Advice from the Bench – Primacy & Recency

By Richard Gama

For about 30 years, my father was a personal injury trial attorney in Phoenix, AZ, and for the past 15 years he has served as a Superior Court Judge in Maricopa County, AZ. Over the years he has given me some great advice that may be pretty helpful to newer attorneys out there. So with his permission, I’ve decided to share that advice. This segment focuses on the concept of primacy and recency in the context of persuasion:

“Studies into the psychology of persuasive communications teach us that people remember best what they hear first and last [primacy & recency]. The importance of these principles has been demonstrated by a number of studies in trial persuasion conducted in the late 70’s early 80’s. They closely followed jurors in actual trials and examined them extensively about all aspects of the trials. The results demonstrated that 80% of the jurors in these studies had made up their mind about liability after the opening statements [before the presentation of any evidence] and importantly over 90% of these jurors didn’t change their opinions after the presentation of evidence and closing arguments. These findings have been confirmed from my personal experiences with jurors both as a trial attorney and a trial judge. Jurors do appear to reach conclusions about the claim early on in the process and appear to hold fast to these opinions throughout the trial process. They form strong opinions about the case early in the process and then appear to view the subsequently introduced evidence in this pre-conceived matrix. In fact I have known juries to disregard evidence they feel is inconsistent with their view of the case. Further, they remember best the last portion of the evidence presented to them.

These are powerful tools of persuasion and ones that must be utilized in your presentation of the case. Always start and finish with a strong position and structure your voir-dire, opening, order of witnesses, the substance of witnesses’ testimony, the order and presentation of evidence/exhibits/demonstrative evidence, and closing comments with these important principles in mind.”

What I take away from my father’s advice is simply to save the fluff for the middle and the knock-out punches for the beginning and end. This model works just as effectively on a macro-level (e.g. beginning, middle, end of a trial) as it does on a micro-level (e.g. beginning, middle, end of a brief). Also, I think what is implied in this advice is the ability to actually discern your strongest points and the self-restraint to be painfully selective with those points. I know that when I’m too close to a case it’s often difficult for me to recognize which of my facts or legal arguments are more persuasive than others. This is where focusing grouping with co-workers, or even non-attorney friends and family, can be extremely helpful. Cramming too many points into the first paragraph of a motion or the first couple minutes of your opening statement waters down the effectiveness of the model. It puts the impetus on the judge or jury to prioritize your points rather than doing it for them, which is an unwarranted risk.

Gema-RichardRichard Gama received his law degree from Rutgers University School of Law in 2005 and before that was a graduate of the University of Colorado at Boulder. For approximately nine years, he represented injured clients in a variety of personal injury matters as a litigation associate for The Law Firm of William Babich, LLC, and then in late 2014, he opened his own firm, the Gama Law Firm, where he continues to specialize in personal injury cases. Mr. Gama is an active member of his community and belongs to various legal associations, such as the Colorado Trial Lawyers Association, Colorado and Denver Bar Associations and the American Association for Justice.