Repetition and Trial

I frequently stress in trial seminars the concept of retention. People are inclined to remember things that are repeated. People tend to remember things if you say them more than once. The chances of retention increase the more times you say something. Whether this is through a subtle rephrasing or a brute, rote, repetition, the human mind finds it easier to remember things that are stated more often. This "frequency" is one of the "three Cs" of retention. The other two are "primacy" and "recency." People tend to remember what you tell them first, last, and most frequently. It is a worthy consideration for lawyers, whose job it is to persuade.
But, how else is repetition powerful? It turns out we are also inclined to believe things that are repeated often, even if they are not true. We can be persuaded through repetition. It is beyond merely the influence of retention and memory. The fact of a matter might be changed through repetition. As reported several years ago by the British Broadcasting Corporation (BBC), "Repetition makes a fact seem more true, regardless of whether it is or not."
If lawyers fail to appreciate the implications of that phrase, there is something truly amiss. It is the lawyer's job to pursue the truth on one hand and to zealously represent the client's best interests. When I say on the one hand, it is hoped that these two can each be pursued together on the "one hand" and that there is no "other hand." But, unfortunately, there are instances in which misstatements occur and untruths are told and repeated. Some may be minor or inconsequential, but others may control the outcome of a case. See Representations we Make (March 2019); Candor, Omission, Persuasion (October 2021). 
Whether from their own clients, opponents, or disinterested witnesses, lawyers must remain attuned to the potential for innocent misrepresentations, mischaracterizations, and blatant lies. Memory, perspective, and appreciation all differ from person to person. And, like it or not, self-interest and self-preservation are entirely likely to lead some to wander from the path of truth. When the lawyer perceives it, it must be confronted before its repetition renders it truth.
The psychologist quoted by the BBC says that this is a "law of propaganda," that has historically demonstrated efficacy. He labels it "the 'illusion of truth' effect." The impact has been tested by subjecting a variety of people to various facts. The results demonstrate that "people tend to rate items they've seen before as more likely to be true." The researcher concludes that this is for "the sole reason that they are more familiar."
The focus of the article was on (then) recent work in which the testing of acceptance was focused upon statements that participants were likely to already know. The example cited regards which of the oceans, Atlantic and Pacific, is the largest. There, results demonstrate that despite the common knowledge that the Pacific is the largest, repetition of the "Atlantic is the largest ocean" was sufficient to result in people accepting that "truth." The pure repetition was sufficient to sway people from known, "actual truth."
Repetition makes things reliable. The mere fact that we hear them over and over makes them relatable and believable. We might come to accept that a particular product makes us beautiful, or even that a particular look is itself beautiful. Popularity of a "look" might lead to repetition and repetition to popularity. Remember the "big hair" of the 1980s? A professional might cast her or himself as knowledgeable or able in some advertising media and thereafter enjoy the benefits of being hired or retained despite the actuality of shortcomings such as incompetence and sloth.
The article cautions that we are exposed to a variety of persuasions and influences in our day-to-day. It mentions persuasion in the form of rhetoric and advertising. It is easy to conceive how a catchphrase or attribute might become accepted if repeated often enough. The caution is that the repetition through "foible of human psychology" is exploitable. If a particular business expresses they are "the best" often enough folks might come to believe it. 
Despite these scientific findings that support our tendency to accept things that are repeated often enough, the predominant factor in whether we believe something is true actually turns out to be whether it is true. In the broadest context, we are "more likely to believe the actual facts as opposed to the lies." But, the repetition effect is still real. And, the potential for us to be misled by untruths is greatest in that population of knowledge in which we possess the least background, exposure, or expertise. There, in the absence of an "actual truth" foundation, we are perhaps the most susceptible.
Thus, in litigation involving a yellow car that struck a red car, there is seemingly little hope through repetition of convincing the jury that one of the cars was blue. For that, there is likely objective evidence, such as pictures, that will frustrate the obfuscation. But, as to which party is or is not hurt from that collision, or is at fault, for which there may be less objectivity, the repetition effect may be of great import.
While the research supports that repetition has the power to influence us and our belief of "truth," it is unlikely to override our actual, existing knowledge. But, it is difficult to be "rigidly logical about every piece of information you hear." When we are exposed to information, it is a lot of work to compare that data to "everything you already knew." If there is a little information, that volume of work is perhaps practical. But, as volume increases, practicality sinks in. The volume and the pace of information make this "rigidly logical" impractical at best and likely impossible for mere humans.
Therefore, when dealing with information that is critical, decision-makers must focus on the specifics that are important. The critical analysis, the comparing to the "already known," has to occur as regards the crucial points, recognizing it cannot likely be applied to all factual points. That analysis is the path to sorting the actual truth from the truth that is suggested by mere repetition. Therefore, it is similarly important to focus on the important and to avoid boredom and overwork for the jury. 
As a listener, we may likewise remain aware of the potential that repetitions possess. We can listen for repetition and question whether it is being engaged to obfuscate or obscure. We can decide what the crucial points are and through active listening bring our focus back to the comparison to what we already know. We can do so if we are active, engaged, and focused. 
The BBC author suggests we can be introspective. We can question "why we believe what we do." From our perspective, is plausibility reality when crosschecked against what we know? Or, "have we just been told that repeatedly?" Is the statement verifiable and thus reputable? Or, is it merely the subject of repetition and reinforcement?
By Judge David Langham



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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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