By Elliott I. Pinkie and Bill Kanasky
The opening statement is counsel’s opportunity to provide a preview of the evidence with the power of persuasion built in to make a credible and influential impact upon the trier of fact. It is not the time for argument. This article will explain the science and use associated with primacy and recency effects and offer guidance to the defense lawyer on opening statements.
Indiana Jury Trial Rule 21 provides for the parties’ opening statement. Indiana Rule of Trial Procedure 43(D) governing how evidence is presented also makes reference to the opening statement. However, it offers little guidance for the litigator. While counsel is usually allowed latitude in the opening statement, the extent of an attorney’s opening statement to the jury is subject to the court’s discretion, including its fullness or brevity. Vanyo v. State, 450 N.E.2d 524 (Ind. 1983).
The use of primacy and recency effects in the opening statement can pave the way for a successful trial outcome. The primacy and recency effects are some of the most misinterpreted psychological constructs in litigation. Trial attorneys commonly believe that most jurors usually remember the first and last things said to them. However, it is not that simple. True primacy and recency effects occur only when memory accuracy varies as a function of an item’s position within a list of words in a controlled research setting. It is impossible to replicate these memory effects in the courtroom because the information presented to jurors is incredibly different from a list of words in a laboratory.
Variations of the primacy and recency effects do exist in the courtroom. In fact, more sophisticated versions of the primacy and recency effects exist in the trial setting and mainly during opening statement presentation. These effects have a significant impact on jurors processing information and their decision-making. The primacy effect plays a very powerful role at the onset of opening statement, whereas the recency effect plays a key role at the end of the opening. Trial attorneys should understand what primacy and recency effects really are and, even more important, how they can be used as weapons in the courtroom during opening statement.
During trials, jurors perceive information presented early in an opening statement as more valuable and meaningful than information presented in the middle or at the end. Start hard and fast out of the gate and finish strong is a common litigation battle cry. A strong message to start with in opening not only enhances jurors’ memory encoding related to that information, but it also (positively or negatively) affects processing of subsequent information presented to jurors during the opening. Rather than a true primacy effect (i.e., basic memory enhancement), it is better labeled a “primacy-saliency” effect. For example, people form a more positive impression of someone described as, “intelligent, industrious, impulsive, critical and stubborn,” than when they are given the same characteristics in reverse order. This is because the first two adjectives are automatically valued more by the brain than the middle and later ones. A distinction between a strict primacy effect versus a primacy-saliency effect is value compared to recall. If a juror recalls information due to a primacy effect, but does not value it, there is little benefit to the sponsoring litigator. Value leads to better recall, but recall doesn’t necessarily lead to better value. The careful, strategic ordering of information in an opening statement is critical to jury persuasion.
During the first three minutes of an opening statement, jurors tend to form a working hypothesis that affects how they interpret the rest of the information presented. Counsel can inadvertently stack the deck against themselves by beginning their opening statement with the wrong information and inadvertently taint the jury’s perceptions going forward. Information presented early in an opening statement acts as a filter through which all subsequent information flows. This filter can drastically affect how jurors perceive information as the presentation progresses.
For pure persuasion, a trial attorney should begin the opening by installing the most effective filter. To do this, consider the following at your next trial by jury for the defense:
• foregoing small talk with the jury
• using a passionate, not vengeful, tone
• resetting the playing field immediately by fighting fire with fire
• starting with three to four key “zingers” that attack rather than defend
• illuminating the apex of the defense story first, rather than working up to it.
It is essential to drive home key themes (i.e., “zingers”) related to plaintiff culpability and/or alternative causation immediately. Remember, this is the time when the jurors’ brains are most receptive. The defense story should proceed only after the filter has been placed, which should significantly influence jurors’ perceptions and working hypotheses of the case. This powerful starting strategy was adopted from the silver-screen; it is referred to as the “flash forward” start. Movies don’t begin at the beginning of the story, but rather at some other point in the story that no one expects, thus creating immediate curiosity, suspense and intrigue. Director Martin Scorsese has used this te chnique on many occasions to create Oscar Award-winning movies, such as “Goodfellas” (1990), “Casino” (1998), and “Gangs of New York” (2002). These films do not start with “once upon a time ... .” They start with a brutal murder of a rival gangster, a murder attempt by car explosion, and a violent territorial war on the streets of lower Manhattan in 1846. The result: the viewers are primed and on the edge of their seats. The same should happen in the courtroom. The best way to accomplish this is to flash forward to culpability and/or alternative causation immediately, and then start the defense story.
Consider the following start of an opening statement for the defense in an employment case:
Ladies and gentleman of the jury, my name is Mr. X from XYZ and Associates Law, a firm located right here in Small Town, USA. It is my pleasure to represent ABC Company in this lawsuit. ABC Company has been operating here in Small Town for the last 95 years, and it is an ethical company with high standards and values. Speaking of values, my father taught me many values growing up, and one of them was to be patient before making important decisions. He always told me to take my time, and weigh all the factors before making key life choices, as quick, hasty decisions would lead to misjudgments and carelessness. In this case, I ask you to do the same: be patient. Let all the evidence come out, and listen to both sides of this story. In fact, the judge will tell you the same thing before you enter the deliberation room. It is important for you to know that ABC Company is a company that believes in diversity. We are a company that believes in fairness. We employ people from many different ethnic and cultural backgrounds and all different age groups. The claim that our management repeatedly punished and eventually fired Mr. J because of his race is absurd and just plain not true. The claim that we singled him out is untrue. We intend to show you the many reasons why Mr. J had to be punished and then fired, and we believe you will understand that ABC Company did the right thing in this case.
The weaponry in this opening is at the middle and end, too late to have the strong impact on jurors’ decision-making. A common mistake in any defense opening statement is to go on the defensive and address the plaintiff’s allegations. After plaintiff’s counsel has just bludgeoned the defense in opening statement, natural temptation is to address and deny each allegation one-by-one. Addressing each claim can be a fatal defense mistake. It highlights and may even validate the plaintiff’s claims. By reacting to plaintiff’s story, the defense plays right into the plaintiff’s case. The defense opening statement is an opportunity to come out of the corner swinging, rather than dancing and dodging. Plaintiff’s counsel desires to put all of the (negative) attention on the defendant. By the defense systematically denying each claim and stating how the defendant is good and did nothing wrong, the defense can inadvertently reinforce the plaintiff’s claims placing the spotlight of blame on the defense, rather than plaintiff. This effect is called the “availability bias,” meaning jurors tend to blame the party that is most “available” (i.e., in the spotlight).
Manipulating the “availability bias” is essential to a persuasive opening statement for the defense. The way to win in the jury room is to arm jurors with the necessary weapon to decide the case in your favor for the defense. This can be done only by the defense attacking and arming early. The defense needs to arm jurors with the real story and immediately put the plaintiff or alternative causation on trial. This accomplishes three critical jury-level goals: (1) it arouses jurors’ attention, (2) it halts the plaintiff’s momentum, and (3) it makes the trial about the plaintiff or an alternative cause, not the defendant.