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The Myth of the Primacy and Recency Effects at Trial

Aug 17, 2007
For many years trial consultants and lawyers have talked about how a trial should be structured to take into account primacy and recency effects. In its simplest form (and it really isn't much more complicated than its simplest form), primacy and recency theory predicts people will remember information best that occurs at the beginning and end of communications, and will be more likely to forget what is in the middle.

This idea has been used to argue that openings and closings are the most important parts of the trial; that the beginning and end of a witness's testimony will be best remembered; that lawyers should save important points for the start and the end of a trial day; and so on. While these ideas may make intuitive sense, the fact is that there is no real empirical evidence to support them (at least based on the concepts of the primacy and recency effects).

The concepts of the primacy and recency effects were developed in a publication in 1957 (Luchins, A.S. [1957] Primacy-recency in impression formation (pp.33-40, 50-61) in C. Hovland [Ed.] The Order of Presentation in Persuasion. New Haven, Conn. Yale University). They were based on a series of experiments in which subjects read lists of words and immediately reported back what words they remembered. There has been an enormous amount of follow-up work over the years, and the experiments have generally had two features: They a) use word lists and b) measure recall within a very short time after the subject has been exposed to them.

Even in this artificial laboratory setting, the primacy and recency effects can be eliminated by highlighting words in the middle of the list. What this has to do with presenting a case to a jury in a courtroom is unclear. It is a good example of the misuse of discrete scientific findings to make grossly over-generalized points. It's like the way in which the Heisenberg Uncertainty Principle (which suggests that we cannot know both the location and velocity of an object) has been ripped from physics to argue that we can never know where anything is.

Now, are openings and closings important? Of course they are. Is it because of primacy and recency effects? Unfortunately, it is unlikely to be that simple. What we do know is that information is best remembered by someone when it has the person's continued attention and when it is kept available to the person. Far more than paying undue attention to primary and recency effects in planning a trial, the lawyer should focus on determining what the key information is and how the presentation of evidence can be structured so that jurors are attentive when it is presented and so that it is presented often enough so that it stays in memory. The story telling technique is the best way we have seen to achieve these goals and make facts and details memorable.
About the Author
David S. Davis, PhD is a founder of and principal in R&D Strategic Solutions, a trial consultants and jury consultants firm specializing in voir dire, shadow juries, jury research, and mock juries.
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