For example, sometimes it is important for attorneys to ask questions of witnesses that incorporate key language or facts even though the witness’s answer is not important. In other words, sometimes the question, and the repetition that is built into that direct or cross-examination question, is more important than the particular witness or that witness’s answer. In these moments, the sole purpose of asking the question is to give jurors an opportunity to hear it again.
The value of repetition may seem obvious, but there are a variety of ways in which repetition impacts persuasiveness in deliberations. Here are three ways repetition leads to persuasive force in deliberations:
1. Recall. To no one’s surprise, repetition increases recall. The more you hear something, the more likely you are to remember it. This is obviously important at trial when the decision-making process (i.e. deliberations) often comes days or weeks after jurors hear some of the important facts or testimony. Most important, you need your advocates on the jury to argue your key points in deliberation, but in order to argue those points, they need to remember those points. This is where repetition comes in.
2. Fluency. Research shows that repetition of a message increases the fluency of the message. This is critically important because, as noted in the first point, you need your advocates to argue for your client in deliberations. However, a message that is persuasive is not necessarily a message that your jurors can re-articulate in deliberations. If your advocates on the jury lack the confidence to successfully articulate your arguments or key points, they will either remain silent or they will screw up the argument. Both of these scenarios should be avoided. If your advocates are silent, this cedes control of the discussion in deliberations to opposing advocates. If your advocates try to articulate your argument and screw it up, this could undermine the overall credibility of your case. Repetition provides a solution. The more your audience is exposed to your argument, the more easily they can re-articulate it.
3. Familiarity. What I find most interesting about the research on repetition is how it breeds familiarity and how familiarity is fundamental to message acceptance. Specifically, research shows that our level of familiarity with an argument or statement directly influences our acceptance or rejection of it. In his book Thinking Fast and Slow, Nobel prize winner Daniel Kahneman says, “A reliable way to make people believe in falsehoods is frequent repetition, because familiarity is not easily distinguished from truth.” The studies behind this statement show that repeated exposure to false statements made subjects more likely to believe those false statements. This is not intended to suggest attorneys repeatedly make false statements at trial. Instead, it shows just how impactful repetition can be due to the sense of familiarity it creates with your audience.