Episode #34 – The reptile opening statement

This episode of The Litigation Psychology Podcast highlights a topic that doesn’t get very much attention: the Reptile Opening Statement. Dr. Bill Kanasky discusses how Reptile attorneys build an opening statement and how a defense attorney needs to be prepared and respond. Dr. Kanasky also provides an explanation of Primacy and Recency Effects, as well as the top miscues by defense attorneys in their opening statements.

Full Episode Transcript

[0:05] Bill Dr. Bill Kanasky with Courtroom Sciences. Let’s talk today about the reptile opening statement. This is a really important topic, and I want to talk to you a little bit about the psychological principles of primacy and recency, because the reptile attorney is doing very, very, very different things in opening statement than they did previously before the training. And the more you know about what they’re doing, the better off you’re going to be when constructing your opening statement, but you’re going to have to do it differently to, to deal with these guys.

So what are they doing opening statement reptile? Right from the textbook, The Reptile Revolution, avoiding sympathy. They’re not going to talk about their client; they’re going to focus on the safety rules, as you know. They’re going to focus on what’s called the availability bias, meaning the entire opening statement is going to be 100% focused on the defendant and or their employer. So they’re going to have you guys in the crosshairs from the, the opening tip. And they’re not going to talk about their client; they’re not going to talk about sympathy.

The other thing they’re going to talk about is they are going to talk about money. They are going to talk about money very early in the opening statement, and if you’re not attacking that demand in your opening, that’s going to be trouble. And then finally, and everybody needs to get this through their heads, the reptile plaintiff attorney is not using fear, okay, to try to scare the jury into awarding high damages. That’s not how reptile theory works. They’re trying to use persuasion. They’re trying to empower the jurors. They’re trying to make the jurors stronger; they’re not trying to scare them. Scaring jurors really doesn’t work.

So let’s jump into what you need to do to construct an effective opening statement for your case in this reptile era. Well first of all, primacy and recency. You use these to your advantage. No one understands these. You think you do, okay, but they’re very, very misunderstood. And the attorney always says, “Oh yeah, jurors best remember the first and last thing you say.” That’s not exactly true.

[1:58] Bill So we need to go through that. Primacy in the courtroom. Let’s talk about what is it. It’s a saliency effect, meaning early information in a presentation is valued more by the juror brain. It’s automatically—there is no effort involved. Early information is important, meaning if you tell your story chronologically, you’re going to be in trouble. So think about how you plan your openings, your closings, hell, your direct examination or rehab of your witnesses. If you’re not starting in the right place, you’re going to be giving up a lot of leverage, and I’m going to help you here avoid it.

There’s this famous study where if you get 50 people and you say, “Hey, I have a friend. They’re intelligent, they’re industrious, they’re impulsive, they’re critical, they’re stubborn, and they’re envious. What do you think about my friend?” And people rate this person actually pretty favorably, right? But when you reverse the words and you say, “Hey, I have a friend,” so you get 50 new people and you say, “They’re envious, they’re stubborn, they’re critical, they’re impulsive, they’re industrious, they’re intelligent,” this person’s rated far less favorably. Meaning, you know, listen, these are the same exact characteristics, but you see the order effect. Whatever comes first in a presentation in a sequence, it’s going to get the most value with the juror brain.

[3:15] Bill So here’s a graph on the saliency effect of primacy, meaning let’s assume this is a 30-minute opening statement. Okay, as you can see, that first five to ten minutes, that’s your golden time with the jury. Meaning if you come out saying, you know, “Here’s who I am, I’m so happy to be part of my law firm, oh by the way my client,” and you jump into that company commercial, you’re shooting yourself in the foot. This is the golden time you have with the jury where you better put something else on trial and you better come out swinging, because if you save this information to the middle or the end, the jury is not going to find it as valuable and you’re going to be losing this case before it even starts.

Now primacy, what should you be doing? You got to hook the jurors early. And, and what really good attorneys—if anybody’s ever taken any theater classes, how they write plays, how they write movies—it’s critical to hook the audience early, and that’s what you have to do. And we call this a flash forward technique in cinema. The best movies you will find the opening scene is never the, it’s never the chronological start of the movie or the play. It’s always something from the back that they’ve brought up front because it’s the most exciting thing. And that’s how you have to organize your opening statement.

So this first five to ten minutes, the opening of your opening, by far has the highest juror value. If they don’t hear your themes and your story and where you’re going to shift blame in your case in that opening, in that first five to 10 minutes, you’re really going to be behind the eight ball later on in the trial. Why is this so important? It immediately, immediately—not 10 minutes later—immediately illuminates the apex of the defense story. Okay, so you bring that sexy stuff up front immediately, okay? It quickly highlights plaintiff culpability and or causation issues. Meaning the first sentence out of your mouth is you gotta tell a jury here’s why we’re here and you gotta blame something or somebody else immediately. That cannot wait. First thing out of your mouth. It’s a very proactive versus reactive strategy. Creates a lot of intrigue and curiosity when you can reset the battlefield as a defense counsel. It really gets that jury on the edge of their seat and uh, that’s very important, that’s something that you want. And it establishes that pro defense lens that you want the jury to see your witnesses through. Very, very important. If you leave this stuff to the back of the opening, you’re going to be in trouble.

[5:50] Bill Recency is very different. Recency is all about timing, but you get no value with recency. Meaning the later information in your opening, so say like that last five or ten minutes, jurors will remember that stuff but they don’t find it important because of its, because of its location in your, in your, in your presentation. So it will override—jurors’ early judgments tend to override later information, and jurors just use later information to entrench themselves but they, it’s not important to them.

So what do you need to do with recency? Well, repeat early information. Meaning the end of your opening should really closely mirror the beginning of your opening. Never, never—everybody does this—do not introduce new information late, because the juror, that juror brain is not going to find it valuable. Order your information wisely, which again, many attorneys are uncomfortable with this because they want to go chronologically, but you got to understand the jury brain and why this is so important.

[6:56] Bill Okay, most important graph for you today. Ordering information in opening. So primacy is that first five to ten minutes and you get two very good benefits from this: juror brain values that information and then secondarily, there’s a memory component. The early stuff they tend to remember. On the back end, you get the memory component, but you don’t get the value. So what do you do on the back end? You repeat what you said up front in a slightly different way to make sure that that gets ingrained in the juror brain. What goes in the middle? That’s when you get in the weeds, okay? That’s when you’re going to, you’re really getting in the weeds on your case and the stuff in the middle has got to be the case specific stuff, the stuff that’s gonna be talked about over and over and over again by your witnesses, by your experts. That stuff, don’t worry about, but you got to bury it in the middle. We want your best stuff up front, we want you to essentially repeat it at the end. That’s going to give you the most effective opening statement ever.

Now, common miscues. Common miscues, here’s our top—I’m not sure if there’s 10 here—here’s the top things that defense counsel does that’s just really, really negative towards the impact of your opening statement. You know what, again, introducing yourselves? Dumb. You do that in voir dire. Number two: thanking the jurors for their civic duty. Dumb. That gets you absolutely nowhere and no one wants to be there anyway. Uh, three: telling a corny story to kind of warm up the jury. Terrible. Paul Harvey, “Now you’re going to hear the other side of the story.” Stop, stop, stop, stop, stop. Jurors, particularly in 2020, have no attention span or patience for this. You got to get right to it.

Using humor to lower the temperature? Not going to help when you have a case where there’s catastrophic injury or death. Not using visual stimuli? Now depending on your judge and your court system, you may not be allowed to, but anything you can show graphically is going to help jurors understand your case. And so anything demonstratively that you can show is always very important. Going over the 20 to 30 minute window? This is juror attention span. Every minute over 30 minutes, you’re losing the jury. And I know with some of these cases that are daunting, you’re thinking, “How in the world am I going to tell everything I need to tell this jury in 20 or 30 minutes?” You can. And the key is you can’t tell them everything; you got to tell them the important thing and you got to slant it in your direction. All the other stuff’s going to come in through your witnesses and then you’re going to repeat it in your closing.

[9:29] Bill Reading. I cannot believe I just saw this—i’m not going to say who it was—but a trial attorney, defense attorney, got up uh for opening statement and literally read the entire opening from their, from their iPad. Dumb, dumb, dumb. That looks terrible after the plaintiff attorney just stood up and made really good eye contact with the jurors, got a good bond with them, and then you go to the podium and you read off your iPad. Absolutely idiotic. Not fighting fire with fire. You come out of the corner swinging. I just told you why for primacy, right? But if you don’t come out of the corner swinging, that’s exactly what the plaintiff attorney wants. You have to come out swinging, meaning shifting blame to plaintiff, causation, or, depending on your case—this does happen—maybe a co-defendant or an empty chair. But you got to put blame on somebody else in the first 30 seconds of your opening. Otherwise, again, you’re going to be behind the eight ball.

Not attacking. I’ve seen many particularly reptile plaintiff attorneys come out saying, and their first sentence is, “I want 50 million dollars” or “I want a hundred million dollars” or “I want a 150 million dollars. Now I’m going to prove to you why in this case.” If you don’t come out and say, “We feel that that figure that plaintiff’s counsel just shared—we feel that that’s absurd and we’re going to prove to you why it’s absurd.” If you don’t say that, that’s the anchoring effect that we talk about, anchoring damages. If you don’t say that, that number 150 is going to stick in that juror’s brain for the rest of the trial. And if you wait for your economic expert to attack that figure, it’s far too late; they’ve already made up their decision. Not attacking the plaintiff damage demand is a huge mistake. Many defense counsel are uncomfortable with it.

And then finally, going on the defensive. If you come out of the gate and say, “Hey, we didn’t do it, uh, we’re a good company, we, uh, you know, we put safety first,” that’d be the worst thing you could possibly say. All of those things are gonna put you in a very, very bad position. So when you’re constructing your opening statement, whether it’s a reptile case or not, what you need to do: come out swinging, use that primacy effect to your advantage, and put something else on trial in the first 30 seconds. And that will give you a far more effective opening statement. We’ll see you next time.