By Dr. Ken Broda-Bahm:
Imagine this messaging challenge: Your case isn't a personal injury case, where there is a discrete moment you're asking jurors to evaluate. Instead, it is a commercial case, where there is a profusion of details, memos, and meetings, each like individual flakes in a snowstorm. In order to make it not just dramatic but simply intelligible, you need to take one or a few of those specifics and create a meaningful event to serve as the focus of your story.
If legal persuasion was just a matter of giving reasons that convince your decision-maker, it would be enough to know the facts and the law. Instead, you need to make some moments stand out and other moments recede. You need to invest importance in some facts and drain salience from others. Put differently, you need to make meaning. We know that there are many ways of creating importance for facts, including demonstrative exhibits, analogies, themes, and physical delivery. But one surprising way to emphasize meaning comes from research discussed recently by my friends at The Jury Room blog. Apparently, focusing on counterfactuals - sometimes called "if only..." or "but for..." thoughts about what didn't happen -- is a reliable way to increase the perceived importance of an event. Oddly, you can encourage listeners to add more importance to real events by inviting them to imagine unreal events. This post takes a look at the research and provides an example of how the technique can work.