Sticking Thoughts in Your Jurors’ Brains

Two hunters are out in the woods when one of them collapses.  He doesn’t seem to be breathing and his eyes are glazed.  The other guy whips out his phone and calls the emergency services.  He gasps, “My friend is dead!  What can I do?”

The operator says “Calm down.  I can help.  First, let’s make sure he’s dead.”

There is a silence, then two gunshots are heard.  Back on the phone, the guy says “OK, now what?”

The first time you hear that joke, it’s hilarious.  The second time, it’s still pretty funny.  By the third time, however, it starts to lose its luster.  That’s the danger of repetition.  Yet despite the danger, nearly every trial lawyer I’ve ever met lives by some variation of this theme: “You’ve got to repeat your most important fact three times before the jurors will remember it.”

Indeed, it’s true:

Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.

Every trial lawyer knows that repeating information makes it easier for jurors to remember.  However, experienced trial lawyers also know that just because something is important once, that doesn’t necessarily mean anybody wants to hear it again. 

That’s the paradox of repetition.  Repetition helps us remember, but it can also bore us to sleep.  As the trial lawyer, your goal is repeat the information often enough that your jury remembers it, but without putting them to sleep.  Here’s the good news: You can repeat repeat important information without boring your jurors, just so long as you follow a few simple guidelines.

Andy Warhol's Marilyn MonroeFirst, modify each repetition.  Unmodified repetition is a surefire cure for insomnia.  The repeated information needs to be different than the first version.  You can’t simply repeat it, because that’s not only boring, it’s condescending.   Basically, unmodified repetition tells your jurors, “You dummies probably didn’t get this the first time, so I’m forced to repeat it for you.”

To avoid that problem, make sure that your second iteration differs from the first.  For example, if you made your first point with oral direct examination, consider making your second repetition with a different medium, such as a demonstrative aid, video testimony, or a physical exhibit.

Second, repetitions need to get better.  Each version should increase in strength.  Start with your weakest iteration.  Each successive repetition should be stronger, otherwise we lose our interest.  For example, you could start with the verbal testimony, then add the photo, then add the demonstrative exhibit.  Or you could start with the tamest description, and progress towards the strongest and most visceral description.  You want to increase the intensity.  If you start with a 10, your next witness can’t be a 9, because even though normally a 9 might be great, it doesn’t work in this situation.

It’s like watching Raiders of the Lost Ark, and then following it up with a double-feature showing of Indiana Jones and the Temple of Doom and then Indiana Jones and the Last Crusade.  They’re both enjoyable movies, but they’re a bit of a letdown after watching the original.  If you’re gonna repeat something, the second version needs to be more memorable.  Think Godfather II and The Empire Strikes Back, rather than Jaws II and Rocky II.

Third, keep it interesting. That principle is a little vague, but important nonetheless.  You can repeat information all day long, just so long as you keep the jury’s interest. But the moment it stops being interesting, you’ll lose them. Take the Rocky franchise for example.  All of the movies are basically the same (Rocky faces unbeatable opponent, Rocky does montage training sequence to the best workout music ever written, Rocky fights the unbeatable opponent, “Yo, Adrian!”), yet despite the repetitive nature of the scripts, millions of people enjoyed all of the films.  (Well, except for Rocky V — that one really sucked).

The same thing is true with Toy Story II, Spiderman III, and the James Bond franchise.  Not only don’t audiences mind the repetition, they actually enjoy it, because each new version is interestingYour jurors feel the same way.  They don’t mind hearing the same information a second or third time, just so long as you hold their attention. 

The importance of repetition during trial can’t be overstated.  Jurors may miss an important point the first time it’s presented, so it’s usually essential to repeat the point a second or third time.  However, you can’t afford to lose the jury’s attention by mindlessly repeating the same information over and over again.  But if you vary how you repeat the information, improve each repetition, and keep things interesting, your jurors will remember all of the important details in your case.

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