The power of language has always been the heart of advocacy.  What is also painfully—if not shamefully true is that something stupid or inane can morph into the stuff of “amazing but true” if you say it long enough and relentlessly enough.  The lies that surround Obama’s place of birth as well as the incredible ‘death panel’ nonsense should make this obvious, but of course, social science can be counted on to shore up common sense with baskets of statistics.  Consider the following:

In 2007, an article was published in the Journal of Personality and Social Psychology titled: “Inferring the Popularity of an Opinion From Its Familiarity: A Repetitive Voice Can Sound Like a Chorus”. In brief, what this study says is that if we hear something often enough, we begin to believe it is true. At that time, this idea was fairly novel. What a difference a few years makes! Now we can know for sure that when you repeat even untrue ideas enough, they become part of the cultural zeitgeist—and are believed without question.

The danger is this: when we hear a phrase or fact often enough, even when it is immediately rebutted/debunked, it increases our likelihood to recall the false fact in the future, but not remember that it was false. Instead, we remember hearing, for example, that Hitler had three testicles but not that the rumor was totally false. Behavioral scientists call this phenomenon “familiarity breeds belief”. And you don’t want to actively confront these beliefs—that can make them stronger. Seed magazine recently published a really nice article on “Death and the Rumor Mill” that is worth reading to see how arguing with these sorts of rumors can actually strengthen them!

So what does this mean for litigation advocacy? How can you undermine the evocative phrases that take on a unique and short-hand meaning due to media exposure?

• Don’t repeat their phrases! If opposing counsel uses a catchy phrase to describe what your client has done, don’t use that catchy phrase yourself! All that will do is reinforce their message. Come up with your own catchy phrase to give jurors the rebuttal to opposing counsel’s message in the deliberation room. Turn “pro-abortion” into “pro-choice”.  Transform “inheritance taxes” into “death taxes”.  To understand the importance of this more fully, read George Lakoff’s books (“Don’t Think of an Elephant: Know Your Values and Frame the Debate–The Essential Guide for Progressives”, “Thinking Points: Communicating Our American Values and Vision”)
• Can you pull off a ‘Barney Frank’? Probably not.  He has a very safe district, so his amazing rejoinder to an offensive town hall attendee was comparable to aggressively attacking a witness on cross exam when it is clear that the jury dislikes him already.  It’s risky, but if you have the ability to communicate non-verbal disbelief without being offensive, it’s a strategy worth using. Then you follow-up on cross-examination in a tone making it obvious you find the testimony difficult to believe. To be effective, you need more than simple logic without drama. You challenge an emotional argument with a rebuttal that balances logic and emotion. And preferably incorporates humor.
• Appeal to jurors desire to not be duped/deceived. “This is simply wrong. Opposing counsel is trying to trick you into believing something when the facts show it is simply not true.”

The problems of false rumors masquerading as truth are not likely to disappear anytime soon. But as we see them rising in the media, we can all be practicing ways to rebut or detoxify them. Practice.  When similar issues arise in trial, you stand a better chance of reacting effectively. Or employing them yourself.

Related posts:

1. Who knew we’d be such grumpy (but NOT old!) men and women?
2. And now the second hundred…
3. Does your capital client “look deathworthy”?
4. But, your honor! That witness was drunk!
5. Why facts don’t matter

1. Aaron Michaux says:

   June 20, 2011 at 10:10 AM

   I think the term you want is “thought terminating cliche.”

   Robert Lifton wrote: “A thought-terminating cliché is a commonly used phrase, sometimes passing as folk wisdom, used to quell cognitive dissonance. Though the phrase in and of itself may be valid in certain contexts, its application as a means of dismissing dissent or justifying fallacious logic is what makes it thought-terminating.”

   The human mind must have corrective mechanisms against this type of manipulation, but I am not aware of what they are, or any research on the topic. I believe there is research on “inoculating” children against advertising, which might be relevant.