Montana Lawyer August/September 2024

Do Jurors Make Up Their Minds After Opening Statement? THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS One of the most persistent beliefs

to support their argument. However, when data is offered, one of the most popular sta tistics we hear comes from the famous book The American Jury, which was published in 1967 by Harry Kalven Jr. and Hans Zeisel. First, Kalven and Zeisel conducted their extensive study that led to this book on criminal trials, which are notably different than civil trials. The unique difficulties fac ing criminal defendants at trial set criminal cases apart from the average civil case and it comes as no surprise that jurors make early judgments about criminal allega tions. Even more important, when Hans Zeisel learned in the 1980s that people were suggesting his research found that most people make up their mind about opening statements, he published a clarifying article in a University of Chicago Law School publication that their research had no such finding, going as far as suggesting this argu ment about the “superpower” of opening statement is a “hoax.” He specifically stated, “we never made such a discovery; we never even asked the question. Nowhere in The American Jury's 438 pages can one even find the words "opening statement." A 1981 study of criminal trials by Thomas Pyszczynksi and Lawrence Wrightsman found that jurors were more likely to maintain their initial leanings after opening statement throughout the trial. Notably, this study again focused on crimi nal cases which are uniquely different from

Bornstein and Edie Greene that is commonly cited to support the con tention that cases are won in opening statements. Nowhere in this publica tion do the authors suggest that cases are won in opening statements or present data that suggests this. Instead, the authors argue the best predictor of final verdicts is the individual pre deliberation verdicts, citing research that, “In approximately 90% of trials, the position favored by the majority at the beginning of deliberations be comes the jury verdict.” However, this data only suggest that verdicts may not change much over the course of deliberations from the initial majority. It tells us nothing about volatility in case leanings over the course of trial after opening statements. In another study, fellow University of Kansas graduate Shelley Spiecker found in a study published with Debra Worthington in 2003 that there was interaction between the structure of opening statements and closing arguments by a party that directly impacted jury verdicts. In other words, they found that the style and structure of opening statement alone was not as impactful on final verdict as the combined style and structure of open ing statements and closing arguments. They found this by using a research design that varied the structures of both the opening statements and clos ing arguments in a few different ways. While Spiecker and Worthington do not directly refute the suggestion that cases are won in opening, their data indirectly highlight the connection between opening and closing struc tures as impactful for the final verdict, meaning that opening statements do not singlehandedly impact the final verdicts. Since the empirical research is inconsistent at best on the impact of opening statements, Sound Jury Consulting examined data collected from 430 mock jurors from 14 mock trials on civil cases conducted across the country in 2023 and 2024 to

about jury trials is that cases are won in opening statement. It is a belief largely born out of primacy theory, which is the idea that what jurors hear first at trial is most influential to their final ver dict. The belief in opening statements as the key decision point for jurors has been repeated in publications, televi sion series, movies, and endless CLE presentations. Harvard University Professor of Law Ronald S. Sullivan, Jr. recently wrote, “Though Hollywood movies about courtroom dramas often glamorize the closing arguments given by lawyers, in reality the opening state ment is likely the most important single event of a trial.” Last year, a retired trial judge in California presented a CLE on “how to win your case in opening state ment.” We hear it regularly from some of our own clients. But this profession, as smart as its members are, routinely embraces old wives’ tales, pop psychol ogy gimmicks, and other beliefs that give attorneys that sense of control and belief that they are inching closer to success, so we wanted to explore the research on this issue and offer insights into whether cases are won in opening statements. Before we get to our own study, let’s look at some of the research out there

civil cases but even the authors note that their findings were in conflict with other similar studies at the time, citing a 1972 study by Laurens Walker, John Thibaut, and Virginia Andreoli that found a greater recency effect at trial than a primacy effect. Walker, et al. conducted an interesting study where they presented 50 pieces of evidence to each participant but varied the order across participants. They found that the most recent piece of evidence participants heard

tended to be the most influential, which implies closing arguments could be more impactful than opening statements. Next up is a 2011 publication by Brian

on this subject. If you conduct a Google search on the topic, you will find pages and pages of people making this claim with few, if any, citing research or data

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