The Science of Opening Statements:  Persuading through the use of primary and recency.

Elliott I. Pinkie, Pinkie Law, LLC

Bill Kanasky, Ph.D., CSI Litigation Psychology

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.  The purpose of this article is to 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 too offers little guidance for the litigator.  While counsel is usually allowed latitude in 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 jurors mostly remember the first and last things you said to them.  However, it is not that simple.  True primacy and recency effects only occur 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 than a list of words in a laboratory.

Variations of the primacy and recency effects do existent 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 importantly, how they can be used as weapons in the courtroom during opening statement.

Primacy Effect

During trials, jurors perceive information presented early on 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 out 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 vs. a primacy-saliency effect is value compared to recall.   If a juror recalls information due to a primacy effect, but doesn’t 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 opening statement is a critical part 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 point forward.  Information presented early in an opening statement acts as a filer of sorts that all subsequent information flows through.  This filter can drastically impact 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 the 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 malleable.  The defense story should only proceed 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 “start” of the story, but rather begin at some other point in the story that no one expects creating immediate curiosity, suspense, and intrigue.  Director Martin Scorsese has used this technique on many occasions to create Oscar Award-winning movies, such as GOODFELLAS (1990), CASINO (1998), and GANGS OF NEW YORK (2002).  These films don’t 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 original streets of lower Manhattan in 1846.  The result: the viewer is primed and on the edge of their seat.  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. Smith from Smith and Associates Law, a firm located right here in Small Town, USA.  It is my pleasure to represent ABC Company in this law suit.  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. Jones 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. Jones 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 their 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 only be done 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. Jones’ 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. Jones let down the company, his team, and most importantly, himself.  This case is not about race, period. This case is about responsibility.  About team work.  About safety.  About accountability.  About fairness.  Mr. Jones 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. Jones?  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. Jones 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. Jones was fired.  His race is irrelevant.  Today, Mr. Jones 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 for jurors to see the rest of the story through

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 easy to remember information that is presented an hour ago, as compared to 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 towards 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.  This is why 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 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 much 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 impact a juror’s ability to remember information regardless of where or when in the opening the information is located or presented.  For example:

The science of psychology can assist attorneys in designing opening statements that will have influential impact on the jurors’ perceptions of the case.  By properly utilizing the primacy-saliency effect, counsel can force jurors to assess the legitimacy of the plaintiff’s case immediately.  Additionally, using the recency effect to repeat key themes in the defense at the end of opening statement ensures jurors will have a better grasp on 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 an Attorney at Pinkie Law LLC in Indianapolis. His practice focuses on civil litigation for the defense with a concentration in medical malpractice.  He can be reached at 317.974-9647 or epinkie@pinkielaw.com The opinions expressed in this column are those of the author.

Bill Kanasky Jr., Ph.D. is a Vice President at Courtroom Sciences, Inc.  Dr. Kanasky is recognized as a national expert, author and speaker in the areas of advanced witness training and jury psychology. Dr. Kanasky has distinct expertise in health litigation matters, as he consults on more than 175 cases annually in the areas of defendant witness training, jury decision-making research, and jury selection strategy.  Importantly, his empirically-based consulting methods are specially designed to defeat plaintiff “Reptile” strategies, which have resulted in billions of dollars of damage awards across the nation.  He earned his B.A. in Psychology from the University of North Carolina at Chapel Hill, and his Ph.D. in Clinical and Health Psychology from the University of Florida. He can be reached at 312.415.0600 or bkanasky@courtroomsciences.com.  The opinions expressed in this column are those of the author.