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DTCI: The science of opening statements

Persuading through the use of primary and recency effects

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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.

Primacy effect

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.

Consider this beginning of an opening for the same employment case:

On June 1, 2010, Mr. J failed to perform his work responsibilities in a safe manner, resulting in a pipe leak that damaged $15,000 of product, and even worse, put his coworkers in danger. Mr. J let down the company, his team, and most important, himself. This case is not about race, period. This case is about responsibility. About teamwork. About safety. About accountability. About fairness. Mr. J did not take his work responsibilities seriously. You will hear that he was disciplined three times for sleeping on the job, while his co-workers picked up his slack. You will hear that he was disciplined twice for not following safety protocols and procedures, putting himself and his co-workers in unnecessary danger. After several of these instances, did ABC Company fire Mr. J? No. We kept him. We provided him with more training. We gave him more supervision. We were fair. We wanted him to grow and develop, but Mr. J simply refused. He chose not to grow. He chose not to develop. Instead he continued to sleep on the job and continued to cut corners with safety procedures. These, and only these, are the reasons why Mr. J was fired. His race is irrelevant. Today, Mr. J is here playing the blame game: blaming everyone else but himself. He refuses to take responsibility for his actions and inactions that resulted in dangerous work environments and substantial loss of product.

This strategy used in opening accomplishes several things:

it immediately illuminates the apex of the defense story (i.e., flash forward)

it quickly highlights plaintiff culpability issues

it is proactive, not reactive

it creates intrigue and curiosity

it establishes a pro-defense lens through which the jurors can see the rest of the story.

Recency effect

The recency effect is far less powerful as compared to primacy. It is only a simple enhancement of short-term memory due to the recent exposure to the information. In other words, it is easier to remember information from an hour ago than information from a week ago. While recent (i.e., later) information from an opening statement will be remembered well, it will not be as persuasive as information presented early. Therefore, defense attorneys should avoid placing new information toward the end of their opening. This is a critical issue because some of the most important defense information is often located later in the timeline of events. The defense story should not be presented chronologically because the second half of the story will never be valued as much as the first. To really persuade a jury, one must understand how the juror brain works and then present the information in the most strategic way to ensure value.

Trial attorneys can still use the recency effect to their advantage in opening statement. Use the end of the opening (i.e., the last three minutes) to repeat and reemphasize the start of the opening. Focus can be on those key points that highlight plaintiff’s culpability and/or alternative causation, as well as the apex of the defense theme. Strategically using the start and end of the opening to focus on these issues will likely enhance persuasion and increase the odds of a defense victory.

This is not to say that the middle of the opening statement serves no purpose. Jurors don’t necessarily ignore the middle of any opening; they just don’t remember or value it as much as the beginning. They don’t remember it as well because as the opening statement progresses, their short-term memory becomes saturated, and their attention/concentration levels gradually decrease. Even if the judge allows jurors to take notes, the action of writing tends to distract jurors.

Tools defense attorneys can use to improve juror memory recall from information presented in the middle of the opening statement include variables such as visual aids, emotion and repetition. All can positively affect a juror’s ability to remember information regardless of where or when in the opening the information is presented.

Psychology can assist attorneys in designing opening statements that will have influential impact on the jurors’ perceptions of the case. By properly using the primacy-saliency effect, counsel can force jurors to assess immediately the legitimacy of the plaintiff’s case. In addition, using the recency effect to repeat key themes in the defense at the end of opening statement ensures jurors will have a better grasp of the defense trial positions. Jurors frequently enter the courtroom expecting to assign blame regardless of the court’s instructions. The cognitive process of assigning blame starts early at trial and is finished well before closing arguments. By understanding how jurors’ brains function and strategically delivering information in opening statement, defense attorneys can significantly increase the odds of a favorable verdict.•

Elliott I. Pinkie is a partner with Schultz & Pogue, LLP, in Indianapolis. He is a member of DTCI’s Trial Tactics and Health Litigation Sections, and is vice-chair of the Trial Tactics Section. His practice focuses on civil litigation for the defense with a concentration in medical malpractice. He can be reached at 317-262-1000 or epinkie@schultzpoguelaw.com. Bill Kanasky Jr., Ph.D. is the director of litigation psychology at Courtroom Sciences Inc., a full-service, national litigation consulting firm with offices in Dallas and Chicago. He is recognized as a national expert, author and speaker in the areas of witness preparation and jury psychology. He can be reached at 312-415-0600 or bkanasky@courtroomsciences.com. The opinions expressed in this column are those of the authors.
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  • rvary@masudlaborlaw.com
    Excellent article with solid examples. Highly recommend.

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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