Facts, by themselves, aren’t enough to win your case. You can’t just dump a pile of unorganized facts on the jury and expect that they’ll reach the right verdict. How you organize your facts will affect the jurors’ views about your case and can even change the outcome of your trial.

One of the easiest ways to shape the jurors’ views about your case is to take advantage of a theory called “primacy.”  Psychology professor William D. Crano defined a primacy effect as when “the message presented first exerts a disproportionate impact on an individual’s opinion.”

Basically, what you hear first colors the way you view everything else that follows. Don’t believe me? To experience how big a role primacy can play in the way jurors view your case, take a look at these two different scenarios:

The first scenario involves a 37 year old man. Less than an hour ago, his wife told him that (after several years of unsuccessfully trying to start a family), she is pregnant with their first child — a son! As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.

Now compare that to the second scenario:

This scenario also involves a 37 year old man. Six years ago, he was convicted of child molestation. As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.

Isn’t it amazing how a single fact at the beginning of the story completely changes the way you view the rest of the facts? In the first scenario, you probably thought to yourself, “What a lucky man! He’s thinking about the future when he’ll be taking his own son to the playground.”  In the second scenario, you probably thought, “Somebody call the police before that creep abducts the little boy!”

The facts didn’t change — only your perception of the facts changed. In both scenarios, the men did exactly the same things, but you ascribed completely different intentions to their actions. What you heard first had a disproportionate impact (positive or negative) on everything else that you heard.

It works the same way in the courtroom. The primacy principle affects every aspect of your trial, but its impacts can be most apparent during opening statement and direct examination. Here’s an example of how organizing your presentation of facts can dramatically affect how jurors perceive your direct examination.

Recently, I was critiquing a criminal jury trial where the prosecution was arguing that the defendant acted as an intermediary agent to facilitate a drug deal between an undercover police officer and a drug dealer. The defense’s theory of the case was that the defendant’s innocent actions and comments were misconstrued, and the drug dealer acted independently when he sold the cocaine to the undercover officer.

During their case-in-chief, the defense called the defendant to testify on his own behalf. Obviously, they must have felt that his testimony was critical to their case, and they wanted the jury to believe his version of events. But take a look at the first three questions his lawyer asked him:

Q. Where do you work?
A. I’m disabled — I haven’t worked in more than 10 years.

Q. Have you ever been convicted of a felony?
A. Yes.

Q. How many times?
A. Three times.

Take a moment to think about how these facts will affect everything else the jury hears. Now that they know he’s an unemployed, 3x convicted felon, do you think that the jurors will be more likely, or less likely, to believe what he says?

While these facts may have been important for the defense to elicit, by bringing them out at the very beginning of his testimony, the attorney corrupted the jurors’ view of her client and destroyed his credibility. Rather than listening to him from a neutral (or even positive) viewpoint, now they were forced to view all of his testimony through the lens of “The Unemployed, 3x Convicted Felon.”

Rather than hearing, “I was standing on the porch,” the jury will hear, “The Unemployed, 3x Convicted Felon says he was standing on the porch.”

Instead of, “Two people knocked on my door and asked if Archie was home,” they’ll hear, “Two people knocked on The Unemployed, 3x Convicted Felon’s home and asked if Archie was home.”

The jurors won’t hear, “I didn’t do it!”  They’ll hear, “The Unemployed, 3x Convicted Felon says he didn’t do it.”

How do you want jurors to view your witness? What lens do you want them to look through when they’re viewing your witness’s testimony? If you want jurors to view your witness’s testimony in a positive light, you need to apply the principle of primacy and avoid developing negative facts at the beginning of the direct examination.

Does that mean you should completely avoid the negative parts of the witness’s testimony? Of course not. If you don’t present the negative facts during your direct examination, your witness will get crucified during cross-examination. But just because you need to bring out bad facts doesn’t mean you need to highlight them. Ask about the negative facts somewhere in the middle of the witness’s testimony, when the jurors are less likely to focus on them.

When you start your direct examination with negative facts, you run the risk of destroying your witness’s credibility. Instead, apply the principle of primacy, and you’ll give jurors the opportunity to view your witness’s testimony in its best possible light.

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Not all testimony is created equal. Regardless of whether your witness testifies for minutes, hours, or days, you probably won’t need the jurors to remember everything that he says. Sometimes, a single word or phrase may be all that’s needed to turn the tide of the entire trial. Usually, however, there will be only a handful of images that you need the jurors to retain. If you can get the jurors to remember (and believe) those essential highlights, your witness examinations will be a success.

Unfortunately, jurors sometimes miss those essential highlights of testimony. When they miss those highlights, it’s the same as if your witness never testified. Jurors aren’t robots programmed to pay full attention to your case, so their attention levels rise and fall throughout the day, they get distracted by other sights and sounds inside the courtroom, and their minds wander. If you expect jurors to remember (and believe) those testimonial highlights, you need to ensure that they actually hear the testimony. One of the best ways to accomplish that is through the use of repetition.

For example, let’s imagine that your client was caught up in the middle of a bar fight. He’s accused of hitting someone with a beer bottle, knocking him unconscious. The other man is 6′4″ tall and weighs 220 pounds. Your client (5′2″, 140 pounds), admits to hitting the man, but claims that he was acting in self-defense.

During direct examination, your first witness testifies, “As soon as I heard people yelling, I looked over and saw the big guy pounding on the little guy.”

You’re probably thinking to yourself, “Wouldn’t it be great if I could repeat that phrase a few times to guarantee that the jury clearly sees this image?” After all, the image of “big guy pounding on the little guy” goes a long way towards helping establish the validity of your self-defense claim. By repeating the phrase, you can be assured that even if a juror misses the phrase the first time it’s mentioned, he’ll be sure to hear it the second or third time it’s repeated.

But how will you get the witness to repeat the phrase?

You could tell the witness, “Please repeat your answer so we guarantee that the jury hears it,” but your opponent will jump from her seat and exclaim, “Objection! Asked and Answered!”

You could feign deafness and say, “I didn’t quite hear your answer, please repeat it for the jury,” but not only will you draw the same objection, your credibility will also take a negative hit.

Even if you rephrase the question (”Who was pounding on who?”) or ask the witness to repeat just a part of the phrase (”Who was pounding on the little guy?”) your opponent will still successfully object to the repetition.

So how can you repeat the phrase without drawing “Asked and Answered” objections from your opponent?

The answer is simple. You’re not going to repeat your question, and you’re not going to ask the witness to repeat the answer. Instead, you’re going to ask three brand new questions, asking for three new pieces of information. Using these new questions, the jury will hear your important phrase not once, not twice, but three times.

Here’s how it works. First, identify the phrase that you want the jury to hear again. In this example, the phrase you want repeated would be, “Big guy pounding on the little guy.”

Next, think of three new pieces of information you can ask about. Why three? Because any more and it feels like overkill, any less and it feels incomplete. The information you’re seeking doesn’t need to be very important, it just needs to be temporally related to the event. Here are some examples to get you started:

• “Where were you standing?”
• “Where were they standing?”
• “Who else was there?”
• “What were you doing beforehand?”
• “What did you do afterwards?”
• “How did people react?”
• “What did you hear?”

Finally, “loop” your valuable phrase into each of the questions:

• “Where were you standing when you saw the big guy pounding on the little guy?”
• “Who else was in the room where you saw the big guy pounding on the little guy?”
• “What did you do after you saw the big guy pounding on the little guy?”

Because these questions seek new information, they’re not objectionable. The new information may not be dramatically important, but that’s not the point. You’re not asking the questions because you want the jurors to focus on where the witness was standing or who was standing nearby — you’re asking the questions because you want to burn the image of “big guy pounding on the little guy” into the jurors’ minds.

This technique can be very effective for highlighting important testimony, just be careful not to overuse it. Just as a highlighter can help you identify the important portions of a textbook, it loses its effectiveness when you highlight every word on the page. Save this technique to highlight the two or three most important portions of your witness’s testimony, and you’ll ensure that the jurors remember what you need them to remember.

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