Effectively combating the ruthless reptile tactics of plaintiff attorneys begins with the opening statement. A reptile attorney's opening statement isn’t going to talk about their client, and it isn’t going to try to elicit sympathy. Instead, they will hone in on safety rules, utilize the availability bias, and talk about money very early in the opening statement. The reptile opening statement is not using fear to scare the jury into awarding high damages either. They are using persuasion. 

In this reptile era, primacy and recency are key components defense attorneys must incorporate to construct a compelling opening statement. While many attorneys may feel they understand these concepts, primacy and recency are litigation's most misunderstood psychological concepts. Colloquially, attorneys may have heard that primacy and recency equate to jurors best remembering the first and last thing you say. However, that's not exactly true. When used correctly, defense attorneys can capably use primacy and recency to combat the reptile opening statement. 

How much can the primacy effect influence the efficacy of an opening statement?

Information presented early in an opening statement acts as a cognitive “lens” through which all subsequent information flows. This cognitive lens can drastically impact how jurors perceive information as the presentation progresses, so defense attorneys must immediately introduce key themes, particularly those related to plaintiff culpability and/or alternative causation, as this is when the jurors’ brains are most malleable. 

How to Use the Primacy Effect in the Courtroom

Early information in a presentation is valued more by the juror's brain. Known as a saliency effect, this happens automatically, with no effort involved, as individuals tend to focus on items that are more prominent or presented first and then ignore or overlook any following information. For a defense attorney, if you tell your story chronologically, you are missing an opportunity to ensure jurors absorb the most important points of your opening. To take advantage of the benefit that primacy can offer, defense attorneys need to rethink how they plan their openings, their closings, and even their direct examinations of witnesses. If defense attorneys don’t start in the right place, they give up a significant amount of available leverage. 

To emphasize the power that primacy has on a listener, psychologist Solomon Asch performed a landmark study in which individuals were given descriptions of people and then asked to rate them. Different audiences were given the same descriptions but in different orders. For example, in one case, a person may have been described as intelligent, industrious, impulsive, critical, stubborn, and envious. In the next case, they might be described as envious, stubborn, critical, impulsive, industrious, and intelligent. Although the same six descriptors were used, the first group would rate the individual more highly than the second group simply because of the order in which they were presented. This is the primacy effect in action; whatever comes first in a presentation or a sequence will get the most value from the listener. 

Assuming a defense attorney is presenting a 30-minute opening statement, the first five to ten minutes is the most decisive time with the jury. If a defense attorney begins their opening statement by introducing themselves or jumping into the company commercial, they are wasting that crucial period. If they save their attack until the middle or end of their opening statement, the jury simply isn’t going to find it as valuable as if it was placed at the beginning. 

Knowing that the opening statement's first five to ten minutes have the highest juror value, defense attorneys need to make sure that they use that timeframe to illuminate the apex of the defense story. That should include introducing their theme, shifting the blame, and telling their story. Using primacy to order an opening statement results in a proactive versus reactive strategy, and it can help to establish that pro-defense lens that defense attorneys want the jury to use to view their witnesses.  

Understanding the Importance of Recency

Recency is also about timing, but it is very different from primacy. The later information in the opening statement, for instance the information presented in the last five to ten minutes, will often be remembered by jurors. Still, they won’t find it as important because of its location in the presentation. So while a juror's early judgments tend to override later information, making that later information of less importance to them, they will use it to entrench themselves in their opinions further. 

Because of how jurors treat information delivered at the end of the opening statement, a defense attorney should instead use the end of their opening statement to repeat what was said at the beginning rather than presenting any new information. Although this can feel uncomfortable to defense attorneys who are used to presenting their case chronologically, by repeating early information and using the end of the opening statement to mirror the beginning closely, defense attorneys have an opportunity to use recency to their advantage. 

By pairing primacy with recency, defense attorneys can compose a highly effective opening statement that maximally impacts jurors’ perceptions of a case. At Courtroom Sciences, our litigation research and psychology experts place scientific data at the heart of everything we do to deliver actionable insights and help you achieve superior litigation outcomes. Speak with one of our experts to get started. 

Key Takeaways

●  In the reptile era, primacy and recency are key components that defense attorneys must incorporate to combat a reptile opening statement.

●  Information presented early in an opening statement acts as a cognitive “lens” through which all subsequent information flows. 

●  Within a 30-minute opening statement, that first five to ten minutes is the most decisive time a defense attorney has with the jury.

●  By pairing primacy with recency, defense attorneys can compose a highly effective opening statement that maximally impacts jurors’ perceptions of a case.