Extending our Understanding of the Influence of Attorney Opening Statement/Closing Argument Organizational Strategy

Previous research suggests that attorney opening and closing statement organizational patterns interact, affecting jurors’ negligence and damage awards (Spiecker & Worthington, 2003). Drawing upon unpublished data from this previous study, results of this analysis help to explain why some combinations of organizational patterns are more advantageous than others. Participants exposed to video-taped presentations organized around legal elements of a case were more likely to report relying on applicable law when rendering a verdict, while those exposed to a narrative organizational structure relied more on narrative-based reasoning and less on the applicable law. Over the past 30 years several different explanations of the process of predeliberation juror judgment have been proposed and examined (e.g., Bayesian probability theory, information integration, the Poisson random process, and the Story Model) (see Hastie, 1993; Pennington & Hastie, 1981). Of these explanations, the Story Model approach is the most recent and widely accepted in both the legal and social science communities (MacCoun, 1989; Rieke & Stutman, 1990). Recently published research suggests that attorney opening and closing statement organizational patterns interact, affecting jurors’ negligence assignments and damage awards (Spiecker & Worthington, 2003). Drawing upon previously unpublished data from this original study, we explore differences in juror reasoning in order to shed light on why some combinations of organizational patterns are more advantageous than others. Organizational Structures in Legal Presentation While several organizational techniques have been identified (see Bennett & Feldman, 1981), it appears that advocates are predisposed to use narratives (Kadoch, 2000). Researchers in this area (Bennett & Feldman, 1981, Pennington & Hastie, 1981) describe narrative structure in legal argument as a chronological sequence of intrarelated episodes, with each segment of the sequence constructed from a series of elements — initiating events, objectives/motives, actions, consequences, and accompanying states (see also, Spiecker & Worthington, 2003, p. 438). Research in discourse indicates that our natural predisposition to organize material narratively aids our comprehension, memory, and recall of information (Bruner, 1990; Mandler, 1984). It also appears to promote causal analysis (Graesser, 1981). 1 Author’s Note: This paper is based on previously unpublished data collected for Dr. Spiecker’s doctoral dissertation, submitted to the University of Kansas. Data presented in this article was previously presented at the Southern Speech Communication Convention, 2003. Other data from this dissertation was published in Law and Human Behavior, 2003. We would like to thank the editor and reviewers for their helpful comments. Correspondence should be directed to Debra L. Worthington, Ph.D., Department of Communication & Journalism, Auburn University, Auburn, AL, 36849; voice: 334.844.2756; [email protected]. Communication Law Review 53 Narrative organization may be preferred because it also reflects one of the popular conceptualizations of juror decision-making (Pennington & Hastie, 1986, 1988, 1992). The Story Model of juror decision-making proposes that jurors engage in a three stage story formation process when deliberating. In the first stage, jurors evaluate the evidence through narrative representation, constructing a sequence of events explaining what happened during the disputed incident. This narrative representation results when trial information, jurors’ own knowledge, and jurors’ expectations of what makes a plausible narrative are combined. This schema, not the presented evidence, is then stored in memory. Within this schema, jurors organize information hierarchically, with the most important evidence placed at the top. In the second stage, the verdict category is established. Here, jurors gain knowledge of the verdict categories and their associated legal and evidentiary standards. Research by Feigenson (1995) suggests jurors may not just internalize the listed verdict category features presented to them by the judge, but may also combine this information with preconceived “prototypes” of what constitutes certain punishable acts, such as armed robbery or liability. In the final stage, jurors compare their narrative representation, or story, against the different verdict categories, with the best-matching verdict category being chosen. Thus, the central hypothesis of the Story Model is that jurors construct narrative schema based on the information presented to them. These schema, or mental representations of the evidence, are predicted to consist of temporal, causal, and intentional relations between events and pieces of trial information. The process of matching a juror’s story schema to the verdict criteria results in the juror’s decision. Thus, attorneys may utilize narrative formats believing that it may be more effective in influencing juror reasoning processed as outlined by this model. The opening statement becomes the means by which they can “set the stage” and introduce main characters and case themes, while closing arguments allow them to emphasize preferred verdict categories and damages. However, narratives are not the only means attorneys use to organize their courtroom presentations. While other organizational structures have been identified (e.g., challenging, redefinition) (Bennett & Feldman, 1981), the one most pertinent to this analysis is the legal-expository approach (Feigenson, 1995).1 When utilizing this technique, the defense attorney structures information around the judicial instructions and burden of proof, emphasizing the relationship between evidence items and specific issues under dispute. Typically, attorneys tie the legal elements and judicial instructions to the case in their opening statement as well as their closing arguments. The emphasis in both presentations is upon the relevant law and how the case evidence either supports or refutes it. Few studies to date have specifically examined the impact of organizational format on juror decisionmaking. However, in our earlier analysis we found that organizational structure interactions did moderate both mock juror verdicts and damage awards (Spiecker & Worthington, 2003). For example, the use of a narrative opening and a narrative closing was the least effective format for both parties (Spiecker & Worthington, 2003). However, the most effective format was not the same for both the plaintiff and the defense. The former benefited most when a narrative opening and a legal expository closing was used; the latter had a greater advantage when using a legal expository opening. In this article, we argue that the legal expository format is more likely to be effective Communication Law Review 54 because it allows advocates to connect their story explicitly to the judicial instructions and the legal elements of the case. When this occurs, jurors are provided with the guidelines and justifications needed for reaching an advocated verdict. It is important to know that alternative organizational formats for attorneys’ openings and closings may affect jurors’ decisions of negligence and damages, but it is just as important to explore the underlying inferences that jurors are making. These inferences may help us understand the effect of different organizational patterns on juror reasoning and processing. It is this question that led to the following analysis of this previously unpublished data. Experimental Methods and Procedures While a complete review of the experimental design and procedures is available elsewhere (see Spiecker & Worthington, 2003, p. 441-447), a brief summary is presented below to orient the reader to the original study’s methodology and procedures. This section also introduces the inference scales used in this analysis. Subjects Volunteers (149 women; 97 men) were drawn from lower level communication classes at a large Midwestern University, ranged in age from 18 to 52 (M = 19.94; SD = 3.14), and were awarded class credit for their involvement. Experimental Design Employing a simulated trial, a 2 (plaintiff organizational format) x 3 (defense organizational format) experimental design was developed. Two organizational strategies – narrative and legal-expository – were manipulated. The plaintiff and defense narratives incorporated the primary structural elements characterizing narrative organization. (e.g., setting, action sequences, etc.). Similarly, the legal-expository structure drew on and incorporated legal elements (e.g., applicable laws, judge’s instructions, etc.), and was followed by an argument for acceptance (if presented by the plaintiff’s attorney) or rejection (if presented by the defense attorney) of that element. The most commonly occurring strategic organizational combinations were operationalized. Thus, for both the plaintiff and the defense a strict narrative strategy (i.e., narrative opening and closing) and a mixed strategy (i.e., narrative opening and legal-expository closing) were utilized. The final combination was a strict defense legalexpository strategy (i.e., legal-expository opening and closing). Stimulus Material. Stimulus materials were developed based on a breach of contract case (Lubet, 1989). Aside from the previously described manipulation, all elements of the video-taped case (actors, issues, etc.) were held constant across all conditions. Procedure and Instruments Upon arrival, participants reviewed an informed consent statement, completed an introductory demographic/background questionnaire, and viewed the stimulus presentation. After the viewing, participants completed a verdict form and final questionnaire. This questionnaire included the inference measures used in this analysis. Using a 5-point Likert scale, subjects rated the overall amount of influence that story elements and legal elements had on their decision (see Table 1). Communication Law Review 55 Statistical Analyses Using the 16 inference and legal element items from the final questionnaire (see Table 1), four composite summative scores were created and used as the dependent variables (i.e., plaintiff’s story score, a defense’s story score, and plaintiff and defense legal scores). The plaintiff’s and defendant’s organizational strategies served as the independent variables. ANOVA tests were performed on each dependent variable. Significant effects would indicate that the tested organizational strategy affects the overall influence of two components of the legal decision-maker’s reasoning processes: namely, reliance on inference generation or legal element-based reasoning. Statistical analysis demonstrated the plaintiff story inference scale (α = .78), the defense story inference scale (α = .72), the plaintiff legal element scale (α = .84) and the defense legal element scale (α = .80) were all sufficiently reliable to be used in factorial ANOVA tests. Table 2 presents the mean overall influence ratings for each of the composite reasoning scales.