Start with the Defendant: Trial Narrative Strategy

Every personal injury case is a story, and every story has a protagonist. Whoever appears first in the narrative becomes the character the audience scrutinizes: the one whose choices, motives, and failures get measured against how a reasonable person ought to behave.

For plaintiffs, this is the single most consequential structural choice in the case. The rule is simple: start with the defendant. Open with the defendant’s conduct in your complaint, your mediation brief, your opening statement, and your closing argument. If you begin with your client’s conduct, you hand the factfinder an invitation to evaluate your client first. You want to keep their focus on the defendant, at least to start with.

This is not trial lawyer folklore. Converging lines of empirical psychology support this approach, and the research is robust enough that it belongs in every plaintiff lawyer’s toolkit.

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The Story Model: How Jurors Construct Narratives

The foundational work belongs to Nancy Pennington and Reid Hastie, whose Story Model of juror decision-making, developed through a series of studies published between 1986 and 1993, remains the most widely cited framework in the field. Pennington and Hastie demonstrated that jurors do not evaluate evidence item by item and tally the score. They actively construct a narrative that organizes the evidence into a causal sequence of events, motivations, and actions. It is the narrative, not the raw evidence, that drives the verdict.

In their 1988 mock-jury experiment, Pennington and Hastie presented identical evidence to two groups of participants. One group received the evidence in chronological “story order”; the other received the same facts in “witness order,” the disjointed sequence typical of actual trials. Participants were significantly more likely to rule for the side whose evidence was presented in coherent story order. The effect was large and reproducible, and it has held up across three decades of replication.

The lesson for trial lawyers: whoever controls the narrative arc controls the verdict. See Pennington & Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. Personality & Soc. Psychol. 189 (1992).

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The Primacy Effect: Why First Impressions Control the Frame

A second body of research, dating to Solomon Asch’s classic 1946 studies on impression formation, establishes that information presented first is weighted more heavily than information presented later. Asch showed that people rated a person described as “intelligent, industrious, impulsive, critical, stubborn, envious” significantly more favorably than someone described with the identical traits in reverse order. Later information is not simply discounted. It is filtered through the frame set by the first information received.

A 2019 replication by Sullivan and colleagues, pooling data from five experiments with nearly 3,000 participants, confirmed that the primacy effect remains a reliable feature of how people form judgments about others.

Applied to trial: the first actor the jury hears about becomes the actor whose conduct is scrutinized, and every subsequent fact gets color-shifted by that initial frame. If the first character introduced is your injured client, jurors will spend the rest of the case looking for reasons the injury was her own fault. If the first character is the defendant, they will spend the rest of the case looking for the moment the defendant broke a rule.

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Attribution Theory and Causal Primacy

The third pillar is attribution theory. The fundamental attribution error, one of the most replicated findings in social psychology, describes the tendency to explain the behavior of others by reference to their character and choices rather than their circumstances. Defensive attribution operates in parallel: people distance themselves from victims by finding something they did wrong, particularly when they could imagine the same misfortune happening to them. Jurors instinctively want bad outcomes to have been avoidable by the person harmed, because that belief preserves the comforting sense that it could not happen to them.

This tendency is especially dangerous in personal injury cases involving catastrophic harm. The more severe the injury, the more powerful the impulse to find a reason the plaintiff could have prevented it. Defensive attribution is a psychological shield, and jurors deploy it unconsciously.

Closely related is the causal primacy effect documented by Vinokur and Ajzen in 1982: in a chain of events, people assign greater causal significance to earlier events than to later ones. Whatever you introduce first is treated as the cause; whatever comes later is treated as a consequence. Lead with the defendant’s decision and it becomes the cause of everything that followed, including any conduct of the plaintiff that the defense will later try to blame.

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The Practical Application

Put the pieces together and the prescription is unavoidable. Begin every telling of the case with what the defendant knew, the rule the defendant was supposed to follow, the choice the defendant made, and the foreseeable harm that choice set in motion. Keep the plaintiff offstage until the defendant’s conduct has been fully framed as the cause. Only then introduce your client: not as a protagonist to be judged, but as the person on the receiving end of a preventable harm.

This principle applies at every stage of litigation. In the complaint, lead with the defendant’s duty and breach before describing the plaintiff’s injuries. In deposition preparation, structure fact development to build the defendant’s story first. In jury selection, frame preliminary questions around the defendant’s responsibilities. In direct examination, sequence testimony so the defendant’s conduct emerges before the plaintiff’s harm. In opening statement, the defendant walks onstage first and stays there until the breach is fully established.

Whether the case involves a car accident, a truck accident, a wrongful death, or any other form of catastrophic injury, the structural choice is the same. The defense’s entire strategy depends on getting the jury to look at the plaintiff first. The research tells us why that works when it works, and how to prevent it.

Start with the defendant. Every time.

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What This Means for Injury Victims

If you have suffered a serious injury because of someone else’s negligence, the way your attorney structures your case narrative can be the difference between a fair outcome and an unfair one. The research summarized above confirms what experienced trial lawyers already know: narrative order matters as much as the underlying facts.

At Hulburt Law Firm, Conor Hulburt builds every case narrative around the defendant’s choices, not the client’s conduct. This research-informed approach to proving liability keeps the focus where it belongs: on the conduct that caused the harm. Whether your case resolves at mediation or trial, the narrative framework shapes every stage of the process.

If you or a loved one has suffered a catastrophic injury or wrongful death in San Diego, contact Hulburt Law Firm at (619) 821-0500 or reach out online for a free consultation.

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Related Resources

• Jury Selection in Personal Injury Cases: A Practical Guide
• Direct Examination in California Wrongful Death Cases
• Momentum Depositions: 5 Tips to Get the Truth Moving
• Proving Liability in Personal Injury Cases in San Diego
• Settlement vs. Trial in Personal Injury Cases
• The Role of a Personal Injury Attorney in San Diego