Psychological Principles for Opening Statements

Philip M. Gerson [based on Neil Feigensen Legal Blame 2000]
Presented in 2001

What to tell the jury about the case how to tell it and when is the challenge of every opening statement. Here are three concepts that if understood can help you understand how to structure your explanation of the case in opening statement.

Monocausality, Norm theory, & Counterfactual thinking Knowledge structures, Inferential Heuristics, and Prototype Effects

These concepts deal with how people perceive information interpret information and make judgments about information. Cultural differences between both individuals and groups influence contextural thinking and viewpoints. This is obvious to us all in the diverse ways we see others react to our own customs and traditions and explains how we sometimes fail to grasp and frequently fail to identify with the standards and practices of other societies. It is common understanding of most people expressed in a verdict by jurors which enables us to decide lawsuits that define the rights and responsibilities of individuals and organizations. Finding the common threads of human understanding and relating them to legal principles expressed by the court in the jury instructions are the challenge of the trial lawyer.

Psychological theory of human reasoning and inference drawing is based upon stereotypical classifications of people and events, which are commonly understood to have a similar meaning among members of a society or group. These viewpoints or understandings are called knowledge structures. Some knowledge structures are more universal than others. An example would be a horse or a snake, which has characteristics, which all people would identify with the species. Other less universal examples such as a handshake or a bow would mean different things to various culturally identifiable groups. Since jury trials are decided by socially diverse venire men in big cities effective lawyers must be careful to identify individual jurors who may subscribe to knowledge structures outside the mainstream. Despite such differences generally accepted beliefs can be counted upon to form the knowledge structures of most juries. Some examples relevant to routine litigation are the inferential heuristics to be drawn from information that criminal actors under the influence of drugs will predictably act irrationally necessitating security measures and perhaps mitigating their effectiveness. Whether or not the effect of drug use in fact influenced behavior is often irrelevant since people will automatically infer that fact based on heuristics. Trial lawyers must understand and accept the fact that these belief schemas exist and cannot easily be changed even in the face of substantial evidence.

Prototype effects refer to the tendency of people to classify people and events consistently with a prototypical expectation based upon incomplete and only partial similarities between the person, event and the prototype. Thus in a security case involving an individual who has been drinking alcohol listeners are likely to automatically believe that person was loud, aggressive, belligerent, and violent when a confrontation with a sober person has occurred. That harm comes from the behavior of intoxicated persons is generally accepted by most persons and little can be said in a trial that can overcome that prototypical expectation. The lesson for the trial lawyer here is that in advising our clients about settlements before trial evidentiary expectations must be tempered by acceptance of what people are culturally conditioned to believe. Our expectations about what can be proved in a courtroom should be limited by the realities of these psychological principles.

Counterfactual Thinking And Hindsight Bias

This concept is central to carrying the burden of proof on causation in all personal injury litigation. People attempting to understand the cause of an event are asked to hypothesize how the outcome would have differed if the defendant had acted differently, albeit in a non-negligent manner. Constructing an alternative scenario that changes the result enables the plaintiff to contend that the deviant conduct of the defendant was the cause of the plaintiff’s loss. It is precisely this “but for” the negligent acts or omissions of the defendant reasoning that causally links to plaintiff’s damages. In the purest logic all circumstances leading up to an event play some role in causation. Effective lawyering consists of equating the counterfactual absence of negligence with avoidance of harm.

If the jury will accept that another outcome would have occurred without the culpable conduct of the defendant they can find a causal link to match the causation test of most jurisdictions. In the negligent security case this concept is utilized to demonstrate how reasonable security precautions not undertaken would have prevented the crime. In every case it is argued by the defense that the deviant conduct of the criminal is the cause of the plaintiff’s loss. Indubitably this is true. Our job representing victims is to show how the foreseeable criminal act could have been deterred or thwarted by careful undertakings of reasonable security measures. A jury cannot find for the plaintiff unless it is tempted by evidence to engage in counterfactual reasoning that the result would be different if other security precautions were in place. If the trial lawyer does not comprehend this principle and cannot meet this burden the fact finders will accept the defense claim that the crime was not preventable and the defendant’s negligence if any was incidental and not material.

Culpability affects the causation decision because of the tendency to attribute responsibility based upon moral blameworthiness rather than factual data. Thus, jurors will attribute causation indexed by culpability. For negligent security cases this means the stronger the forseeability (negligence) evidence the easier it will be to meet the preventability (causation) burden. It is important to understand this relationship to evaluate the strength of a negligent security case. Ideally, all of our cases will have strong evidence on both of the core issues of forseeability and preventability. Where the evidence does not amount to a slam-dunk measurement of the relative strength of evidence on these issues is needed to judge probable trial outcomes. If the forseeability proof is compelling jurors will tend to blame the defendant for not undertaking reasonable security measures and be more willing to engage in the type of counterfactual thinking needed for a plaintiffs verdict.

Hindsight bias is the tendency to overestimate the probability of a known outcome as a foreseeable event. Looking back at forseeability after the loss has occurred validates the failure to foresee by the post authentication of the outcome.

To take full advantage of these psychological principles storytelling techniques should be used in opening statement. The story of your clients victimization should be told in the first person building suspense to what everyone will know is a dramatic violent conclusion. Language should be used to stimulate the jurors to be thinking, “…if only there was some, more, or better security…” and “I knew this would happen when I heard what the background was…”

Fundamental Attribution Error

This term describes the human tendency to attribute behavior to personality traits rather than circumstances. In other words, negligence and causation are understood by looking at the perceived character of the actors not the situational constraints. This “error” is applied when evaluating the behavior of others. When considering their own behavior people tend to relate outcomes to the situation not to their own traits. The difference in viewpoints is called the “actor-observer effect”. Attribution can be applied to either plaintiff or defendant. Character evidence albeit indirect infects the reasoning of jurors by tempting them to generalize traits about the parties as a shortcut for deciding blame for a specific occurrence. In the group dynamic of a jury deliberation the description of someone as a “type” of person with negative connotation facilitates the melodramatic good and evil dichotomy as a basis for the decision. Every experienced lawyer implicitly understands how the identity and so called jury appeal of the client weighs in the evaluation of the case. This concept explains the clichés. It cuts both ways so to speak and applies to both plaintiffs and defendants. The appearance, demeanor and character of the parties undoubtedly directly influence many jury verdicts.

A related concept is defensive attribution. This phenomena of thought involves the fear by jurors that they themselves could be vulnerable to the same outcome as the plaintiff and thus the more serious the injury the more readily they blame the victim to distinguish him from themselves and thus find comfort in the belief that they would not suffer a similar injury. Generally we all understand the need to help jurors identify with our clients. Defensive attribution is the resistance to identification and the self -protective tendency to distance oneself from the victim based on the severity of the injury.

Sympathy

This emotion is among the most commonly understood human feelings. Sympathy is understanding someone else’s pain and suffering in an empathetic sense which enables us to imagine ourselves in the victim’s predicament and to in some way feel the experiences of the victim. To feel sympathy the listener must have evidence of the suffering, must relate or identify with the victim, and must believe the infliction of the suffering is unjust, undeserved, and outside the victims control.

The essence of this emotion is the embodiment of the so-called “golden rule” (what would you want a jury to award if it was you not the plaintiff who was injured?) arguments plaintiffs in most jurisdictions are prohibited from presenting the jury. Jurors are generally thought to be greatly influenced by sympathy. Surely, violent crime victims are by their circumstances sympathetic compared to plaintiffs generally and thus often are the recipients of this sentiment. On the other hand there is much to mitigate this feeling in trial practice. Starting with defense questioning in voir dire aimed at exacting a promise from each prospective juror to reach decisions based only on evidence purposefully resisting the temptation to be motivated by natural human feelings of sympathy and ending with a standard jury instruction that sympathy should not influence decision making jurors may actually reject this appeal in all but the most severe injury or death cases.

Where sympathy is not felt it is replaced by the tendency to blame the victim as a means of believing people get what they deserve and thus deserve what they get. This is a knee jerk reaction that permits people to believe there is order and justice in the universe. Resisting sympathetic feelings is rationalized by substituted blame for the victim.

Thus, the world is not an unjust place where we are compelled to feel another’s misfortune according to jurors who do not indulge themselves with sympathetic feelings about an injured plaintiff. It is difficult to assess which of these emotional responses will be stimulated in jurors. However, understanding these competing responses enables crime victim lawyers to see beyond the legal issue of comparative/contributory negligence to the psychological bedrock feeling processing methods jurors actually use in deciding cases. This is the real challenge faced in trial of a plaintiff’s case.

How we deal with this conflict in human emotion and try to establish the feeling of sympathy for our clients is difficult. In negligent security cases there is a triangular comparison of contributory fault. There is the defendant, the plaintiff and the criminal actor. The jurors will invariably measure the relative culpability of all three. The critical comparison is between plaintiff and defendant. The defendant’s fault must overshadow any fault of the plaintiff. If it does not the jurors may feel sympathy for the defendant who has been sued and is himself a victim of a criminal actor and/or a blameworthy plaintiff.

To illustrate take the case of the client who has been injured as a result of a fight or other disturbance which in some way he contributed to bringing about. Even if fights at the defendant’s property are not uncommon the involvement of the plaintiff may undermine sympathy for his serious injury unless the forseeability and preventability evidence is sufficient to place the defendant in a position of greater blameworthiness than the plaintiff. Linkage between the defendant and the wrongdoer is one way this can be demonstrated.. Examples would be assistance provided by defendant to the perpetrator of the criminal act or other encouragement of rowdy or even violent behavior in general.

Anger

Although the propaganda and popular belief is different this emotion plays a greater role in juror decisions than does sympathy. It operates by holding someone responsible for an injury or death based on violation of social norms. The more aberrant the behavior the more anger is felt toward the actor. Blame driven by anger ascends to levels and degrees beyond objective assessment of the evidence. When conduct offends our sense of community well being people become anxious about the unchecked, unrestrained, and unpunished effect it can have upon their own safety and security. The emotional reaction is to assign blame focused on the moral repugnancy of the act.

The anger emotion can operate to motivate in all of the above-discussed psychological principles. As stated in the preceding section the negligent security case brings a three-sided equation including the plaintiff, the defendant and a criminal actor. Surely, jurors can feel anger toward any one or all three. Trial outcomes not doubt correlate to how this emotion is experienced by jurors.

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