Montana Lawyer August/September 2024

in favor of the defense.

low as 13%. In other cases, it was as high as 35%. We saw multiple cases where the combination of mock jurors who changed their party leanings and those who indi cated that their leanings had weakened over the course of deliberations exceeded 50%. Consequently, the data suggests that any lasting impact of opening statement varies from case-to-case. Second, and more important, is a unique social conformity dynamic we often see in mock trial research and post-trial interviews with actual jurors. We recently saw this phe

perhaps shed some light on whether cases can be won in opening statement. We realized we had a wealth of data that might shed light on whether jurors change their minds after opening state ments. In each of these mock trials, the mock jurors were asked to indicate their leanings in the case both immediately before deliberations and immediately after deliberations. While these two data points do not directly address the impact of opening statement, they shed light on the lasting impact of opening state ments. Specifically, changes in leanings over the course of deliberations directly refute the suggestion that jurors make up their mind after opening statements. If jurors do in fact make up their minds in opening statements, we should observe minimal, if any, changes from pre-delib eration to post-deliberation in our data. So what did the data show? For start ers, 49.8% indicated the same leaning after deliberations as they did before de liberations. Another 18% said their lean ing towards the party they favored before deliberations strengthened over the course of deliberations. However, 26% changed the party they favored over the course of deliberations and another 6% said their leaning in favor of one party prior to deliberations weakened over the course of deliberations. One might argue from this that 68%-74% of the mock jurors favored the same party to some de gree after deliberations as they did before deliberations, but this focus would miss a more important point since 68%-74% is not the decision rule. For example, in King County, 10 of the 12 jurors must agree and in the Western District of Washington, they all must agree. This makes deliberations meaningful and impactful since opening statements alone are not sufficient for achieving the verdict threshold. However, there are two more impor tant points about these research findings. First, this study examined mock trial data from fourteen different cases. When we compared the pre- and post-deliberation data on a case-by-case basis, we found a great deal of variance between cases. For example, in some cases, the percentage of mock jurors who changed their leaning over the course of deliberations was as

In sum, while extensive research clearly demonstrates that opening state ments are impactful, there is little to no research to support the notion that cases are “won” in opening statement. Since attorneys love pop psychology concepts, the one most relevant to this discussion is the sleeper effect. The sleeper effect helps explain the persistent myth that cases are won in opening statement despite the fact that there is little to no data to support the claim and there are in fact some recency

nomenon in a bad faith case against a large insurance company. In one group, we saw that five of the ten mock jurors favored the defense both before and after delibera tions, yet this group voted 9-1 in favor

studies that directly refute it. The sleeper effect says that messages can become detached from their original source over time, and gain credibility and acceptance where no such credibility and acceptance was justified by the original source. This seems to be the case with the idea that cases are won in the opening statement. The claim is ubiquitous in the legal profes sion but has become totally detached from any research or data actually supporting the claim. Perhaps even more shocking, is the lack of sufficient preparation for opening statement put forth by some of the attorneys who insist cases are won in openings, which gets us to perhaps a more important and accurate claim about open ing statement: While you cannot “win” your case in opening statement, you can certainly lose it there. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.

of the plaintiff. Even more fascinating, the damage award of the group far exceeded what eight of the ten mock jurors had in dicated in their pre-deliberation question naire they were willing to award the plain tiff, if they reached a decision where they were awarding money. What we realized as we went back and reviewed this group’s deliberations is that, while half the group favored the defense, they either struggled to effectively re-articulate the defense’s techni cal arguments, or they simply did not ap pear motivated to argue against three loud and dominating advocates for the plaintiff. In fact, when one of the defense-leaning mock jurors was asked in the post-deliber ation group interview why he did not push for a defense verdict in deliberations, he talked about how even though he favored the defense, the defendant is an insurance company, and he does not like insurance companies. Consequently, he did not feel compelled to fight for his personal opinions in this case, especially in the face of three zealous plaintiff advocates who aggressively argued with anyone who highlighted points

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