The secret weapons of opening statements - part I

The primacy and recency effects

Bill Kanasky, Jr., Ph.D.

The primacy and recency effects are arguably the most misinterpreted psychological constructs in litigation. Most trial attorneys simply understand them as “jurors most remember the first and last things you say to them.”However, it is not that simple. By definition, true primacy and recency effects 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 in the real world, in natural settings, is perceived by the brain and encoded into memory very differently than it is in a laboratory setting.

 

That is not to say that variations of the primacy and recency effects are non-existent in the courtroom. In fact, more sophisticated versions of the primacy and recency effects exist at trial, mainly during opening statement presentation. These effects go far beyond basic memory enhancement, and actually have a significant impact on juror information processing and decision-making. Specifically, the primacy effect plays a very powerful role early in an opening statement presentation, whereas the recency effect plays an important role at the conclusion of the opening statement. It is important for trial attorneys to understand what primacy and recency effects really are and how they can be used as potent weapons in their opening statement.

 

The Primacy Effect

 

At trial, jurors perceive information presented early in an opening statement as more valuable and meaningful than information presented in the middle or at the end. This 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. Therefore, rather than a true primacy effect (i.e., basic memory enhancement), it is better labeled a “primacy-saliency” effect. For example, people form more positive impression of someone described as, “intelligent, industrious, impulsive, critical, and stubborn,” than when they are given the same characteristics in reverse order because the first two adjectives are automatically valued more by the brain than the middle and later ones.


The main distinction between a strict primacy effect vs. a primacy-saliency effect is value vs. recall. If a juror recalls information due to a primacy effect, but doesn’t value it, there is little benefit to the trial team. Bottom line: value leads to better recall, but recall doesn’t necessarily lead to better value. This is why careful, strategic ordering of information in opening statement is so critical to jury persuasion.

 

At the very beginning of the opening statement, jurors form a working hypothesis that affects how they interpret the rest of the information presented to them. Therefore, attorneys can inadvertently stack the deck against themselves by beginning their opening statement with the wrong information, which will essentially taint the jury’s perceptions from that point forward. Information presented early in an opening statement acts as a cognitive “lens” of sorts that all subsequent information flows through. This cognitive lens can drastically impact how jurors perceive information as the presentation progresses, so one must choose this lens very carefully in order to persuade jurors during opening statement.

 

For optimal persuasion, a trial attorney needs to begin his or her opening statement by installing the most effective cognitive “lens,” meaning:

 

·        Skip the introduction and ice-breaking small talk with the jury;

·        Use passionate, not vengeful,tone;

·        Reset the playing field immediately by fighting fire with fire;

·        Start with three to four key “daggers”that attack rather than defend;

·        Illuminate the apex of the defense story first, rather than working up to it

 

It is essential for defense counsel to hammer home key themes (i.e., “daggers”) related to plaintiff culpability and/or alternative causation immediately, as this is the time when the jurors’ brains are most malleable. The defense story should only proceed after the “lens” has been placed, which should significantly influence jurors’ perceptions and working hypotheses of the case.

 

This powerful starting strategy was adopted from the cinema big screen and is referred to as the “flash forward” start. Many movies don’t begin at the“start”of the story, but rather begin at some other point in the story that no one expects. This creates immediate curiosity, suspense, and intrigue within the audience. World-renowned director Martin Scorcese 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 movies don’t start with “once upon a time...” Instead, 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 audience is primed and on the edge of their seats, as the director has installed a“lens”that the audience will view the rest of the movie through. The same must happen in the courtroom, as jurors should be oozing curiosity and intrigue during the defense opening statement.The best way to accomplish this effect is to flash-forward to culpability and/or alternative causation immediately, and only then “start” the defense story.