Don’t Think About a Purple Elephant!

There’s something strange about how our brains work.  For some reason, our brains don’t seem to comprehend the word “Don’t” very well.  In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement.  It happens on a subconscious level.  When we hear the word “Don’t,” we ignore that word and follow the rest of the command.  If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.”  When you tell players, “Don’t miss this shot,” they’re more likely to miss.  For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

The reason that happens is because our minds latch onto the strongest image available.  You use words to create verbal images.  The verbal images you create determine whether jurors focus on what you’re asking for, or if they focus on the complete opposite of what you’re asking them to do.  Here are some other examples of how words can affect imagery and outcomes:

Do you feel the difference between the right picture and the wrong picture?  You know that when you tell a guest, “These are our most expensive wineglasses — whatever you do, don’t drop them” that the glass will soon shatter on the floor.  But when you phrase the same request positively, it completely changes the picture you create in someone’s minds.  Changing the image changes the outcome.

As a trial lawyer, you’re a wordsmith.  It’s your responsibility to craft words with care and precision, creating verbal pictures that achieve your desired results.  You have an obligation to your clients to maximize the persuasive impact of your messages.  One simple technique you can apply to achieve that goal is to create the right pictures in your jury’s mind.  You can do that by phrasing your language in the form of positive images, rather than negative images.

Unfortunately, lawyers are notorious for using negative language.  Think about criminal defense attorneys, for example.  They don’t want their jurors to focus on the fact that their client isn’t testifying, because they’re afraid the jurors will think the defendant isn’t testifying because he’s guilty.  But what do these attorneys do?  They tell the jury, “Don’t hold it against my client if he doesn’t testify.”  Translation?  “If he doesn’t testify, you should hold it against him.”

Prosecutors and plaintiff’s lawyers make the same mistake.  They regularly ask the jury, “Don’t hold us to a higher burden of proof than required by law.”  What do you think the jury is going to do after they hear that?

Judges aren’t exempt, either: “Objection sustained.  The jury must disregard that statement.  Don’t pay any attention to that evidence.”  If you had all day to think about it, you couldn’t come up with a better way to highlight that statement for the jury.

Your goal this week is to find a better, more positive way, to illustrate your points during trial.  Spend a few moments thinking about your last trial and review how you asked the jury to think about your most important points.  How did you phrase your language?  Did you phrase your requests positively or negatively?  Did you ask for things you didn’t want?  The picture that you paint in the jurors’ minds is likely to be fulfilled.  What types of images are you creating?   Focus on creating positive images in your jurors heads, and the persuasive impact of your courtroom presentations will improve immediately.