By Dr. Ken Broda-Bahm:
I can remember the first time I wrote a theme for a bench trial many years ago. The trial team used the theme, and used it as themes should be used, which is to say, emphatically and repeatedly. And it worked: The judge actually included the theme in his written decision in our favor. In that case, and in many cases since, I've wondered exactly what it is that makes language memorable. It turns out that some computer scientists at Cornell University have been wondering the same thing. These researchers (Danescu-Niculescu-Mizil, Cheng, Kleinberg & Lee, 2012) looked at the question of what makes movie lines turn into classics, and their results provide some concrete advice to litigators looking for those thematic expressions that roll off the tongue and stick in the mind.
We have been watching a lot of The Princess Bride at our house lately. I can tell you that there is nothing like a four-year-old fixing you with a steely gaze while intoning, "Hello, my name is Inigo Montoya," fake Spanish accent and all, "You killed my father. Prepare to die." In that case, the memorability comes from both emphasis and repetition, but in countless other cases, we remember a phrase that exemplifies and unites the story (e.g., "There's no place like home," or "May the force be with you"). The Cornell researchers' question is one of vital interest to litigators. Particularly when confronting a mountain of evidence and a labyrinth of law, legal audiences - judges, juries, and arbitrators alike - need the guidance provided by a theme. But it is only useful if it is sticky enough to be remembered and practical enough to be used by your decision makers.
The effect of language is often mysterious, and it is hard to know what works and why. The Cornell computer scientists approached the question through what is called “quantitative language analysis.” Wanting to measure the significant differences between memorable and non-memorable phrases, they looked at over one thousand movies in the IMDb (Internet Movie Database), and selected quotations identified as memorable, along with other quotations (from the same scenes and characters) that aren’t memorable.
The researchers also looked at applications such as political slogans, marketing phrases, and common aphorisms, but there is also a close connection to the demands of a trial theme. Their operating principle, for example, that a phrase’s “catchiness” is a product of both recognition (we know it when we hear it) and production (we’re able to use it in different contexts) fits a litigator’s goals in wanting to provide decision makers with a representative “handle” for a case that not only boils down your case, but also finds its way into written decisions and deliberations.
Of course, the choice of what makes the best theme for your case will always depend on experience, judgment, and gut feeling. But it is nonetheless interesting to see how much the results of the quantitative analysis correspond to our own expectations for what makes the language sticky. The research found that several specific language elements emerged as statistically significant predictors of whether the language was memorable or not memorable. Applying the study findings to the choice of trial themes yields the following five conclusions.
What Makes Your Theme Memorable?
1. Uncommon Word Choice, Common Syntax. The overarching pattern that emerged from the analysis of movie scripts is that the phrases that stick are those that are based on "unusual word choices built on the scaffolding of common part-of-speech patterns." The common syntax makes it immediately understandable, while the unexpected word choice makes it memorable.
Not as good: The company's product testing, which is more detailed than most companies' testing, meets all necessary regulations.
Better: The company met all of the ordinary regulations with extra-ordinary attention to detail.
2. Fewer Personal Pronouns (Other Than "You"). Part of what makes language memorable is its ability to transcend its immediate context. Rather than applying to "he," "she" "they," or "I" the language should apply generally. The exception is the reference to "you," which is a way of reaching out to your audience in an inclusive way.
Not as good: He should have known that it matters and he should have read the label.
Better: You know that when it really matters, you read the label.
3. Indefinite Articles. Consistent with the emphasis on the universal, it is better to refer to "a" thing rather than "the" thing. By focusing on the indefinite reference, the expression sounds more like a trustworthy rule, and less like a specific description.
Not as good: The product included warnings, and those warnings should have been read by the Plaintiff.
Better: Any potentially dangerous product includes warnings, and a person using a potentially dangerous product ought to read them.
4. Present Tense Verbs. One area where you don't want to transcend the immediate is in verb choice. Expressions in the present tense are more effective in engaging the audience. This is also consistent with the advice to tell your trial story in the present tense (the car enters the intersection...) rather than in the past (the car entered the intersection...).
Not as good: The company tested the product and was convinced that it was safe.
Better: The company tests the product and is convinced that it is safe.
5. "Front Vowel" Sounds. What is a front vowel sound? While thinking about where in your mouth the sound seems to come from, say the letters "E," then "A," then "O." The front of your mouth seems to produce "E," while "A" is in the middle, and "O" is in the back. For some reason, the movie expressions that tended to be more memorable also tended to have more front vowel sounds ("Eee," "Aye," and "Ehh" sounds). While the researchers considered this a suggestive rather than a definitive finding, it is intriguing one. It may be that certain sounds are more likely to resonate, literally. If so, then "Inigo" is more memorable than "Montoya."
Not as good: No product is totally safe.
Better: Nearly every product carries at least some risk.
Selecting a theme is, of course, primarily a matter of substance and not just style. For a theme to work, it can't simply be a rhetorical construct that follows the rules. It has to be a substantial claim that rings true in light of the evidence and testimony. "If the glove doesn't fit, you must acquit" worked not just because of its language, but because it pointed back to one of the most memorable moments of trial. So theme generation should begin with a good understanding of case strengths and weaknesses, but it definitely helps to pay some attention to the language. And while you can't bill for it, it might even help to go to the movies now and then.
Other Posts on Themes:
- Embrace Positive Messaging
- Know Your 'God Terms' and Your 'Devil Terms'
- Right-Size Your Message in Trial
Cristian Danescu-Niculescu-Mizil, Justin Cheng, Jon Kleinberg, & Lillian Lee (2012). You had me at hello: How phrasing affects memorability NSF Grant IIS-0910665, IIS-1016099 arXiv: 1203.6360v1
Photo Credit: psanford, Flickr Creative Commons (Altered by Nick Bouck)