The importance of primacy at trial, a real life example.

I once sat through another attorney’s voir dire and opening statement in a personal injury case. The attorney talked about his client’s past medical condition, injury in this accident and in summary fashion told the jury that the evidence of the past condition would show that it was not related to the accident at hand.

The defense attorney then gave his opening statement, advising of a detailed rendition of facts that one, after another, suggested the injury was in fact related to the past history and not the accident with his client. The jury was intently watching this presentation and soon would deliver a verdict in favor of the defense.

As the evidence was presented, the jury listened for the evidence that supported their initial impression. They tuned out the testimony of the Plaintiff’s doctor when he was trying to explain the difference between the original injury and the accident injuries. They hung on every word of the defense doctor when he was explaining that the injuries were essentially the same. Now I have to let you in on a little secret. I knew ths defense doctor to be a hired gun, and he would say anything the defense wanted him to say. I did not, when listening to the evidence and testimony, think he was even remotely able to support his opinion, but the jury sided with that doctor anyway. The primacy of their thoughts made them hear evidence supporting their opinion while rejecting evidence that did not.

The Plaintiff’s attorney lost primacy and also the case, because he was not detailed in his description of the injuries from the past, the current injuries and how they differed. He also did not explain away, while he had the chance, the negative evidence against his client. He was, in short, not properly prepared to convince the jury of the merit of his case in opening statement.

Primacy is important to every presentation, telling the jury why you should prevail at the end of trial and leaving them with the power to determine the fate of your client fairly.


James Ballidis is the managing attorney for Allen, Flatt, Ballidis & Leslie and has been practicing personal injury law for 25 years.