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14 Litig. 17 (1987-1988)
A Jury Hoax: The Superpower of the Opening Statement

handle is hein.journals/laba14 and id is 227 raw text is: A Jury Hoax: The Superpower of the Opening Statement by Hans Zeisel Some years ago, a distinguished federal judge buttonholed me and said, I understand you and your friend Kalven found out that 80 percent of all jury trials are decided right after the opening statements. It is then that these juries make up their mind, and never change afterwards. With some embarrass- ment I answered that this sounded both interesting and im- portant, but that we certainly had made no such discovery. Similar conversations with other judges and lawyers fol- lowed. I remained baffled until one day the general counsel of a major corporation handed me a letter, remarking: He cites your and Harry Kalven's work in The American Jury ... And there, in this round-robin letter to prestigious general counsels of the land, I at last found the attribution, accompa- nied by the assurance that his law firm devoted particular at- tention to its opening statements. I asked the letter writer where he had learned of the discovery; he named three lawyers. My inquiry with these three lawyers was not suc- cessful. Each, in effect, answered: Sorry, I never made such a statement. I lost interest in the affair until my good friend Thomas Sullivan told me that at the recent conference of the Ameri- can Trial Lawyers Association, the discovery was pre- sented as one of the few dogmas of good trial tactic. Around that time I also received an inquiry from a lawyer who was writing a text on trial strategy, asking me for the proper citation for our discovery. My friend suggested that through an appropriate statement I should put an end to the hoax. This, then, is the statement. First, we never made such a discovery; we never even asked the question. Nowhere in The American Jury's 438 pages can one even find the words opening statement. The most puzzling aspect of the discovery is why it ac- quired such powerful currency, when a moment's reflection should have raised all kinds of questions. Even if there had been data to back the discovery, one should have wondered about its meaning. Since there were not and are not any data, Mr. Zeisel is professor of law and sociology emeritus at the University of Chicago. Along with Harry Kalven, Jr., Mr. Zeisel is the author of The American Jury, published by Little Brown & Co., Boston, in 1966 (first edition), and by the University of Chicago Press in 1986 (second edition). Litigation Summer 1988 ii the reaction is even more puzzling. What exactly is the meaning of the claim? If it emphasizes the importance of a good opening state- ment, it adds nothing to what every good trial lawyer knows. But, if it seriously suggests that a good opening statement relieves the lawyer or the client of caring about the evidence and its proper presentation, about the credibility of the wit- nesses, about the lawyer's own performance, and about the judge's instructions, because the case has, in fact, been de- cided--only a feeble-minded lawyer would assent. Since the so-called discovery was never made, one must ask: Why do distinguished lawyers and judges continue to talk about it as if it were one of the few anchor points in trial strategy? As a continuing provider of empirical insights into the legal process, I know that the law world does not exactly rush to embrace new statistical evidence. What does it mean that this law world embraced with alacrity a discovery that was never made and makes little sense? Perhaps it is the pleasure of having such an anchor point at all. It certainly allows the burgeoning class of jury consultants to claim access to the formula for guaranteed victory. Here, for in- stance, is an excerpt from a recently issued outline composed by a leading company in the field: Research indicates lawyers win or lose a case with the opening statement.... Many jurors come to a decision during or immediately after the opening statement. Lawyers or judges may be forgiven for misquoting re- search. A research company cannot aspire to such forgive- ness. In case somebody is tempted to do the research that was never done, the researcher should consider how difficult it would be to design research to test the issue. No doubt, if the researcher could poll juries right after they have heard the opening statements and compare their tentative verdict with the one they would ultimately render, the researcher would obtain considerable correlation. The crucial question, though, would be whether the jury's Volume 14 Number 4

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