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Voice of Experience
The Advantage: 12.04: V.1, 3rd edition
A common myth among the legal community is that jurors make up their minds about a case at the end of opening statements. The origin of this myth can be traced largely to a misreading of the 1966 University of Chicago jury study by Kalven and Zeisel, The American Jury. Highlighting the perils of “often cited but seldom read,” several scholars have cited Kalven and Zeisel’s work as finding that only about 20% of jurors change their mind after opening statements; for the rest, the judgments formed immediately after opening statements persist through the start of deliberations. However, this conclusion has been discounted, even by Zeisel himself. Recounting a conversation with a federal judge who asked him about this conclusion concerning the importance of opening statements, Zeisel answered “that this sounded both interesting and important, but we certainly had made no such discovery…We never even asked the question. Nowhere in The American Jury’s 438 pages can one even find the words ‘opening statement.’” In fact, what Kalven and Zeisel actually found (inter alia) was that for approximately 90% of the juries that were interviewed after reaching a verdict, the juries’ first ballot foretold the final verdict. The real conclusion to draw from this is that by the time the first vote is taken (whenever that may be), the jury has generally settled on their decision. This by no means suggests that minds are made up after opening statement.
This is not to say the importance ascribed by many to opening statements is unfounded. Opening statements provide a thematic framework that jurors can use to organize subsequent information. If jurors adopt your framework instead of that of your adversary, you are halfway home. The “battle of frameworks” is an early and important battle to win.
So when do jurors make up their minds? It depends on the juror. Jurors begin to favor one side over the other at different phases of trial. Some jurors may walk in the door with a bias toward the plaintiff or defendant, and the direction of this bias can be different for the same juror depending on the type of case. Other jurors strive to be open-minded, and do their best to refrain from leaning until all the evidence has been heard, and a few even go well into deliberations completely undecided. The rest of the jurors make up their minds somewhere in between. In addition, it is not uncommon for jurors to waiver or change their minds – some more than once – during the course of a trial. When we interview jurors, they often say, “I was initially leaning toward the plaintiff, but after the defense put on their key witness, I started to rethink my position.” Cross-examination can play a vital role in changing opinions about a particular witness, and may cause a party line shift. Jurors also do not necessarily vote party line. As an example, we often say, “The juror who is good for liability will be bad for damages.”
The moral of the story is that opening statements, while critically important, do not win or lose a case. However, by winning the battle of the frameworks, you give yourself a competitive advantage in the rest of the trial, leaving your opponent with an uphill fight.
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