Monthly LEXIS updates under the search term “primacy w/2 recency” produced a hit recently from a California guide on defending Drunk Driving cases. Here is what it claimed:
Traditional wisdom had it that the best approach in Opening was to not present one, or at the very least to reserve the Opening. Studies of primacy and recency have convinced a respectable population of lawyers to make an Opening, if the case is conducive.
California Drunk Driving Law § 9:08.
I found this to be astonishing. When if ever was this the “traditional” reasoning for trial advocates? Is it only a “respectable population” of lawyers who now believe otherwise? And is there ever a case that is not conducive to an opening statement?
Apparently this was ‘wisdom’ in 1935. In his text TRIAL TECHNIQUE (Callaghan and Company, 1935), author Irving Goldstein, at the time an “instructor in trial technique at Northwestern University School of Law, wrote:
When representing a defendant in the case it frequently becomes necessary to decide whether it will be better to make an opening statement or to waive it entirely. Sometimes in criminal cases it is advisable to waive the opening statement on the part of the defendant where there is every indication that the defendant may be guilty. This is also true in personal injury cases where there is no question but that client is liable and also where the only hope is to keep the verdict as small as possible.
Waiving the opening statement may be indicated in those instances where the attorney relies upon a secret defense, that is, where he has information, witnesses, and evidence unknown to the plaintiff which will completely refute and destroy plaintiff’s case.
TRIAL TECHNIQUE, §263 (emphasis in original).
Goldstein offers no explanation of why this is a preferred approach, of what it might accomplish, or the harm it might beget. And later in the same chapter he rejects one of his premises, writing that in the “secret defense” case some opening should be given that “will serve to make the jury listen to the plaintiff’s witnesses with the thought in their minds that they must not accept the plaintiff’s testimony unreservedly…” Id., §265.
But even accepting that this might have once been the “traditional reasoning,” there is no justification to espouse it now. To the extent that the author(s) of the claim have knowledge that many lawyers still adhere to it – since they claim that only a “respectable population” now think differently – they should be shouting from the rooftops that this is blasphemy. And what case is not “conducive” to an opening statement.
Admittedly, the California text goes on to note reasons to give an opening, explaining that
It is a fact that people remember best that which they hear and see first and best that which they have heard and seen most recently. Importantly, study and experience reveals consistently that the jurors tend to make up their minds about the case early on. Some say that the case is won or lost in the opening statement given the persuasive power it manifests.
California Drunk Driving Law § 9:08. But this caution does not undo the call to “traditional wisdom” or the mis-perception that even some cases warrant having no opening at all.
When the moving party makes an opening, unless it is presented without narrative, emotion and reason, the floor in the courtroom has effectively tilted – and the courtroom will remain tilted throughout the presentation of that party’s case, unless it has been brought back to a level ground by a responsive opening statement.
The two lessons? Those who write treatises with language such as this should not place “traditional wisdom” that is without support on a par with current, science and experience based principles; and those who read such guides should proceed with caution.