Today I want to share two more "rules" for communication. The first deals with how you should strart your story to the jury and the second deals with the order or sequence of telling your story. Here are some thoughts for you to consider:
START THE STORY WITH THE DEFENDANT & NOT THE PLAINTIFF
When a series of focus studies were done across the country the outcome confirmed what was already an accepted fact. That fact is that people apply "availability bias" as listen to a story and immediately begin to fill in the blanks by asking themselves questions about the behavior of the activity they are told about. They immediately raise issues in their own mind about the conduct of what went on focusing on negative possible factors that might explain what happened. If you start your story by talking first about the defendant’s conduct, the Jurors will construct their understanding of the case in the context of the defendant’s behavior. Questions about why the defendant did or didn’t something that caused it to happen are raised as you describe the conduct. You want the initial focus on the negligent conduct of the defendant.
We also need to be aware of "defensive attribution" which involves the jurors saying to themselves that they would never have done what the parties did. If the facts are inconsistent with the jurors own ideas of what they would do or expect others to do they apply the "this couldn’t happen to me" or "I would never have done that" reaction. The apply the parent to teenager exchange that the plaintiff should have known better or seen it coming. We need to create a picture of the "good guy vs bad guy" because sympathy alone is a poor motivator. We need to tell a story where the conduct of the plaintiff is what the jurors themselves would have done and the story of the defendant causes them to form conclusions about what they would expect their doctor to do under the same circumstances.
PLAN THE ORDER IN WHICH YOU WILL TELL THE STORY
"Sequencing" refers to the order in which information is communicated. The order in which you reveal facts and the order in which you call witnesses or introduce exhibits is significant. People have a need to make sense out of events and they will immediately begin to fill in the blanks in their own mind. So, it is important in what order to you give them facts. We know we should start with defendant’s conduct first. Let jurors concentrate on that story. Since, even before they have all the facts jurors develop stories about what happened, they begin to look for evidence to support their version of the story.
The sequence of proof strongly influences decisions. Therefore, the first witness is most important. This is the witness that should connect facts, give them meaning and influence decision makers. The principles of primacy and sequencing go hand in hand. Sequencing is about the order of topics in a story, not the order of facts. Primacy deals with the fact we tend to believe what we first hear.
The normal story sequence is:
(1) Step one: What happened? who, what, when, where and how?
(2) Step Two: How could it happen? Why – what went wrong?
(3) Step Three: What were and are the consequences?
The plaintiff’s have complete control over the jury’s first impression of the case since they go first in opening statement and that impression should be of the "evil" defendant. The plaintiff also controls the order in which witnesses are called and the order in which they are provided information about the case. Think about how you want the story to unfold and this is one reason why you should consider putting the defendant on the stand first and cast them as the villain.