Opening address: Powerful tool of persuasion or a waste of time?

2 1 Priming

Research in social cognition suggests that, to a considerable degree, the trial lawyer is able to determine and shape the judge’s first impression of a case to the client’s advantage.12 Primarily, this is done through a process called “priming.” Simply put, priming refers to a mental process in which a person’s response to later information is influenced by prior information.13 Priming creates an impression in a person’s mind that then is used to interpret new information.14 Priming is powerful because the prime makes certain words, impressions and feelings more accessible to the brain, and thus more likely that the brain will use the activated knowledge category to process subsequent information.15

In the 1980s psychologists discovered that exposure to a word causes instantaneous and measurable changes in relation to the ease with which a person can evoke many related words.16 For example, if a person recently saw or heard the word EAT, that person would be temporarily more likely to complete the word fragment SO_P as SOUP than as SOAP. Of course SO_P is more likely to become SOAP if that person earlier was exposed to - or primed - with the idea of WASH.17

Priming not only is powerful but also is far-reaching. The mental process that occurs when a person is primed with the word EAT is called “associative (or spreading) activation.” As do ripples on a pond, ideas that have been primed trigger many other ideas in a speeding cascade of activities in the brain. Thus the word EAT not only primes the idea SOUP, but also a multitude of food-related ideas, such as FORK, HUNGRY, FAT, DIET, COOKIE, etcetera.

This complex series of mental events also is exceedingly coherent. All the elements are connected and each supports and strengthens the other. Words evoke memories; memories evoke emotions; and, in turn, emotions evoke facial expressions and other reactions. All these mental activities occur quickly and simultaneously, “yielding a self-reinforcing pattern of cognitive, emotional, and physical responses that are both diverse and integrated ... ”.18

Therefore, if a prosecutor in the opening address is successful in painting the defendant as a liar, a disreputable person, or a person possessing some other unfavourable trait, the judge is likely to remember the defendant as having all kinds of unpleasant traits.19 These kinds of negative impressions are quite strong and will require substantial positive advocacy to overcome.20

It is important to note that hardly any of the activated or primed ideas register in consciousness; they arise largely without conscious intention or awareness.21 As Daniel Kahneman stresses: “[M]ost of the work of associative thinking is silent, hidden from our conscious selves.”22

Also, research reveals priming to be a strong and consistent reaction.23 Not only can peoples’ emotions and viewpoints be primed by events of which they are not even aware, but priming can also influence what people see and even how they behave. For example, if a person is primed with the idea of BASEBALL, she is more likely to remember seeing a baseball on a table crowded with many different objects of which a baseball is only one.24 The subject will perceive - and remember seeing - the baseball even if catching only the briefest of glimpses of the table.25 The baseball will be the most vivid object because, unconsciously, when her mind looked at all the objects on the table it was “searching” for the baseball.

In what has become a classic priming experiment, the psychologist John Bargh and his collaborators at New York University instructed student participants to complete a scrambled-sentence task as part of a language proficiency experiment.26 The scrambled-sentence task consisted of a list of five-word sets from which the students were to make grammatical four-word sentences (eg, HE WAS WORRIED SHE ALWAYS). For one group of students, half the scrambled sentences contained words associated with the elderly stereotype, such as FLORIDA, LONELY, GREY, FORGETFUL and WRINKLE.27 After completing the task, one of the experimenters surreptitiously recorded the period of time it took each participant to walk down the corridor after leaving the laboratory room.28 This measurement was the true purpose of the experiment. As Bargh and his collaborators had hypothesised, those participants who had been primed with the elderly stereotype walked down the hallway significantly more slowly than the ones who had not been primed.29

The “Florida effect” involved two stages of priming. First, the words related to the elderly stereotype primed thoughts about the state of being old, although the word OLD is never mentioned. Second, these thoughts of old age primed a behaviour - walking slowly - which is associated with old age. The primed thoughts and behaviour occurred without any conscious awareness.30 When questioned afterwards none of the students reported noticing that the priming words had a common theme, and they insisted that nothing they did after the experiment could have been influenced by the words they read. Thus, even though the idea of old age never entered their conscious awareness, nevertheless their actions were significantly affected.31

In numerous and even more fascinating variations of this priming experiment, researchers in the area of social cognition have established that priming someone with a trait (eg, “rudeness”32 or “intelligence”)33 or a racial stereotype (eg, “African American”)34 leads to behaviour which is congruent with the activated constructs.

2 2 Priming and First Impressions

We are conscious of “putting our best foot forward” during a job interview or on a first date because common human experience has taught us that first impressions are powerful and often become lasting impressions. American and English trial lawyers, too, have long been alert to the significance of first impressions. Writing in the American Bar Association Journal in 1948, the legendary barrister, Sir Norman Birkett QC, stated that judges are “never, never likely to forget” the opening address.35 “Shaken they may be by cross-examination, by subsequent witnesses,” he continued, but “that first, clear, incisive impression ... is beyond all price.”36

Our instincts about the salience of first impressions are borne out in a series of studies in cognitive and social psychology that confirm the resilience and tenacity of first impressions.37 For example, in one study undergraduate students at the start of a semester formed an impression about their lecturer after watching video clips of as little as two seconds38 of the lecturer’s non-verbal behaviour in the classroom.39 The students’ almost instantaneous impressions of a lecturer they had never met based upon the sparsest of information - a two second silent video clip -predicted with striking accuracy their end-of-semester evaluations after they had substantial interaction with the lecturer throughout the semester.40 Thus, human beings judge swiftly and cling to their snap judgments.41

The priming science substantiates the view that the first impression the trial lawyer gives the judge is absolutely critical. Once the judge is primed to form an impression, that impression becomes the lens through which the judge views the events and people involved in the case.42 The emotion attached to that first impression shapes the judge’s interpretation of the evidence that gradually accumulates throughout the rest of the trial.43 This situation is what Eric Morris SC alluded to when he wrote:44

“To some extent the judge must be affected by the picture presented in the opening address. He ... may ... have formed a ‘view’ ... The whole of the subsequent proceeding may then, in the judicial mind, be devoted towards ascertaining whether that “view” or the original picture is to be maintained.”

There is a subtle, but substantial, difference, Morris continues, between “a trial in order to establish which view is correct, and a trial in order to establish the correctness of the view”.45 The party “who is fortunate to obtain the advantage of that initial reaction will find his task considerably lighter”.46

Significantly, the priming studies also show that the judge will view even irrelevant and ambiguous information through the lens of the primed impression. Indeed, the effects of priming are more pronounced when the later information is ambiguous. In a seminal experiment in 1946 the Gestalt psychologist Solomon Asch presented student participants with short lists of adjectives to describe two fictitious people, and then asked them to write a brief characterisation of the person.47 The two lists of adjectives were:

“Alan: intelligent - industrious - impulsive - critical - stubborn - envious

Ben: envious - stubborn - critical - impulsive - industrious - intelligent”.

Subjects overwhelmingly viewed Alan much more favourably than Ben. In the participants’ minds the initial traits in each list changed the very meaning of the traits that appear later. Stubbornness in an intelligent person may very well be justified and actually invoke respect. However, intelligence in an envious and stubborn person makes her more threatening. The word “stubborn” is ambiguous and will be interpreted in a way that makes it coherent with the context.48

This process is called the “halo effect”. The halo effect is a cognitive bias that causes a person, when initially forming an impression of another person as friendly, competent or outgoing (or unfriendly, incompetent and introverted, for that matter), to not “weigh” any subsequent information as heavily as the first impression.49 This is the case even if subsequent information contradicts the first impression.50 The psychologist Abraham Luchins conducted an experiment in which he designed two paragraphs to describe a fictitious character, “Jim”, either as outgoing and extroverted, or withdrawn and introverted.51 He then provided these paragraphs to his student subjects and asked them to characterise Jim either as friendly or unfriendly. The students who read the extroverted material first characterised Jim as friendly, whereas those who read the introverted material first rated Jim as being unfriendly.52

In some instances the halo effect increases the weight of first impressions to such an extent that subsequent information is mostly wasted.53 A person’s memory may even distort or falsely recall facts about another person or her behaviour that “must have happened” because they are consistent with the first impression.54 It should be noted that the listener does not undervalue later information consciously; rather, reliance on first impressions is a mental shortcut (a heuristic)55 that the listener takes automatically.56

2 3 Priming Emotion through Theme and Story

For far too long the law has clung to the Platonian view that the human mind is torn between the rational and the emotional, and that decision-making is best left to the superior rational brain.57 As recently as 2008 Brian Garner and the late Justice Antonin Scalia (the former a highly-regarded teacher of legal writing and the latter a United States Supreme Court justice), illustrated the prevalence of this perception when they noted: “Appealing to judges’ emotions is misguided ... [P]ersuasion is possible only because all human beings are born with the capacity for logical thought.”58

The notion that emotions are, or should be, severed from decision-making conflicts with the results of recent studies in neuroscience. These studies clearly show that emotions intrinsically and intricately are involved in decision-making. Emotion is central to decision-making because in the brain emotional and cognitive-rational pathways are intertwined.59 Whether their influence is positive or negative, emotions are always present in decision-making.60 Even tangential emotions that are unrelated to the decision at hand can have “a significant impact on judgment and choice”.61

3 1 Impact Beginnings

Because emotions are so central to decision-making, trial lawyers are well-advised to strive to control the judge’s emotions about the case and to do so as early as possible. Of the many structural decisions confronting the trial lawyer one of the most important is how to begin. The first paragraph of the opening address constitutes the “beginning of the beginning” of the trial, thus enhancing the potentially powerful impact of the first impression. The priming studies are crystal-clear in their findings that the behaviour that the trial lawyer singles out for mention in the first paragraph of the opening address and the words used to describe that behaviour, contribute to the formation of a first impression that will become the foundation, as well as the driver, of the judge’s memory of the events and people involved in the case.79

Trial lawyers too often waste the first paragraph of the opening address by adhering to convention in laying out a dry recitation of the background facts of the case. While indubitably it is important to provide the judge with background and context, the trial lawyer can do so and simultaneously prime the judge’s first impression of the case. For example, in a case in which a child’s mother sued a child protection agency for standing idly by while the child irremediably was injured by his abusive father, the plaintiff can achieve this dual purpose by starting the opening address in the following way:80

“Four-year-old Joshua DeShaney became totally and permanently brain damaged on 8 March 2014, because of the cumulative effects of a continuous process of physical abuse perpetrated by his father and the father’s paramour over an extended period. Fourteen months before Joshua’s injuries became permanent the local child protection agency began the active phase of its case management of Joshua’s physical abuse and neglect. After initially arranging for protective custody to physically protect Joshua from abuse, the agency official returned him to the abusive home of his father. The agency officials did so on their own decision and without court action; and actively followed his case thereafter, dutifully recording in internal documents Joshua’s deteriorating situation and their fears for his safety. However, they took no action whatsoever to protect the child.”

The opening address quickly and clearly tells the judge who the parties are and why they are before court. Simultaneously, however, it promotes a particular perspective of the facts and sets out to significantly influence the judge’s first impression of the case and the parties involved. It depicts Joshua as young and helpless, as well as being permanently injured in a horrific way. It depicts the child-protection agency as being both active in its participation and passively negligent. The opening address paints the caricature of useless bureaucrats who passively observe a terribly dangerous and abusive situation, yet remain mired in inertia except for pointlessly writing reports.81

3 2 Which Emotions to Prime

Neuroscientific research suggests that the trial lawyer who ignores the emotional aspects of the case misses an essential opportunity to influence the judge. The trial lawyer should be conscious of how different emotions have different effects on the judge and use this knowledge to the greatest advantage of the client.

On the most basic level positive emotions tend to make people more optimistic, whereas negative emotions tend to make them more pessimistic.82 These feelings of optimism or pessimism have a direct bearing on cognitive function. Pessimism, for example, results in a narrowed focus of attention on the part of the perceiver, as well as the motivation to process information more deeply and systematically.83 On the other hand, people in positive moods are quicker to decide and tend to focus their attention more broadly and less on specific details.84

Plaintiffs and prosecutors of course are the most obvious parties to take advantage of the judge’s negative emotions. Usually, these parties want the judge to take action (punish the defendant) or give them something (an award of damages). An opening address that evokes negative feelings through its theme and story can make the judge experience a sense of “wrong” that requires her to take action to remedy it.85

However, prosecutors and plaintiffs should be judicious in their decision to attempt to evoke negative feelings in the judge. In addition to invoking a sense of “wrong” to be righted, negative feelings may also cause the judge to scrutinise the facts of the case more closely. Thus, engendering negative feelings in the judge might well be appropriate in a case in which the facts preponderantly favour the plaintiff or prosecutor - “cases that [may] benefit from a close look at the ‘trees’ as opposed to the ‘forest’”.86 A judge in a positive mood likely will be quicker to reach a decision and will tend to focus their attention more broadly and less on specific details.87 A positive mood therefore is more desirable in cases that have “an impressive big picture aspect to them, such as cases that implicate ... policy questions”.88

Beyond simply attempting to evoke generally positive or negative feelings in the judge, trial lawyers should carefully consider which specific positive or negative emotions their trial theme and story elicit. The research illustrates that different emotions cause people to evaluate similar situations differently. For example, once primed for sadness subjects tend to attribute events to situational causes beyond human control as opposed to holding people responsible for events.89 In contrast, anger, particularly when connected to feelings that social mores have been violated without consequence, reinforces the perception that negative events are predictable and under human control, which results in the tendency to blame.90 A feeling of anger may increase the judge’s desire to blame individuals (as opposed to random fate) for events, and to overlook mitigating details.91

In contrast to plaintiffs and prosecutors, for whom anger can be an effective prime (see the sample opening address above)92, generally defendants should strive to avoid priming for anger, because anger likely leads the judge to blame someone, and the defendant is an easy target. But what can the defendant do to counter a dynamic opening address by the prosecutor or plaintiff that told the story of “an evil villain [who] harmed an undeserving victim and escaped without penalty - that is, until justice was placed in the hand of this court who is empowered to correct that injustice”? The defendant faces a seemingly daunting prospect of convincing the judge not to take any action in the case.

The conventional wisdom has been for the defendant to attempt to tell an emotionally neutral story that glosses over unfavourable facts in dry, neutral language.93 However, because we know that emotion is an integral and substantial part of decision-making, the choice to tell a “neutral” story essentially cedes emotional power to the other side and forfeits a vital part of the persuasive process.94

The scientific research on emotional decision-making, however, does not leave the defendant without recourse. The defendant should attempt to negate a plaintiff’s anger prime by telling a positive story that causes the judge to feel more optimistic. If the defendant’s story highlights that transgressions have indeed occurred, but that the situation has been quickly and fairly dealt with and/or that the transgressors have been adequately punished, the feelings of anger and injustice that the plaintiff sought to evoke may be neutralised. Such a story with a theme of “all’s well that ends well” or “everything’s fine now” might be useful to the defendant in a personal injury case (if plaintiff has overcome the injury or the defendant has attempted to remediate the plaintiff’s pain and suffering) or a discrimination case (if the employer took prompt remedial action , for example, by promoting the plaintiff or giving her a substantial raise). If the facts do not allow the defendant to tell a story of justice already meted out, the defendant should strive to evoke the emotion of sadness, which can prompt the judge to conclude that there is simply no one to blame. The theme of such a story might be that “there are some wrongs that are simply beyond the law’s power to redress.”

3 3 Memorable and Powerful Stories

As stated above, the story form enhances peoples’ memories and improves their ability to remember content.95 However, not all stories are equally memorable or powerful. It is the trial lawyer’s task to tell the most emotionally powerful story that the facts allow. The objective is through words to “paint a picture in the mind’s eye”96 of the events from the client’s perspective as if the judge herself witnessed the events.97 The more detailed and vivid a memory is the greater the emotion attached to it, and the more memorable it is.98

A popular misconception among communicators, trial lawyers included, is that adjectives (“large”, “minuscule”, “gruesome”, “heinous”, “beautiful”) create the best mental pictures.99 Adjectives, however, tend to convey judgments, which makes them argumentative and therefore less persuasive. Because these words are subjective studies show that a description that contains too many adjectives may be perceived as unreliable by the judge.100

Nouns and verbs, on the other hand, have been proven to be the most evocative words.101 They do not merely suggest a belief in something, but rather the event, action or person itself.102 Thus, the judge immediately can form a strong visual image of that which the trial lawyer is trying to convey.

For example, in the opening address the trial lawyer states: “The accident was terrible” (or “gruesome”, horrendous“”, “deadly”, “awful”). The use of these, although vivid, descriptors is a subjective judgment.103 A description of the accident as “terrible” could mean different things to different people. It conveys a qualitative judgment, but not the factual basis of the judgment.104 By contrast, consider the difference in persuasive power when the trial lawyer describes the accident using predominantly nouns and verbs:

“The roof of the car was smashed in on top of the driver. Blood dripped down the side of the driver’s door, splattered on the grass and soaked into the ground. The plunge down the ravine ripped off the wheels and the bonnet of the car.”

These noun and verb combinations (roof/smashed; grass/splattered; ground/soaked; wheels and bonnet/ripped) offer a more descriptive and reliable - and thus more persuasive - description of the accident.105

Mark Twain said: “The difference between the almost right word and the right word is really a large matter - ’tis the difference between the lightning bug and the lightning”.106 The trial lawyer uses words in the same way that the artist uses paint. In drawing a “virtual picture” of events that is memorable and compelling, the trial lawyer should be mindful of evocation - word choice. Words convey images, so the right word must be chosen for maximum effect. Referring to the client as “the plaintiff” conveys a different image than calling her “Mrs Thomas”. To state that the victim “died” conveys a different image than saying the victim was “killed” or “gunned down”. Describing the scene of a robbery as the “house” conveys a different image than referring to it as a “home” (the former clinically connotes a structure, whereas the latter invokes images of privacy, warmth and intimacy).107

In a series of studies subjects were shown a film of a motor vehicle collision and asked to estimate the speed of the vehicle upon impact. The researchers used different verbs to describe the collision, and found that subjects’ estimates of the speed varied depending on the researchers’ choice of verb. When the subjects were told that the vehicle “crashed” into the wall, their estimates of the speed upon impact were significantly higher than when they were told the vehicle “made contact” with the wall.108

3 4 Is the Defendant at an Insurmountable Disadvantage?

The research on priming and first impressions might create the sense that the plaintiff and prosecutor, who generally have the first opportunity to present an opening address, have an insurmountable advantage over the defendant, who may present an opening address only at the close of the prosecution or plaintiff’s case. While the advantage is indisputable,109 social psychological research suggests that it is not insurmountable. Indeed, it might be possible for the defendant to counteract the dominant effect of first impressions in a number of ways.

Studies show that people are more persuaded by an argument if they have had the opportunity to hear a few opposing arguments. When people are aware that there are two sides to an issue (precisely the situation in which the judge finds herself), a one-sided presentation is seen as a biased communication, and thus less trustworthy and less persuasive.110

Psychological reactance is another reason why people are reluctant completely to accept the conclusions of a one-sided communication. Reactance is aroused when pressure to adopt a certain position in a two-sided issue is perceived by the listener as a threat to her freedom to decide the issue herself.111 A way for the listener to restore a feeling of freedom is to adopt a position contradictory to the one-sided position advocated.112

An experiment, premised upon the prosecution’s summation in a bigamy trial illustrates how reactance is formed. The experimenters presented subjects with either one-sided or two-sided arguments for conviction. In one condition the subjects were told that the case was not “open and shut”, and that both the prosecution and defense had presented credible witnesses. In the other condition the subjects read only the prosecution’s arguments. The results demonstrated that the leat esffective argument was the one-sided argument when the fact-finder knew that there were two sides.113

American trial lawyers and advocacy scholars are very aware of the principle of “primacy” when they discuss the importance of the opening address.114 Simply put, primacy is a psychological principle that holds that what is perceived first is most likely to be remembered, believed and embraced, and least likely to be discarded.115 However, the research on primacy and persuasion seems to suggest that while people commonly use the first bits of information they receive to form an impression they are not always persuaded by the first statement or argument they hear. In fact, there is evidence to support the principle that what is presented last, not first, will be more persuasive. This possibility is referred to as the “recency effect”.116 Therefore, it might behoove the defendant always to present an opening address that sets forth her theory of the case.117

Moreover, the recency effect becomes more greatly amplified the longer the delay is between the first and second presentation.118 Thus, the longer the prosecutor or plaintiff takes to conclude her case the more persuasive the defendant’s opening address seems to become.