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What plaintiffs have known for years: “First is best”

Monday, July 23, 2012
posted by Douglas Keene

It’s a long-standing truism. Plaintiffs have an edge with the jury because they go first. The defense has to convince those same jurors that the plaintiff story just isn’t true. What we know based on years of work is that the defense task is not at all impossible. But it can be harder. So this new study is likely to be discouraging   to many of our defense-side clients! The debate over the value of ‘primacy’ versus ‘recency’ isn’t getting simpler after all.  It ends  up that the solution lies with how quickly they will have to make their decisions.

Researchers from both US coasts (UC Berkeley and Harvard) performed studies wherein they show that what we see first is what we most often prefer. Whether it was human salespeople, bubblegum, or which of two violent criminals was more worthy of parole–the photo we see first is the one we prefer to either purchase a vehicle from, chew, or deem more worthy of parole. Are we really that simple-minded? Unfortunately, it would appear the answer is yes.

But this tendency is only reliable when we are forced to make our decisions quickly. When we are given time to consider and ponder our choices–like juries have–we don’t tend to choose the first item brought to our attention, but rather the most recent. While this might soothe the defense attorney, it says little about higher-order decision-making of which we can be proud. Make me think fast and I prefer the first option. Give me more time and I prefer the last option presented. (Hey! Wait just a second. Would that second option be the defense argument or the plaintiff rebuttal? Hmmm.)

Speed of response becomes a contrasting variable when we think about how attorney-led voir dire is conducted, as opposed to the process of trial itself. While jury decision-making is deliberative (favoring recency), responses to voir dire questions are immediate, thus favoring primacy. So consider whether you are constructing voir dire questions with the response option you are most interested in the first part or the second part of the question.

For example, imagine that you are defending a bank in a case that alleges that the bank failed to fund a project according to terms that were agreed to by a client. You want to test whether people are negatively predisposed to banks, not discover who thinks banks are wonderful. So you have a question that addresses that:

My sense is that people in our society are really divided about the banking business these days. I’d like to know how each of you feel about banks. How many of you feel a) that banks are to blame for most of our current economic problems, or b) banks are productive and worthwhile contributors to our business system.”

While you would ideally have the option spelled out on a slide or demonstrative board so it can be seen, the question structure (putting the critical condition first) is the key lesson.

As far as the more deliberative jury decision making following closing argument, we have found that the impact of the recency effect fades the longer the discussion goes on. So the neutralizing challenge is to inspire the jury to go slowly and carefully through the evidence, turning it over, weighing facts and thoroughly hashing it out.

Part of what this research illustrates so disturbingly is the dearth of thinking we often exert as we make decisions. We believe what we hear first or we believe what we hear last. Your task is to make jurors think. Your task is to help jurors critically assess evidence presented so that it is about more than the easiest choice. Your task is to make jurors care enough to engage in actual thinking–unless of course, it is to your advantage to solicit the automatic decision-making process many of us seem to prefer.

Carney, DR, & Banaji, MR (2012). First is best. PLoS ONE, 7 (6). See it here