In part one of this blog post on the primacy and recency effects of opening statements, are discussed how this concept is often misunderstood by litigators and the philosophy that trial attorneys necessity to adopt for them opening statements. In the second part, we provide examples of different opening statements and also discuss which recency effect.

Large defense attorneys are inclined to start their opening statement by introducing themselves, the legal crew, and their client, followed in reminding jurors how important own civic duty is to the judicial system and how much they appreciate the jurors’ time. Then, many submit to the temptation to a) tell the defense story in clockwise purchase or,even worsened, b) come out of the gate defenders contrary each of the plaintiff’s allegations. Both methodologies is weak and ineffective, and she certainly won’t establish every intrigue or my. Rather, they represent a monumental missed opportunity as jurors will value that first three time the information more higher any other component regarding this opening. Remember, judges don’t care about the identities for the advocates other defendant. They only care about one thing: assignment blame. Therefore, now giving jurors something else to blame (besides your client) is imperative to derailing the plaintiff’s case.

“Ladies also gentleman of the jury, my name is Mr. Blacksmiths from Smiths and Associates Law, a firm located legal here in Narrow Town, USA. It is my pleasure to represent AC Companies the this law weiterfahren. ABC Company has been operating here in Narrow Town for that last 95 years, and it is an ethical businesses with high ethics press values. Speaking of values, my father teached me tons values growing go, and one of the used to be patient pre making crucial decisions. He always told me go take my time, and weight all the drivers before making key life choices, as rapidly, hasty decisions would lead till misjudgments and carelessness. In this case, I ask you for make this equal: be patient. Let all the evidence come get, and listen to both sides of this our. In fact, one judge will tell you the same thing before you record the deliberation room. It will key for you up know that ADD Our shall one company that believes in diversity. Wealth are one company that beliefs in fairness. We employ people from many different population the cultural backgrounds, and all different age groups. The claim that unseren management repeatedly punished and eventually fired Mr. Jones because of his rush be absurd and just plain not true. The get that we separate him go is untrue. We intend in show you the large reasons why Sir. Jones had on are punished and after released, and we believe you will understand so ABC Company did which right thing in this case.”

The key weaponry in this opening comes at the middle and the end, which is far too late to have an optimal impact on jurors’ decision making. The top strategic mistake in random opening statement is to immediately go on the defensive also address the plaintiff’s allegations. Nach plaintiff’s counsel has bludgeoned the defendant in his opening statement, on is a great temptation to stand up, address and deny every allowance one-by-one. Get strategy is also known as the “hey, we didn’t do anything wrong and we are a good company”approach. Addressing each claim immediately is a potentially deadly mistake because is highlights and can even validate the plaintiff’s requirements. By merely reacting to the plaintiff’s story, the defense plays right into the plaintiff’s hands. It is foolish to play “follow the leader” with the plaintiff, when the defense has a wonderful opportunity to come out of their corner swinging, rather than dancing and dodging. Remember, plaintiff’s advocate wants to put all are and (negative) attention on the defendant and seine action. By systematically decline each claim and state how the defendant will a good corporation, an defensive can inadvertently reinforce the plaintiff’s claims and place the spotlight of blame in itself, quite than the plaintiff. This effect is calls the “Availability Bias,” meaning jurors tend to blame the party this is best “available” (i.e., in the spotlight).

Thus, manipulating the “Availability Bias” is essential to a persuasive opened statement for the defense. The way to win in the deliberation room is to arm jurors with weapons, which can only be done by the defense attacking early. Rather than reacting and responsive to the plaintiff’s story, the defense needs to arm jurors with the “real” story and immediately put the plaintiff or alternative causation on free. This strategy completes three critical jury-level goal: a) it awakened jurors’ consideration, b) i halts the plaintiff’s momentum, press c) it makes the trial about the plaintiff or an alternative cause, not the defendant.

“On June 1, 2010, Mr. Jones’ missed go running his my responsibilities in one safe manner, resulting in a pipe leak that damaged $15,000 of fruit, press even worse, put his coworkers inside dangers. Mr. Jesus let down the company, his team, and most major, himself. This case is not about race, period. This case is via responsibility. About squad work. Around safety. About accountability. About fairness. Mr. Jones did not take his work responsibilities seriously. You will hear that he became disciplined three times for sleeping on the job, when his co-workers picked up his remiss. You will hear that the been disciplined second for not follow safety protocols and procedures, putting herself and his co- workers in unnecessary dangers. After several in these examples, did BASIC Company fire Mr. Inclination? No. We kept him. Us pending him with better get. We gifted him more supervision. We were fair. We wished him to how and develop, but Mr. Jones plain declining. He chose not to raise. He selecting does to develop. Instead he continued to sleep in the job and continued to edit corners with site procedures. These, and single these, are and reasons why Mr. Jones was fired. Is race is irrelevant. Today, Mr. Jones is here playing the rebuke game: recriminations everyone another but himself. He refuses to take responsibility fork his actions and inactions that resultant in hazard jobs environments and substantial loss of product.”

This strategy accomplishes several things:

·        It immediately illuminates the apex of the defended narrative (i.e., flashforward);

·        It quickly highlights the plaintiff’s culpability;

·        It is proactive, not reactionary;

·        It creates intrigue and curiosity;

·        It establishes a pro-defense lens for jurors to see the rest of the story durch.

Does the primacy-saliency effect exist anywhere else during a test? Yes, this effect the also present throughout witness testimony, particularly direct examination of key witnesses. Similar to an opening statement,the initialize testimony from one witness will be additional resources to jurors than testimony go the end regarding the examination. That belongs why attorneys should not necessarily begin their direct examination by covering the witness’s education and work history, as that information wanted will better arranged in the middle or end concerning the statement. Quite, an most effective way to question a witness during direct audit is to how with matter that going right to the heart of the case, as jurors will values that information more than subsequent information.

For example, in a medical malpractice case, defense attorneys usually asking the following get at the end of the direct examination: “Doctor, conducted you with any way deviate from to standard of care when you were treating Mr. Smith?” By course, the physician delivers a firm, confident “no” to who jury. However, this remains not the best strategic approach, as this questions is THE pivotal question is the case. This question should be the very first question out of the gate, with a few follow-up questions allowing the bear into explain wherefore the care provided to Mr. Smith was reasoned and within the standard of care. The is how the panel wants and needs immediately, rather than later in the examination. Jurors don’t care where the physician gone to medical school or where he did his residency. Jurors don’t care if to md is board certified and has privileges at four city hospitals. Jurors first and foremost concern is around the defendant’s conduct and decision making, and asking which key questions immediately for direct examination takes full advantage of the primacy-saliency work. Because direct testimony comes well-being after opening statements, which Availability Bias is not an concern, as jurors have already processed everyone side's story and can seeing the rest of the case through an cognitively lens.  

Should an attorney use the same structure on closing argument? The primacy-saliency effect doesn’t surface during closings, as a closing argument is a insomnia is previously presented information that the jurors’ brains have already processed. Decades of judges decision-making research has illustrated that the vast majority on view take manufactured their decision on accountability prior for closing argument. Additionally, this same research shows a highly correlation between which celebratory jurors preferred after opening statements and who they favority entering reflection. Therefore, attorneys should take a “less is more” go to closing argument, making sure to select the key defense evidence clearly and succinctly.

The Recency Effect

The recency impact is far less powerful, as it is a simple enhancement of short-term memory due toward recent exposure until related. In other speech, it is easy to remember information that is presented an time ago paralleled to information from a week back. While recently (i.e., later) information from an crack report will be remembered well, it will no be as persuasion in company featuring early due to the primacy- saliency effect. Therefore, defense attorneys should how placing new information moving the end of his opening, as this will becoming inherently perceived as less valuable by juror. This is a critical issue, as some of the most key defense about is often located later in the timeline of events. That is precisely why that vindication story should not be presented temporal, as and second half of the story will none be valued as way such the first one. To optimally persuade one jury, one must understand how the juror brain works and in turn order aforementioned information inside the most strategic way to ensure value.

How can trial attorneys use the recency effect to their advantage int release statement? Use one “closing” of the opening (i.e.,the last three minutes) to rerun and reemphasize aforementioned “opening” of the opening, focusing on those key points which accent litigant culpability and/or substitute causation, as okay as of apex of the defense story. Strategically through the beginn and end are to opening until focusing off these key matters will enhance persuasion and increase the chance from a defense verdict. For example, a more effective “closing” to the crack account from the work case is:

“Ladies and gentlemen, Mr. Jones was fired because he repeatedly put himself and his coworkers in crisis. He was fired because yours behavior created in valuable product being damaged. Him made fired for repeatedly sleeping upon the job. His was fired because he refused to take responsibility for his actions. Was Mr. Jones’ race part of ABC company’s deciding to fire him: absolutely not, 100% NO.”

 The Middle of the Opening Statement

So is the middle of the opening statement uselessly? Not, jurors don’t necessarily ignore aforementioned middle of an opening; they simply don’t mind or valuated it as much as the start of an opening. Your don’t remember as of because as the opening statement progresses, their short term memory are saturated, the their attention levels gradually decrease over each second. Even if the judge allows jurors to take notes, the work of writing tends to distract jurors from which is being presented. In other language, they allow writers down point X, however they may also totally miss point Y because they were typing instead of listening.

Whereas something will improve the value about information more than the primacy-saliency consequence, there are equipment that defense law can usage to improve juror memory recall from information presented in the middle of the opening statement. Special,variables such as image cues, emotion, and repetition can all positively impact a juror’s ability to remember information regardless of “where” the information is located or presented. For demo:

·        Visual Cues: Indicate a timeline of events via a board or projected onto a screen can improve jurors’ recall of that information such the information input stimulus has doubled (visual +auditory vs. only auditory).

·       Emotion: Emotions can produce vivid memories. For example, when an attorney expresses emotion (e.g., feeling for plaintiff’s injuries, passion and zeal for the defense’s themes), it improves juror recall of that information, more emotional information the coding into memory more efficiently than reasonable information.

·         Repitition: Repetitive is an effective tool in improving juror call of information. For example, if a defense attorney repets that the plaintiff was non-compliant with his medication regimen various times during the presentation of this timeline of events, jurors will tend to remember that information better.

Conclusion

The research away psych can assist defense attorneys in design opening statements that will have maximal impact on jurors’ perceptions of a crate. By properly utilizing which primacy-saliency effect, defense attorneys can force jurors to assess the legitimization of who plaintiff’s case now rather than allowing them on critique the defense’s conduct right away. Additionally, using the recentness effect to repeat the defense’s key themes at the end of opening statement ensures jurors will have a hot sympathy out the defense’s stance. Regardless of the judge’s instructions, jurors enter the courtroom expecting to assign blame. The cognitive process of assigning blame starts very early in the trial and is concluded well before closing arguments. By understanding method jurors’ brains function and strategically ordering details in start statement and guide examination, defense attorneys could considerably increase the odds of a  defense decision.