By Melissa M. Gomez, Ph.D.
I have seen it more times than I can count -- Well-intentioned and well-organized trial attorneys put their openings, closings, witnesses and witness examinations in a clear logical order. They make the introductions first; provide background and context; make the key points; and then tie it together. It makes perfect sense. It is well organized. It has a nice flow…and the key points lose their punch by getting lost in the middle.
In the psychology of learning, there are two concepts that every trial attorney should know and integrate into every aspect of trial. Those concepts are called primacy and recency and are quite simple. They mean that people remember most what they hear first and what they hear last. For example, if I were going to give you a list of 10 words and ask you to recite them back to me, you would probably have an easy time giving me back the first few and the last few and the words in the middle would be the most difficult for you to recall. The same idea applies for jurors at a trial.
What I have seen in my practice is that primacy and recency not only affect retention, but also affect the impact of a statement. If a message is presented in a manner that seems out of the natural order of how a story is typically told, it will grab the listener’s attention — he is not expecting it. I have seen some great trial attorneys get up and make clear and impactful statements in openings before even introducing themselves. It makes sense to me. Why waste those first precious moments, when juror attention is the greatest, on telling your name instead of your point? You can get to the name later.
Think about it. When you present a witness at trial, you may spend the first precious moments or longer going through whom that witness is, what her job and education are, etc. By the time you get to the meat of her testimony you may be 10, 20, 30 or more minutes into the questioning. At this point in time you have lost both the jurors’ undivided attention and the benefits of the primacy effect. The important points lose the impact they would have had if you had asked them coming out of the gate.
I recently presented in a CLE with some very experienced trial attorneys. When speaking about effective witness examinations, one of the attorneys showed an example that illustrates the concept of primacy perfectly. This was a case in which a man was on trial for allegedly hiring someone to kill his wife. The alleged hit man was on the stand. The prosecuting attorney stood and approached the podium and these were his first two questions:
Q- Were you hired to kill Mrs. X?
Q- Who hired you?
A- Mr. X. (pointing at the defendant)
The background information and context were provided after that punch, but the jurors certainly didn’t need to hear much more to know what the key point was.
The same concept applies to the points made last. I was involved in a product liability trial in which we were cross-examining the opposing counsel’s expert. In the middle of the cross examination, we were on a break and I noticed that, for the expert’s ideas to apply, some critical assumptions had to be made about the product user’s behavior that were not realistic. After the break, we went through the rest of the cross examination, and just when it seemed as though we were about to sit down, my client looked up and said “Oh! I have one more question. For your opinions to be true, X also has to happen, right?” Answer “Yes.” With that punch at the end of the examination, we were able to further discredit that expert’s testimony by attacking the assumption as well as the opinion through other witnesses.
Primacy and recency effects can have a substantial impact on the effectiveness of a case. It is critical not only to ask the right questions and say the right statements, but also to say them in a time and place when they have the most impact.
Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.
If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at firstname.lastname@example.org or call 215-292-7956.