The Primacy and Recency Effects-Secret Weapons of Opening Statements [Trial Advocacy Quarterly]

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1. The Primacy and Recency Effects: The Secret Weapons of Opening Statements Bill Kanasky, Ph.D.

6. Copyright 2015 Litigation Psychology, LLC. All Rights Reserved

2. TRIAL ADVOCATE QUARTERLY – SUMMER 2014 - 26 - Jury expert Bill Kanasky argues here that, because jurors begin to assign blame early in a trial, defense attorneys need to pay close attention to how information is ordered in opening statements and during the direct examination of witnesses. The information presented early on functions as a “lens” through which later information is filtered. T he P rimacy and r ecency e ffec T s : T he s ecre T W ea P ons of o P ening s T a T emen T s By Bill Kanasky, Jr. ABOUT THE AUTHOR... DR. BILL KANASKY , an expert in litigation psychology, consults on more than 175 cases an - nually in the areas of defendant witness training, jury decision-making research, and jury selection strategy. His empirically-based consulting methods are specially designed to defeat plaintiff “Rep - tile” strategies, which have resulted in billions of dollars of damage awards across the nation. Dr. Kanasky is recognized as a national expert, author and speaker in the areas of witness preparation and jury psychology. 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. The primacy and recency effects are arguably the most misinterpreted psy - chological 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 impos - sible 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 presenta - tion. These effects go far beyond basic memory enhancement, and actually have a significant impact on juror information processing and decision-making. Specifi - cally, the primacy effect plays a very pow - erful 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 pri - macy 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 infor - mation, but it also (positively or nega - tively) 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 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 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 neces - sarily 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 hy - pothesis that affects how they interpret the rest of the information presented to them. Therefore, attorneys can inadver - tently 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

4. TRIAL ADVOCATE QUARTERLY – SUMMER 2014 - 28 - all of the (negative) attention on the defendant and its actions. By sys - tematically denying each claim and stating how the defendant is a good company, the defense can inadver - tently reinforce the plaintiff’s claims and place the spotlight of blame on itself, rather than the plaintiff. This effect is called the “Availability Bias,” meaning jurors tend to blame the party that is most “available” (i.e., in the spotlight). Therefore, manipulating the “Availability Bias” is essential to a persuasive opening 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 responding to the plaintiff’s story, the defense needs to arm jurors with the “real” story and immediately put the plaintiff or alternative causation on trial. This strategy accomplishes three critical jury-level goals: a) it arouses jurors’ attention, b) it halts the plaintiff’s momentum, and c) it makes the trial about the plaintiff or an alternative cause, not the defendant. Now, consider this “open - ing” of an opening statement for the same case: On June 1, 2010, Mr. Jones’ failed to perform his work re - sponsibilities in a safe man - ner, 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 impor - tantly, himself. This case is not about race, period. This case is about responsibil - ity. About team work. About safety. About accountability. About fairness. Mr. Jones did not take his work respon - sibilities 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 dan - ger. 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 contin - ued 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 environ - ments and substantial loss of product. This strategy accomplishes sev - eral things: • It immediately illuminates the apex of the defense story (i.e., flash forward); • It quickly highlights the plaintiff’s culpability; • 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. Does the primacy-saliency effect exist anywhere else during a trial? Yes, the effect is also present dur - ing witness testimony, particularly direct examination of key witnesses. Similar to an opening statement, the initial testimony from the witness will be more valuable to jurors than testimony towards the end of the examination. This is why attorneys should not necessarily start their direct examination by covering the witness’s education and work history, as that information would be better placed in the middle or end of the testimony. Rather, the most effec - tive way to question a witness during direct examination is to start with questions that go right to the heart of the case, as jurors will value that information more than subsequent information. For example, in a medical malpractice case, defense attorneys usually ask the following question at the end of the direct examination: “Doctor, did you in any way deviate from the standard of care when you were treating Mr. Smith?” Of course, the physician delivers a firm, confi - dent “no” to the jury. However, this is not the best strategic approach, as this question is THE pivotal question in the case. This question should be the very first question out of the gate, with a few follow up questions allowing the witness to explain why the care provided to Mr. Smith was reasonable and within the standard of care. That is what the jury wants and needs immediately, rather than later in the examination. Jurors don’t care where the physician went to medical school or where he did his residency. Jurors don’t care if the physician is board certified and has privileges at four city hospitals. Jurors first and foremost concern is about the defendant’s conduct and decision making, and asking those key questions immediately in direct examination takes full advantage of the primacy-saliency effect. Because direct testimony comes well after opening statements, the Availability Bias is not a concern, as jurors have already processed each side’s story and are seeing the rest of the case through a cognitive lens. Should an attorney use the same structure for closing argu - ment? The primacy-saliency effect doesn’t surface during closings, as a closing argument is a regurgitation of previously presented information that the jurors’ brains have already processed. Decades of jury decision- making research has illustrated that the vast majority of jurors have made their decision on liability prior to closing argument. Additionally, this same research shows a high correla - tion between which party jurors favor after opening statements and who they favor entering deliberations. Therefore, attorneys should take a “less is more” approach to closing

5. TRIAL ADVOCATE QUARTERLY – SUMMER 2014 - 29 - argument, making sure to highlight the key defense evidence clearly and succinctly. The Recency Effect The recency effect is far less powerful, as it is a simple enhance - ment of short-term memory due to recent exposure to information. In other words, it is easy to remember information that is presented an hour ago compared to information from a week ago. While recent (i.e., later) information from an opening state - ment will be remembered well, it will not be as persuasive as information presented early due to the primacy- saliency effect. Therefore, defense attorneys should avoid placing new information towards the end of their opening, as it will be inherently perceived as less valuable by jurors. This is a critical issue, as some of the most important defense information is often located later in the timeline of events. That is precisely why the de - fense story should not be presented chronologically, as the second half of the story will never be valued as much as the first half. To optimally persuade a jury, one must under - stand how the juror brain works and in turn order the information in the most strategic way to ensure value. How can trial attorneys use the recency effect to their advantage in opening statement? Use the “clos - ing” of the opening (i.e., the last three minutes) to repeat and reemphasize the “opening” of the opening, focus - ing on those key points that highlight plaintiff culpability and/or alternative causation, as well as the apex of the defense story. Strategically using the beginning and end of the open - ing to focus on these key points will enhance persuasion and increase the odds of a defense verdict. For example, a more effective “closing” to the opening statement from the employment case is: Ladies and gentlemen, Mr. Jones was fired because he repeatedly put himself and his coworkers in danger. He was fired because his behavior resulted in valu - able product being damaged. He was fired for repeatedly sleeping on the job. He was fired because he refused to take responsibility for his actions. Was Mr. Jones’ race part of ABC company’s deci - sion to fire him: absolutely not, 100% NO. The Middle of the Opening Statement So is the middle of the opening statement useless? No, jurors don’t necessarily ignore the middle of an opening; they simply don’t remember or value it as much as the start of the opening. They don’t remember as much because as the opening statement progresses, their short term memory becomes saturated, and their attention levels gradually decrease with each minute. Even if the judge allows jurors to take notes, the action of writing tends to distract jurors from what is being presented. In other words, they may write down point X, but they may also totally miss point Y because they were writ - ing instead of listening. While nothing will improve the value of information more than the primacy-saliency effect, there are tools that defense attorneys can use to improve juror memory recall from information presented in the middle of the opening statement. Specifically, variables such as visual 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 example: • Visual Cues: Showing a timeline of events via a board or projected onto a screen can improve jurors’ recall of that information as the information input stimulus has doubled (visual + auditory vs. only auditory). • Emotion: Emotions can create vivid memories. For example, when an attorney expresses emotion (e.g., compassion for plaintiff’s injuries, passion and zeal for the defense’s themes), it improves juror recall of that information, as emotional information is encoded into memory more efficiently than logical information. • Repetition: Repetition is an effective tool in improving juror recall of information. For example, if a defense attorney repeats that the plaintiff was noncompliant with his medication regimen several times during the presentation of the timeline of events, jurors will tend to remember that information better. Conclusion The science of psychology can assist defense attorneys in design - ing opening statements that will have maximal impact on jurors’ percep - tions of a case. By properly utilizing the primacy-saliency effect, defense attorneys can force jurors to as - sess the legitimacy of the plaintiff’s case immediately rather than allow - ing them to critique the defense’s conduct right away. Additionally, using the recency effect to repeat the defense’s key themes at the end of opening statement ensures jurors will have a keen understanding of the defense’s stance. Regardless of the judge’s instructions, jurors enter the courtroom expecting to assign blame. The cognitive process of as - signing blame starts very early in the trial, and is completed well before closing arguments. By understand - ing how jurors’ brains function and strategically ordering information in opening statement and direct ex - amination, defense attorneys can significantly increase the odds of a defense verdict.

3. TRIAL ADVOCATE QUARTERLY – SUMMER 2014 - 27 - to persuade jurors during opening statement. For optimal persuasion, a trial attorney needs to begin his opening statement by installing the most ef - fective cognitive “lens,” meaning: • Skip the introduction and ice-breaking small talk with the jury • Use a 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 culpa - bility and/or alternative causation immediately, as this is the time when the jurors’ brains are most mal - leable. 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 tech - nique 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 territo - rial 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 audi - ence 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. Many defense attorneys are inclined to start their opening state - ment by introducing themselves, the legal team, and their client, followed by reminding jurors how important their civic duty is to the judicial sys - tem and how much they appreciate the jurors’ time. Then, many suc - cumb to the temptation to a) tell the defense story in chronological order or, even worse, b) come out of the gate defending against each of the plaintiff’s allegations. Both method - ologies are weak and ineffective, and they certainly won’t create any intrigue or curiosity. Instead, they represent a monumental missed op - portunity as jurors will value that first three minutes of information more than any other part of the opening. Remember, jurors don’t care about the identities of the attorneys or defendant. They only care about one thing: assigning blame. Therefore, immediately giving jurors something else to blame (besides your client) is imperative to derailing the plaintiff’s case. Consider the following “open - ing” of an opening statement 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 operat - ing here in Small Town for the last 95 years, and it is an ethical company with high standards and values. Speak - ing of values, my father taught me many values growing up, and one of them was to be patient before making impor - tant decisions. He always told me to take my time, and weigh all the factors before mak - ing key life choices, as quick, hasty decisions would lead to misjudgments and careless - ness. 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 rea - sons 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 key weaponry in this open - ing 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 any opening statement is to im - mediately go on the defensive and address the plaintiff’s allegations. After plaintiff’s counsel has blud - geoned the defendant in his opening statement, there is a great tempta - tion to stand up, address and deny each allegation one-by-one. This strategy is also known as the “ hey, we didn’t do anything wrong and we are a good company ” approach. Ad - dressing each claim immediately is a potentially deadly mistake because it highlights and can even validate the plaintiff’s claims. 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. Remem - ber, plaintiff’s counsel wants to put

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