Category Archives: TRIAL ISSUES

RULE OF PRIMACY: Following the “Rule of Primacy” is one of the easiest (yet most overlooked) ways for attorneys to improve their trial performance. If you’re a young attorney with aspirations of becoming the next Clarence Darrow you need to know and follow this rule (all great trial attorneys do). If you’re a presiding judge who believes in the value of mentoring young attorneys, the “Rule of Primacy” should be at the top of your constructive critique list to share with attorneys following a jury trial. So, what is the “Rule of Primacy”?

The most important concept to remember in organizing your statements to the jury, whether during opening statement or closing argument, is the “Rule of Primacy:” Jurors tend to believe what they hear first and most frequently.

What someone believes first is hard to change or dislodge. That’s why going first gives the prosecution in a criminal case or the plaintiff in a civil case a distinct advantage.

But regardless of whether you speak first to the jury, you can use these “Rule of Primacy” techniques to get them on your side:

Take advantage of your opening. The opening statement is made when jurors usually are the most attentive. Using a clear theme and reinforcing it with strong language chosen to produce a specific perception in the minds of jurors can help you persuade jurors even before presentation of the evidence. If a plaintiff gives a compelling opening statement, it’s absolutely imperative that the defense’s opening statement eliminate or minimize the effect of the rule of primacy. The task is made somewhat easier by the fact that jurors tend to forget much of what’s said to them. The defense opening should take advantage of the fact that what people do remember is what they hear at the beginning and end of a presentation.

Tell them what you are going to tell them; tell them; and then tell them what you’ve told them. This presentation organization is used by teachers with students and preachers with congregations. The trial format itself echoes these principles. The opening statement provides the first opportunity to “tell them what you are going to tell them.” Then, when you present the evidence, you do “tell them.” Finally, in closing argument, you “tell them what you’ve told them.”

Use opportunities for repetition when you get them. The opening statement and the closing argument should be used as vehicles for repetition. The use of repetition, along with strong, confident language selected for its most favorable emotional appeal, can be an extremely effective way to reinforce a party’s perspective in the eyes of the jurors. This is especially true when the same theories, facts, and phrases are used in the opening statement and closing argument. Jurors tend to remember and believe what they hear most often.

BONUS ACTING TIPS: Many years ago I took an acting class specifically designed for trial attorneys. During that class they stressed the importance of several simple yet effective techniques designed to help jurors remember key points raised during your opening statement and closing arguments. 

When presenting your opening statement or closing argument one of the WORST things you can do is plant yourself in one spot never moving more than 2 or 3 feet in any direction from your podium or your self-imposed spot on the floor.  REMEMBER: When preparing for trial you literally become the producer, writer, director, choreographer and actor of your own play. For purposes of this article I am focusing on your role as the “choreographer”. 

During a jury trial, the “WELL” section of the courtroom (the area in the center of the courtroom surrounded by the jury box, judge, witness stand and attorney tables) should be viewed as your performance stage, this is your moment in the sun, your moment of truth, this is where many close cases are won or lost…..YOU NEED TO USE AND MASTER THIS AREA – YOUR STAGE! But how? The answer is simple – you need to MOVE YOUR ASS. Use the space you have been given. Take advantage of every tool at your disposal. Don’t be a talking head…MOVE, MOVE, MOVE, but move with purpose and design. In other words, during your opening statement and/or closing argument, you must learn to choreograph your every move. FOR EXAMPLE:

1. FOCUS ON WITNESS: To highlight the testimony of a credible young sex abuse victim, you could walk to the witness stand where the young child sat while cringing with fear and embarrassment, and retell her story from that exact same spot (whether you stand by the witness chair or decide to sit in the chair is a matter of personal preference, and yes, there is no rule that says you can’t sit in the witness chair during portions of your summation). From the jurors perspective, your actions will automatically trigger powerful memories of the young child’s appearance and testimony. Or, for the defense, if the child victim was NOT credible or sympathetic, you could use the same technique to highlight the glaring inconsistencies brought out during your masterful cross-examination. 

2. FOCUS ON DEFENDANT: When you get to the part of your oratory masterpiece where you want to highlight some despicable act of the defendant, a key piece of evidence pointing to guilt, or perhaps his/her confession or incriminating statement, you could walk to where the defendant is sitting and dramatically point or gesture toward him/her. How physically close you get to the defendant and how far you go with the pointing or gesturing will depend on how aggressive you want to be and how far your judge will let you go. Or, for the defense, if you have a credible and sympathetic client, you can use this same technique to personalize your client by walking over to and gently placing your hands on his/her shoulders while you highlight  how horribly unfair the system has treated him/her.

3. THE KEY IS TO MOVE: There are a million variations to this theme….the point is to choreograph your opening and closings so that you make use of the courtroom stage. You accomplish that by moving and knowing exactly where in the courtroom you want to be standing (and why) when highlighting certain facts. Your presentation will be far more interesting and thus more effective and persuasive to the jury.

4. JURORS REMEMBERING MULTIPLE POINTS: Finally, what is the most effective way to maximize juror retention when you have 3 or 4 critically important facts you need the jurors to remember? Our brains are taught from an early age to read and retain information from left to right.                                                                                

When your about to discuss your first important point pick a spot to the right of the jury box (this is to your right – for jurors it will be to their left). Stay in that general area while discussing that first point.        

When your ready to move on to point two, move your spot a little to your left (which is the jurors right, the direction in which they read) and discuss your second point.

For your third point move to a spot a little further to your left (the jurors right), etc and etc. Jurors are watching and listening to your multiple points in the same direction that they would read a book. This provides mental separation between multiple points and allows jurors to subconsciously put a place holder of sorts on each point allowing for easy recall during the deliberation process.

Based on countless post-trial discussions I have had with jurors following the return of verdict, both as a judge and during my years as a prosecutor, I can tell you with absolute certainty that these simple techniques work.

You are limited only by the lack of your own imagination and willingness to move beyond your comfort zone. 

January 15, 2017

Alan F. Pendleton (Former District Court Judge), 763-498-1508; afpendleton@gmail.com

Source: CEBblog, Rule of Primacy, Julie Brook, January 13, 2017, State Bar of California.