Repetition in the Courtroom
Themes and sub-themes are crucial when trying to persuade a jury. Discrete pieces of evidence are important and key witnesses can certainly make or break a case. But when jurors get in the deliberation room, they will have in their minds a comprehensive story of the case. When jurors go through the actual verdict questions their overarching case perspective will guide them through the verdict form. This is why it is so important to have some central case themes that the lawyer introduces and the witnesses incorporate into their trial testimony. But how much is enough and is there such a thing as “too much?” In other words, how do lawyers strike the right balance between asserting critical case themes throughout trial and overdoing it with the jury?
Anecdotally, it seems to me that it is better to err on the side of more repetition than less, but overplaying themes can cause a backlash and jurors will get tired of hearing the same phrase or phrases over and over. Watching the jury during trial can offer some clues as to how a theme is playing. If jurors appear dubious when you are reintroducing a theme then it is probably time to limit such a theme or possibly change it all together. If jurors seem to be buying it, keep up the pace.
The literature has some guidance on the effectiveness of message repetition. In terms of agreeing with a message that has been presented, subjects embraced a message when they heard it more often, but then their agreement with the message decreased as exposure frequency continued to increase. The conclusion is that repetition is important but that sometimes people grow to dislike things as a result of too much of it. Two leaders in the field of psychology and persuasion, T. Cachiappo and Richard Petty, set out to ascertain whether repetition can have a positive effect on someone’s reception of and agreement with a persuasive argument. They concluded that low to moderate levels of repetition within a message tend to create greater agreement with the message, along with greater recall. However, their work also suggested that too much repetition has an adverse impact and can lead to stronger disagreement with the argument being made.
The key is how often repetition occurs, or in our case, how frequently should the jurors hear thematic statements in order for it to resonate. My experience as a jury consultant tells me that moderate levels of repetition in a persuasive argument are effective if spread out over time. This may seem obvious, as jurors will find it troubling if every minute, they hear the same theme being articulated excessively. But by spreading the thematic message out over time, or the course of trial, greater familiarity with the message will become evident and ultimately so will agreement.
Plaintiffs typically have a built-in advantage when it comes to the magnitude of emotion-based repetition. Because plaintiff arguments tend to involve some extent of an emotional plea, frequent emotionally charged phrases can be effective and reinforce central arguments. Conversely, defendants do not have a similar dynamic at play. While the defense might justifiably feel they are being unfairly maligned/dragged into court, themes that are amplified with too much emotion can turn jurors off. Defense themes should be more grounded. Expressions of rightful indignation are productive when commensurate with the emotion-arousing perspective of the plaintiff’s case. For example, in a case involving a severely injured plaintiff, a lawyer representing a manufacturer will not generate sympathy for her/his client by putting forward some variation on a theme of, “We are being treated unfairly.” This theme would be more suitable if the litigation context involves one corporation suing another one, or where a company is being sued by a plaintiff with questionable injuries.
One tactic to keep in mind is that nuance is also important when utilizing recurrent themes. The same exact words do not need to be repeated every time. Jurors respond more favorably to the same argument when it is stated several different ways. Ideally, the theme is articulated and interjected in more than one way with the central meaning of the theme remaining fully intact. For example, a general theme of, “Customer safety since 1946,” could also appear as, “75 years of Customer safety,” or “History of Customers first.” Ideally, jurors will use their own words in deliberations that directly borrow from the underlying theme.
The facts of the case and makeup of the jury will help the lawyer discern how much repetition to employ when presenting case themes to the jury. There is no quantifiable measure to guide the litigants who want to strike the right balance. What is known is that key case themes should be introduced early and often, just not too often.