It is an overstatement to assert that "most jurors have made up their minds by the end of opening statement". Jurors have not necessarily reached a firm conclusion regarding their verdict by the end of opening statement. However, something very important has happened by this point in the trial that strongly influences all subsequent incoming evidence.

Researchers have consistently found, both from systematic evaluations and from observational data of jury deliberations, that jurors reach tentative conclusions very early in the trial. These tentative conclusions are often highly correlated with individual verdicts taken just prior to group deliberations. Social psychologists refer to these tentative conclusions as "conceptual frameworks." It appears that jurors, early in the case, adopt a point-of-view (or a frame-of-reference) for subsequent information. This frame-of-reference becomes a filter for information, resulting in new facts being adopted or rejected, depending upon how consistent the information is with their frame reference. Essentially, jurors develop selective perception of incoming information. They accept and attend to those things which fit with their initial orientation and "forget" or fail to hear inconsistent information.

Researchers have found that jurors can describe their conceptual framework early in the case, frequently after voir dire is completed.

Developing a frame-of-reference for filtering incoming information is a natural, adaptive human information processing tool. People do not attend equally to every bit of information that is presented them. We would be overwhelmed with isolated bits of information if we did. Rather, perceptions are organized, either based upon previous experiences, beliefs and attitudes, or upon conceptual schemes that are presented to us. That's why public speakers are advised to "tell them what you're going to tell them; tell them; then tell them what you told them". People organize and retain information through frameworks.

Clearly, the fact that jurors must develop some type of organizational reference for incoming information underscores the importance of providing jurors with a frame-of-reference favorable to the litigants position. Counsel must identify central themes which can be used by the jurors as reference points for organizing incoming information. We have found repeatedly in observing the jury deliberations through one-way mirrors that jurors often become "advocates" for one side or another. The most effective juror- "advocates" are those who can call up cogent summaries or "refrains" from the case. For example, in a recent 60 million dollar contract dispute, the plaintiff's provided jurors with a summary of the law on fraud as "the law says you have to play fair." Repeatedly, in pre-trial research, we observed the pro-plaintiff jurors continuously respond to pro-defense jurors, "yes, but that practice (of the defendants) was not fair and the law says you must play fair." The real jury in the case, awarded most of what the plaintiffs asked for. When interviewed after the trial, several jurors commented that throughout the trial they were listening for evidence of "fair play." Similarly, when representing a Corporate defendant in a multi-million dollar personal injury suit stemming from an accident involving a corporate owned vehicle, the defense asserted they were a "scapegoat," and that the true driver at fault in the accident (a drunk driver) was not even named in the lawsuit. The refrain was repeatedly used from opening statement to closing argument. Again, in post-trial interviews we learned that pro-defense jurors repeatedly asserted this refrain during deliberations. The actual jury returned a defense verdict for the client.

Essentially, research suggests that not every juror has completely closed their mind to incoming evidence by the conclusion of opening statements, but most jurors do adopt some type of conceptual framework which serves as an organizing vehicle for incoming information. Information that is consistent with this framework is apparently attended to. In fact, we often find that this information is contained in jurors' notes. Information that is inconsistent with this framework is often disregarded or simply "not heard". Many jurors, in post-trial interviews, will earnestly assert that evidence supporting positions opposed their viewpoints never came up at trial. It is clear, they simply did not "hear" the evidence or subconsciously disregarded it.

It is well established in the literature on persuasive communication that jurors attend to more than simply what is said in determining the credibility of a witness or an attorney. Verbal and non-verbal behaviors are taken into account in formulating assessments of the credibility of others.

There are a number of important variables that factor into our assessments of the credibility of a speaker and it is important not to lose site of these issues, even though jurors have great difficulty articulating the factors that influence their assessments of witnesses and lawyers. However, we know from systematic research separating the content of presentations from the presenter that, in fact, both verbal and non-verbal behaviors are powerful influences on the cumulative effectiveness of the witness or lawyer.

There are no clear-cut generalities to say that jurors weigh content and non-verbal presentation factors equally across all witnesses. Rather, verbal and non-verbal behaviors are contributors to three broader components of persuasiveness that we have observed after years of systematic research in our courtroom. The elements of persuasiveness can be clustered into three factors; trustworthiness, competence and likeability. Competence measures whether the speaker has demonstrated knowledge and understanding of the issues at hand, and is qualified to be speaking on the subject. This is true of expert witnesses, lay witnesses and the attorney. Measures of trustworthiness involve jurors' subjective impressions that the witness is credible. And finally, issues related to likeability have, in fact, been reliably demonstrated to influence the overall effectiveness of a witness or an attorney. We have seen, in social psychology research, that people tend to attribute many positive additional characteristics to others they like, including rating them as more credible, successful, attractive, interesting and effective.

Thus, evaluating a witness or assessing the effectiveness of an attorney breaks down into verbal and non-verbal evaluations of three important dimensions: credibility, trustworthiness and likeability. Clearly, the higher a witness or an attorney rates on each of the dimensions, the more effective they are in commanding jurors' attention, having their statements (or testimony) recalled by jurors, and ultimately persuading others. It is true that one cannot divorce content from the presenter and all too often a disproportionate share of attention is spent on preparing the content of the case without focusing on the style and competence of the presenter.

Clearly two factors must be weighed in terms of making evidentiary objections. For some cases "protecting the record" for appeal may be of paramount importance and thus, issues relating to the impact of objections on the jury are secondary. In instances where it is not the primary concern, or where it is equally balanced with concerns about the case at hand, we find that jurors make a number of interpretations of objections by counsel. However, before looking at the interpretations jurors make about objections, we should first consider one of the most salient consequences of objections.

Research has shown repeatedly that testimony that is objected to is "highlighted" in some manner, and jurors recall testimony following objections (and most other courtroom interruptions for that matter) with greater frequency than would otherwise be expected. Essentially, the greatest effect of objections is to draw attention to the issue at hand. A ruling by the judge to disregard the testimony, only further underscores the testimony. Thus, one of the paramount considerations regarding objections is whether one wishes to draw attention to the testimony at hand or not.

The secondary consideration is the impression of counsel. There are no global rules of thumb that apply to every case. In some instances we have seen repeated objections by counsel work very favorably, as it gives the impression that the other side is attempting to circumvent "the rules". The attorney making the objections is seen as alert and conscientious. To the other extreme, we have seen repeated objections by counsel received as annoying, disruptive and a sign of weakness. There is some loose correlation between favorable and unfavorable impressions and whether the objections were sustained or overruled, but for the most part, jurors rely not on the ratio between sustained and overruled objections, but rather on their own subjective determinations of "appropriateness".

This leaves counsel with a difficult balancing act. We have noted that the most effective objections are those that state the basis of the objection in terms the jury can understand. For example, rather than merely saying "object, testimony is irrelevant", an attorney is better off saying "object, testimony concerning the witness' prior experiences is irrelevant to the question of the negligence of the defendant." Brief objections happen too quickly for jurors to make the correct associations. Of course, this strategy depends on whether one wants to draw attention to the testimony, in which case one would cite the objection as well as the reason for it in lay persons terms, or whether one prefers to merely make the objection for the record and wishes to draw only the minimal attention to it. In the latter circumstance, simply making the objection is more effective.

Poorly prepared witnesses are the greatest weakness in any case. Attorneys often fear that a witness will "look rehearsed" and therefore they will "raise suspicions" in the jury's minds, thus attorneys often engage in only cursory preparation of a witness. Rarely have we seen a witness who was too smooth due to witness preparation. Given that it occasionally might happen, this rare event must be weighed against the overriding consideration that a poorly prepared witness is generally ineffective, and, in fact, can irritate the jury. Over and over again we hear jurors comment negatively on the credibility and effectiveness of witnesses who are poorly prepared, nervous, or do not even "cooperate" effectively during their own direct examination. To the other extreme, it is rare to hear jurors complain, or cite as a lack of credibility, a witness who was relaxed and prepared for their direct examination. In fact, we have heard many jurors express irritation toward an attorney whose witness was confused and unable to communicate effectively. In essence, the jury is saying that they fully expect an attorney to have met with a witness and discuss the pending testimony. To fail to do so, is often seen by jurors as an indication that the attorney had little interest in the testimony of the witness. Thus the attorney's own preparation (competence) becomes suspect, or worse the attorney is seen as somehow trying to "fool the jury". Jurors fully expect that an attorney has prepared his or her own witness. They are far more likely to comment on the negative aspects of a poorly prepared witness than to negatively comment on a well-prepared witness.

One important error often made in witness preparation is failing to conduct specific preparation of testimony. Often, attorneys will meet with a witness in the attorney's office and discuss in global terms the nature of the direct examination, describing the topics the attorney intends to cover. Rarely, is the witness given a "dry run" and allowed to formulate answers to these questions. Rather, an abstract discussion usually takes place with no specific rehearsal is involved.

Much can be learned both by the attorney and by the witness if the witness is allowed to attempt to formulate answers through a dry-run. It is easy to spot poor choices of words, or answers that are too expansive or otherwise would be inadequate. These issues can be ferreted out in the attorney's presence and worked through, rather than have a witness stumble on the witness stand. A witness confused by his own attorney's questions is often mistaken as searching for cues to the right answer, an impression an attorney certainly does not want a witness to make.

Beyond merely attempting a walk-through of the direct examination in the informal atmosphere of the attorney's office, it is highly advisable to attempt to evoke some anxiety in the witness during the dry run. They will be nervous in court. Approximating their emotional state creates a better rehearsal, what psychologists refer to as a transfer of learning across different settings. For example, rather than undertaking the mock direct examination one-on-one in the attorney's office, it might be better to move the witness into a conference room, have them sit at some distance from the attorney, and have one or two office staff available to sit in on the mock direct examination. The distractions created by the presence of other individuals will heighten the witness' anxiety and thus, a clear simulation of what the witness is likely to do in the courtroom can be created. It is very helpful to the attorney and the witness, if the witness is given an opportunity to confront the task of testifying while somewhat nervous and distracted.