I’ve written about this before, but I still have plaintiffs lawyers who express doubt about the rule that a plaintiff should always start their case by attacking the defendant. Some years ago Lawyers Weekly published an article by Elaine McArdle about the research regarding this rule. In the 1990s,trial lawyers Gregory Cusimano and David Wenner investigated the issue.They presented fact patterns to hundreds of focus groups around the country and in that process they observed a consistent pattern: when they began their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors blamed the defendant and placed much less blame on the plaintiff. It turns out their studies that plaintiffs should always start by attacking the defendant was consistent with research by social scientists and has since been confirmed by ongoing research.
The concept of “availability bias” was identified by social scientist in the early 1980’s which is our tendency to utilize the most easily available and memorable information to determine probability and reasons why. Jurors began to fill in the blanks and focus upon the behavior of the first person discussed. That is the context by which they create their story. It governs how people formulate opinions and make decisions. As people attempt to understand something new, they seize upon the information presented to them first to develop a working story of what happened and why, filling in the blanks, using whatever information becomes available. The primary blank that they want to fill in is: why something happened at all. Furthermore once a story is formulated everything they hear later is filtered through this first impression.
If the lawyer starts the trial by talking about the defendant, jurors will construct their understanding of the case in the context of the defendant’s behavior. Jurors develop stories about what happened and then as evidence is presented they look for evidence that supports their version of the story and filter everything else out.
When that factor is combined with “sequencing” it means that when we start talking about the conduct of the defendant first the most likely conclusion of the reason why the event happened will be something relating to the defendant.
As an example, in a case involving faulty brakes resulting in serious injuries, one should not start with the plaintiff because to do so will prompt questions in the jurors minds about the plaintiff’s conduct. “Why didn’t he noticed there was something wrong with the brakes before this happened?” On the other hand, if you start this case at the manufacturing plant where engineers are making choices about the type of break system to use you change the focus to the conduct of the defendant. After covering all of the negligent choices made by the manufacturer resulting in an unsafe product, by the time you tell them about the collision, the jurors already know the brakes are going to fail and have blamed the defendant for it.
However, if you talk about the plaintiff first the jurors will immediately begin evaluating plaintiff’s conduct. As a result you start the story about a brain injured child with the mother and labor, the result is jurors talking about the conduct of the mother and whether she should have realized something was wrong. Change the sequence and start with the doctor, hospital and nurses and the jurors are focused upon their conduct as the reason for the failure. Keep in mind the story needs to be well told but not without numerous details. Think of a 10 word telegram as the story: “mom in labor, baby in trouble, nurse ignores, doctor not to be found and baby born brain injured.”
There is also “defensive attribution” where the natural tendency is for the jurors to believe they would never have done whatever is being described so that if you start with the plaintiff the process works against the plaintiff, but if you start with the defendant it works against the defendant. The hindsight factor of the jurors believing they would never have done whatever is the cause of the injury. If you start with the plaintiff, they will conclude they would have never have done what plaintiff did, but if you start with defendant they will feel the same way about the defendant’s conduct.
Their focus studies also disclosed the bias that “things just happen” and aren’t anyone’s fault. This turned out to be a very strong anti-plaintiff bias. By starting with the defendant’s conduct jurors see that the defendant made it happen. In addition, they found a “personal responsibility bias” that people are responsible for what happens to them and shouldn’t blame other. It’s a sort of” contributory negligence” idea. When you start the story with the defendant’s bad conduct and offer evidence that the plaintiff did all the things that are reasonable the contrast diminishes this bias.
This idea of starting with the defendant first also involves the issue of presenting the defendant or defenses in your case in chief. Should you call the defendant in your case or show the deposition video or read excerpts from the deposition of defendant? If you have strong evidence in that regard doing so is consistent with the idea of start with the defendant first.
The research and studies demonstrate it is a rare case when not starting with the defendant is appropriate.