In part one of this blog post on the primacy and recency effects of opening statements, we discussed how this concept is often misunderstood by litigators and the philosophy that trial attorneys need to adopt for their opening statements. In the second part, we provide examples of different opening statements and also discuss the recency effect.
Many defense attorneys are inclined to start their opening statement by introducing themselves, the legal team, and their client, followed by reminding jurors how important their civic duty is to the judicial system and how much they appreciate the jurors’ time. Then, many succumb 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 methodologies are weak and ineffective, and they certainly won’t create any intrigue or curiosity. Instead, they represent a monumental missed opportunity 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 “opening” 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 operating here in Small Town for the last 95 years, and it is an ethical company with high standards and values. Speaking of values, my father taught me many values growing up, and one of them was to be patient before making important decisions. He always told me to take my time, and weigh all the factors before making key life choices, as quick, hasty decisions would lead to misjudgments and carelessness. 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 reasons 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 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 any opening statement is to immediately go on the defensive and address the plaintiff’s allegations. After plaintiff’s counsel has bludgeoned the defendant in his opening statement, there is a great temptation 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. Addressing 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 all of the (negative) attention on the defendant and its actions. By systematically denying each claim and stating how the defendant is a good company, the defense can inadvertently 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 “opening” of an opening statement for the same case:
“On June 1, 2010, Mr. Jones’ failed to perform his work responsibilities in a safe manner, 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 importantly, 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 responsibilities 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 danger. 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 continued 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 environments and substantial loss of product.”
This strategy accomplishes several 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;