Rule of First
Impressions And Preconceptions
Never forget the rule of first impressions. Constant care must be taken to avoid negative
first impressions, which can and have many times, blown a litigant’s case to pieces before she has opened her
“Since jurors (and judges for that matter) form their perceptions early and tend to cling to
them tenaciously, it is important to inspire the judge or jury early in the perception creating process if we
are to have success,” writes Howard Nations in Powerful Persuasion.
Broadly, many psychologists refer to this as the primacy
effect, which generally means that impressions or other items of information recorded first
are better remembered than information and impressions that follow. The ability to recall impressions gradually
decreases until the end of a given presentation, when the recency effect takes over. The
recency effect allows subjects to recall the most recent impressions more clearly than what was revealed prior.
For that reason, you should always lead off and close with your strongest arguments, never bury them in the
mushy (forgettable) middle.
The problem of first impressions – or opportunity, depending on your point of view –is that
they are like concrete; liquid and runny at first, easily shaped and molded. But, like concrete, they will soon
set up and become hard and unchangeable. The key for the litigant is to prepare in such a way as to shape that
first impression – to give the judge and jury confidence that you are a credible, believable advocate – and that
you and your claim are worth listening to further.
Don’t underestimate the power of first impressions.
These initial perceptions can carry such weight with judges and jurors that they may actually
use them – whether consciously or not – to sift and sort through all subsequent evidence, discarding that which
doesn’t conform to these early impressions.
Preconceptions are also core components of our thinking. Together they form the raw mass of
our understanding of reality. Part of being human requires us to walk through life with volumes of
preconceptions about life and reality, right and wrong, just and unjust.
Maybe in a perfect world, judges and jurors would weigh every case solely on its merits
without regard to personal prejudices or preconceptions, but then again, maybe not, especially if we need and
want the influence of the “better angels” of their natures, the angels of mercy and compassion, empathy and
Preconceptions are part of the landscape and the skilled advocate learns to work with them,
capitalizing on them when they offer an opportunity and minimizing them where they are a pitfall. Put another
way, the presuader is careful to build a case that cuts with the grain of these preconceptions
rather than against it.
Suppose, for instance, that you are questioning prospective jurors for a case that involves a
serious automobile accident in which no one was killed or critically wounded, but which did result in severe
damage to property belonging to you and several other parties. Knowing that the weather conditions were not the
best the night of the accident – cloudy with rain and scattered low-lying fog – you might angle the questions
during jury selection away from people who might have preconceptions about bad weather driving.
Since your objective is to recover property damages from the driver, you may want to bypass
prospective jurors who have had similar accidents in bad weather conditions since they may have preconceptions
that would favor the driver, as would those perhaps who are not private property owners.
But, if you knew that evidence emerging from the trial would indicate that the driver had a
blood-alcohol content of twice the legal limit, which might radically alter the set of preconceptions you’re
seeking in prospective jurors. You are a smart enough to realize
that jurors will call up scores of different preconceptions as soon as they hear that alcohol was involved in
Preconceptions and first impression are exceedingly hard to change. The mere presence of
contradictory evidence is usually not enough to change what amounts to a made-up mind. Seize the initiative in
these areas earlier than your opponents. Once that territory is occupied it’ll pay big dividends later on.
Remember, it doesn’t take long for preconceptions to become decisions. And once the judge or
juror has arrived at an emotional point of decision, forensic psychologists say they are all but beyond
convincing and are looking instead for hard data and evidence to support their conclusion.