It is easy to imagine what you are likely to hear in the first few moments of the defense opening when the case involves a serious injury or death:
Ladies and gentlemen of the jury, everyone here knows the pain and loss that Ms. Smith has experienced. It is a tragedy and it is only human for us to feel some sympathy when we hear her story. But your decision in this case needs to be based on the evidence and the law, not on emotion. So I need to ask you to set aside any feelings of sympathy you may have for Ms. Smith as you hear our side of the case.
That is a cliché, but the general request is a pretty common way for defendants to begin. Even as it feels a little trite, defense attorneys usually believe they need to do it. On the heels of the plaintiff's emotional opening, it is understandable that defense attorneys would try to clear the decks of that emotion and get the spotlight to focus on the facts and the law instead. But even as the attorney's motivation makes sense, the standard admonition has a very low likelihood of being effective, and a very high likelihood of preventing a better introductory message. In this post, I will share some reasons why "Set aside sympathy," isn't the best way to begin, and share some ideas for changing that message.
Three Reasons Not to Lead with 'Set Aside Sympathy'
There is a psychiatric term for people who don't feel anything for others, so in making the standard request to set aside sympathy, you are essentially asking your jury to become sociopaths. Most other humans will feel some sympathy, and asking them to bracket it out presumes that biases are known and subject to voluntary and conscious control. But here's what the social science tells us: They aren't. Instead, biases are built into the way we see the world. Jurors who are moved by sympathy aren't likely to see it as "sympathy," but will instead use it to filter their view of general responsibility, specific liability, or damages. If they dismiss it as "sympathy," chances are they're already on your side.
It Signals Worry and Weakness
A big part of conveying confidence is starting strong. And a plea for jurors to not be moved by the human side of the case just isn't starting strong. On the contrary, it signals that you are concerned about that part of the case, and you suspect that this jury might be the kind of people who would put emotion over the law. Appealing to sympathy is itself a "low-power" strategy, meaning that it is a tactic more likely to be used by and useful to the party who is otherwise losing. By the same token, attempts to insulate yourself from sympathy also feel like a low-power strategy: It asks for protection instead of sharing confidence in the case.
It Avoids the Better Option
Your jury is never paying more attention to you and your case than they are in the first few moments of your opening statement. What is presented first tends to be impactful not only at that moment, but will also be remembered longer. This "primacy effect" suggests that you should front-load your best and most effective appeal right out of the gates. Instead of wasting those prime moments by making a weak and ineffective request for your jury to set aside their sympathy, begin by cutting straight to the chase with a "silver bullet" introduction that economically conveys a theme addressing your case's biggest weaknesses and leveraging its greatest strengths.
Here's a Better Approach on Sympathy
Don't Ask Them to 'Set It Aside.' Instead, Ask Them to Avoid Making it Decisive
Social science suggests that the request to "set aside" an attitudinal bias is at least difficult if not impossible. At the same time, the goal of at least not allowing sympathy to function as an explicit argument in deliberations or a conscious rationale for a verdict is a little more realistic. So, once you reach the point where you want to deliver that message, let jurors know: It is totally okay to feel sympathy and even to discuss it. But it is not okay to let that sympathy become a reason or a basis for your decision.
Don't Lead Off With the Request for Sympathy Protection. Instead, Introduce it Only After You've Given Jurors Something to Replace That Sympathy With
Beginning with the sympathy request is not only a lost opportunity to begin with something better, it is also a premature request. If jurors aren't to base their decision on sympathy, then what are they to base their decision on? Hopefully for you're case, they should instead be basing that decision on the facts or the law. And once they know what facts and which law, it will be easier to rely on that instead of relying on sympathy.
Make it a Legal Request, not a Personal Request
It is not that you need them to avoid sympathy as a basis for decision, it is that the judge and the law requires it. So any request to jurors addressing sympathy should be couched as a legal and not a personal request. As long as you can do so while staying on the right side of any restrictions your judge has placed on discussing the instructions in opening statement (restrictions that have never made sense to me), it helps to give a preview: The judge will give you instructions on the law, and those instructions will tell you that while the law recognizes that sympathy is human nature, the law also asks you to not allow that sympathy to be the reason or the basis for your decision. And all of the parties here as well as the judge agree on that point: You should follow the law.