We love the familiar. It makes us feel safe and warm, and we unconsciously prefer something and someone we feel is familiar, even if it really isn’t. An adventurous toddler named Declan decides to flush a tennis ball down the toilet. Such fun, and who knows what will happen, right? Naturally, the tennis ball jams inside the pipe and the toilet clogs (yes, this actually happened). His father knows nothing about plumbing, but can do a quick Google search for local plumbers. There are dozens of results. How does he choose? If he does not recognize any of the names, research suggests he will pick one of the top three results. But what if he does recognize a name? Maybe he has seen one company’s commercials, creating a sense of familiarity. Maybe he has seen another company’s trucks driving around town. Maybe one company sponsors a local baseball team that plays in Declan’s league. Regardless, research shows he is significantly more likely to choose a familiar company. The sense of familiarity will even lead him to draw all sorts of (perhaps subconscious and erroneous) conclusions that the company is reliable, trustworthy, or simply good at what it does. You know the adage that we do business with people we know, like, and trust. It turns out that simply knowing them increases the chances we will like and trust them when compared to someone new or unfamiliar. In jury economics terms, jurors are egocentric and prefer and rely on information that rings true in their direct experience.
English novelist Isa Blagden once said, “If a lie is only printed often enough, it becomes quasi-truth, and if such a truth is repeated often enough, it becomes an article of belief, a dogma, and men will die for it.” Shane Parrish, the founder of Farnam Street, a fantastic online resource devoted to research and discussion of mental models, tackled this subject in an article called “The Illusory Truth Effect: Why We Believe Fake News, Conspiracy Theories and Propaganda.” In the article, he offers anecdotes of individuals who are primed to understand certain messages are propaganda, yet still succumb to the message due to constant exposure to it. In his efforts to explain how something like this could happen, Parish explains, “The illusory truth effect comes down to processing fluency. When a thought is easier to process, it requires our brains to use less energy, which leads us to prefer it.” Parrish goes on to explain (and cite research that shows) familiarity allows for greater processing fluency. In this month’s column we tackle illusory truths and how trial advocates can avoid repeating messages — sometimes inadvertently — which weaken their case instead of strengthening it.
Trial attorneys like repetition. They often like it more than jurors appreciate it, evidenced by our experience that one of the most common criticisms of attorney presentations is that they are repetitive to the point of patronizing. At the same time, we know repetition can create a sense of familiarity which can translate to trust and persuasion. Put another way, sometimes jurors disconnect the evidence from the repeated claim and simply remember the claim: “The defendant stole the Plaintiff’s employees.” They begin to trust that “truth” and even separate the source of the message from the message itself (a separate phenomenon known as a sleeper effect).
A number of our recent mock trials and focus groups illuminate a simple bind that trial advocates often create by ignoring or failing to understand these fundamentals of juror psychology. When a defendant argues, “Corporation X did not steal the Plaintiff’s employees,” it subtly but necessarily reinforces the illusory truth that Plaintiff’s employees were stolen. When a plaintiff argues, “The Plaintiff did not fail to mitigate its damages,” it accomplishes the same result. How can trial attorneys better gauge and persuade given these knowns about juror psychology?
Develop an Affirmative Story. Advocates often focus directly and intently on addressing the legal standard required to prove a claim or affirmative defense: the patent defendant does not practice the patent claims; the corporation did not breach the contract; the plaintiff did not fail to mitigate its damages. But this focus leaves to be desired a coherent explanation for what the party did in addition to what it did not do. We understand why your focus might be on only meeting and addressing the legal elements, but jurors don’t see it that way. Over and over they tell us to support your claims they also need to know what did happen and how it happened so they can argue your story in deliberations. In his recent book, Misbelief, social psychologist Dan Ariely provides helpful comment on this concept and credits the late Christopher Hitchens, who said: “Human beings are pattern-seeking animals who will prefer even a bad theory or a conspiracy theory to no theory at all.” This means you (often if not always) need to give jurors not just the reasons you didn’t do what is alleged but state also you did something else which avoids reaffirming the illusory truth of the allegation and actively affirms a different reality.
Prepare for an Active Deposition. In much the same way, witnesses must be more prepared than ever to offer deposition testimony which helps deliver and shape the affirmative story, and challenges or corrects inaccurate repetition that might otherwise begin to feel like the truth. There are multiple reasons for this, including the reality that today’s depositions are not the same as depositions in 2019 or even 2022. The use of technology has proliferated, judges and courtrooms have accepted and prepared for deposition playback, and attorneys are increasingly skilled at using video deposition for persuasive effect in trial. Jurors’ expectations have also changed. They are less patient, and it is more and more difficult for any party to ask jurors to wait until they hear a witness’s complete testimony — which may occur days or weeks after they see a deposition snippet in opening statement or in a prior party’s case-in-chief. Prepare your witnesses to, politely and professionally, correct misstatements or misused terms. Prepare your witnesses to testify not just about what they did not do, but also what they did do. This may fly against the old advice that deposition answers should be brief and include no volunteering. Those rules do not apply nearly as often as they once did, and the changing persuasion landscape requires witnesses to be able and willing to address repeated inaccuracies, implications, or allegations in depositions with affirmative and complete statements about the facts and the reasons which make the allegations untenable.
Just as Declan’s dad chose the plumber who felt most familiar, jurors can trust and argue the arguments which feel most “truthy.” Repetition, even of incorrect or supported statements, can feed this illusory truth effect. Be sure to tell your own story and give jurors a coherent alternative that stands outside the illusion.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
